ATTORNEY FOR APPELLANT
Paul T. Fulkerson
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
SUPREME COURT OF INDIANA
CARLOS O. OWENS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9908-CR-420
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark F. Renner, Magistrate
Cause No. 49G04-9701-CF-005601
ON DIRECT APPEAL
June 30, 2000
Carlos O. Owens was convicted of murder and rape as a Class A
felony. He was sentenced to fifty-five years for murder to be served
consecutively with thirty years for rape. In this direct appeal he contends
that the trial court erred in admitting his confession because (1) there was
not sufficient corpus delicti of rape, and (2) the confession occurred after he
requested an attorney and an attorney was en route to or waiting at
the police station to see him. We affirm the judgment of the
Factual and Procedural History
Shortly after 11:00 a.m. on January 7, 1997, Bessie Boynton answered her phone
and heard a male voice, which she later recognized as Owens, say, Your
daughter is dead, bitch. You better go over there and see about
her. Bessie called her daughter Brenda. When no one answered, she
asked her husband Arthur to go to Brendas house. Arthur found his
daughter dead in her house. Brenda had been stabbed thirty-seven times on
the head, neck, shoulders, chest, abdomen, and arms. She died as a
result of [m]ultiple cutting and stabbing wounds.
Brendas sister told Detective Mark Prater that Owens had recently seen Brenda.
Prater made an appointment with Owens, who arrived at the police station at
approximately 8:00 a.m. on January 9. Owens was accompanied by
his mother and sister. Owens voluntarily provided fingerprints and then submitted to
questioning by Prater. This questioning concluded at approximately 1:00 p.m. Owens
denied any involvement in the killing. In the course of the interview,
Owens agreed to submit to a polygraph, but before the polygraph began he
requested an attorney. Prater ceased questioning and left the room. When
Prater reentered the interview room, Owens inquired about his mother. Prater informed
Owens that she had left but would be returning, and Prater remained in
the interview room. Owens then asked Prater, What could happen to somebody
that did this? Prater responded that it would depend on the circumstances
and that it was not his position as a detective to determine.
Owens then said, I did it. Prater left the room, retrieved his
notepad, and returned to the interview room at 2:51 p.m., when he advised
Owens of his Miranda rights.
Owens told Prater that he had called Brenda on the morning of January
7, told her he had lost his job, and then had gone over
to her apartment. Brenda let him in and he followed her to
the back bedroom where she was wrapping presents for her sons birthday.
After telling Brenda that he wanted to make love to her, Owens retrieved
a knife from the kitchen and instructed her to remove her panties.
After intercourse, Brenda said, Leave now and I wont tell anybody. Owens
then clicked, and stabbed Brenda in the chest. She went to the
bathroom, saw she was bleeding, and ran to the living room. Owens
ran after her, pushed her down, stabbed her in the back, and sliced
the back of her neck. He then called her parents house and
told her mother, Bitch, you better come check on your daughter.
After this unrecorded confession, Prater told Owens that he wanted to take a
tape-recorded statement and went to another room to get a tape recorder.
Soon after the tape-recorded statement began, Owens requested an attorney. Prater ceased
questioning and placed Owens under arrest. The time of the aborted taped
statement is 3:50 p.m.
Owens uncle called Indianapolis attorney Richard Bucheri at approximately 3:30 p.m. Bucheri
testified that he then called the Indianapolis Police Department and told Detective Prater
that he had been retained to speak with Owens. Bucheri was told
to go to the homicide office and arrived at approximately 4:00 p.m.
Owens was charged with murder, felony murder, and rape as a Class A
felony. He filed a pretrial motion to suppress his statement to police,
which was denied after two separate hearings. A jury convicted him of
murder and rape, and found him not guilty of felony murder. The
trial court sentenced him to fifty-five years for murder to be served consecutively
with thirty years for rape.
