Attorney for Appellant Attorneys for Appellee
William W. Gooden Steve Carter
Mt. Vernon, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Appeal from the Posey Superior Court, No. 65D01-0112-CF-0567
The Honorable Donald E. Baier, Judge
On Direct Appeal
May 20, 2004
The State charged Washington with murder. Alleging that he committed the murder
while lying in wait, Ind. Code § 35-50-2-9(b)(3), and while on probation, I.C.
§ 35-50-2-9(b)(9)(C), the State also sought life imprisonment without parole. After a
trial by jury Washington was convicted as charged. At the penalty phase
of trial, the jury recommended that a sentence of life imprisonment without parole
be imposed. The trial court thereafter sentenced Washington consistent with the jurys
recommendation. This direct appeal followed. Additional facts are set forth below
In Colorado v. Spring, 479 U.S. 564 (1987), the United States Supreme Court
explained that it had never held that mere silence by law enforcement officials
as to the subject matter of an interrogation is trickery sufficient to invalidate
a suspects waiver of Miranda rights . . . . Id. at
576. The Court went on to note: Once Miranda warnings are given,
it is difficult to see how official silence could cause a suspect to
misunderstand the nature of his constitutional righthis right to refuse to answer any
question which might incriminate him. Id. The Court observed that additional
information given by the police would only go to the wisdom of a
Miranda waiver, not its essentially voluntary and knowing nature. Id. at 577.
Ultimately the Court concluded that a suspects awareness of all the possible
subjects of questioning in advance of interrogation is not relevant to determining whether
the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege. Id.;
see also Allen v. State, 686 N.E.2d 760, 773 (Ind. 1997) (applying the
rule set forth in Spring and noting [t]he constitutional issue does not concern
the tactical wisdom of the defendants choice to speak, but only the defendants
voluntariness in choosing to speak). In this case the police officers failure
to advise Washington in advance of the purpose of the interrogation did not
render involuntary Washingtons waiver of his Miranda rights. Washington cannot prevail on
B. Police Deception
While in custody Washington was interrogated by at least two different officers, including Heilman and Gary Gilbert. During the interrogation Officer Heilman made the following statements:
Well prove to you her bloods all over your clothes and Ill prove to you that you were there when she died.
You got your supposedly your best friend in the worlds blood on your clothes.
Joint Ex. 1 at 111. Officer Gilbert added:
[W]eve got physical evidence from her blood on your clothes.
Her blood on your clothes Jeff.
Those are your clothes, thats her blood on your clothes.
Id. at 112, 119, 133. In addition Officer Heilman asserted:
Your sisters, your grandma and your mother, theyve all been talking to us all night scared to death, what happened to Jeff. Whats he going to do to himself. You know they all think you did it.
Id. at 134 (emphasis added). Washington complains that at the time of the interrogation neither Officer Heilman nor Officer Gilbert knew whether there was blood on Washingtons clothing nor, obviously, whether any such blood belonged to Bass. Washington also complains that at the suppression hearing, Officer Heilman admitted that the statement you know they all think you did it was generally not true. According to Washington the foregoing conduct by the officers was deceptive thus rendering his confession involuntary.
When a defendant challenges the admissibility of his confession, the State must prove
beyond a reasonable doubt that the confession was given voluntarily. Carter v.
State, 730 N.E.2d 155, 157 (Ind. 2000).
See footnote The voluntariness of a confession
is determined from the totality of the circumstances.
Berry v. State, 703
N.E.2d 154, 157 (Ind. 1998). In turn, the totality of the circumstances
test focuses on the entire interrogation, not on any single act by police
or condition of the suspect. Light v. State, 547 N.E.2d 1073, 1079
(Ind. 1989). We review the record for evidence of inducement by way
of violence, threats, promises, or other improper influences. Berry, 703 N.E.2d at
It is technically true that at the time of the interrogation the officers
did not know whether Washingtons clothing was covered with Bass blood. At
best this was pure conjecture offered as fact. However, not all police
interrogation statements of conjecture, presented as fact, constitute police deception. Miller v.
State, 770 N.E.2d 763, 767 n.5 (Ind. 2002). Rather, where the police
have a good faith basis for their technical falsehood, then their action will
not be deemed deceptive. Id. at 768 n.5. The record shows
that at the time of the interrogation, the police had recovered clothing that
appeared to be bloodstained and had spoken with a witness who had seen
Washington changing out of those clothes the previous night. R. at 18-19,
34-36. The clothing had been submitted to the police crime laboratory, although the
results had not yet been returned.
