ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John M. Plummer, III Steve Carter
Bedford, Indiana Attorney General of Indiana
Deputy Attorney General
Michael D. Bailey, )
Appellant (Defendant Below), )
v. ) No. 47S00-0103-CR-167
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
March 12, 2002
Wigley began questioning Bailey. At one point, Bailey stated, I may need
a what do you call it . . . a appointed . .
. oh appointed attorney. (R. at 1528.) Wigley explained that all
Bailey had to say was, I want an attorney, and the questioning would
cease, to which Bailey replied, [O]kay. (Id.) Wigley then asked Bailey
if he wanted an attorney or if he wanted to talk. Bailey
responded, I can talk to you, but I dont know. (Id.)
Wigley again explained the situation and Bailey replied, [O]kay. (R. at 1528-29.)
Wigley resumed questioning. Bailey signed a written statement after the conclusion
of his videotaped conversation with Wigley.
The State charged Bailey with murder, See footnote aggravated battery, See footnote and two counts of battery. See footnote Prior to trial, Bailey moved to suppress his statement Shes over by the lawnmower and all statements to Detective Wigley. The trial court denied the motions and allowed this testimony over Baileys timely objections.
A jury found Bailey guilty of all counts. The trial court vacated the battery convictions and sentenced Bailey to consecutive terms of sixty-five years for murder and twenty years for aggravated battery.
Statements that are the product of custodial interrogation prior to the advisement of
the Fifth Amendment guarantee against self-incrimination are generally inadmissible. Miranda v. Arizona,
384 U.S. 436, 444 (1966); Poulton v. State, 666 N.E.2d 390, 392 (Ind.
1996). Nevertheless, in Price v. State, 591 N.E.2d 1027, 1030 (Ind. 1992),
this Court recognized that a public-safety exception to the Miranda rule exists when
officers have an immediate concern for the safety of the general public in
that an armed weapon remained undiscovered.
Our ruling in Price was similar to the U.S. Supreme Courts decision in
New York v. Quarles, 467 U.S. 649 (1984), in which a suspect in
an armed rape was found wearing an empty shoulder holster. Id. at
651-52. Police asked the suspect where the weapon was before providing Miranda
warnings. Id. at 652. The Court held that overriding concerns for
the public safety justified the failure to first advise the suspect of his
Miranda rights. Id. at 657-58.
Though Officer Allenders concern was not for the general publics safety, as it
was in Price and Quarles, it was for the safety of another possible
victim. There is a fair amount of authority holding that questioning for
the limited purposes of locating or aiding a possible victim falls within the
public safety exception to Miranda. See United States v. Padilla, 819 F.2d
952 (10th Cir. 1987) (shooting suspects response to pre-Miranda questions about the possibility
of other victims held admissible); Smith v. State, 646 So. 2d 704 (Ala.
Crim. App. 1994) (suspects response when officer asked whether suspect had been shot
held admissible); State v. Ramirez, 871 P.2d 237 (Ariz. 1994), cert. denied, 513
U.S. 968 (1994) (suspects response to officers pre-Miranda questions as to the condition
of others at the scene held admissible); State v. White, 619 A.2d 92
(Me. 1993) (suspects response to officers pre-Miranda questions about the location of a
victim held admissible); State v. Orso, 789 S.W.2d 177 (Mo. Ct. App. 1990),
cert. denied, 499 U.S. 951 (1991) (suspects response to pre-Miranda question as to
the location of a potential victim held admissible).
Here, based upon the dispatch, the officers believed two victims were involved in
the incident. Arriving at the scene, they saw only one victim, Hudson.
Even after Bailey was apprehended, the second victims location and condition were
Officer Allender testified that he questioned Bailey out of concern for the other
victims safety. The longer it took the officers to locate Godsey, the
longer she would go without potentially life-saving medical attention. Attending to Godseys
safety was more urgent than informing Bailey of his Miranda rights. See
Quarles, 467 U.S. at 657 ([H]ad Miranda warnings deterred [defendant] from responding to
[the officers] question about the whereabouts of the gun, the cost would have
been something more than merely the failure to obtain evidence useful in convicting
Moreover, Officer Allenders questioning of Bailey, though clearly custodial, was not the type
of interrogation that Miranda contemplates. An interrogation occurs only when officers intend
to elicit, by whatever means, substantive evidence concerning criminal activity. Nading v.
State, 377 N.E.2d 1345, 1348 (Ind. 1978). Here, Allender limited his initial
questions to the location of the potential victim and immediately advised Bailey of
his rights once the location was ascertained.
The trial court did not err in admitting Baileys statement, Shes over by
Bailey next contends that his statements regarding his injured hand should not have been admitted into evidence because these statements were made before the administration of Miranda warnings. (Appellants Br. at 23.) The record does not support Baileys contention. Officer Allender informed Bailey of his Miranda rights after discovering Godseys body, (R. at 1236-37), and Detective Wigley was aware that Bailey had been advised of his rights, (R. at 929, 933).
