ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER STEVE CARTER
Jeffersonville, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ROY A. MARTIN, )
vs. ) No. 10A05-0201-CR-12
STATE OF INDIANA, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D01-0105-CF-061
December 18, 2002
OPINION - FOR PUBLICATION
Roy Martin was convicted of murder, a felony, following a jury trial, and
was sentenced to fifty-five years incarceration. He now appeals his conviction.
Martin raises the following restated issues for our review:
Whether the trial court properly admitted into evidence a statement Martin had given
to police without benefit of counsel and after charges had been filed against
Whether the trial court properly admitted into evidence testimony regarding Martins prior possession
of a handgun; and
Whether the trial court properly allowed the State to impeach its own witnesses.
Facts and Procedural History
In the early morning hours of May 5, 2001, Vincent Sanders was shot
multiple times and killed in the parking lot of the Greenwood apartments in
Jeffersonville. Earlier that morning, Martin and Travis Green returned to the apartment
complex and Martin became angry when he learned that Sanders had been driving
his car while he was gone. He told Tina Hammond that he
would merc, or murder, Sanders for what he had done. Melvin Williams
was in the parking lot that morning and knew that Martin was angry.
Williams was only a few feet away when Martin confronted Sanders.
Williams heard gunshots and turned to see Sanders on the ground and Martin
holding a gun. After the shooting, Martin told Green that he shouldnt
have done that. Tr. at 109.
The investigation focused on Martin after detectives were given his name by witnesses
and told that he was upset with Sanders. An information charging Martin
with murder was filed on May 17, 2001. Martin surrendered himself at
a police station in Louisville, Kentucky, on May 20, 2001, where he was
later questioned by and gave a recorded statement to Jeffersonville police detectives.
Martin was tried to a jury and found guilty of murder. He
was sentenced to fifty-five years incarceration. Martin now appeals. Additional facts
will be provided as necessary.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
The admission of evidence is within the sound discretion of the trial court,
and the decision whether to admit evidence will not be reversed absent a
showing of manifest abuse of the trial courts discretion resulting in the denial
of a fair trial. Prewitt v. State, 761 N.E.2d 862, 869 (Ind.
Ct. App. 2002). An abuse of discretion involves a decision that is
clearly against the logic and effect of the facts and circumstances before the
court. Id. In determining the admissibility of evidence, we will only
consider the evidence in favor of the trial courts ruling and any unrefuted
evidence in the defendants favor. Id.
B. Admission of Statement to Police
Our analysis begins with the presumption that the defendant did not waive his
rights. Little v. State, 694 N.E.2d 762, 765 (Ind. Ct. App. 1998).
To overcome this presumption, the State bears the burden of proving that
the defendant was effectively advised of his Miranda rights in the first instance,
and then that he voluntarily and intelligently waived those rights. Id.
Based on the totality of the circumstances, the trial court must determine whether
the defendants statements were obtained through violence, threats, promises or other improper influences.
Hurt v. State, 694 N.E.2d 1212, 1217-18 (Ind. Ct. App. 1998), trans.
denied, cert. denied, 525 U.S. 1008 (1998). Although a signed waiver is
evidence of a voluntary waiver, the State, when challenged, may be required to
produce additional evidence to show the voluntariness of the waiver. Id.
If the record contains substantial evidence of probative value to support the trial
courts ruling, we will affirm it. Davies v. State, 730 N.E.2d 726,
736 (Ind. Ct. App. 2000), trans. denied, cert. denied, 532 U.S. 945 (2001).
Martin filed a pre-trial motion to suppress his May 20, 2001, statement to
police. The trial court did not rule on the motion prior to
trial because there was apparently some chance that the State would not seek
to introduce the statement. When it became clear during the course of
the trial that the State did intend to introduce the statement, Martin again
raised the suppression issue. The jury was dismissed and the trial court
held a hearing on the motion, following which the motion was denied.
The statement was admitted into evidence.