See footnote We conclude the officers had a
good faith basis for asserting that Washingtons clothing was stained with the victims
blood. Accordingly, the officers statements were not deceptive.
Concerning Officer Heilmans statement that you know they all think you did it
Washington does not explain how this statement rendered his confession involuntary. In
like fashion we do not see an apparent explanation as to why this
comment would render defendants statement involuntary.
Heavrin v. State, 675 N.E.2d 1075,
1081 (Ind. 1996) (rejecting a claim that an officers reference to defendants wifes
infidelities rendered his subsequent statement involuntary).
C. Invocation of Right to Silence
In support of his claim that the interrogating officers continued to question him after he invoked his right to remain silent, Washington directs our attention to that portion of the interrogation in which he at one point declared: Im tired of talking. Im listening. Joint Ex. 1 at 109. He also directs our attention to another portion of the interrogation in which the following exchange occurred:
[Washington]: Im not gonna say nothing man youre . . . youre just talking. What does it look like Im not going to admit to something I didnt do. Ill let the jury decide that.
[Officer Gilbert]: Are you telling us that those are not your clothes?
[Washington]: Im not saying a thing.
Id. at 114.
When a person indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must cease.
Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). In Haviland v. State,
677 N.E.2d 509 (Ind. 1997) this court described as intensely fact-sensitive the analysis
of a purported assertion of the right to remain silent. Id. at
514. In that case, after waiving his right to remain silent, the
defendant said several times during the course of a custodial interrogation, Im through
with this. Id. at 513. We acknowledged that a defendant need
not declare any particular words of legal magic to cut off questioning.
Id. at 514. However, in affirming the trial court, we reasoned that
the defendant answered questions without pausing or indicating in any manner that he
would no longer respond. Id. The same is true here.
After declaring that he was tired of talking and that he was not going to say anything, Washington continued to engage the interrogating officers in conversation. The record shows that several times Washington questioned the officers concerning the strength of evidence against him. Joint Ex. 1 at 116, 120-28. And at one point when Officer Heilman asked Washington whether he wanted the questioning to stop Washington responded, I want to see the pictures there. Joint Ex. 1 at 122. Washingtons comments do not demonstrate an assertion of his Fifth Amendment right to remain silent. Accordingly, Washingtons claim on this issue fails. In sum, the trial court properly denied Washingtons motion to suppress.
In Strong v. State, 538 N.E.2d 924 (Ind. 1989), this Court held that
an audiotape of the defendants confession to police was admissible, including the interrogating
officers statement, I want to caution you on one thing. Physical evidence
proof, stuff that Lt. Loy saw and found in your house on that
night [d]oesnt match stuff that you tell us . . . .
Id. at 928. Responding to the defendants claim of hearsay, we found
the statement to be admissible for two reasons. First, the statement was
not hearsay because it was not offered to prove the truth of the
matters asserted. Id. Second, the trial court thoroughly explained in an
admonishment to the jury that they were to consider the statement to be
a method of questioning intended to elicit information from the defendant and not
as evidence of guilt.
In Smith v. State, 721 N.E.2d 213 (Ind. 1999), this Court found various
statements of the interrogating officer to be inadmissible. Id. at 216.
We reversed the judgment and remanded the cause for further proceedings. Unlike
Strong, the trial court in Smith gave no limiting instruction or admonishment.
We held that although a trial court has no affirmative duty to consider
giving an admonishment in the absence of a partys request, it is error
to admit statements by an interrogating officer without any limiting instruction or admonishment.
Apparently recognizing that in light of Strong and Smith his hearsay claim cannot
prevail, Washington abandons this argument on appeal. Instead, citing Indiana Evidence Rule
704(b), he now claims error because the interrogating officer made several references to
Washingtons alleged lack of truthfulness during the course of the interrogation.
See footnote The
Rule provides: Witnesses may not testify to opinions concerning intent, guilt, or innocence
in a criminal case; the truth or falsity of allegations; whether a witness
has testified truthfully; or legal conclusions.
Id.; see also Shepherd v. State, 538
N.E.2d 242, 243 (Ind. 1989) (Neither lay witnesses nor expert witnesses are competent
to testify that another witness is or is not telling the truth.).
