ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN PINNOW KAREN M. FREEMAN-WILSON
Greenwood, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DEBBIE TRICE, )
vs. ) No. 49A05-0008-CR-346
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9807-CF-125015
April 9, 2001
OPINION - FOR PUBLICATION
Debra Trice appeals her conviction after a jury trial of Murder. She
presents two issues for appeal, which we restate as:
1. Whether statements Trice made to police after being given and waiving her Miranda
rights were voluntary and admissible at trial; and
2. Whether the States comments on her post-arrest, post-Miranda silence violated her right to
due process under the Fourteenth Amendment of the United States Constitution.
Debra Trice fatally shot Raymond Jones with a shotgun in an Indianapolis north
side neighborhood on July 20, 1998. The two knew each other casually,
and their relationship was based on the mutual use of crack cocaine.
Earlier that day, Trice and Jones had been together using crack cocaine at
Trices mothers house. After Jones left, Trices mother discovered some jewelry missing.
Trice left in her mothers car, with a shotgun, to locate Jones
and confront him about the missing jewelry. Trice stopped in Joness neighborhood
and inquired about the location of Jones and three other persons. She
arrived at Joness mothers house and met his brother, Allen. Trice carried
the shotgun out of the car toward the Jones house. Allen asked
Trice to put the gun away and re-park her vehicle while he woke
Jones. She did so. Jones got dressed, exited the residence, and
told Allen to Go on, I can handle it. Allen left the
house. Soon thereafter, Allen heard a gunshot, ran back to his house,
and found Jones lying in the street in front of their house with
a gunshot wound to the chest.
Allen saw Trice drive quickly away, running a stop sign in the process.
Eight days later, while homicide detectives were preparing to question her, Trice
arranged to surrender to police. Trice was taken into custody, handcuffed and
placed in an interrogation room. Trice was read her Miranda rights, and
she responded that she understood each of her rights. She then read
and signed the waiver form.
Trice told the detectives that she felt guilty because I killed [Jones].
(R. at 326, 333.) When the detectives asked Trice the details of
the shooting, she invoked her right to counsel, responding that she wanted to
talk to a lawyer about that part.
DISCUSSION AND DECISION
1. Voluntary Confession
Trice contends that she did not voluntarily waive her right to remain silent,
and that her statement was rendered involuntary based on drug intoxication and lack
of sleep. Based thereon, she asserts the trial court improperly denied her
motion to suppress and abused its discretion when it admitted her statements into
evidence. We disagree.
The decision whether to admit a defendants statement is within the discretion of
the trial court. Ellis v. State, 707 N.E.2d 797, 801 (Ind. 1999).
We will not disturb a trial courts decision absent a showing of
abuse of that discretion. Jackson v. State, 697 N.E.2d 53, 54 (Ind.
1998). Whether Trice knowingly and voluntarily decided to forego her right to
remain silent is determined by an inquiry into the totality of the circumstances
surrounding the interrogation. Ellis, 707 N.E.2d at 801. When reviewing a
challenge to the trial court's decision, we examine the record for substantial, probative
evidence of voluntariness, and do not reweigh the evidence. Horan v. State,
682 N.E.2d 502, 510 (Ind. 1997).
Trice argues that her statement was not voluntary, since she asserted her right
to remain silent by stating she did not want to talk about Jones
death. A memo from the officer who interviewed Trice indicates Trice said
I dont know. I dont want to talk too much. He
was a nice guy. (Transcript of Hearing on Defendants Motion to Suppress
at 23, R. at 311.) She then signed the waiver form and
proceeded to talk to police. This statement by Trice was insufficient to
invoke her right to remain silent. See Haviland v. State, 677 N.E.2d
509, 513-14 (Ind. 1997) (defendants repeated statements of Im through with this during
interrogation insufficient to invoke his right to remain silent.)
Trice also asserts her statement was involuntary due to her intoxication from the
effects of crack cocaine and alcohol. She has the burden of showing
under the totality of the circumstances that her consumption of drugs and/or alcohol
so affected her that she was deprived of her free and independent will
so that the statement was the product of an irrational mind or coercion.
