Neil L. Weisman
Jeffrey A. Modisett
Arthur Thaddeus Perry
ATTORNEY FOR APPELLANT
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Neil L. Weisman
Jeffrey A. Modisett
Arthur Thaddeus Perry
connection with a series of shootings that took place in February of 1997 on the west side
of South Bend. He contends that the trial court committed reversible error in denying his
motion to sever the counts, his motion to suppress his statement to police and his motion to
correct error based on newly discovered evidence. We affirm the trial court.
police that on some of these occasions they had driven his mother's gray Corsica.
Kahlenbeck was charged with one count of murder and five counts of attempted murder, one of which was dismissed during the trial. A jury convicted Kahlenbeck on all remaining counts and the trial court sentenced him to concurrent terms of fifty-five years imprisonment for the murder and thirty years for each attempted murder. Kahlenbeck filed a motion to correct error based on newly discovered evidence. The trial court denied that motion, and this appeal ensued.
joined because they were of the same character, in light of his statement that he and
O'Connell had targeted African-Americans in supposed acts of revenge for O'Connell's
girlfriend's death, it is clear that the offenses were based on a series of acts . . . constituting
part of a single scheme or plan. Accordingly, Kahlenbeck had no right to severance under
Indiana Code § 35-34-1-11(a).
If severance is not a matter of right, Indiana Code § 35-34-1-11(a) provides that:
the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
A trial court's refusal to sever charges that may be joined under Indiana Code § 35-34-1- 9(a)(2) is reviewed for an abuse of discretion. See Ben-Yisrayl, 690 N.E.2d at 1146; Baird v. State, 604 N.E.2d 1170, 1184 (Ind. 1992). Kahlenbeck argues that even if the counts were based on a series of acts constituting part of a single scheme or plan, the trial court abused its discretion because the complexity of the evidence prevented the jury from distinguishing the evidence and applying the law intelligently to each separate count. In this case six counts were charged and the evidence consisted of the testimony of surviving victims, ballistics evidence and Kahlenbeck's statement, none of which can be considered complex. Finally, Kahlenbeck does not point to any evidence in support of the third consideration, that the jury would be unable to distinguish the evidence and apply the law. The trial court did not abuse its discretion in denying Kahlenbeck's motion to sever. See id.
after an officer read Kahlenbeck his rights and after Kahlenbeck signed a waiver form. At
the time Kahlenbeck gave his taped interview, which lasted less than one hour, he had been
in custody for about an hour. The trial court's determination that Kahlenbeck's statement
should be admitted is supported by substantial evidence and is consistent with precedent.
Statements by police expressing a desire that a suspect cooperate and explaining the crimes and penalties that are possible results are not specific enough to constitute either promises or threats. See Massey v. State, 473 N.E.2d 146, 148 (Ind. 1985). As in Massey, Kahlenbeck was not subjected to any lengthy interrogations and there is no evidence of any physical abuse or coercive action by the police which logically would have misled defendant or overborne his will in regard to his voluntary statement. Id.; accord Roell v. State, 438 N.E.2d 298, 300 (Ind. 1982) (confession was admissible where officers did not threaten or mislead defendant). Moreover, this Court has upheld the admission of confessions made during the police's use of the good cop, bad cop interview technique. See, e.g., Houser v. State, 678 N.E.2d 95, 102 (Ind. 1997). Finally, there is no evidence that Kahlenbeck's age of twenty-one and inexperience with police officers rendered his confession involuntary. Cf. Carter v. State, 686 N.E.2d 1254, 1259-60 (Ind. 1997) (upholding admission of fourteen- year-old defendant's confession).
Kahlenbeck's intoxication will make his statement incompetent only if it rendered him not conscious of what he [was] doing or produced a state of mania. Ellis, 707 N.E.2d at 802. Intoxication to a lesser degree goes only to the weight to be given to the statement and not its admissibility. Id. At the hearing on his motion to suppress, Kahlenbeck offered
the testimony of his siblings who, after viewing the videotape of the statement, stated that
Kahlenbeck was under the influence of drugs or alcohol, was more talkative than normal and
seemed confused and nervous. He also presented the testimony of an expert that marijuana
caused a pliability of mind that makes a person more agreeable to what others say. The
expert testified that Kahlenbeck was spacey.