We first observe that each reference about which Washington complains is buried within
and scattered throughout the twenty pages that he sought to have stricken.
Indeed only a careful examination of the transcript even reveals their existence.
We fail to see how a jury could have been persuaded by these
comments. More importantly, a trial court cannot be found to have erred
as to an issue or argument that it never had an opportunity to
consider. Accordingly, as a general rule, a party may not present an
argument or issue on appeal unless the party raised that argument or issue
before the trial court. Marshall v. State, 621 N.E.2d 308, 314 (Ind.
1993). In such circumstances the argument is waived. Id. Because
Washington did not direct the trial courts attention to a possible Rule 704
violation, he has waived consideration of this argument on appeal.
In this case the trial court made an explicit finding that there was
an absence of sudden heat. Thus, we review the trial courts refusal
to give Washingtons tendered instruction on voluntary manslaughter for an abuse of discretion.
Culver v. State, 727 N.E.2d 1062, 1070 (Ind. 2000). Washington insists
there was appreciable evidence of sudden heat. See Dearman, 743 N.E.2d at
760. In support, Washington points to his statements to the police that
because he saw Bass with another man he just lost it and that
he just couldnt deal with it no [sic] more. R. at 546.
In essence Washington seems to contend that he assaulted Bass in a
fit of jealous rage. First, anger alone is not sufficient to support an
instruction on sudden heat. Wilson, 697 N.E.2d at 474. Second, the record
does not support Washingtons claim that he acted out of a burst of
anger. Washington first saw Bass and another man earlier in the evening.
However, he did not attack her until several hours later after he had
obtained a knife, covered his hands with socks, and waited for the victim
to return. This evidence shows a degree of deliberation and cool reflection
inconsistent with sudden heat. Accordingly we conclude the trial court did not
abuse its discretion in refusing to give Washingtons tendered instruction on voluntary manslaughter.
Our standard of review for examining the sufficiency of the evidence to support
a statutory aggravator is the same standard for determining the sufficiency of the
evidence to convict. We examine the evidence tending to support the verdict
and all reasonable inferences therefrom without weighing the evidence or assessing witness credibility.
Matheney v. State, 583 N.E.2d 1202, 1208 (Ind. 1992). From this
viewpoint, we determine whether the evidence constitutes substantial evidence of probative value from
which a reasonable trier of fact could find the existence of the aggravator
beyond a reasonable doubt. Fleenor v. State, 622 N.E.2d 140, 151 (Ind.
Lying in wait involves the elements of watching, waiting, and concealment from the
person killed with the intent to kill or inflict bodily injury upon that
person. Ingle v. State, 746 N.E.2d 927, 940 (Ind. 2001) (quoting Davis
v. State, 477 N.E.2d 889, 896 (Ind. 1985) and Matheney, 583 N.E.2d at
1208). Contending that the only evidence of how the murder was committed
comes from his confession, Washington summarizes the evidence and concludes, a reviewing court
cannot conclude that a reasonable jury could infer waiting beyond a reasonable doubt.
Br. of Appellant at 23. We believe Washingtons summary is incomplete.
In his confession Washington told the officers that he observed Bass and another
man earlier in the evening and became upset. Joint Ex. 1 at
138. A video surveillance camera located in the parking lot of Bass
apartment complex showed that later that night, at around 10:40 p.m., Washington was
present at the complex. R. at 399-406. Washington knew that Bass
and the other man were inside Bass apartment. Joint Ex. 1 at
147. Washington then left the parking lot and retrieved a butcher knife
from his home and tube socks to wear over his hands so that
he would leave no fingerprints. Id. at 144, 151. An eyewitness
saw Washington about a block from Bass apartment complex walking toward the complex
shortly after 11:00 p.m., and the surveillance video captures Washington in the parking
lot at around 11:24 p.m. R. at 382-84, 404-07; States Ex. 33.
Washington then saw Bass and the other man leave in Bass car.
Joint Ex. 1 at 148. When Bass returned to the parking
lot a short time later Washington came from behind one of the cars,
behind her car and attacked Bass by stabbing her. Id. at 507.
A neighbor of Bass discovered her body around 11:35 p.m. R.
The evidence makes clear that Washington did watch and wait for Bass in
the parking lot of her apartment complex. The closer question is whether
he concealed himself from her. We have held, The concealment must be
used as a direct means to attack or gain control of the victim,
creating a nexus between the watching, waiting, and concealment and the ultimate attack.
