Attorneys for Appellee
Attorney General of Indiana
James B. Martin
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
December 14, 2001
Defendant left the apartment several times to get more beer. The last
time Defendant came home, an argument with Fink escalated into a fistfight.
Fink hit Defendant several times, at one point chipping Defendants tooth. A
little later Defendant went into the be
droom, took out his roommates shotgun, and
shot Fink. As will be seen, the facts surrounding the argument, the
fight, and the shooting were in dispute at trial. Fink later died
from his wounds.
Early on June 19, 1999, Defendant was found asleep in the back of
a taxicab near the crime scene. Detective Mock, the officer assigned to
the investigation, took Defendant to the police station. On the way to
the police station, Detective Mock orally advised Defendant of his
Miranda rights, which
Defendant waived at that point. At the police station, Detective Mock again
advised Defendant of his Miranda rights, which Defendant again waived. Defendant then
gave a statement, which Detective Mock typed. Defendants statement indicated that he
had knowingly and intentionally shot Harry Fink. Defendant was charged with murder
and, after a five-day jury trial, was found guilty of Finks murder.
Defendant now appeals his conviction, raising several issues.
We will recite additional facts as necessary.
The State bears the burden of proving beyond a reasonable doubt that the
defendant voluntarily and intelligently waived his rights, and that the defendants confession was
voluntarily given. Crain v. State, 736 N.E.2d 1223, 1230 (Ind. 2000) (citing
Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000)). Where the State
has met its burden and the trial court has ruled to admit the
confession, we review the trial courts determination for an abuse of discretion.
Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000) (citing Jones v. State,
655 N.E.2d 49, 56 (Ind. 1995), rehg denied). When reviewing a challenge
to the trial courts decision to admit a confession, we do not reweigh
the evidence, but instead examine the record for substantial, probative evidence of voluntariness.
Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000).
Defendant asks us to infer from certain answers given to the police and
the asserted illegibility of his signature on his statement that he was so
highly intoxicated (and otherwise mentally impaired) at the time of his confession that
it should not be considered knowing, voluntary, and intelligent. Defendant cites several
somewhat older cases
for the proposition that a person can be too intoxicated
to make a voluntary confession. More recent cases, however, make clear that
coercive police activity is a necessary prerequisite to finding a confession is not
voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.
Crain, 736 N.E.2d at 1231 (citing Colorado v. Connelly, 479 U.S. 157,
167 (1986)). A confession is voluntary if, in light of the totality
of the circumstances, the confession is the product of a rational intellect and
not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that
have overcome the defendant's free will. United States v. Dillon, 150 F.3d
754, 757 (7th Cir. 1998). The critical inquiry is whether the defendant's
statements were induced by violence, threats, promises, or other improper influence. Page
v. State, 689 N.E.2d 707, 711 (Ind. 1997).
Factors such as intoxication and lack of sleep may be factors in determining
ntariness. Ringo, 1236 N.E.2d at 1213 (Ind. 2000) (citing Pettiford v. State,
619 N.E.2d 925 (Ind. 1993) (citing in turn Connelly, 479 U.S. 157)).
However, Defendant makes no argument that there was any violence, threats, promises, or
improper influence in this case.
We find that the trial court did not abuse its discretion in denying Defendant's motion to suppress because the record contains substantial probative evidence sufficient to establish beyond a reasonable doubt that there was no evidence of improper police influence or coe rcion in obtaining the confession.
The events giving rise to this claim took place a short time prior
to the shooting of Fink. Defendant had returned to his apartment at
around 11:00 in the evening, and about a half hour later, he sent
Rob Waller out to obtain more marijuana, as they had run out.
After Waller left the apartment, Defendant, Fouche, and Fink sat down to watch
television. At one point, Defendant went into the kitchen to get a
beer. After Defendant came back from the kitchen, he and Fouche had
sexual intercourse. Defendant contends that he was invited to have sex with
Fouche by Fink and that she consented. Fouche contends that Defendant raped
her despite her (and Finks) efforts to resist. There is agreement that
after this, Fouche took a shower and came back into the living room
to hear the Defendant and Fink arguing. But the accounts of the
events that took place after the argument are in dispute.
Defendant testified that after the argument, he threatened to call the police to
report Fink. Fink prevented this by pulling Defendant away from the phone,
and also prevented Defendant from leaving the apartment. Defendant testified that he
felt threatened and went to get the shotgun just to scare Fink.
But in his walk from the bedroom to the living room, Defendant testified
that he stumbled on the carpet and the shotgun fired accidentally, hitting Fink.