Houchin v. State, 581 N.E.2d 1228, 1231 (Ind. 1991).
Trice claimed that she had been drinking and on a several-day crack binge
prior to her voluntary surrender. In this situation, intoxication will make her
statement incompetent only if it rendered her "not conscious of what she was
doing" or produced a "state of mania." Ellis, 707 N.E.2d at 802.
Intoxication to a lesser degree goes only to the weight to be
given to the statement and not its admissibility. Id. Detectives described
Trices eyes as red and testified that she looked tired. One of
the detectives with significant prior narcotics experience surmised that Trice was coming down
from a crack high. The detectives also described Trice as more intelligent
and better educated than most suspects similarly situated.
In light of her signed Miranda waiver, her voluntary surrender, and the lack
of evidence to support her argument that she was intoxicated to the point
of giving an involuntary statement, we cannot say there was an abuse of
the trial courts discretion in admitting her confession.
2. References to Post-Miranda Silence
Trice contends that the prosecutors repeated references to her post-Miranda silence were prosecutorial
misconduct and amounted to fundamental error. Using a defendant's post-Miranda silence for
impeachment violates the Due Process Clause of the Fourteenth Amendment. Doyle v.
Ohio, 426 U.S. 610, 618 (1976); U.S. Const. amend. XIV. The Doyle
Court noted that Miranda warnings give the criminal defendant implicit assurances that his
silence will carry no penalty. Id. at 618. "In such circumstances,
it would be fundamentally unfair and a deprivation of due process to allow
the arrested person's silence to be used to impeach an explanation subsequently offered
at trial." Id. at 619.
The defendants in Doyle were arrested immediately after a drug sting operation involving
the use of a confidential informant. They made no statements. At
trial, the defendants did not contest the states version of the events, but
instead claimed they were framed. The prosecutor sought to impeach their exculpatory
testimony through repeatedly cross-examining them about why they had not told their story
before trial, and why they did not tell police of their innocence upon
arrest. The Doyle Court determined that use of post-arrest silence for impeachment
purposes was constitutionally impermissible. Indiana courts recognize the rule set out in
Doyle, and do not allow prosecutors to use a defendant's post-Miranda silence as
a means of impeachment. Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind.
The State correctly notes that Trice failed to timely object at trial to
the prosecutors comments, and it asserts this argument is therefore waived on appeal.
Where there is no timely objection at trial, an issue is procedurally
defaulted and is therefore normally under such circumstances unavailable on appeal. Townsend
v. State, 632 N.E.2d 727, 730-31 (Ind. 1994). However, a reviewing court
may bypass an error that a party procedurally defaults when the error is
plain or fundamental. Id. We believe the prosecutors references to Trices
post-arrest silence were fundamental error, and we therefore choose to address that allegation
Our supreme court has emphasized the narrow applicability of the fundamental error doctrine,
finding it applicable only to situations where there are blatant violations of basic
and elementary principles of due process, and the harm or potential for harm
cannot be denied. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999).
The error must be so prejudicial to the rights of a defendant
as to make a fair trial impossible. Id. at 94. Its
availability as an exception to the waiver rule in post-conviction proceedings is generally
limited to deprivation of the Sixth Amendment right to effective assistance of counsel
or to an issue demonstrably unavailable to the petitioner at the time of
his or her trial and direct appeal. Id. However, the fundamental
error exception to waiver is not so narrow on direct appeal as it
is in a post-conviction action. Id.
Prosecutorial misconduct may amount to fundamental error. Stowers v. State, 657 N.E.2d
194, 198 (Ind. Ct. App. 1995). For prosecutorial misconduct to be fundamental
error, it must have subjected the defendant to grave peril and had a
probable persuasive effect on the jury's decision. Ellison v. State, 717 N.E.2d
211, 213 (Ind. Ct. App. 1999). The gravity of the peril turns
on the probable persuasive effect of the misconduct on the jury's decision, not
on the degree of impropriety of the conduct. Id.
In Taylor, an action for post-conviction relief, our supreme court noted that a
Doyle claim might constitute fundamental error. Id. at 93. It found
the violation in that case was not fundamental error and was therefore waived
by failure to object at trial when the comments were of marginal significance,
id., the State withdrew one of the offensive questions and the jury was
admonished by the trial judge that it was to disregard the question, and
there was strong evidence of Taylors guilt.
