ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHARLES A. WALTON, JR. STEVE CARTER
South Bend, Indiana Attorney General of Indiana
ADAM M. DULIK
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOSEPH L. MORGAN, III, )
vs. ) No. 71A04-0104-CR-164
STATE OF INDIANA, )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-9905-CF-267
December 5, 2001
OPINION FOR PUBLICATION
Joseph L. Morgan appeals
See footnote his conviction of murder. He raises two issues
on appeal, which we restate as:
FACTS AND PROCEDURAL HISTORY
1. Whether Morgan unambiguously invoked his right to counsel during a police interrogation when
he told the officer he would feel more comfortable with a lawyer but
subsequently indicated he had changed his mind and did not want an attorney;
2. Whether the trial court erred when it declined to give Morgans tendered jury
instructions on voluntary manslaughter and aggravated battery as lesser-included offenses of murder.
Morgan invoked his right to counsel and the trial court therefore erred in
admitting statements Morgan made after police continued to question him. However, the
error was harmless and we accordingly affirm. We further find Morgans tendered
instructions were not supported by the evidence and the failure to give the
instructions was therefore not error.
On April 26, 1999, Morgan shot and killed Merlyn Davis. About a
month earlier, Alvin Brooks had reported to Morgan that Davis had walked into
Brooks home, hit him in the face with a gun, and fought with
him. Morgan indicated to Brooks that he knew Davis. On the
evening of April 26, Morgan encountered Davis and three other men, and later
Morgan visited Brooks. Morgan was carrying a gun. He showed Brooks
the gun and told Brooks he knew where Davis was. Morgan asked
Brooks if he wanted to go with him. Brooks declined, and Morgan
left. Approximately one-half hour later, Brooks heard a gunshot.
While Davis was standing in front of a nearby house with two other
men, someone wearing a mask and black clothing walked toward Davis from behind
and shot Davis from about five feet away. Morgan encountered Brooks later
that evening, told Brooks not to say anything about the conversation they had
had earlier, and told Brooks it was done.
Morgan was arrested on May 6, 1999, and taken to the police station
for questioning. Detective Bruce Villwock read Morgan his
Miranda rights and Morgan
signed a form indicating he understood them. Detective Villwock asked Morgan if
he was willing to make a statement, and Morgan replied I feel more
comfortable with a lawyer. (R. at 873.) The detective asked So
you dont want to talk to me at this time? id., and Morgan
shook his head no.
The detective reminded Morgan that the police had evidence against him and that
Morgan would be taken to jail and booked on the murder charge.
He told Morgan how to contact him if Morgan wanted to think about
it and talk it over with a lawyer or somebody, id. at 874,
and then decided to make a statement. He reminded Morgan that it
was in Morgans best interest to cooperate, and again asked Morgan Are you
willing to talk or do you still want a lawyer? Id.
Morgan nodded his head, and the detective left to get a waiver form.
After the detective returned, the following exchange took place:
CORPORAL VILLWOCK: Joe, this is Commander Swanson. Now you wish to
talk to me at this time; right?
MR. MORGAN: Yes.
CORPORAL VILLWOCK: And even though a minute ago you stated you wanted
an attorney, right now you are stating you have changed your mind and
dont want an attorney and want to give me a statement; is that
MR. MORGAN: Right.
(R. at 875.) Morgan then signed a form indicating he had previously
requested a lawyer but now waived that right. The statement that followed
amounted to a confession by Morgan that he killed Davis. DISCUSSION AND DECISION
At trial, Morgan testified that he and Davis had argued earlier in the
day, and he thought Davis was, as a result, going to try to
catch him somewhere and do something to him. Morgan testified he went
to Brooks house to tell Brooks he had seen Davis and to get
a gun because he was afraid of Davis. Morgan testified that he
and Brooks went to the alley behind the house where Davis was standing
and that Brooks loaded the gun and told Morgan to do it.
