ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
H. Erskine Cherry Jeffrey A. Modisett
Anderson, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
TIMOTHY D. ELSTEN, ) ) Appellant, ) ) v. ) Cause No. 48S00-9706-CR-367 ) STATE OF INDIANA, ) ) Appellee. )
A jury convicted Timothy D. Elsten of murder, a felony,See footnote 1 1 and invasion of privacy, a Class B misdemeanor.See footnote 2 2 The court sentenced
him to sixty-five years for murder, followed by one hundred eighty
days for the misdemeanor.
In this direct appeal, Elsten raises four issues:
I. Whether the trial court erred by admitting a portion of his videotaped statement to police;
II. Whether the court's refusal to grant a change of
venue was erroneous;
III. Whether the court improperly admitted evidence
seized from a vehicle he drove; and
IV. Whether the court erred by failing to accept his plea of guilty but mentally ill during the trial.
The evidence most favorable to the verdict shows that on
January 13, 1996, Timothy Elsten followed his estranged wife, Diana
Elsten, into a retail store in Anderson, Indiana. Diana told him
to leave her alone, but he continued to follow her. When she asked
a store employee to contact security, he grabbed her, pulled out a
gun, and placed it against her temple. As she begged him not to
shoot, he pulled the trigger, but the gun misfired. Diana then
broke loose and ran from him. Timothy gave chase and fired three
more shots, one of which struck her in the face and another in the
back. Diana died from a bullet wound to the back.
Elsten objects to the admission of his videotaped statement to
police. He contends the questioning was improper because it
continued after he requested counsel, in violation of the Fifth and
Fourteenth Amendments of the U.S. Constitution.
A criminal suspect has a right to the advice and presence of
counsel during custodial interrogation by police. Mayberry v.
State, 670 N.E.2d 1262, 1269 (Ind. 1996), reh'g. denied, (citing
Miranda v. Arizona, 384 U.S. 436 (1966)). Although a suspect can
intelligently and voluntarily waive this right, it may be
reasserted at any time during questioning. Sleek v. State, 499
N.E.2d 751, 755 (Ind. 1986) (citing Miranda, 384 U.S. at 444-45).
In such cases, the interrogation must stop until counsel is
provided or the suspect voluntarily re-initiates communication.
Pilarski v. State, 635 N.E.2d 166, 169 (Ind. 1994) (citing Edwards
v. Arizona, 451 U.S. 477 (1981); Oregon v. Bradshaw, 462 U.S. 1039
Elsten claims his Miranda rights were violated when police interrogated him after three separate requests for counsel. He fails to mention, however, that the trial court redacted the videotape so that the only statements presented to the jury were those made between the signing of the waiver and his first request
for counsel.See footnote 3
It also admonished the jury not to speculate what
occurred after the tape stopped. Thus, the only question is
whether Elsten made these initial statements while knowingly and
voluntarily waiving his right to counsel. This decision is within
the sound discretion of the trial court. Jones v. State, 655
N.E.2d 49, 56 (Ind. 1995).
The record reveals that Police Detective Sellars advised
Elsten of his rights and asked if he understood them. He answered
affirmatively and signed the waiver. Sellars then proceeded with
the interrogation. At no time between his first request for
counsel and his signing of the waiver was he coerced or forced to
talk. These facts suggest a voluntary statement to police. The
trial court appropriately admitted the redacted tape.
Elsten claims the trial court erred by denying his motion for
change of venue. He alleges that publicity surrounding the case
was so prejudicial as to deny him a fair trial. Although the court
failed to rule on this motion, it conducted individual voir dire of
A trial court's denial of a change of venue motion will be
reversed only for an abuse of discretion. Davidson v. State, 580
N.E.2d 238, 244 (Ind. 1991) (citing Linder v. State, 456 N.E.2d 400
(Ind. 1983)). Showing potential juror exposure to press coverage
is not enough. Barnes v. State, 693 N.E.2d 520, 524 (Ind. 1998)
(citing Ind. Code Ann. § 35-37-1-5(b) (West 1993)). Instead, the
defendant must demonstrate that the jurors were unable to disregard
preconceived notions of guilt and render a verdict based on the
evidence. Id. at 524-25. An abuse of discretion does not occur
where voir dire reveals that the seated panel was able to set aside
preconceived notions of guilt and render a verdict based solely on
the evidence. Lindsey v. State, 485 N.E.2d 102, 106 (Ind. 1985).
