ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Belle T. Choate Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
SUPREME COURT OF INDIANA
ROBERT D. WILLIAMS, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9711-CR-614 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
A jury found appellant Robert D. WilliamsSee footnote 1 guilty of murder and determined him to be a habitual offender. The court sentenced
him to sixty-five years in prison, enhanced by thirty years for the
habitual finding. Williams raises three issues in this direct
1. Whether a tape-recorded statement Williams gave to the police should have been excluded as involuntary and/or tainted by a previous, suppressed statement,
2. Whether an improper reference in the prosecutor's opening statement to Williams' "testimony," rather than "statement," was sufficiently prejudicial such that, despite the trial judge's initial instructions and specific admonition, Williams' motion for mistrial should have been granted, and
3. Whether Williams was entitled to an instruction on reckless homicide.
On September 10, 1996, Williams telephoned Detective Brian Moore, expressed his desire to give a statement, and asked for a ride to the police station. The police picked up Williams and his wife and drove them to the police station shortly after 3:30 p.m. After interviewing his wife, the police interviewed Williams from
6:20 p.m. until approximately 8:35 p.m. Williams then gave a taped
statement from 9:10 p.m. until 10:14 p.m., with both Detective
Moore and Officer Sergeant Crooke present. Within that time
Williams was given a thirty to forty-five minute break, and offered
pizza and soda. Williams was not under arrest.
Following that taped statement, a forty-minute, unrecorded conversation ensued between Williams and the two officers, during which Williams agreed to take a polygraph examination. A Miranda warning preceded the polygraph session. (R. at 640, 664.) See footnote 2 The polygraph session began about midnight and lasted until 2:45 a.m. Around 3 a.m., Detective Moore and Sergeant Crooke interviewed Williams off-tape. During that conversation, the police officers asked Williams, "[Y]ou didn't mean for this to happen, did you[?]" (R. at 643.) Williams then admitted having accidentally stabbed Marilyn Anderson. The police administered a new Miranda warning and asked Williams to record his statement on audiotape. (R. at 638.) Williams requested an attorney at that point, and the conversation was terminated at 3:13 a.m. (Id.)
Detective Moore had noticed the wounds on Williams' arm and hand, and a red substance on his shoes, and asked for a crime scene
officer to take photographs and to take the shoes. When Detective
Moore returned to the room where Williams was waiting, Williams
said that he was willing to give a tape-recorded statement. (R. at
638-39.) Detective Moore re-read Williams his Miranda rights, (R.
at 639), and at 3:43 a.m. Williams signed a written waiver of those
rights. (R. at 693A.)
Williams then gave a tape-recorded
statement which was completed at 4:13 a.m. (R. at 639.)
admitted that he had stabbed Marilyn Anderson but said that it was
unintentional. (R. at 672B-74B.)
This taped statement was
introduced at trial.
During her opening statement at trial, the deputy prosecutor referred to the defendant's "testimony" that the jury would hear, saying: "And you will weigh his testimony along with all the surrounding circumstances that you hear. But he described that there was a struggle, and he admitted that he stabbed her over and over." (R. at 156-57.) The defense attorney moved for a mistrial based upon the reference. The deputy prosecutor responded that her reference to testimony was a mistake, and that she meant to say "statement." (R. at 160.) The court found that the error was inadvertent and, taking into account the context of the misstatement regarding Williams' conversation with the police officers, denied the motion for mistrial but agreed to issue an
admonition. She admonished the jury as follows:
[B]efore we proceed . . . with the Defendant's opening statement I wanted to correct a statement that was made. Mrs. Conley mistakenly referred to the Defendant's testimony during her opening statement. She was referring to conversations or statements that he had given to the detective and not testimony in any sense of Defendant's testimony in the courtroom, and we've addressed that in the Court's previous instruction, and that instruction still applies in this case. So that was simply a misstatement in terms of referring to testimony. She was referring to conversations or a previous statement given to the detective.
(R. at 162-63.) The trial then proceeded over the defense objection.
After the close of testimony, the defense requested that the
jury be instructed on the lesser offense of voluntary manslaughter,
Ind. Code § 35-42-1-3. The trial judge granted the request.
Defense counsel did not request any other instructions and stated
the defense had no objection to the instructions as tendered. (R.
statement that was made to Detective Moore and Sergeant Crooke
after the polygraph examination had been administered.
(Appellant's Br. at 7.)
In considering the admission of a confession, the trial court
must assess whether the State's behavior "was such as to overbear
the defendant's will to resist and to bring about a confession not
freely self-determined." Smith v. State, 543 N.E.2d 634, 637 (Ind.
1989). On appeal, we consider any uncontroverted evidence and, in
the case of conflicting evidence, that which supports a trial
court's decision. Bivins v. State, 642 N.E.2d 928, 941 (Ind.
1994), cert. denied 516 U.S. 1077 (1996).