After Brooks continued to tell Morgan to do it, Morgan pulled a mask
over his face, walked toward Davis, and killed him. Morgan testified his
mind went blank and he remembered only the first shot.
1. The Police Interview
Review of the denial of a motion to suppress is similar to other
sufficiency matters. The record must disclose substantial evidence of probative value that
supports the trial court's decision. We do not reweigh the evidence and
we consider conflicting evidence most favorably to the trial court's ruling. Taylor
v. State, 689 N.E.2d 699, 702 (Ind. 1997).
Taylor contended his Miranda rights were violated when police continued to question him
after he said: "I don't know what to say. I guess
I really want a lawyer, but, I mean, I've never done this before
so I don't know." Id. At the beginning of the interrogation,
Taylor had signed a written waiver of rights form and orally acknowledged that
he had been advised of his rights and had agreed to waive them.
"Invocation of the Miranda right to counsel requires, at a minimum, some statement
that can reasonably be construed to be an expression of a desire for
the assistance of an attorney." Davis v. United States, 512 U.S. 452,
459 (1994). The level of clarity required to meet the reasonableness standard
is sufficient clarity that a "reasonable police officer in the circumstances would understand
the statement to be a request for an attorney." Taylor, 689 N.E.2d
at 703, quoting Davis, 512 U.S. at 459. It is not enough
that the defendant might be invoking his rights; the request must be unambiguous.
In Davis, the defendant's statement "maybe I should talk to a lawyer" was
held not to be a request for counsel. 512 U.S. at 462.
Consequently, police officers had no duty to stop questioning Davis, and any
statements he subsequently made were admissible. The Taylor court interpreted Davis as
establishing as a matter of Fifth Amendment law that police have no duty
to cease questioning when an equivocal request for counsel is made. Nor
are they required to ask clarifying questions to determine whether the suspect actually
wants a lawyer. 689 N.E.2d at 703.
Our supreme court characterized Taylor's statement of "I guess I really want a
lawyer, but, I mean, I've never done this before so I don't know"
as an expression of doubt, not a request. A reasonable police officer
in the circumstances would not understand that Taylor was unambiguously asserting his right
to have counsel present. Id.
Here, by contrast, it is apparent in light of the totality of the
circumstances that even if Morgans statement could, standing alone, be considered equivocal, the
officer who was questioning Morgan reasonably understood that Morgan was asserting his right
to have counsel present. Still, the officer chose not to break off
communication with Morgan.
After Morgan stated he would feel more comfortable with a lawyer, Officer Villwock
asked So you dont want to talk to me at this time? id.,
and Morgan shook his head no. The officer continued his exchange with
Morgan, however, explaining why it was in Morgans best interest to talk to
him. He then told Morgan how to contact him if he later
decided to talk.
The officer then asked Morgan Are you willing to talk or do you
still want a lawyer? (R. at 874) (emphasis supplied). After Officer
Villwock left to get a waiver form and returned with Commander Swanson, he
asked Morgan And even though a minute ago you stated you wanted an
attorney, right now you are stating you have changed your mind and dont
want an attorney and want to give me a statement; is that correct?
Id. at 875 (emphasis supplied). While Morgans words are subject to
See footnote we cannot in light of all the circumstances characterize this assertion
of the right to counsel as equivocal. Furthermore, unlike the officer in
Taylor, Officer Villwock undoubtedly understood that Morgan was asserting his right to counsel.
Thus, Morgans confession was illegally obtained.
Even though Morgans confession should not have been entered into evidence, the trial
courts error was harmless. Statements obtained in violation of Miranda and erroneously
admitted are subject to harmless error analysis.
Alford v. State, 699 N.E.2d
247, 251 (Ind. 1998). Admission of a confession is harmless if it
does not contribute to the conviction. Id. Alfords sole contention at
his trial was that he killed the victim but did so in self-defense.