I. Corpus Delicti
Owens contends that the trial court erred in admitting his confession to rape
because there is insufficient corpus delicti to support it. Owens is correct
that in Indiana a crime may not be proven based solely on a
confession but must be supported by some independent evidence of the crime including
evidence of the specific kind of injury and evidence that the injury was
caused by criminal conduct. Workman v. State, 716 N.E.2d 445, 447 (Ind.
1999). However, where a defendant confesses to several crimes of varying severity
within a single criminal episode, strict and separate application of the corpus delicti
rule to each offense adds little to the ultimate reliability of the confession
once independent evidence of the principal crime is introduced. Willoughby v. State,
552 N.E.2d 462, 467 (Ind. 1990). Under these circumstances, a confession to
other crimes in the same episode is admissible if there is independent evidence
of the principal offense. Workman, 716 N.E.2d at 448.
Here, Owens confessed to both murder and rape. He does not contest
the corpus delicti to support his murder confession. Indeed, Brenda was stabbed
thirty-seven times and died as a result of multiple stab wounds. Because
there is ample independent evidence of murder, Owens confession to rape is admissible
without independent evidence of that crime.
See id.; Willoughby, 552 N.E.2d at
II. Admissibility of Confession
Owens contends that his confession should have been suppressed because it occurred after
he had requested an attorney and an attorney was either en route or
waiting to meet with him. He does not explicitly state the basis
of his claim, but cites Fourteenth Amendment cases.
Neither the facts nor
the cases cited support this argument. Bucheri did not arrive at the
police station until approximately 4:00 p.m., and Owens confession had concluded before 3:50
p.m. Defense counsel acknowledged this at the conclusion of the suppression hearing,
stating it looks like Mr. Bucheri came late by a few minutes.
Moreover, even had Bucheri been en route to or waiting at the police
station during Owens confession, neither the Fifth nor the Fourteenth Amendment requires suppression
of a confession obtained after an attorney, unknown to the suspect, unsuccessfully seeks
to intervene in an interrogation. See Ajabu v. State, 693 N.E.2d 921,
927 (Ind. 1998) (citing Moran v. Burbine, 475 U.S. 412 (1986)). Events
occurring outside of the presence of the suspect and entirely unknown to him
surely can have no bearing on the capacity to comprehend and knowingly relinquish
a constitutional right. Burbine, 475 U.S. at 422.
Nor was suppression required based on Owens initial request for counsel. Prater
stopped questioning Owens when he requested an attorney at the beginning of the
polygraph interview. In
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the
United States Supreme Court held that an accused, having expressed his desire to
deal with the police only through counsel, is not subject to further interrogation
by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges, or conversations with the police. More
recently, the Court reiterated that Edwards does not foreclose finding a waiver of
Fifth Amendment protections after counsel has been requested, provided the accused has initiated
the conversation or discussions with the authorities. Minnick v. Mississippi, 498 U.S.
146, 156 (1990). Owens initiated further communication by inquiring about his mother
and the possible consequences for Brendas murder. Owens then volunteered that he
did it, and Prater advised him of his Miranda rights before taking the
full confession. The trial court did not err in admitting Owens confession.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Owens suggests that
Willoughby should not apply to his case because "there
was absolutely no evidence of forced intercourse or that the victim had intercourse
at all." Rather, he asserts that there is "substantial evidence that the
crime did not occur." He notes that no sperm was found on
the items tested from Brenda's home (including a condom), his fingerprints were not
found on the condom wrapper, no foreign hairs were found in pubic combings
of Brenda, and there was no evidence of forced intercourse. However, as
the State points out, the crime of rape does not require ejaculation, see
Ind. Code § 35-42-4-1 (1998), and a crime lab chemist testified at trial
that it was typical in a rape case not to find foreign hairs
capable of comparison.
Owens also mentions the Sixth Amendment as a basis for suppression of
his statement. However, the Sixth Amendment right to a lawyer does not
attach until "the formal initiation of adversary judicial proceedings."
Moran v. Burbine,
475 U.S. 412, 432 (1986); accord Ajabu v. State, 693 N.E.2d 921, 927
& n.3 (Ind. 1998). It does not apply here.