ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William D. McCarty Pamela Carter
Anderson, Indiana Attorney General of Indiana
Lisa M. Paunicka
Deputy Attorney General
ROBERT L. PAGE, ) Defendant-Appellant, ) ) v. ) 48S00-9411-CR-1095 ) STATE OF INDIANA, ) Plaintiff-Appellee. ) ________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-9305-CF-187_________________________________________________
In this direct appeal, the defendant, Robert Page, challenges his conviction and sentence for murder stemming from the May 24, 1993, killing of Emily Smith. The defendant presents four arguments for our review: (1) a special prosecutor should have been appointed; (2) statements made by the defendant while he was in the emergency room should have been suppressed; (3) the trial court failed to properly find and balance
aggravating and mitigating circumstances when enhancing his sentence; and (4) his
sentence is manifestly unreasonable. We affirm his conviction and sentence.
can show that actual prejudice will result from the prosecution. See Williams v. State,
631 N.E.2d 485 (Ind. 1994).
In the present case, the prosecutor testified that he and Puckett never discussed the defendant's case. The defendant has not demonstrated actual prejudice resulting from the prosecution. We decline to overrule our prior case law requiring actual prejudice.
We find no error on this issue.
he indicated he understood. He also indicated that he wished to waive his Fifth
Amendment rights and communicated to the officers that he had argued with the victim,
that he believed she was dating someone else, that he was upset, and that he shot her.
The defendant voluntarily testified at trial. Contrary to his hospital statements, at trial the defendant testified that Smith reached for the gun and that it went off when they struggled over it. He denied being upset about her seeing someone else. To impeach this testimony, on rebuttal the State called Officer Roberts, who testified regarding the defendant's hospital statements.
The defendant argues that, because of his "physical, physiological, mental, emotional, educational and/or psychological state, capacity and condition" he was "incapable and unable to appreciate and understand the full import of his Miranda rights and that alleged statements made by the defendant were not made voluntarily, knowingly and intelligently." Brief of Appellant at 10. However, it is well-established that statements by a defendant are admissible for the purpose of impeaching the defendant's trial testimony, even if the statements were obtained in violation of Miranda.See footnote 1 Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 645-46, 28 L.Ed.2d 1, 4-5 (1971) ("The shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances."). See also
Barker v. State, 440 N.E.2d 664 (1982); Johnson v. State, 258 Ind. 683, 284 N.E.2d 517
(1972). Use of the defendant's statements as impeachment is restricted only when such
statements are obtained under coercion or duress. See, e.g., Mincey v. Arizona, 437 U.S.
385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
Ensuring that statements are voluntary protects against police misconduct. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).See footnote 2 Thus, we have recognized that the critical inquiry into the voluntariness of statements is whether, looking to all of the circumstances, the defendant's statements were induced by "violence, threats, promises or other improper influence." Bivins v. State, 642 N.E.2d 928, 942 (Ind. 1994), cert.denied, ___ U.S. ___, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996); Rowe v. State, 444 N.E.2d 303, 304 (Ind. 1983).
The defendant contends that his statements were not voluntary because he had taken medications, was very tired, had tried to commit suicide, and was questioned at the emergency room where he was being treated. The defendant cites the United States Supreme Court decision in Mincey as dispositive. However, the facts of Mincey distinguish it from the facts of the case at bar. The defendant in Mincey was in extremely serious condition in the intensive care unit, his answers were not coherent, he repeatedly asked the police to stop questioning him until he could get an attorney, he gave
unresponsive or uninformative answers, and "he complained several times that he was
confused or unable to think clearly, or that he could answer more accurately the next
day." Mincey, 437 U.S. at 400-01, 98 S.Ct. at 2418, 98 L.Ed.2d at 305. The officers
disregarded the defendant's requests and extreme medical condition, continuing to
question him for four more hours, stopping only when the defendant lost consciousness,
and immediately continuing once he regained consciousness. The Court found that the
actions by police under those circumstances were coercive, causing the defendant's will
to be overborne.
In the case at bar, the trial court, after testimony from both sides, found that the defendant's statement was voluntary. We recognize that the defendant may well have been tired, depressed, and upset. However, as we have recently stated, "[a]lthough a person's mental condition is relevant to the issue of susceptibility to police coercion, where the person voluntarily makes a confession without police coercion the confession may be considered in spite of the mental condition." Roark v. State, 644 N.E.2d 565, 568 (Ind. 1994). The defendant does not demonstrate that police misconduct, coercion, violence, threats, promises, or any other improper police influence rendered the confession involuntary.See footnote 3 We find no error in the admission of the defendant's statements to impeach his trial testimony.
Tunstill v. State, 568 N.E.2d 539, 546 (Ind. 1991). However, we recognize that, if significant mitigating circumstances are clearly supported by the record, they may
reasonably give rise to a belief that they were overlooked and hence not properly
considered. Id. The alleged mitigating circumstances presented by the defendant in this
case are not significant, nor are they clearly supported by the record.
The defendant's first contention--that he had long term employment--is not clearly supported by the record. The defendant contends that was employed from 1969 to 1971 as an Anderson Police Officer and from 1973 to 1989 at Guide Lamp in Anderson. The defendant does not cite, nor does our review reveal, any introduction of evidence regarding his employment at Guide Lamp. Further, the defendant cites no evidence that he was employed at the time of the murder, and his Appellate Brief indicates that he had not been employed during the four years which preceded the murder. The only evidence as to employment history is a reference to the defendant's prior police employment, and the trial court specifically found that "prior police employment is not a mitigating circumstance." Record at 1588. This was not an abuse of discretion.
The defendant also contends that a mitigating circumstance exists because of his "good behavior while held in jail awaiting trial." Brief of Appellant at 23. However, the defendant presented no evidence during the sentencing proceeding as to his behavior and, as support in his brief, merely asserts that there was "no evidence that the defendant had been an unruly prisoner in the 14 months pre-trial detention." Brief of Appellant at 24.
This does not lead to a finding that the evidence is clearly supported in the record. Additionally, we note that the defendant in Trueblood v. State, 587 N.E.2d 105 (Ind. 1992), cert. denied, 506 U.S. 897, 113 S.Ct. 278, 121 L.Ed.2d 205, similarly argued that
the sentencing court "should have found that his good conduct in jail while awaiting trial
was a mitigating circumstance." Id. at 110. This Court rejected that contention. The trial
court did not abuse its discretion in failing to find this a mitigating circumstance.
Finally, the defendant argues that he cooperated with authorities by reporting his conduct himself and answering questions at the hospital and that this cooperation is a mitigating circumstance. While this may have been entitled to some weight, it does not command a change in the sentence.
did not abuse its discretion in imposing an enhanced sentence.
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