The U.S. Supreme Court has held that coercive police activity is a necessary
predicate to the finding that a confession is not voluntary within the meaning
of the Due Process Clause of the Fourteenth Amendment. Colorado v. Connelly,
479 U.S. 157, 167 (1986). A defendants statements are not voluntary when
induced by violence, threats, promises or other improper influences. Crain v. State,
736 N.E.2d 1223, 1231 (Ind. 2000).
Both Officer Allender and Detective Wigley advised Bailey of his rights, and Bailey
signed a written waiver. There is no evidence that Wigley coerced, threatened,
promised, or in any other way improperly influenced Bailey. The trial court
did not err in admitting the statements into evidence.
To invoke the right to counsel, It is not enough that the defendant
might be invoking his rights; the request must be unambiguous. Taylor v.
State, 689 N.E.2d 699, 703 (Ind. 1997) (emphasis added). An officer need
not cease questioning when an accused makes an equivocal statement requesting counsel, nor
is she required to ask clarifying questions to determine whether the accused wants
counsel. Id.; see also Jolley v. State, 684 N.E.2d 491, 492 (Ind.
1997) (citing Davis v. United States, 512 U.S. 452, 459 (1994)).
Baileys statement was equivocal. See Taylor, 689 N.E.2d at 703 (defendant did
not invoke right to counsel when he said, I guess I really want
a lawyer, but, I mean, Ive never done this before so I dont
The transcript of Baileys interview indicates that some of Baileys words after the
statement about counsel were indiscernible. (R. at 1528.) However, although he
was under no duty to do so, Detective Wigley responded to the statement
by explaining how Bailey could invoke his right to counsel. Wigley told
Bailey that all he needed to say was, I want an attorney, and
questioning would cease. (R. at 1528.) Bailey said he understood this
right, yet never equivocally requested counsel. Accordingly, the trial court did not
err in admitting Baileys statements to Detective Wigley.
A. Aggravating and Mitigating Factors. The trial court found three aggravating circumstances:
(1) Baileys prior criminal activity; (2) his need for correctional or rehabilitative
treatment best provided by a penal facility beyond the presumptive sentence; and (3)
the nature and circumstances of the crime. The sole mitigating factor was
Baileys long-term emotional and psychological problems.
Sentencing lies within the discretion of the trial court. Charlton v. State,
702 N.E.2d 1045 (Ind. 1998). When enhancing a sentence, a trial court
must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific
reasons why each circumstance is aggravating or mitigating; and (3) evaluate and balance
the mitigating against the aggravating circumstances to determine if the mitigating offset the
aggravating circumstances. Id. at 1052 (citations omitted).
The State produced evidence that Bailey had a history of marijuana use, and
the trial court was entitled to find this an aggravating circumstance under Ind.
Code Ann. § 35-38-1-7.1(b)(2) (West 1998). A court may consider evidence that
a defendant committed crimes at an earlier date as support for a finding
that the defendant has a history of criminal activity, even if those acts
were not reduced to judgment. Griffin v. State, 402 N.E.2d 981, 983
The trial court next found Baileys need for correctional and rehabilitative treatment at
a penal facility for longer than the presumptive sentence to be an aggravator.
Ind. Code Ann. § 35-38-1-7.1(b)(3) (West 1998). To support such a
finding, a court needs to explain why the defendant requires treatment beyond the
presumptive sentence. Walter v. State, 727 N.E.2d 443, 447 (Ind. 2000) (citations
omitted). Considering the mental and psychological history of Bailey, the trial court
determined that his problems had not been cured, and that the presumptive sentence
would not suffice. (R. at 2736.) It concluded that the events
in Baileys life leading up to the crime were fairly common and would
continue throughout his life. (R. at 2733-34.) These observations articulated adequate
grounds to support this aggravator.
The trial court also appropriately considered the nature of the crime as an
aggravating circumstance. Rascoe v. State, 736 N.E.2d 246 (Ind. 2000). Bailey
brutally and repeatedly struck Hudson with his fists, a stick, and even a
phone. He attempted to bind her hands and drop an aquarium on
her. Infliction of grave injury and pain over an extended period of time
is sufficient to support an aggravating factor. Penick v. State, 659 N.E.2d
484, 488 (Ind. 1995) (citation omitted).
Moreover, Bailey victimized two people. See Pyle v. State, 493 N.E.2d 452,
453 (Ind. 1986) (two victims found to be an aggravating circumstance). In
addition to beating Hudson, Bailey shot Godsey twice at close range with a
shotgun and then wrapped an extension cord around her neck in an apparent
attempt to drag and conceal her body. The brutality, length, and scope
of the attack warranted finding the nature of the crime an aggravating circumstance.
We now turn to mitigating factors. While Bailey points to several factors
that could have affected his mental state at the moment of the offense,
the trial court has discretion in evaluating mitigating factors and must only include
those it deems significant. Battles v. State, 688 N.E.2d 1230 (Ind. 1997).
The trial court acted within its power in finding only the long-term
emotional and mental problems a significant mitigating factor.
B. Manifestly Unreasonable. Bailey also argues that his eighty-five year sentence
is manifestly unreasonable. (Appellants Br. at 33.) This Court has the
constitutional authority to review and revise sentences when the sentence is manifestly unreasonable
in light of the nature of the offense and the character of the
offender. Noojin, 730 N.E.2d at 679 (quoting Ind. Appellate Rule 17(B)).
In light of the brutal nature of Baileys attacks on Hudson and Godsey,
we cannot say that an eighty-five year sentence was manifestly unreasonable.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.