The facts surrounding Martins statement are that at the time of Sanders murder,
Martin was represented by counsel on an unrelated matter. At some point,
counsel, who was out of the country, was advised via e-mail that Martin
was being sought in connection with Sanders murder. Martins counsel was in
contact with both the Jeffersonville police and Martin. When the information was
filed and the arrest warrant issued, counsel contacted Martin and told him not
to talk to the police until they were able to consult with one
another. Martin turned himself in to the Louisville police who in turn
contacted the Jeffersonville police. Martin waived extradition and the Jeffersonville police came
to Louisville to pick him up. Before leaving Louisville, the Jeffersonville officers
questioned Martin. Detective Scott Oliver, who was present when Martin made the
statement, testified that he had heard through another detective that counsel had been
in contact with that detective about Martins case. However, Detective Oliver was
not aware of the content of the discussion between counsel and the other
detective, and did not remember Martin saying anything about talking to his lawyer
before giving his statement. Detective Oliver further testified that he read the
advice of rights form to Martin: I sat there and showed it
to him and we went over it and . . . we just
explain that this was a waiver that he understood his rights and .
. . he signed at that time. Tr. at 499. From
the point at which Martin signed the advice of rights and waiver form,
the statement was both video and audio-recorded.
Martin claims that the trial court erred in overruling his motion to suppress
and admitting his statement into evidence for several reasons: first, that he
was denied his Sixth Amendment right to counsel; second, that the record does
not adequately show that he was advised of his rights; and third, that
there was not a sufficient showing that his statement was voluntary. We
will address each contention in turn.
1. Right to Counsel
Martin is correct that the Sixth Amendment right to counsel attaches with the
formal initiation of adversary judicial proceedings. Owens v. State, 732 N.E.2d 161,
164 n.2 (Ind. 2000). In this state, adversary judicial proceedings are begun
with the filing of an information or indictment. Badelle v. State, 754
N.E.2d 510, 538 (Ind. Ct. App. 2001), trans. denied (quoting Callis v. State,
684 N.E.2d 233, 238 (Ind. Ct. App. 1997), trans. denied). Both parties
agree that an information had been filed and adversary proceedings had begun when
Martin gave his statement to the police. However, our supreme court has
held that [r]epresentation by an attorney does not mean that law enforcement officials
cannot procure a statement from a defendant without notice to the attorney.
Kern v. State, 426 N.E.2d 385, 387 (Ind. 1981). Rather, that is
one of the factors that should be considered when determining whether the State
has met its burden of proving that the statement was voluntary. Id.
Thus, the police failure to advise Martins counsel that they would be
interrogating Martin does not per se render his statement involuntary, but will be
considered as a factor in our discussion below of the voluntariness of his
2. Advisement of Rights
Martin next claims that the State failed to prove that he was adequately
advised of his rights prior to signing the waiver. When an accused
is subjected to custodial interrogation, the State may not use statements stemming from
that interrogation unless it demonstrates the use of procedural safeguards effective to secure
the accuseds privilege against self-incrimination.
Davies, 730 N.E.2d at 733 (citing Miranda
v. Arizona, 384 U.S. 436, 444 (1966)). The Miranda warnings apply only
to custodial interrogation because they are meant to overcome the inherently coercive and
police dominated atmosphere of custodial interrogation. Id. Miranda requires that the
accused be informed of the right to the presence and advice of counsel
during custodial interrogation by the police and of the right to remain silent
and that any statement he makes may be used as evidence against him.
See Wright v. State, 766 N.E.2d 1223, 1229 (Ind. Ct. App. 2002).
There is no question that Martin was in custody when he gave his
statement. Charges had already been filed and an arrest warrant had been
issued. The advice of rights and waiver form which was introduced into
evidence in this case states as follows:
Before we ask you any questions, you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we
ask you any questions and to have him with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before
any questioning if you wish.
If you decide to answer questions now without a lawyer present, you will
still have the right to stop answering at any time. You also
have the right to stop answering any time until you talk to a
WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my
rights are. I am willing to make this statement and to answer
questions. I do not wish to have a lawyer at this time.
I understand and know what I am doing. No promises or
threats have been made to me and no pressure or coercion of any
kind has been used against me.
States Exhibit 38. The waiver of rights section is followed by Martins
signature and the signature of two witnesses, Detective Oliver and Major James Craig.