In determining whether a claimed error denies the defendant a fair trial, we
consider whether the resulting harm or potential for harm is substantial. The
element of harm is not shown by the fact that a defendant was
ultimately convicted; rather, it depends upon whether his right to a fair trial
was detrimentally affected by the denial of procedural opportunities for the ascertainment of
truth to which he otherwise would have been entitled. Townsend, 632 N.E.2d
at 730-31. Our task is to look at all that happened, including
the erroneous action, and decide whether the error had substantial influence upon the
verdict to determine whether the trial was unfair. Id.
In Townsend, our supreme court found fundamental error where a verdict instruction was
inconsistent with an instruction concerning the elements of the crime. Townsend was
charged with the commission of battery on two children, and the element instruction
required the State to prove a touching of both children. But the
supreme court noted that
[t]he trial court's verdict form instruction is diametrically opposed to the element instruction.
It relieved the State of the need to prove the commission of
a battery upon both children as charged. This trial anomaly acted to
deny appellant a fair trial and the process that was due to him.
This is fundamental error, and because the error is fundamental, we bypass
any procedural default to address the substantive merits of the issue. The
giving of this instruction was prejudicial error.
632 N.E.2d at 730-31.
Here, Trice admitted to police that she killed Jones, but invoked her right
to counsel when asked the details of the shooting. At trial, Trice
did not contest her role in Jones death, but did advance her defense
that Jones death was not an intentional or knowing act. Her post-Miranda
statements are not inconsistent with her theory of the case.
The State subjected Trice to the following cross-examination:
Q: Maam, you shot and killed Raymond Jones didnt you?
A: No, sir, not by - - not intentionally.
Q: Well, today is the first time that youve told this story that youve
told this jury, its the first time youve told that; isnt that right?
A: Yes, sir.
Q: And you had an opportunity to talked [sic] to Detective Wallace and you
talked to Detective McEvilly about what happened, didnt you?
A: Yes. I wish I hadnt.
(R. at 402.)
Later in the same cross-examination, the following exchange took place:
Q: You didnt stop. You didnt go to try to tell the police
the story that you are telling this jury today - -
A: No, sir.
Q: - - that this was all some big accident?
A: No, sir, I didnt.
Q: And youve never told the police that, have you?
A: Told the police what?
Q: The story that you are telling the jury today, that this was an
A: No, I have never told them. I have never said anything.
Q: Because the fact is, it wasnt an accident, was it maam? You
were angry at Raymond Jones and you shot and killed him?
A: No, sir. Thats not true. I wouldnt - -Raymond was not
- - he wasnt - -
(R. at 414.)
The State re-visited the subject at length in closing argument:
Is the defense an accident? And Ill close with this - -
accidental. When did we hear about accident? Did she tell the
officers that when they took her statement? Huh-uh. We heard it
for the first time today . . . . She said she wanted
to kill herself because she felt guilty for killing Raymond - - voluntary
conversation. Isnt that the time when youd say, It was anaccident.
I didnt mean to do it? Even if you dont think that
you would admit something like that to the police, you would at least
tell your family . . . .What do you do when you talk
to a police detective if indeed it was an accident? I suspect
most of us, people would say, I didnt mean for it to happen.
It was an accident. Does she say that to the detective?
(R. at 447, 465.)
Allen v. State, 686 N.E.2d 760 (Ind. 1997), the supreme court
found no Doyle violation where the defendants rights had been respected and his
detailed admissions deemed voluntary. What distinguishes Allen from Doyle is that Allen
simply was not silent. Without the defendants silence being used to suggested
that he silently confessed, there is no Doyle violation. Allen, 686 N.E.2d
at 774. Allen was advised of his rights, made a six-hour long
statement, and then invited authorities to give him a polygraph test that he
As it presents a situation analogous to Trices circumstance, Jones v. State, 355
N.E.2d 402, 403 (Ind. 1976) offers more guidance. Jones and a co-defendant
were convicted of armed robbery after being arrested in the vicinity of the
event in possession of the proceeds of the crime. During trial, the
state referenced five times Jones failure to provide a pre-trial statement to authorities.