Fouches testimony is the opposite. Fouche testified that after she got out
of the shower, she heard Defendant and Fink fighting. Fink threatened to
call the police to report the rape, and Defendant pulled the phone cord
out of the wall to prevent Fink from dialing the phone. Another
fistfight ensued, and then it ended abruptly. After the fight, Defendant went
to the kitchen to get more beer for himself and Fink, and then
sat down on the couch with Fink and Fouche. Defendant then stated
to Fink, Im gonna take you down just like you took me down.
Fink replied, The only way youre gonna take me down
to shoot me, and when you shoot me, make sure that Im dead.
According to Fouche, Defendant got up from the couch, went to his
room, and came back with the shotgun. Fouche testified that Defendant deliberately
aimed the shotgun at Fink before he pulled the trigger.
The trial court allowed Fouche to testify about the alleged rape for the
limited purpose to show intent, motive, and absence of accident or mistake.
In its ruling, the trial court stated, the relevancy [of Fouches rape testimony]
would be dictated by [Defendants] choice of defense of accident. In that
sense it seems to me itd be clearly relevant as to whether or
not this was an accident.
When addressing the admissibility of evidence under Rule 404(b), a trial court must
utilize a two-prong analysis. First, the trial court must assess whether the
evidence has some relevancy to a matter at issue other than the defendants
propensity to commit the charged act. Second, the trial court must weigh
the probative value of the evidence against its prej
udicial effect, pursuant to Indiana
Evidence Rule 403.
Dickens v. State, 754 N.E.2d 1, 4 (Ind. 2001);
Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). This court will
review the trial courts determination and only reverse when there is an abuse
of discretion. Dickens, 754 N.E.2d at 4.
Our review of the record reveals that the rape testimony given by Fouche was relevant. The alleged rape immediately preceded the shooting of Fink and together with the argument and fistfight, Fouches testimony provided a potential motive for Defendant deliberately to shoot Fink. Fouches testimony was therefore relevant to rebut Defendants defense of accident. In addition, the timing of the prosecutions request to offer the rape testimony suggests that the prior bad act evidence was not offered for the purpose of showing Defendants propensity for violent crimes. Although the State had indicated that Fouche was a potential witness, it was only after Defendant disclosed his defense of accident (outside the presence of the jury) that the State indicated it would put her on the stand to testify about the alleged rape. The court took this timing into consideration and properly ruled that the evidence was relevant and probative to the States case in chief, tending to show Defendants motive and intent.
Next we assess the trial courts balance under Rule 403. Crain, 736 N.E.2d at 1236. Although not explicit, it is clear from the record that the trial court was of the view that the probative value of Fouches testimony was not substantially outweighed by its prejudicial effect. The trial court discussed the probative value of the rape testimony, noting the proximity of the alleged rape to the shooting of the victim. This proximity in time made the alleged rape evidence probative to showing Defendants motive, intent, or absence of accident or mistake.
However, the court did recognize the prejudicial nature of Fouches testimony. When
the testimony was given, the trial court instructed the jury to not take
Fouches testimony as proof of Defendants character. We have long held that
when a jury is properly instructed by the trial court, the jury is
presumed to have followed such instructions.
See Tabor v. State, 461 N.E.2d
118, 125 (Ind. 1984); see also Chandler v. State, 581 N.E.2d 1233, 1237
(Ind. 1991). Moreover, there is no evidence before us that indicates the
contrary. See Tabor, 461 N.E.2d at 125. We conclude that the
trial court did not abuse its discretion when it admitted the rape testimony
under Rule 404(b) for the limited purposes of showing intent, motive, and absence
of mistake or accident.
On direct examination, Defendant testified about a conversation he had with Fink on
the day of the murder. Fink had told Defendant that they did
not need to work to make rent money; instead, Defendant could steal the
money they needed. Defendant told Fink, Im done with stuff like that.
On cross examination, the State asked Defendant what he had meant by Im
done with stuff like that. Defendant replied that he meant he was
finished with stealing from people. The State proceeded to question Defendant about
his prior convictions for theft. On objection, the States only explanation was
that Defendant had opened the door to such an impeachment by stating he
was not a thief.
The trial court ruled in favor of admissibility stating, [t]he convictions will be
[I]n light of the Defendants testimony that he was not
a thief, and [that] he wasnt up for getting involved in any of
that kind of activity, [the probative value] outweighs the prejudicial effect of antiquated
convictions more than ten years old.
Our prior cases that have discussed Rule 609(b) and the ten-year limitation have
dealt with situations where the defendant wanted to impeach a State witness with
prior convictions that were more than ten years old.
