EARL E. SAUERHEBER a/k/a                          )
       EARL E. SAUERHEBER III,                         )
                                                       )
    Appellant (Defendant Below                         ),     )     
                                                       )    
    v.                                                 )    Supreme Court
                                                       )    Cause No. 89S00-9701-CR-18 
STATE OF INDIANA,                                      )    
                                                       )
    Appellee (Plaintiff Below                          ).    )


                    

                                                   

In this direct appeal, Sauerheber raises six issues for review: (1) whether the trial court erred in admitting his confession, (2) whether the trial court committed reversible error in admitting testimony, without objection, that he was incarcerated on an unrelated charge, (3) whether the trial court erred in admitting a photograph of the victim and her younger brother, (4) whether delay of one year between arrest and trial violated his Sixth Amendment right to a speedy trial, (5) whether the trial court erred in sentencing him to an aggravated sentence, and (6) whether he received ineffective assistance of counsel at trial and at sentencing.
    We affirm the conviction and sentence.

between June 14 and June 16.
    In 1995 police first obtained Sauerheber's fingerprint record and determined that the print on the light bulb matched Sauerheber's right thumb print. In early August, Detective Dunnington of the Richmond Police Department traveled to southern Indiana where Sauerheber was being detained on a Floyd County conviction. After being advised of and waiving his Miranda rights, Sauerheber told Detective Dunnington that he did not know Katina, did not recall her murder, was never in the vacant house where her body was discovered, and did not kill her.
    The State then secured a search warrant for samples of Sauerheber's hair, saliva, and blood. The Wayne County Sheriff's Department transported Sauerheber, who was still being held on the Floyd County conviction, to Richmond for the collection of those samples. Detective Dunnington was present prior to and during the collection, which occurred on August 21, 1995. Sauerheber made several requests for an attorney during this encounter. Dunnington responded that Sauerheber was not entitled to an attorney at that time and did not question Sauerheber regarding the case.
    Although there were no charges pending against him in Wayne County, Sauerheber remained in the Wayne County Jail until August 25 when he was transported to the Richmond Police Department. Detective Dunnington had requested that another officer conduct the interview based on his poor relationship with Sauerheber from prior contacts. Captain William Shake began his interview with Sauerheber by reviewing a standard waiver of Miranda rights form. Shake informed Sauerheber that he had the right to remain silent and the right have an

attorney present before and during questioning. Sauerheber then asked Shake why he had not been provided an attorney when he requested one four days earlier. Shake explained that an attorney would serve no purpose during the execution of a search warrant. As Shake proceeded to the advisement that Sauerheber could request the appointment of an attorney if he could not afford one, Sauerheber asked if the attorney would be appointed “even before I'm arrested or after I'm arrested?” Shake responded, “probably after you're arrested.” Sauerheber indicated that he understood his rights and that he wished to waive them. He then gave a videotaped statement in which he admitted the killing.
    According to that statement, Sauerheber and Katina had initially engaged in consensual touching and kissing in the vacant house. This escalated to the point where she was naked and he was rubbing his penis between her legs. He continued even after she expressed concern about getting pregnant and asked him to stop. Katina then bit his finger, and he grabbed her around the neck to get her to release his finger. He continued to choke Katina until she was either unconscious or dead. Fearing that he had killed her, he tied her shirt around her neck and dragged her to the room where her body was later discovered.
    Sauerheber was arrested on August 28, 1995, after signing the transcribed copy of his August 25 statement. Because Sauerheber was fifteen years old at the time of the offense, the State initiated juvenile proceedings against him. Juvenile jurisdiction was waived on May 9, 1996, and the State charged Sauerheber on May 21 with murder, felony murder, and attempted rape as a class A felony. Prior to trial, Sauerheber's counsel filed a motion to suppress his August 25, 1995 statement on the ground that his waiver of Miranda rights was not made

knowingly, voluntarily, or intelligently. The trial court denied this motion after a hearing. Sauerheber was convicted of all counts after a three day jury trial. Prior to sentencing, the trial court vacated the felony murder charge because of merger and the attempted rape count because the statute of limitations had run on that charge as reduced to a class B felony. The trial court then imposed the maximum sentence of sixty years for murder.