Any error in admitting Alfords pretrial statement that he shot the victim
was determined to be harmless because whether Alford shot the victim was not
in dispute. Id.
At his trial, Morgan conceded in his opening statement that he shot Davis,
and he later testified that he shot Davis. Morgan offered evidence at
trial suggesting he acted in self-defense and under the influence of intoxicants, and
the jury was instructed on those defenses. Therefore, as the State correctly
notes, admission of Morgans confession did not undermine his theory of the case.
(Br. of the Appellee at 20.) Because the improper admission of
Morgans confession did not contribute to his conviction, the error was harmless.
Further, Morgans conviction was supported by ample evidence in addition to his own
testimony. Brooks testified that Morgan came to his house, showed him a
loaded gun, told Brooks he knew where Davis was, and asked Brooks to
accompany him. Later that evening, Brooks testified, Morgan told Brooks it was
done. Police found a handgun magazine near the scene and determined a
fingerprint on it was Morgans. Police found a gun Morgan had hidden
in a former girlfriends house, and they determined that gun had fired the
shell casings found at the murder scene. The admission of the confession
was unimportant in relation to everything else the jury considered.
2. The Jury Instructions
Morgan asserts error in the trial courts refusal to give his tendered instructions
on aggravated battery and voluntary manslaughter as lesser-included offenses of his murder charge.
The manner of instructing a jury lies largely within the discretion of
the trial court, and we will reverse only for abuse of discretion.
Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). When determining whether
a trial court erroneously gave or refused to give a tendered instruction, we
consider (1) whether the tendered instruction correctly states the law; (2) whether there
was evidence presented at trial to support giving the instruction; and (3) whether
the substance of the instruction was covered by other instructions that were given.
Id. The instructions Morgan tendered appear to correctly state the law,
and the record does not indicate the instruction was covered by other instructions.
However, the evidence presented at trial did not support giving the instructions.
We apply a three-part test for determining when a trial court should instruct
on a lesser-included offense. First, the trial court must determine whether the
lesser offense is inherently included in the offense charged by comparing the statute
defining the crime charged with the statute defining the alleged lesser-included offense.
Evans v. State, 727 N.E.2d 1072, 1080 (Ind. 2000). If necessary, part
two of the test alternatively requires the trial court to determine whether the
lesser offense is factually included in the offense charged by comparing the charging
instrument with the statute defining the alleged lesser-included offense. Id.
If the court concludes that the lesser offense is either inherently or factually
included in the offense charged, then part three requires the court to determine
whether a serious evidentiary dispute exists as to which offense was committed by
the defendant, given all the evidence presented by both parties. Id.
If a serious evidentiary dispute exists, it is reversible error not to give
the instruction on the inherently or factually included lesser offense. Id. The
test for whether there is evidence before the jury that the included offense
was committed hinges on whether a serious evidentiary dispute exists with respect to
the element that distinguishes the greater and lesser offenses. The evidence must
be such that the jury could conclude that the lesser offense was committed
and the greater offense was not. Id.
The offense of aggravated battery consists of the knowing or intentional infliction of
injury on a person, which injury creates a substantial risk of death or
causes serious permanent disfigurement or protracted loss or impairment of the function of
a bodily member or organ. Ind. Code § 35-42-2-1.5. Our supreme
court has held an aggravated battery instruction is not warranted in a murder
case if there is no serious evidentiary dispute that the defendant knowingly killed--i.e.,
that he was aware of a high probability that he was engaged in
killing. Lehman v. State, 730 N.E.2d 701, 704 (Ind. 2000).
See footnote Morgan
does not dispute the evidence that he donned a mask, approached Davis from
behind, walked up to him, and shot him. We accordingly decline to
find a serious evidentiary dispute that Morgan knowingly killed Davis.