Our supreme court held that A defendant who receives Miranda warnings
is advised that he may remain silent; he is not warned that the
right continues only while he is in the custody of the arresting officers.
Penalizing the accused for silence before trial is no less punishment for
the exercise of a right than penalizing silence at the time of arrest.
Jones, 355 N.E. 2d at 405.
In Bieghler v. State, 481 N.E.2d 78, (Ind. 1985) our supreme court found
no Doyle violation in a single instance during cross-examination followed by a judicial
admonition to the jury. Bieghler establishes the Indiana test for harmless error
in a Doyle circumstance, following United States v. Massey, 687 F.2d 1348 (10th
Cir. 1982). Whether a violation of Doyle is harmless involves consideration
of the following factors: 1) The use to which the prosecution
puts the post-arrest silence, 2) Who elected to pursue the line of
questioning, 3) The quantum of other evidence indicative of guilt, 4)
The intensity and frequency of the reference, and 5) The availability to
the trial judge of an opportunity to grant a motion for mistrial or
to give curative instructions. Bieghler, 481 N.E.2d at 92.
We will address the factors in turn. First, the prosecution used Trices
post-arrest silence to directly impeach her testimony at trial. While other challenges
to her credibility on the stand did not refer to her failure to
make a complete statement to detectives upon her surrender, seven questions posed during
cross-examination did. At least one-third of the states closing argument discusses Trices
failure to relate her story to detectives upon arrest. Second, the initial
reference to her partial post-arrest silence was by her own counsel during the
cross-examination of one of the detectives who was discussing the specific starting and
stopping points of Trices first statement. Third, the circumstantial evidence against Trice
was undisputed by the defense, with the exception of Trices mens rea.
Thus, only the element of intent was left for the jury to determine.
There were no witnesses to the shooting. Other than her own
admissions, all evidence at trial was circumstantial. Trices intent became the sole
item for the jurys determination. Fourth, the frequency and intensity of the
Doyle violations were not harmless; there were at least seven references during cross-examination,
and the subject dominated the states closing argument. Fifth, the trial judge
did not have an opportunity to address the issue, as defense counsel did
not object. The failure to object does not preclude review when such
preclusion would deny the defendant "fundamental due process." Johnson v. State, 390
N.E.2d 1005, 1010 (Ind. 1979).
As such, Trices claimed Doyle violations survive the harmless error analysis provided by
Bieghler and constituted fundamental error. There were seven references to Trices post-arrest
silence during cross-examination and more in closing argument. These references exceed the
frequency and intensity of examples of Doyle violations provided as guidance within established
Indiana case law. The only issue for the jurys consideration was Trices
intent, and the jurys questions to the trial court indicated the jury was
having particular difficulty resolving the intent issue. The prosecutors improper comments regarding
Trices silence, both on cross-examination and in closing argument, were directed at Trices
assertion that the shooting was accidental and not intentional. In that context,
the Doyle violations subjected Trice to grave peril and had a probable persuasive
effect on the jury's decision.
FRIEDLANDER, J., concurs.
BAILEY, J., dissenting.
COURT OF APPEALS OF INDIANA
DEBBIE TRICE, )
vs. ) No. 49A05-0008-CR-346
STATE OF INDIANA, )
BAILEY, J., dissenting
I respectfully dissent. The majority correctly asserts that Indiana courts will not
permit a prosecutor to use a defendants post-arrest, post-Miranda silence as a means
of impeachment, consistent with the rationale of Doyle v. Ohio, 426 U.S. 610,
96 S. Ct. 2240 (1976). Hensen v. State, 514 N.E.2d 1064, 1066
(Ind. 1987). I also agree that an alleged Doyle violation is of
Constitutional magnitude and may be reviewed under the fundamental error doctrine. Taylor
v. State, 717 N.E.2d 90, 93 (Ind. 1999). However, I disagree that
the prosecutors comments were directed to Trices post-Miranda silence. Rather, the prosecutor
commented upon the substance of a post-Miranda police statement made by Trice.