(1966). For that reason alone, Sauerheber's request had no effect at the time it was made on August 21. Nor did the August 21 request prevent the police from initiating contact with Sauerheber on August 25. Unlike the defendants in Miranda and Edwards, Sauerheber was not being questioned when he requested counsel. The holdings of those cases are explicitly limited to circumstances in which an individual is “subjected to questioning” or “during custodial interrogation[.]” Miranda, 384 U.S. at 478; Edwards, 451 U.S. at 484. The Indiana cases cited by Sauerheber also dealt with an assertion of the right to counsel at a time when that right exists, i.e., in the context of custodial interrogation. See Propes v. State, 550 N.E.2d 755 (Ind. 1990); Sleek v. State, 499 N.E.2d 751 (Ind. 1986); Minnick v. State, 467 N.E.2d 754 (Ind. 1984).See footnote 2 ²
    The rationale of the authorities on which Sauerheber relies is that the combined effect of custody and interrogation is potentially inherently coercive. In the absence of either, these authorities are not controlling. We are dealing here with an issue of federal constitutional law on which the Supreme Court of the United States has the last word. The Supreme Court has stated recently that Edwards
    applies only when the suspect ha[s] expressed his wish for the particular sort of     lawyerly assistance that is the subject of Miranda. It requires, at a minimum, some     statement that can reasonably be construed to be an expression of a desire for the     assistance of an attorney in dealing with custodial interrogation by the police.

McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991) (internal

quotation marks and citations omitted, emphasis in original). The Supreme Court further observed, albeit in dicta: “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation'. . . . Most rights must be asserted when the government seeks to take the action they protect against.” Id. at 182 n.3. This strongly suggests that the rights under Miranda and Edwards do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins. To the contrary, as put by the Seventh Circuit, “there are certain 'windows of opportunity' in which a defendant must assert his Miranda right to counsel.” United States v. LaGrone, 43 F.3d 332, 338 (7th Cir. 1994). See also United States v. Thompson, 35 F.3d 100 (2d Cir. 1994) (Miranda rights may not be invoked outside of the context of custodial interrogation) ; accord Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994); United States v. Wright, 962 F.2d 953 (9th Cir. 1992). The context of interrogation may be found before actual questioning begins. However, Sauerheber's August 21 encounter had an explicit purpose -- sampling -- other than interrogation and there is no indication that the police contemplated questioning Sauerheber at that time. Cf. United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991).See footnote 3 ³ We conclude from these precedents that because Sauerheber's August 21 request for counsel fell outside one of

those windows, the police were not prevented under Edwards from questioning him four days later, after advising him at that time of his Miranda rights and receiving no request for an attorney.

    Sauerheber:     Uh . . . like I say, I set there, didn't know, what you know what was             going on, nothing like that, and like I say, that's why I wanted to talk             to an attorney and see if everything, you know, whatever.

    Shake:    I understand that.

    Sauerheber:    Okay, but go ahead.

    Shake:    Let's see, where'd I leave off, oh . . . you have the right to have a             lawyer present before we ask you any questions . . . .

Sauerheber's statements and questions during this advisement colloquy dealt exclusively with his past request for counsel. Captain Shake responded to those inquiries patiently and thoroughly. As noted above, Sauerheber finally indicated apparent satisfaction with the explanation and instructed Captain Shake to “go ahead.” In contrast to Sauerheber's questions about the August 21 episode, Shake's advisement of present rights was clear and unequivocal. In plain language, he informed Sauerheber that he did not have a right to counsel during the execution of a search warrant on August 21 but did have that right during questioning on August 25.     
    In sum, we conclude from a review of the totality of circumstances that Sauerheber was properly advised of his Miranda rights and knowingly and voluntarily waived those rights. Any confusion surrounding the August 21 denial of counsel was adequately explained by Captain Shake prior to the August 25 waiver. Sauerheber's confession was properly admitted into evidence.