Voluntary manslaughter is defined as follows: "A person who knowingly or intentionally
. . . kills another human being . . . while acting under
sudden heat commits voluntary manslaughter, a Class B felony." Ind. Code §
35-42-1-3(a). Voluntary manslaughter is an inherently lesser-included offense of murder, and sudden
heat is a mitigating factor that reduces murderous activity from murder to voluntary
Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997). A
trial court should grant a requested voluntary manslaughter instruction if the evidence demonstrates
a serious evidentiary dispute regarding the mitigating factor of "sudden heat." Id.
Morgan directs us to no such specific evidentiary dispute. Sudden heat occurs
where provocation engenders rage, resentment, or terror sufficient to obscure the reason of
an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person
incapable of cool reflection. Ingle v. State, 746 N.E.2d 927, 931 (Ind.
2001). Morgan was angry about a dispute with Davis over a month
earlier, and he had discussed the matter with Brooks earlier on the day
of the shooting. Morgan testified that he and Brooks went to the
house where Davis was standing and that he and Brooks discussed which of
the two would shoot Davis. This evidence does not support an inference
that Morgan acted in rage, anger, sudden resentment, or terror.
The trial court properly declined to give the instructions Morgan tendered because they
were not supported by the evidence, but it erred in admitting Morgans statement
to police because the officer continued to communicate with Morgan after Morgan made
a statement the officer reasonably interpreted as a request for counsel. However,
the error was harmless in light of the other evidence presented at trial,
and we accordingly affirm.
BROOK, J., and BARNES, J., concur.
COURT OF APPEALS OF INDIANA
JOSEPH L. MORGAN, III, )
vs. ) No. 71A04-0104-CR-164
STATE OF INDIANA, )
BARNES, Judge, concurring
I write to fully concur in Judge Mattingly-Mays analysis and to emphasize
that the conduct of police in situations such as these receives, as it
should, our highest level of scrutiny.
Investigating and solving a homicide case is a difficult and challenging task for
law enforcement. The job is tedious, tiring, and often frustrating. However,
one of the bedrock principles of our criminal justice jurisprudence is that when
a suspect asks police for an attorney to advise himhis questioning/interrogation ceases.
No ifs, ands, or buts.
In this case, the dialogue between the detective investigating the crime and Morgan
was clear, distinct and unmistakable. I feel more comfortable with a lawyer
is not a phrase subject to interpretation. Like Horton the Elephant of
childrens books, that phrase means what it says and says what it means.
Because there was other overwhelming evidence of guilt here, this conviction is affirmed.
Absent such evidence, I would not have reached this conclusion.
We heard oral argument at South Bend on October 25, 2001.
We gratefully acknowledge the hospitality of the Indiana State Bar Association and the
capable advocacy of counsel.
The State argues Morgans statement was not an unambiguous assertion of his
right to counsel because his statement regarding his comfort level (Br. of the
Appellee at 14) was not a statement that he did not want to
proceed without counsel present. Nor, the State argues, was Morgans shaking of
his head after he was asked So you dont want to talk to
me at this time an invocation of his right to counsel. Rather,
Morgan was merely demonstrating he did not want to talk to the detective.
We acknowledge the States alternative interpretations of what Morgans statement, viewed in
isolation, might have conveyed. However, it is apparent in light of the
circumstances surrounding the statement that the officer interviewing Morgan interpreted the statement only
as an invocation of the right to counsel, and we cannot say the
officer was unreasonable in so interpreting the statement.
Footnote: Morgan argues that errors such as the one in the case before
us are fundamental, and therefore reversible
per se even if there is other
independent evidence sufficient to support a conviction, citing Propes v. State, 550 N.E.2d
755, 758 (Ind. 1990). Morgan correctly characterizes the Propes holding; however, in
light of our supreme courts subsequent holding in Alford v. State, 699 N.E.2d
247, 251 (Ind. 1998), we are constrained to apply the harmless error analysis.
See also Rawley v. State, 724 N.E.2d 1087, 1090 (Ind. 2000).
Lehman did not address whether aggravated battery is an inherently lesser-included offense