See Stephenson v.
State, 742 N.E.2d 463, 485 (Ind. 2001); Schwestak v. State, 674 N.E.2d 962,
963 (Ind. 1996). In this case, the opposite is true. The
State impeached Defendants testimony with Defendants prior convictions for theft ranging from 1970
to 1984. We assume for purposes of analysis that Defendant did not
open the door to this evidence.
Rule 609(b), unlike Rule 403, is a rule that presumes the exclusion of
convictions more than ten years old.
See Robert Lowell Miller, Jr., Indiana
Practice, Vol. 13, §609.202, 170 (1991). As such, the party seeking to
admit such convictions must support the argument for probative value with specific facts
and circumstances upon which the trial court may base a finding of admissibility.
Id. In addition, the trial court must balance the probative value
against the prejudicial effect of the old convictions on the record. We
review this ruling under Rule 609(b) for an abuse of discretion. Stephenson,
742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v.
Reed, 2 F.3d 1441, 1448 (7th Cir. 1993).
The five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir. 1991), is instructive. See footnote The trial court is to consider the following five factors, but this list is not exclusive: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness subsequent history; (3) the similarity between the past crime and the charged crimes; (4) the importance of the defendants testimony; and (5) the centrality of the credibility issue. Castor, 937 F.2d at 299 n.8; see Miller, at 171.
The last two factors the importance of Defendants testimony and the centrality
of the credibility of Defendant do cut in favor of the admissibility
of the convictions. But while these two factors favor admission, they are
also in tension with the fact that the risk of unfair prejudice is
greater when the conviction is that of a party. Miller, at 170.
Additional assessment of the convictions is needed to ensure that the probative
value of these remote convictions substantially outweighs their prejudicial effect. Evid. R.
This was not done by the trial court. For example, the point
in time of the last convi
ction and the witnesss subsequent history was not
considered. The latest conviction for theft was in January 1984. Between
1984 and the time of trial, fifteen years had passed without Defendant earning
another theft conviction or charge.
The admission of these convictions without further
analysis violates the principle implicit in the ten-year time limit that older convictions
have little bearing on the current state of a defendants credibility.
Here, the State has not effectively rebutted the exclusionary presumption of Rule 609.
We hold that the trial court abused its discretion when it admitted
stale convictions without an analysis of the facts and circumstances surrounding the convictions
and Defendants cu
rrent charge for murder. See Schwestak, 674 N.E.2d at 964
(We cannot see why the probative value of this conviction, which is more
than ten years old, is so high as to overcome the general rule
that stale convictions are not admissible.)
However, when the trial court has erroneously admitted evidence, we disregard any error
or defect in the proceeding which does not affect the substantial rights of
the parties. Ind. Trial Rule 61. We have interpreted this to
mean that if, in light of all the evidence in the case, the
error has had an insubstantial impact on the jury, the error did not
affect the su
bstantial rights of the parties. See Williams v. State, 749
N.E.2d 1139, 1142 (Ind. 2001); Schwestak, 674 N.E.2d at 965; Fleener v. State,
656 N.E.2d 1140, 1142 (Ind. 1995).
The State had additional opportunities to impeach Defendants credibility during the States cross-examination
of Defendant. These included eliciting evidence of prior inconsi
stent statements of Defendant,
consumption of alcohol and marijuana prior to the shooting, the victim as a
threat to Defendant, and Defendants written confession and later retraction. In light
of all the evidence, it appears that Defendants rights have not been substantially
affected by the erroneous admission of his prior theft convictions. Even if
the prior theft convictions had not been admitted, the jury would have had
substantial impeachment evidence before it to cast doubt on the credibility of Defendants
Indiana Trial Rule 51 (C) requires a party to object at trial as
a prerequisite for clai
ming error on appeal. Scisney v. State, 701 N.E.2d
847, 849 (Ind. 1998). Here Defendant did not object to the absence
of a law and the facts instruction. He asks that we review
this claim on grounds that the trial courts omission constituted fundamental error.
The fundamental error doctrine holds that we will grant relief even where error is not properly preserved for appeal when the error is so prejudicial to the rights of the defendant that a fair trial was impossible. See Carter v. State, 738 N.E.2d 665, 677 (Ind. 2000); Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998). Here it was clearly error for the trial court not to give the law and the facts instruction as required by statute. But given that the jury was properly instructed as to all of the elements of the offense and counsel interposed no request for a law and the facts instruction nor objected to its omission, we are unable to find any fundamental error.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.