ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Steve Carter
Greenwood, Indiana Attorney General of Indiana
Deputy Attorney General
DEBBIE TRICE, ) ) Appellant (Defendant Below ), ) 49S05-0106-CR-313 ) in the Supreme Court v. ) ) 49A05-0008-CR-346 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Plaintiff Below ). )
April 30, 2002
Before she reached the house, Jones brother Allen Jones met her and told
her to put the shotgun away and park her car on the correct
side of the street. Trice said she was looking for his brother
and only had the shotgun because she was afraid of the family dogs
that sometimes run loose. After she put the shotgun in the car
and moved the vehicle, Allen entered the house to fetch his brother.
He woke Raymond and told him Trice was outside.
While Raymond was preparing to come out, Allen went back outside to Trices
car and noticed she had the shotgun behind her back as she leaned
against the vehicle. When Raymond came out of the house, he said
to Allen, Go on. I can handle it. (R. at 287.)
Allen walked away. About two minutes later, he heard a gunshot and
ran back toward the house. He saw Trice run a stop sign
and drive quickly away. He found Raymond lying on the street.
Within thirty minutes, Raymond was pronounced dead of a gunshot wound to the
Over the next several days, Trice made arrangements to turn herself in.
At her trial, Indianapolis Police Detective William J. McEvilly testified he first met
Trice on July 28, 1998, in an interview room at police headquarters, where
he found her lying on the floor handcuffed to a restraining device.
After she took a seat, McEvilly said he read her a Miranda warning.
He testified that she said she understood her rights, and signed a
standard release form waiving them.
During the interview, Trice said she was trying to kill herself by smoking
crack cocaine because I feel guilty. (R. at 325-26.) When asked
why she felt guilty, McEvilly said she responded, Because I killed him.
(R. at 326.) She complained she had not slept in three days.
She also said, I dont know. I dont want to talk
too much. He was a nice guy, (R. at 311-13, 323, 330),
and I cant remember the gun. I dont know what happened.
(R. at 333.) When another detective in the interview room followed up
with a question, Trice said, I want to talk to a lawyer about
that part, ending the interview. (R. at 331, 333.) The interview
was not recorded electronically, but a typed summary of the interview was prepared
by the detectives. It shows she made fifteen separate statements before asking
for a lawyer.
Trice testified at trial. During cross-examination, when asked if she shot and killed Jones, she replied: No, sir, not by not intentionally. (R. at 402.) The deputy prosecutor followed up with another question: Well, today is the first time that youve told this story that youve told this jury, its the first time you told that; isnt that right? (R. at 402.) Later, also during cross-examination, he said: You didnt go to try to tell the police the story that youre telling this jury today that this was all some big accident? (R. at 413-14.)
During closing arguments, the deputy prosecutor asked the jury: When did we hear about the accident? Did she tell the officer that when they took her statement? [No.] We heard it for the first time today. (R. at 447.) He also told the jury that she could have told the interviewing police detectives or her family that the shooting was an accident but did not, because she knew what she had done was wrong and she knew it was no accident. (R. at 447-48.)
Trices counsel did not object to the foregoing statements or comments about her police interview.
Trice attempts to hurdle the procedural barrier of waiver by invoking the extremely
narrow applicability of the doctrine of fundamental error. Carter v. State, 754
N.E.2d 877, 881 (Ind. 2001). The doctrine allows an appellate court to
review an unpreserved error. Deane v. State, 759 N.E.2d 201, 204 (Ind. 2001).
As we noted in Carter:
A fundamental error is a substantial, blatant violation of basic principles of due process rendering the trial unfair to the defendant. It applies only when the actual or potential harm cannot be denied. The error must be so prejudicial to the rights of a defendant as to make a fair trial impossible. An appellate court receiving contentions of fundamental error need only expound upon those it thinks warrant relief. It is otherwise adequate to note that the claim has not been preserved.
754 N.E.2d at 881 (internal citations omitted). Trices contention that a blatant violation of due process occurred is sufficiently plausible that we elect to examine it.
Trices claim rests on Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Court held that under the Fourteenth Amendment a prosecutor may not use the silence of a defendant whos been arrested and Mirandized to impeach the defendant. Doyle, 426 U.S. at 619. Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. Anderson v. Charles, 447 U.S. 404, 407-08 (1980). This Court acknowledged the Doyle rule the same year. Jones v. State, 265 Ind. 447, 355 N.E.2d 402 (1976).
A. Recap of Comments . The State made several references to Trices failure to tell police detectives the shooting was an accident during her initial interview. (R. at 414.) In closing argument, the State made one additional reference to her failure to tell detectives the shooting was an accident, (R. at 447), and another during its rebuttal. (R. at 465.)