A confession is voluntary if, looking at the totality of the circumstances, it was "free and voluntary, not induced by any violence, threats, promises, or other improper influences." Bivins, 642 N.E.2d at 941-42 (citing Armour v. State, 479 N.E.2d 1294, 1298 (Ind. 1985)). A defendant who is questioned following a polygraph examination that was accompanied by a Miranda advisement is considered to have waived his right to counsel at questioning following the examination unless the circumstances have changed so significantly that his answers are no longer voluntary, or his waiver is no longer "knowing and intelligent." Bivins, 642 N.E.2d at 939 (citing Wyrick v. Fields, 459 U.S. 42 (1982) (questioning following polygraph did not require renewed Miranda warning where "the questions put to [defendant] after the
examination would not have caused him to forget the rights of which
he had been advised and which he had understood moments before.")).
The circumstances adequately demonstrate that Williams' statement was free and voluntary, rather than compelled. In fact, Williams initiated the interview with the police. He requested transportation to the police station. Although Williams was kept in a locked room during the period of questioning, he made few requests to leave the room, including two requests to visit a restroom (both of which were accommodated). Williams was not placed under arrest until after his unrecorded statement, which was made following a Miranda warning and a polygraph examination. The final tape-recorded statement admitted into evidence was made after Williams, by his own testimony, re-initiated discussion with police officers, (R. at 657), and waived his previous request for counsel in writing. (R. at 693A.) During the hearing on the admissibility of the tape-recorded confession, Williams also acknowledged that he understood his Miranda rights when he gave the statement and that he "just wanted it over with." (R. at 657.)
Although he claims on appeal that lack of sleep affected the voluntariness of his confession, he admits that he had slept the night before and also that he slept during a portion of the polygraph examination. (R. at 653-54.) Detective Moore testified, contrary to Williams' assertion that the death penalty was mentioned in order to induce Williams to confess, that no such
discussion took place. (R. at 645.) In total, the record contains
substantial and probative evidence that the statement admitted at
trial was voluntarily given.
Williams claims his recorded confession was tainted by a previous statement that the trial court suppressed. The trial judge, wishing to err on the side of caution, if at all, suppressed the unrecorded statement that Williams gave following the polygraph examination, largely on the basis that a new interrogator was in the room.See footnote 4 (R. at 665.) We think this laudable caution falls far short of anything suggesting that the admitted statement was the fruit of a poisonous tree.
Williams also asserts that the admitted statement was tainted because it occurred shortly after Williams invoked his right to counsel. (Appellant's Br. at 7.)
In Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996), the defendant requested the assistance of counsel after hearing her Miranda rights. A police officer responded that counsel could not
be arranged until the next day, and went on to ask administrative
and background questions in order to fill out paperwork related to
the request for an attorney. The police officer agreed to call the
defendant's parents and prepared to leave, saying that she would
return if the defendant wished to talk. The defendant then
indicated her willingness to talk without counsel, tore up the form
she had signed requesting counsel, signed a second waiver of
rights, and confessed to having killed the victim. Id. at 1269-70.
We held that the trial court in Mayberry could have concluded that
the State met its burden of proof of knowing and intelligent waiver
of the defendant's right to counsel and her right not to
incriminate herself. We found no abuse of discretion in the
admission of the videotaped confession. Id. at 1270.
Similarly, in this case, Williams changed his mind and decided to make a statement voluntarily shortly after invoking his rights to remain silent and to the assistance of counsel. Contrary to Williams' assertion on appeal, the fact that there was only a brief period between his request for counsel and his agreement to talk with police without counsel present does not render his statement involuntary per se, absent other evidence that Williams' will was overborne. The trial court was correct to admit Williams' tape- recorded statement.
The single inadvertent misstatement by the deputy prosecutor did not place Williams in the grave peril required to justify a mistrial. The jury had previously been instructed regarding Williams' testimony in the courtroom, and was reminded of that instruction as part of the admonition following the misstatement. The defense did not raise its objection to the terminology until the conclusion of the deputy prosecutor's opening statement.
Counsel offers little support for her bare assertion that,
with or without the initial instruction and curative admonition,
the single misstatement in the deputy prosecutor's opening
statement would have had a prejudicial impact on the minds of the
jurors. (See Appellant's Br. at 10.) Based on the nature of the
improper statement (a one-word error in an opening statement), the
mitigating measures taken by the trial court (the instruction and
admonition), and the overwhelming nature of the evidence presented
at trial (the matching palm print and blood and Williams' own
statement), the misstatement constituted harmless error, and the
trial court correctly denied Williams' motion for a mistrial.
Williams acknowledges that his trial counsel did not tender a
proposed instruction on the lesser included offense of reckless
homicide. Indeed, counsel explicitly accepted the instructions as
given. (R. at 743.) Nothing is preserved for appeal.
For the aforementioned reasons, we affirm.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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