Sauerheber was “incarcerated for an unrelated matter” at the time of his confession.See footnote 4 ⁴ Although this evidence arguably would be inadmissible under Indiana Rules of Evidence 403 and 404(b), defense counsel did not object to the question or its affirmative answer. Therefore, appellate review is waived unless the admission of evidence constitutes fundamental error. Turner v. State, 682 N.E.2d 491, 497 (Ind. 1997). In order to qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995). In light of all the evidence presented at trial, the introduction of evidence of incarceration for a single, undefined offense does not rise to the level of fundamental error.See footnote 5 ⁵

whether the photograph is relevant and whether its probative value is substantially outweighed by its prejudicial impact. Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997); Ind. Evidence Rules 401, 403. We have previously found a pre-death photograph to be “marginally relevant” in a murder trial. Humphrey, 680 N.E.2d at 842. More importantly, this particular photograph was a larger version of the same one shown to the defendant when he was first questioned about Katina's murder. It is therefore relevant to show that Sauerheber's denial and subsequent confession related to the same murder with which he was charged.
    We have previously discouraged the admission of photographs that smack of victim impact evidence because of their possible emotional impact on the jury. Id. In this case, however, the trial court did not abuse its discretion by admitting the photograph.See footnote 6 ⁶

four factors: the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Gilmore v. State, 655 N.E.2d 1225, 1227 (Ind. 1995). The length of delay is a “triggering mechanism,” and the other factors need only be considered once the delay is “presumptively prejudicial.” Barker, 407 U.S. at 530.
    The delay from arrest to trial in this case was only one year. We nonetheless find this delay sufficient to trigger a consideration of the other factors. See Lahr v. State, 615 N.E.2d 150, 152 n.3 (Ind. Ct. App. 1993) (collecting cases). Of the four factors, however, the only one that weighs in Sauerheber's favor is the reason for delay, as most of it was the result of the State's tardiness in securing his waiver from juvenile court. This is clearly outweighed by the relative brevity of the delay, Sauerheber's decision not to assert his speedy trial right, and the absence of any prejudice as a result of the delay. Sauerheber was incarcerated on another charge, and the crime was already ten years old. Under these circumstances, neither wrongful incarceration nor any prejudice to the preparation of his case is suggested, much less established. Sauerheber was not denied his Sixth Amendment right to a speedy trial.

made after Sauerheber had indicated that he wanted to give a statement and that the statement was of his own free will. The statement contains the necessary “indicia of reliability” for admissibility at sentencing. See Powell v. State, 644 N.E.2d 82, 83 (Ind. 1994).See footnote 9 ⁹ Moreover, the conclusion that Sauerheber has a history of committing crimes against children is amply supported by other items in the record. The trial court noted that the victim of the defendant's misdemeanor battery conviction was his two month old child, and the victim of his felony battery conviction was a twelve year old child.
    Sauerheber also contends that the trial court erred in considering, as part of his criminal history, that he had witnessed his brother kill a person then helped him dispose of her body. This event was described in the statement given by the defendant on August 25, 1995. Because that confession was properly admitted as discussed in Part I above, the trial court did not err in considering its content at sentencing.
    Finally, Sauerheber asserts that the trial court gave improper weight to crimes that occurred after the commission of Katina's murder. Criminal activity that occurs subsequent to the offense for which one is being sentenced is a proper sentencing consideration. Hoage v. State, 479 N.E.2d 1362, 1366 (Ind. Ct. App. 1985). The defendant's aggregate history of criminal activity was properly used as an aggravating circumstance; the fact that most of this activity occurred after Katina's murder does not require the trial court to attach any less significance to it.

