ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. JEFFREY A. MODISETT
Merrillville, Indiana Attorney General of Indiana
JANET BROWN MALLETT
Deputy Attorney General
SUPREME COURT OF INDIANA
MARK E. HENRY, )
) Supreme Court Cause Number
v. ) 45S00-9810-CR-558
STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James Clement, Judge
Cause No. 45G04-9704-CF-159
ON DIRECT APPEAL
November 16, 2000
A jury convicted Mark Henry of murder in the stabbing death of antique
storeowner Carol Nelson. The trial court sentenced him to sixty-five years imprisonment.
In this direct appeal, Henry raises one issue for our review:
did the trial court err by admitting Henrys confession into evidence? We
find no error and therefore affirm.
The facts most favorable to the verdict show that on August 5, 1997,
Henry entered an antique store in Hobart, Indiana. An elderly couple, Carol
and William Nelson, owned the store. Alone at the time, Mrs. Nelson
became engaged in an argument with Henry. Wielding a carpenters knife, Henry
slit Mrs. Nelsons throat, emptied the cash register, and left. Afterwards Henry
fled to Wisconsin driving a sports utility vehicle that his girlfriend had reported
stolen. Wisconsin authorities arrested Henry for the stolen vehicle after he led
them on a two-hour, high-speed chase. Officers of the Hobart Police Department later
went to Wisconsin and questioned Henry about the antique store killing. After
a short interview, Henry confessed to the crime telling the officers that he
had gone to the store to sell an antique rocker and he got
into an argument with the gray haired lady wearing glasses there. . .
.[,] a scuffle ensued[,] and  he cut her. R. at 437.
Henry then took money from the register and left. Id.
Thereafter, Henry was arrested and charged with murder. Prior to trial Henry
filed a motion to suppress the statement, which the trial court denied.
At trial the statement was admitted into evidence over Henrys timely objection.
The jury convicted Henry as charged, and the trial court sentenced him to
an enhanced term of sixty-five years. This direct appeal followed. Additional
facts are set forth below.
Henry contends the interrogating officer obtained his confession solely through deceit and thus
the trial court erred by admitting it into evidence. When a defendant
challenges the admissibility of his confession, the State must prove beyond a reasonable
doubt that the confession was given voluntarily. Carter v. State, 730 N.E.2d
155, 157 (Ind. 2000); Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000).
The voluntariness of a confession is determined from the totality of the
Berry v. State, 703 N.E.2d 154, 157 (Ind. 1998). The
totality of the circumstances test focuses on the entire interrogation, not on any
single act by police or condition of the suspect. Light v. State,
547 N.E.2d 1073, 1079 (Ind. 1989). We review the record for evidence of
inducement by way of violence, threats, promises, or other improper influences. Berry,
703 N.E.2d at 157.
The record shows that during the police interrogation, officers informed Henry that his
fingerprints were found at the scene of the crime and that someone present
in the basement of the antique store identified Henry as the person who
killed Mrs. Nelson. R. at 459-60. Neither statement was true.
While not condoning such tactics, this Court has upheld the trial courts admission
of a defendants statement into evidence on facts more egregious than those presented
here. See Light, 547 N.E.2d at 1079 (holding that the trial court
did not err by admitting defendants statement despite evidence of a four-hour interrogation
punctuated by conduct of the interrogators involving cursing, lying, and smacking the defendant
on the arm). Henry acknowledges Light but urges us to revisit that
decision and announce a bright line rule which would render inadmissible a confession
obtained solely by deceitful police activity. Brief of Appellant at 9.
We see no reason in this case to depart from the totality of
the circumstances test and thus decline Henrys invitation. Although we continue to
disapprove of deceptive police interrogation tactics, such conduct is not conclusive but rather
weighs heavily against the voluntariness of the defendants confession. Heavrin v. State,
675 N.E.2d 1075, 1080 (Ind. 1996). In the end, we must determine
whether the police conduct overbore Henrys will, thus rendering his statement involuntary.
Lynch v. State, 632 N.E.2d 341, 343 (Ind. 1994).
The record shows, and the trial court found, that Henry is a carpenter
by trade and of average intelligence; the interrogation was very brief (lasting approximately
one hour); Henry was Mirandized three times; after being Mirandized on the third
occasion, Henry indicated that he understood his rights; the police made no threats
or promises to Henry; Henry did not ask for an attorney;
See footnote and he
was not intoxicated or sleep-deprived. R. at 256-59. Balanced against the
officers obvious deception, these facts tip the scales in favor of the conclusion
that Henrys statement was not involuntary. We also observe that Henry actually
gave two incriminating statements: the first, unrecorded and accompanied by police deceit;
the second, audiotaped with no hint of police deception. It was the
second, audiotaped confession, that was admitted into evidence. R. at 439.
We have held even if the earlier statements were the result of an
improper custodial interrogation, the results of this later station-house interrogation, where [the defendant]
had been properly apprised of his rights, would remain admissible.
State, 670 N.E.2d 1, 6 (Ind. 1996). For this additional reason, the
trial court did not err by admitting Henrys confession into evidence.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs in result without separate opinion.
We note that the U.S. Constitution requires the State to prove
only by a preponderance of the evidence that a defendants confession was voluntarily
Smith v. State, 689 N.E.2d 1238, 1246-47 n.11 (Ind. 1997) (citing
Colorado v. Connelly, 479 U.S. 157, 167-69 (1986); Lego v. Twomey, 404 U.S.
477, 488-89 (1972)). However, in Indiana we require the State to prove
the voluntariness of a confession beyond a reasonable doubt, and trial courts are
bound to apply this standard when evaluating such claims.
Henry takes issue with the trial courts findings that he did
not ask for an attorney. However, the record shows the following
exchange between the deputy prosecutor and the interrogating officer: Q. Referring to
the statement that you took from Mark Henry on the 7
any time, did Mark Henry ask you for an attorney? A. He did
not. . . . Q. Did you ever tell him that he doesnt
need an attorney? A. No. R. at 239. Although
Henry disputes the officers claim, it is for the trial court and not
this Court to judge witness credibility.