Ingle, 746 N.E.2d at 940 (quoting Davis, 477 N.E.2d at 897).
In Ingle the defendant was charged with murder and the State sought the
death penalty based on two statutory aggravators, one of which was lying in
wait. The evidence in that case showed that in the early morning
hours of the killing, the defendant threw a brick through the windshield of
his ex-wifes car. He then hid in a nearby tree and watched
as his ex-wife arrived and talked to the police about the incident.
After the police left and his ex-wife went into a nearby pub, the
defendant hid a handgun in a nearby tree and left. The defendant
then rode to a Goodwill store where he purchased clothing to be used
as a disguise. Thereafter the defendant returned to the tree, retrieved the
handgun, walked into the pub, and shot his ex-wife. We determined that
while the defendant watched, waited and concealed himself in a tree, his concealment
did not constitute any part of the murder by lying in wait.
Rather, because the defendant left his place of concealment, walked to a nearby
campsite, rode to the Goodwill store, and walked into the pub where the
fatal shooting occurred, we reasoned that the concealment was not used as a
direct means to attack or gain control of the victim. Id.
We also observed that a substantial amount of time had elapsed between the
defendants concealment and the killing. Id.
The facts in Ingle are also similar to those in Davis, 477 N.E.2d
at 895-97. In that case we also determined that the defendant did
not commit a murder by lying in wait. There, the defendant watched
and waited from a concealed position, but did not use the concealment as
a direct means to attack or gain control of the victim. Id.
at 897. Rather, the defendant went openly into the victims tent and
forced the victim to go with him by use of a deadly weapon.
We found that [t]here was not a sufficient connection between the concealment
and the murder . . . to support a finding that this murder
was committed by lying in wait. Id.
The facts in this case are distinguishable from both Davis and Ingle.
The record shows that on the night of the killing, although slightly illuminated,
the parking lot was dark. Joint Ex. 1 at 10, 11. When
Bass pulled into the parking space, her car was positioned between cars parked
on either side. Id. This evidence, coupled with Washingtons statement that
he came from behind one of the cars, behind her car to attack
Bass was sufficient for a jury to reasonably infer that Washington was lurking
in the dark and hiding behind parked cars waiting for the opportune moment
to strike. In sum the evidence demonstrates concealment. As for the
nexus between the concealment and the attack, Washingtons confession reveals that the attack
occurred almost the moment [Bass] opened the door. Id. at 140. According
to Washington, it went fast . . . I didnt give her [a
chance]. Id. at 139-40. The record also shows that only a
short amount of time elapsed between Washingtons concealment and the killing. We
conclude that viewed in the light most favorable to the verdict, there was
substantial evidence of probative value from which the jury could find the existence
of the lying in wait aggravator beyond a reasonable doubt.
In this case, Washington essentially contends that his sentence is invalid because at
the time he was sentenced, Indianas capital sentencing scheme allowed the judge to
find the existence of an aggravating circumstance to support a death sentence or
sentence of life without parole. We conclude there is no violation of
Ring or Apprendi here.
The record shows the jury was instructed that it may recommend the penalty
of life imprisonment without parole only if it finds that the State proved
beyond a reasonable doubt the existence of at least one of the alleged
aggravating circumstances and that any mitigating circumstances are outweighed by any aggravating circumstance
or circumstances. See Appellants App. at 582. The aggravating circumstances
that made Washington eligible for a sentence of life without parole were that
he had committed the murder while lying in wait, see I.C. § 35-50-2-9(b)(3),
and that he had committed the murder while on probation. See I.C.
§ 35-50-2-9(b)(9)(C). Importantly, the record also shows the trial court provided the
jury with two separate verdict forms explaining:
[I]n the event that you find that the State has failed to prove either of the aggravating circumstances, then you should use this form and find that a sentence of life imprisonment without parole should not be imposed, and that would have to be signed and dated by the foreperson. If on the other hand that you find that the State has proven either or both of the aggravating circumstances beyond a reasonable doubt, you should use this verdict form and on this verdict form you should indicate which one or both of the aggravating circumstances has been proven beyond a reasonable doubt . . . .
R. at 579. Following the trial courts instructions, the jury returned a verdict form specifically finding that the State proved beyond a reasonable doubt that Washington committed murder by lying in wait and while Washington was on probation and that the aggravating circumstances outweighed the mitigating circumstances. Appellants App. at 597. The jury then recommended that a sentence of life imprisonment without parole be imposed. Id. It is clear that the constitutional requirements of Ring and Apprendi have been satisfied in this case. Washingtons claim thus fails.
A sentence of life without parole is imposed under the same standards and
is subject to the same requirements as a death sentence. Holsinger v.
State, 750 N.E.2d 354, 362 (Ind. 2001); Pope v. State, 737 N.E.2d 374,
382 (Ind. 2000). Because a sentence of life in prison without parole
is imposed under the same standards as the death penalty, we require the
same specificity from a trial court sentencing a defendant to life in prison
without parole as we would a court sentencing a person to death.
Brown v. State, 783 N.E.2d 1121, 1127 (Ind. 2003). The capital sentencing
scheme in effect at the time of Washingtons trial made clear that the
sentencing court had a separate and independent role in assessing and weighing the
aggravating and mitigating circumstances and in making the final determination whether to impose
a particular sentence. Id. at 1128.
See footnote Accordingly, we have said:
The trial courts statement of reasons (i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating ci rcumstances have been evaluated and balanced in determination of the sentence, and (iv) must set forth the trial courts personal conclusion that the sentence is appropriate punishment for this offender and this crime.
Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995) (citations omitted).
We disagree with Washingtons contention that the sentencing order failed to set forth
the trial courts personal conclusion that the sentence is appropriate punishment for this
offender and this crime. Although not using the precise language articulated in
Harrison, the sentencing order provides: The Court, giving due consideration to the evidence
in this case, the evidence and arguments presented at the sentencing hearing, the
Pre-sentence Investigation Report, and the aggravating and mitigating circumstances, finds that a sentence
of life imprisonment without parole should be imposed. Appellants App. at 644.
This is sufficient.
However, we do agree the sentencing order fails to set forth specific facts
and reasons that lead the court to find the existence of the aggravating
circumstances. On this point the trial courts sentencing order provides:
Jeffrey Dean Washington did commit the murder of Sandy Bass by lying in wait, and
Jeffrey Dean Washington did commit the murder of Sandy Bass at a time when said Jeffrey Dean Washington was on probation after receiving a sentence for the commission of a felony, to wit: serving probation after a conviction for Stalking, a felony offense, entered in the Posey Circuit Court on January 15, 1997, in Cause Number 65C01-9610-CF-00069.
Id. at 641. We observe that the sentencing order merely recites verbatim the language of the jurys verdict form. There is no indication that the trial court engaged in a separate and independent assessment of why it concluded that the State proved the existence of the aggravating circumstances beyond a reasonable doubt. The sentencing order is thus deficient.
When faced with an irregularity in a trial courts decision to impose the death sentence or to impose a sentence of life without parole, this Court has various options: (1) remand to the trial court for clarification or a new sentencing determination; (2) affirm the sentence if the error is harmless; or (3) independently reweigh the proper aggravating and mitigating circumstances. Brown, 783 N.E.2d at 1129; Bivins v. State, 642 N.E.2d 928, 957 (Ind. 1994). In this case, we affirm Washingtons life sentence without parole on grounds of harmless error. We do so for the following reasons. The trial court found no mitigating circumstances warranting consideration. See Bivins, 642 N.E.2d at 957 (finding harmless error in a death penalty case where trial courts sentencing order was deficient and declaring significant that the trial judge found no mitigating factors). Washington does not contend the trial court erred in this regard. And, although not setting forth its specific facts and reasons for so doing, the trial court did expressly find that the charged aggravators were proven beyond a reasonable doubt. Under section IV of this opinion we have already determined there was sufficient evidence of probative value from which a jury could find the existence of the lying in wait statutory aggravator. As for the commission of a murder while on probation, the evidence in the record supports the trial courts conclusion that this aggravator was proved beyond a reasonable doubt, and Washington does not contend otherwise. The trial court also expressly found that the aggravating circumstances outweighed any mitigating circumstances.
Examining the evidence before the trial court, the jurys recommendation in favor of
life imprisonment without parole, and the trial courts sentencing order, we are convinced
that the trial court would have sentenced Washington to life imprisonment without parole
despite the fact that the trial court failed to set forth specific facts
as to why it concluded that the State proved the existence of the
aggravating circumstances beyond a reasonable doubt. Thus although the trial court erred
in failing to set forth specific facts and reasons to support its conclusion,
the error was harmless.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.