rape count prior to sentencing because the basis for elevating the rape from a class B felony to a class A felony was the murder of which Sauerheber was convicted in Count I. The trial court therefore reduced the conviction to a class B felony, then found that the five year statute of limitations for a class B felony had expired nearly five years prior to the filing of charges. Ind. Code § 35-41-4-2(a)(1) (1998). The propriety of this ruling is not raised on appeal.
    When an ineffective assistance of counsel claim is based on trial counsel's failure to make an objection, the appellant must show that, had a proper objection been made, it would have been sustained. Lloyd v. State, 669 N.E.2d 980, 985 (Ind. 1996). The reduction of the rape count to a class B felony was not required until the jury convicted Sauerheber of both murder and rape as a class A felony. Had the jury convicted Sauerheber of rape and not murder, this reduction would not have been warranted. A pretrial motion to dismiss Count III would not have been sustained; therefore, trial counsel was not ineffective for failing to make one.
    Sauerheber also contends that his trial counsel's performance was deficient in failing to object to evidence that he was incarcerated on an unrelated matter at the time he gave his confession. See Part II, supra. While an objection to this testimony may have been sustained, any prejudicial effect of the testimony is minimal. To establish prejudice, Sauerheber must show there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The mere mentioning of Sauerheber's incarceration on another charge during the course of a three day jury trial does not rise to that level. The jury's decision to convict was likely based, not on Sauerheber's incarceration for some other undefined crime , but on evidence that his fingerprint was found at the crime scene, that he was absent from his group home at the time of Katina's disappearance, and that he confessed to killing her.
    As a final point, Sauerheber asserts that trial counsel's performance at his sentencing hearing was deficient. Specifically, he argues that trial counsel should have corrected the State's assertion that the victim's age was a statutory aggravating factor. As noted in Part V above, this distinction is of little consequence. Any deficiency in this regard was not prejudicial, as the trial court was well within the law to consider the factor as a non-statutory aggravator.
    Sauerheber also contends that his trial counsel was deficient in failing to present mitigating evidence. The Presentence Report contained evidence that the defendant had lived a troubled childhood that included abuse by his father, abandonment by his mother, placement in foster homes and ultimately a children's home, and usage of alcohol and marijuana at a very young age. Although trial counsel drew the court's attention to this section of the Presentence Report, he did not offer any direct evidence to support or explain Sauerheber's childhood. Presentation of such evidence would have been, to some extent, cumulative. Failure to explain these factors, which were already before the court, does not fall below prevailing professional norms, especially since the trial court is not required to find the existence of a mitigating factor

that has been argued by counsel. Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
    Sauerheber cites Averhart v. State, 614 N.E.2d 924, 930 (Ind. 1993) for the proposition that trial counsel's failure to present any evidence at sentencing save a statement by the defendant and his mother constituted ineffective assistance of counsel meriting reversal. That case is distinguishable, however, in at least two important respects. First, Averhart was a death penalty case in which mitigating evidence assumes much greater importance. This Court observed that counsel's efforts “might be effective representation at an ordinary felony sentencing hearing . . . .” Id. Second, Averhart was also a postconviction case in which trial counsel testified that he made no investigation for additional witnesses nor did he even discuss the testimony of Averhart or his mother with them prior to the sentencing hearing. Id. In contrast, we do not know the degree of investigation undertaken by Sauerheber's counsel, save that he was granted a two-week continuance upon his request that “additional time is needed to prepare for sentencing hearing.” We also know that trial counsel brought the potentially mitigating evidence to the attention of the court and noted that it was “not offered to justify what has happened in this case.” Sauerheber's trial counsel was not ineffective.

     SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
    SELBY, J., concurs in result.

absolved of the responsibility of raising these issues at some juncture prior to trial -- as did each defendant in the cases that he cites. See Morrison v. State, 555 N.E.2d 458 (Ind. 1990); C.W. v. State, 643 N.E.2d 915 (Ind. Ct. App. 1994); Nance v. State, 630 N.E.2d 218 (Ind. Ct. App. 1994); Hendricks v. State, 555 N.E.2d 178 (Ind. Ct. App. 1990); State v. Roberts, 171 Ind. App. 537, 358 N.E.2d 181 (1976).

stated the crime in the words of the statute or words that convey a similar meaning. We have previously held that the exact words of the statute need not be employed. Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984).

Converted by Andrew Scriven