Of course, comments about interviews between police and a suspect are hardly forbidden territory. Even Doyle does not impose a prima facie bar against any mention whatsoever of a defendants right to request counsel, but instead guards against the exploitation of that constitutional right by the prosecutor. Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998)(quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)).
In fact there is one recognized exception to the Doyle rule. In Pennycuff v. State, 745 N.E.2d 804, 814 (Ind. 2001), we held it was proper to counter Pennycuffs claim that he openly cooperated and answered all police queries by offering testimony from detectives about his non-responsiveness to their questions. In Pennycuff, the prosecutor elicited testimony refuting Pennycuffs claims and then moved on. Id. In closing argument, the prosecutor referred only briefly to Pennycuffs failure to explain the calendar entries at his first opportunity. These references were sufficiently related to Pennycuffs claim of cooperation to qualify as rebuttal. Id.
B. Distinction Between Silence and Statements . As Court of Appeals Judge L. Mark Bailey noted in his dissent in this case, all of the comments made by prosecutors focused on references to the brief post-Miranda statements made by Trice. Trice, 746 N.E.2d at 399-400 (Bailey, J., dissenting). During the police interview, Trice said I feel guilty (R. at 325-26) and Because I killed him. (R. at 326.) Most significantly, she also said, I cant remember the gun. I dont know what happened. (R. at 333.) But at trial, she said the shooting was not done intentionally, (R. at 402), which prompted the prosecutor to ask her if her characterization of the shooting as an accident was being revealed for the first time. (Id.) Trice also said at trial that she recalled additional details about the shooting and that the firearm discharged while she was moving the gun around. (R. at 415.)
By raising these inconsistencies, the State was employing a legitimate trial tactic. It
was comparing her fairly detailed trial testimony with her initial statement to the
detectives in which she said I dont know what happened and that she
couldnt remember the gun. (R. at 333.)
This situation differs significantly from Jones, in which the State repeatedly asked the
defendant why he had never told the police, the prosecutor, or the press
of his innocence. 265 Ind. at 449, 355 N.E.2d at 404.
In Jones, the defendant responded at trial that he did not tell anyone
of his innocence and remained silent because he feared the police and that
he doubted whether anyone would have believed him. 265 Ind. at 449, 355
N.E.2d at 404. We held that line of questioning to be an
improper commentary on Jones silence. 265 Ind. at 451, 455 N.E.2d at
The key to Doyle is that it protects the defendant from being found
guilty simply on the basis of a legitimate choice to remain silent.
We have held that a defendants silence after he has been advised of
his rights cannot be used to obtain conviction by implying that the silence
is rooted in guilty knowledge. Allen v. State, 686 N.E.2d 760, 774
But while Doyle bars the use of a defendants silence for impeachment, Doyle
does not apply to cross-examination that merely inquires into prior inconsistent statements. Such
questioning makes no unfair use of silence because a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to remain silent. Anderson, 447
U.S. at 408.
The Seventh Circuit confronted a Doyle issue similar to the one raised by Trice in United States v. Scott, 47 F.3d 904 (7th Cir. 1995). Scott also involved a prosecutors comments about a defendant who raised information at trial for the first time, in contrast to his initial police statement. In Scott, the defendant waived his Miranda rights and told investigators he was in Indianapolis to pick up some illegal drug money. Scott, 47 F.3d at 905. But at trial, the defendant testified he was picking up the money for other purposes and only mentioned the drug angle in an effort to convince the money holder to give him the cash. Id. at 906.
During cross-examination, the government challenged the defendants trial version and said, Now you
never mentioned to Special Agent Hinkle this story youre telling us today, did
you? Id. During closing arguments, the government again mentioned the omissions and
noted that the most important thing to remember is, we didnt hear that
story until he took the stand. Id.
The Seventh Circuit noted that when a defendant speaks to government agents after
having received Miranda warnings, a prosecutor may impeach the defendant by pointing out
the inconsistencies between the story he told to police and the story he
tells the jury. Id. (citing Anderson, 447 U.S. at 404).
Similarly, Trice waived her rights and made several statements about the evening Jones died before invoking her constitutional right to counsel. The State was attempting to show how her trial testimony about an accidental shooting was inconsistent with her earlier comments that she did not know what happened and could not remember anything about a gun.
As we noted in Sylvester v. State, 698 N.E.2d 1126 (Ind. 1998), there
is no Doyle violation here since he did not exercise his Miranda right.
Quite simply, the defendant did not remain silent. As we have
recently observed, if a defendant does not remain silent, he cannot later claim
that the silence was used against him. Id. at 1130-31.
Trice had a few important things to say during her interview with the detectives. This did not constitute use of her later decision to stop answering questions. We find no Doyle violation here.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.