Detective Oliver testified regarding the circumstances surrounding Martins statement:
[State]: Prior actually to doing the statement . . . had you had the
opportunity to actually . . . have the . . . individual advised
of his rights and have a chance to review that and make a
decision as to whether he would give a taped statement?
[A]: Yes sir.
* * *
[A]: . . . I read it to him. I sat there and
showed it to him and we went over it and . . .
we just explain that this was a waiver that he understood his rights
and . . . he signed at that time.
[Defense]: Okay. Did he ask any questions about it?
[A]: Not that I remember.
[Defense]: Did he say anything about talking to his Lawyer before signing or giving
you all a statement?
* * *
[A]: Not that I remember.
* * *
[Defense]: Did you talk to [Martin] before starting the tape and if so for
[A]: It was to read him his rights. I usually just, some Detectives
speak with them before hand, I just if I remember correctly I try
just to read them their rights. Explain their rights to them and
they sign it that they understand their rights and go on with the
Tr. at 482, 499-500. Martin does point out the following from his
[Defense]: [D]id they show you the Exhibit thats been offered the interrogation and waiver
interrogation advice of rights form?
[A]: All I remember him saying is this is your rights.
[Defense]: Okay did you have a chance to read and go through it?
[A]: No not that I can recall. I just signed he said this
is where you sign at and I signed my name that I can
Tr. at 504. However, considering only the evidence favorable to the trial
courts ruling, there was sufficient evidence that Martin was advised of his rights
both orally and in writing and indicated both orally and in writing that
he understood those rights. Therefore, we hold that State proved that Martin
was adequately advised of his rights.3. Voluntariness of Martins Statement
Finally, Martin challenges the voluntariness of his statement to the police. He
contends that under the totality of the circumstances, including the lack of notice
to his counsel, the questionable adequacy of the advisement of rights, and the
circumstances in which he was questioned, the record does not unmistakably show that
he gave the statement voluntarily. We disagree.
A statement is voluntary if, in light of the totality of the circumstances,
it is the product of a rational intellect and not the result of
physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendants
free will. Crain v. State, 736 N.E.2d 1223, 1231 (Ind. 2000).
The critical inquiry is whether the defendants statements were induced by violence, threats,
promises or other improper influence. Id. Among the circumstances to be
considered are inconsistencies in the defendants statement, explicit or implicit promises by police
interrogators, and the coercive nature of the interrogation atmosphere. Davies, 730 N.E.2d
at 732-33 (quoting Patterson v. State, 563 N.E.2d 653, 655 (Ind. Ct. App.
Martin contends that he felt pressured to give a statement because he was
not taken directly to jail when he surrendered but was instead taken to
a detectives office where he was offered cigarettes and coffee and told by
the Louisville authorities that giving a statement was the right thing to do
and if he just told the truth, he would probably go home.
We acknowledge that Martin had already been charged with the crime when he
gave his statement and thus, he was not free to go once surrendering
to police on the warrant. However, Martins testimony shows that he had
a lawyer when he surrendered, had consulted with his lawyer prior to surrendering,
and had been told by his lawyer not to give a statement until
they were able to meet. The offer of cigarettes, coffee, and a
comfortable place to wait for the Jeffersonville detectives to arrive does not amount
to police coercion. See French v. State, 540 N.E.2d 1205, 1207 (Ind.
1989) (holding that defendants statement properly admissible where defendant treated kindly and politely,
was allowed to use the bathroom, was given water, and was allowed to
take breaks while giving his statement). Moreover, it has been consistently held
that vague and indefinite statements by the police about it being in the
best interest of the defendant for him to tell the real story or
cooperate with the police are not sufficient inducements to render a subsequent confession
inadmissible. Massey v. State, 473 N.E.2d 146, 148 (Ind. 1985). Martin
was not subjected to a lengthy interrogation, as the total elapsed time between
the advisement and waiver of rights and the end of the statement appears
to be less than one hour. Martin makes no allegations of physical
abuse or other coercive action by the police. The record contains substantial
probative evidence sufficient to establish beyond a reasonable doubt that Martin gave a
voluntary statement, and there is no evidence of improper police influence in obtaining
the statement. Thus, the trial court did not abuse its discretion in
admitting the statement into evidence over Martins objection.