During the individual voir dire of the potential jurors in this case, each was asked about exposure to pretrial publicity and whether each could serve fairly and impartially. After five potential jurors indicated that they could not, the trial court dismissed them for cause upon defense counsel's request. All of the impaneled jurors, however, answered that they could function impartially to render a verdict based solely upon the evidence presented. Because Elsten has not shown any other evidence of prejudice arising from publicity, we conclude that his right to a fair trial was not denied by conducting the trial in Madison
As a threshold matter, Elsten must have standing to raise the
constitutionality of the search and seizure--that is, a reasonable
expectation of privacy in the property being searched. Brown v.
State, 691 N.E.2d 438, 443 (Ind. 1998). He contends, citing United
States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), that such an
expectation exists because he was a permissive user of the vehicle.
Although it is unclear whether the facts of this case support that
assertion, the State does not contest the issue. Therefore, we
will assume that Elsten has standing to raise this claim.
Nonetheless, this assumption reflects the difficult nature of
Elsten's contention. Plainly, as he points out, there are some
cases in which temporal limits on a defendant's consent must be
honored because a late search can affect his rights. See, e.g.,
State v. Brochu, 237 A.2d 418, 421 (Me. 1967) (defendant gave
consent as a victim, but police conducted search after he became
Likewise, our courts have found unreasonable searches where
the search warrant was stale, see Ashley v. State, 251 Ind. 359,
367-68, 241 N.E.2d 264, 269 (1968) (search warrant for small
amounts of marihuana becomes stale after eight days because of its
transitory nature as a commodity), or where police exceeded space
limitations of defendant's consent, see Covelli v. State, 579
N.E.2d 466, 472-73 (Ind. Ct. App. 1991) (search of handbag
continued after police found the object of their search; thus,
search exceeded scope of the consent); Deckard v. State, 425 N.E.2d
256, 257 (Ind. Ct. App. 1981) (consent to search for narcotics does
not extend to search for a knife).
Cf. Williams v. State, 426
N.E.2d 662, 667 (Ind. 1981) (burned belongings of a victim are not
likely to be moved; therefore, an affidavit supporting the warrant
was not stale after sixty-days)
These cases do not seem to compel the conclusion that Elsten's
rights were violated. Here, the vehicle seized and searched was
not the defendant's property, nor has he shown a right to exercise
control over it. Further, there is no evidence that the delay
affected his mother's rights or her consent to search. Indeed,
even if we assumed that his mother's rights were violated, there is
no apparent prejudice that flowed to him as a result of this delay.
We find no deprivation of Elsten's Fourth Amendment rights.
Finally, Elsten maintains that the trial court erred by
refusing to accept his plea of guilty but mentally ill during the
trial. The State counters that an insufficient factual basis
existed for the plea because there was no evidence of mental
illness. We agree with the State.
For a trial court to accept a plea of guilty but mentally ill,
a sufficient factual basis must exist for the decision. Rhoades v.
State, 675 N.E.2d 698, 700 (Ind. 1996) (citing Ind. Code Ann. § 35-
35-1-3 (West 1993)). On appeal, we presume that the court's
decision was correct and review only for an abuse of discretion.
Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).
After Elsten asked to plead guilty but mentally ill, the trial court conducted a hearing to determine whether a sufficient factual
basis existed for the plea. The court had three reports from
clinical psychologists, two of which stated Elsten was not
suffering from psychological disorders.See footnote 4
Upon reviewing the
evidence and testimony, it concluded that the record was not
sufficient for him to accept the plea. This was not an abuse of
the court's discretion.
Moreover, had the trial court permitted Elsten to plead
guilty, he would have stood in the same place he stood after
jury rendered its verdict--convicted of murder and eligible to
argue mitigating circumstances like mental impairment to the
sentencing judge. See Douglas v. State, 663 N.E.2d 1153, 1156
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted by Andrew Scriven