Thus, there is no necessity to evaluate the prosecutors conduct under the Doyle
Upon surrendering to Indianapolis Police Department officers, Trice did not initially invoke her
right to remain silent. She was advised of her rights, including the
right to remain silent, signed a waiver form and answered several questions posed
by Detective William McEvilly. (R. 317-18, 322, 323.) Trice volunteered that
she felt guilty because she killed Jones. (R. 326.) Trice also
claimed: I dont know what happened. I was in the neighborhood.
I was there to smoke dope. (R. 332.) Thereafter, Trice
invoked her right to counsel and the police interview ceased. At trial,
the prosecutor was essentially asking Trice to explain why she did not characterize
the shooting as accidental when she initially and voluntarily claimed that she committed
the act. Although it is the better practice for a prosecutor to
refrain from unnecessary commentary, it is not fundamental error for a prosecutor to
inquire into the substance of a defendants voluntary statement.
While I disagree that the prosecutors comments must be reviewed under the Doyle
criteria, such a review would nevertheless fail to reveal reversible error. Under
some circumstances, a Doyle violation may be harmless error. Pennycuff v. State,
727 N.E.2d 723, 729 (Ind. Ct. App. 2000). If we can conclude
beyond a reasonable doubt that the error did not influence the jury verdict,
the error is harmless. Id. (citing Yurina v. State, 474 N.E.2d 93,
96-97 (Ind. 1985)). As the majority observes, five factors are considered in
the harmless error analysis: (1) the use to which the prosecution puts
the post-arrest silence; (2) who elected to pursue the line of questioning; (3)
the quantum of other evidence indicative of guilt; (4) the intensity and frequency
of the reference; and (5) the availability to the trial judge of an
opportunity to grant a motion for mistrial or give curative instructions. Henson,
514 N.E.2d at 1067.
During cross-examination of Trice, the prosecutor twice referred to her earlier statement to
police. Trice acknowledged that she had given a statement and expressed her
regret that she had done so. Further, the prosecutor elicited Trices admission
that she availed herself of the opportunity to make a police statement but
omitted any reference to the shooting as accidental. In closing argument, the
prosecutor referenced the absence of a claim of accident when they [the police]
took her statement. (R. 447.) (emphasis added). He observed that Trice
had ultimately given three conflicting explanations of the shooting. (R. 465.)
Taken in context, the prosecutors comments explored only the breadth of Trices statement
to police, and did not attempt to penalize her subsequent exercise of the
right to remain silent.
Moreover, even assuming that these references were impermissible, the quantum of evidence indicative
of Trices guilt is overwhelming. Trices mother found that her jewelry was
missing after Jones had been in her home. Trice admittedly went to
Joness residence in an attempt to retrieve the jewelry. Joness brother observed
Trice arrive at the residence armed with a shotgun; he heard a gunshot
and then observed Trice speeding away in her vehicle. Immediately thereafter, Jones
was discovered in front of his residence with a gunshot wound to his
chest. Trice arranged her own surrender to police, and voluntarily stated that
she had killed Jones.
The prosecutor made no comment upon Trices exercise of the right to remain
silent. Assuming arguendo that he had done so, the Doyle violation would
be harmless error in light of the overwhelming evidence of Trices guilt.
Therefore, I would affirm Trices conviction of murder.
The dissent characterizes these statements as unnecessary commentary and as a mere
inquir[y] into the substance of a defendants voluntary statement. Accordingly, the dissent
would find no
Doyle violation because the prosecutors statements were not directed to
Trices post-Miranda silence. We believe the prosecutors statements were clearly directed to
Trices silence. For example, the prosecutors questions of Trice and statements in
closing argument include the following: Well, today is the first time that
youve told this story that youve told this jury, its the first time
youve told that; isnt that right?; You didnt go to try to tell
the police the story that you are telling this jury today . .
. And youve never told the police that, have you?; Did she tell
the officers that when they took her statement? Huh-uh. We heard
it for the first time today; and I suspect most of us, people
would say, I didnt mean for it to happen. It was an
accident. Does she say that to the detective? No. As
these statements refer only to what Trice did not say to the police,
they cannot be considered comments on the substance of Trices statement.