C. Evidence of Prior Possession of a Handgun
Martin next contends that the trial court erred in admitting into evidence testimony
from several witnesses who, although denying on cross-examination that they saw Martin with
a gun around the time of the shooting, stated on re-direct that they
had seen Martin with a gun in his possession on prior occasions.
Martin was charged with killing Sanders by shooting him with a nine millimeter
handgun. The murder weapon was never found. On cross-examination, Martins counsel
asked several of the States witnesses if they had seen Martin with a
gun on the day of the shooting. They each replied that they
had not. In each instance, the State then sought and was granted
permission to question the witnesses on re-direct about whether they had ever known
Martin to carry a gun. The trial court ruled that Martins counsel
had opened the door to such inquiry with his questions.
Martin contends that his counsels questions were carefully crafted to be limited in
scope and did not open the door to character evidence. Assuming without
deciding that allowing the States questions and the answers thereto was error in
that whether or not Martin carried a gun on other occasions was irrelevant
to the issue of whether or not he was armed on the day
in question, we hold that the error was harmless. The improper admission
of evidence is harmless error when the conviction is supported by substantial independent
evidence of guilt as to satisfy the reviewing court that there is no
substantial likelihood the questioned evidence contributed to the conviction.
Bocko v. State,
769 N.E.2d 658, 665 (Ind. Ct. App. 2002), trans. denied (citing Cook v.
State, 734 N.E.2d 563, 569 (Ind. 2000)).
Tina Hammond testified that when Martin came back from Louisville and discovered that
Sanders had taken his car, he was mad at Sanders and told Hammond
that he would merc, or kill, Sanders. Iman Jackson testified that she
saw a group including Martin and Sanders in the parking lot as she
went into her apartment that morning. She then heard three gun shots
and opened the door of her apartment to see flames in the middle
of the group of people. She did not see a gun or
who was holding it. Melvin Williams testified that he was aware that
Martin was upset with Sanders because Sanders had taken his car. Williams
further testified that he was in the group of people Jackson referenced and
that he saw Martin shoot Sanders.
See footnote Finally, Travis Green testified that after
the shooting, Martin said to him that he shouldnt have done that.
Tr. at 109. Based upon this evidence alone, the jury could have
reasonably believed that Martin was the shooter, even without hearing evidence that he
had been known to carry a gun in the past. Accordingly, any
error in the admission of the evidence of which Martin complains was harmless.
Martin also contends that the trial court erred in allowing the State to
impeach its own witnesses with their prior statements in violation of the holding
Appleton v. State, 740 N.E.2d 122 (Ind. 2001).
The State used prior statements from several of its witnesses as impeachment evidence
throughout its case-in-chief. Under our rules of evidence, a party may impeach
a witness by extrinsic evidence of a prior inconsistent statement. Ind. Evidence
Rule 613(b). However, a party is forbidden from placing a witness on
the stand when the sole purpose for doing so is to present otherwise
inadmissible evidence cloaked as impeachment. Appleton, 740 N.E.2d at 125. Moreover,
once a witness has admitted an inconsistent prior statement she has impeached herself
and further evidence is unnecessary for impeachment purposes. Pruitt v. State, 622
N.E.2d 469, 473 (Ind. 1993).
In Appleton, one of the witnesses gave a pre-trial statement implicating the defendant
in a crime. At trial, however, he repudiated his earlier statement, denying
that the defendant had even been present during the incident. The State
then read direct quotes from the witness pretrial statement and inquired about the
accuracy of those declarations. On appeal, the defendant contended that the trial
court erred in permitting the State to impeach its witness in such a
way. The supreme court noted that [b]y reciting excerpts of [the
witness] pretrial statement and asking [him] if he made these declarations, the State
might as well have played an audiotaped version of [his] statement to the
jury. 740 N.E.2d at 125. Once the witness denied the defendants
involvement, the appropriate procedure would have been to make the witness aware of
specific portions of his testimony that were inconsistent with his pre-trial statements and
give him the opportunity to explain the inconsistency.
Once [the witness] admitted he made a police statement prior to trial that
was inconsistent with his testimony . . ., impeachment was complete. [H]e
had admitted himself a liar. