ATTORNEY FOR APPELLANT|
Kelly N. Bryan
ATTORNEYS FOR APPELLEE|
Jeffrey A. Modisett
Randi E. Froug
WILLIAM E. ALFORD, ) ) Appellant (Defendant Below ), ) ) v. ) Supreme Court ) Cause No. 18S00-9707-CR-391 STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
Fifth Amendment to the United States Constitution; and (2) to reject his tendered lesser
included offense instructions for reckless homicide and theft. We affirm the trial court.
police he initially did not believe Alford's story but later offered this account when he
learned that Buffin had been shot in the back of the head. After Alford's arrest, Robert told
police in a second statement that Alford told him that as he was shooting Buffin he thought
to himself dead men tell no tales.
Based on their initial interview with Robert, police arrested Alford. In a videotaped statement Alford confessed to shooting Buffin but claimed that he acted in self defense. Alford said that the two had been drinking much of the day and that Buffin started an argument over Alford's sister, who was Buffin's ex-wife. Buffin pointed a shotgun at Alford and threatened his life. Alford became frightened, pushed Buffin away, ran to the kitchen, saw a rifle, and returned to the living room where he found Buffin face down on the floor. Buffin yelled Bill in a hateful voice and Alford said he shot once. Buffin moved to get up, and Alford continued to fire. Shortly thereafter Robert arrived to pick Alford up. Alford also corroborated Robert's account of disposing of the weapons.
At trial, the videotape was played to the jury. Alford did not testify but relied on the tape to present his theory of self defense. He did not contest that he was the shooter. A pathologist who performed the autopsy testified that there were thirteen entry wounds in close proximity to each other on the back of Buffin's head, and two exit wounds. He said that most of the wounds were contact wounds -- fired within two inches of Buffin's head. The jury convicted Alford on counts of murder and felony murder. The trial court merged the felony murder conviction into the murder conviction and sentenced Alford to sixty years imprisonment.
Jolley, 684 N.E.2d at 493.
At the hearing on the motion to suppress, interrogating officer Brad Sorrell testified that Alford was arrested at his home and brought to the Investigator's Office in the police station where he was read his Miranda rights and signed a rights waiver form. Sorrell asked him if he wanted to talk to me about the incident or why he was there, he hesitated and said at that point in time, [']I think it would be in my best interest to talk to an attorney[']. Sorrell acknowledged that Alford had that right, but did not cease the interrogation. Instead Sorrell testified he wanted to explain to [Alford] the facts of the case and told him that the police had recovered the guns and Buffin's driver's license at the creek, that they were holding his tennis shoes as evidence, and that they knew that Buffin had pointed a shotgun at Alford's chest. Alford interrupted Sorrell's recitation and confessed to shooting Buffin, but maintained that it was in self defense. Sorrell then turned on a video camera and asked Alford to repeat his story on videotape resulting in the detailed statement that was later played to the jury. We agree with Alford that Sorrell's continued interrogation of him was in blatant disregard of his Fifth Amendment right to counsel. It is firmly settled that the federal constitution requires that once a suspect requests an attorney, the interrogation must cease. Minnick, 498 U.S. at 150; Edwards, 451 U.S. at 484-85; Miranda, 384 U.S. at 474.
The State contended at the motion to suppress hearing that Sorrell's monologue did not constitute interrogation for purposes of Miranda because no questions were asked. The trial court agreed. However, the standard for whether police interrogate a suspect is not whether questions are asked but whether the police should know that their words or actions
are reasonably likely to elicit an incriminating response from the suspect. Rhode Island
v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (footnote omitted).
Sorrell's monologue about the discovery of potentially incriminating evidence had no
apparent purpose other than to induce Alford to say something inculpatory. Cf. Loving v.
State, 647 N.E.2d 1123, 1126 (Ind. 1995) (police officer's comment upon the inconsistency
between the defendant's account and the physical evidence amounted to interrogation).
Confronting Alford in an interrogation room with potentially incriminating evidence was
interrogation for purposes of Miranda and Innis. Accordingly, the trial court was incorrect
in admitting the confession on the ground that Sorrell did not interrogate Alford.
Although the trial court's reason for admitting the confession was erroneous, we will affirm the judgment of the trial court if it is sustainable on any legal grounds apparent in the record. Ross v. State, 676 N.E.2d 339, 345 (Ind. 1996); Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994). The State contends that the confession was properly admitted because Alford's request for counsel was not clear and unequivocal as required by Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). Davis holds that [i]nvocation of the Miranda right to counsel 'requires at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' Id. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). The request for counsel must be made with sufficient clarity such that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id.; see also Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997).
Under Davis, Alford's statement that I think it would be in my best interest to talk to an
attorney was an unequivocal request for counsel. The statement was not qualified by
expressions of doubt, such as [m]aybe I should talk to a lawyer, Davis, 512 U.S. at 462,
or I guess I really want a lawyer, but . . . I don't know, Taylor, 689 N.E.2d at 703. Rather,
it was an affirmative declaration of Alford's desire to secure his best interests. Moreover,
it is evident that the two police officers who heard the request understood it to be a request
for counsel. After Alford made the statement, Sorrell acknowledged to Alford that that's
fine, that's [your] right. A second officer, Steve Craycraft, testified at the hearing that after
the request he left the room and told the Sheriff and another officer that Alford had
mentioned that he wanted an attorney. In short, no ambiguity was present and none was
understood by the interrogating officers.
question, as revealed in the record. Yates v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 114
L. Ed. 2d 432 (1991), disapproved on other grounds by Estelle v. McGuire, 502 U.S. 62, 112
S. Ct. 475, 116 L. Ed. 2d 385 (1991). Even under this demanding standard, we conclude that
the admission of Alford's statement was harmless error.
Alford's sole contention at trial was that he killed Buffin in self defense, not that he did not kill Buffin. Thus there are only three issues: did Alford shoot Buffin, if so was it with the requisite mens rea, and was it in self defense? The first was not contested. Accordingly, the harm from the statement, if any, must be to his theory of self defense or the requisite mental element.See footnote 2 2 To the extent the statement bore on either, it was plainly harmless. The physical evidence conclusively showed at least a knowing killing and clearly rebutted any claim of self defense. Alford's statement did not rebut or confirm the State's evidence that several of the thirteen bullet holes were fired within two inches of the target, that the bullet casings found near the body lay in a pattern consistent with firing close to the body, and the location and number of the wounds (in close proximity to each other in the back of Buffin's head). As such, the admission of the statement was harmless error as to the
self defense claim.
bullets to the back of Buffin's head showed knowing and not reckless conduct. This is
evidence of at least a knowing act, and equates to far more than a substantial deviation from
acceptable standards of conduct. Based on this determination, refusal of the reckless
homicide instruction was proper.
Alford also contends that it was error to reject his tendered instruction for theft as a lesser included offense of robbery -- the felony underlying the felony murder charge. Because the trial court merged the felony murder conviction into the murder conviction any claim of error with respect to the felony murder charge is moot.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
Converted by Andrew Scriven