The State responded with the testimony of a South Bend police officer that, at the time he was arrested, Kahlenbeck was able to follow instructions and perform physical requests including walking backward with his hands on his head and kneeling down. The officer also testified that he did not smell alcohol on Kahlenbeck's breath. Another officer testified that Kahlenbeck was alert during his interview and did not slur his words. Finally, the State's expert testified that on the videotaped statement Kahlenbeck was able to balance himself, speak clearly, recall detailed events, give directions to a specific location, and think clearly. In sum, although Kahlenbeck was drinking and smoking marijuana in the hours before his statement to police, the trial court's conclusion that Kahlenbeck was not so impaired that he was not conscious of what he [was] doing is supported by substantial probative evidence and presents no basis for reversal.
Kahlenbeck further argues that police deception contributed to making his confession involuntary. The police told Kahlenbeck that they had ballistics, fingerprints, and eyewitness identifications in addition to O'Connell's and Southers' versions of the murder and attempted murders. The State apparently concedes that some or all of the claims were false, at least at the time of the interview. As this Court recently noted, [P]olice deception does not vitiate
a Miranda waiver and render a confession inadmissible, but is rather one consideration that
must be viewed in determining the 'totality of circumstances.' Willey v. State, 712 N.E.2d
434, 441 (Ind. 1999) (quoting Frazier v. Cupp, 394 U.S. 731, 739 (1969)). In Carter v. State,
the defendant argued that his confession was involuntary due to police deception and his
intoxication. See 490 N.E.2d 288, 290-91 (Ind. 1986). This Court held the confession
properly admitted where the defendant had been fully advised of his Miranda rights,
indicated his understanding of them, was a mature individual of normal intelligence, and was
not interrogated for any inordinate amount of time. Id. at 291. The same is true here. We
find no abuse of discretion in the admission of Kahlenbeck's confession.
due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit;
(8) it can be produced on a retrial of the case; and (9) it will probably produce a different
result. Allen v. State, 716 N.E.2d 449, 456 (Ind. 1999); Reed v. State, 702 N.E.2d 685, 691
(Ind. 1998). We review the trial court's denial of Kahlenbeck's motion for an abuse of
discretion. See Allen, 716 N.E.2d at 456; Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998).
In determining whether new evidence would produce a different result in a new trial, the trial court may consider the weight that a reasonable jury would give it and may evaluate the probable impact the evidence would have in a new trial considering the facts and circumstances shown at the first trial. Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992). Although it is generally the duty of the jury to determine the credibility of the witnesses, on a motion for a new trial based on newly discovered evidence, the trial court must assess the credibility of any proffered new evidence. Allen, 716 N.E.2d at 456. The trial court was within its discretion in concluding that Rochelle's affidavit, which itself reported only hearsay and was apparently inadmissible, would not produce a different result at a new trial. In addition to being hearsay, the affidavit contradicted Kahlenbeck's statement to police. Moreover, Annie's father and brother denied Rochelle's allegations and Michael Fulford's alibi contradicted the inference of Rochelle's statement that Michael was involved. Finally, even taking Rochelle's account as an accurate rendition of what she was told, and assuming the truth of this hearsay, although these allegations would implicate Michael, they still would not exculpate Kahlenbeck.
In light of the evidence at trial, including Kahlenbeck's statement to police, together
with Michael Fulford's alibi and the affidavits of Annie's father and brother, we cannot
conclude that the trial court abused its discretion in denying Kahlenbeck's motion to correct
error. See O'Connor v. State, 529 N.E.2d 331, 333 (Ind. 1988) (defendant failed to produce
credible evidence that would likely produce a different result); Nunn, 601 N.E.2d at 337
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
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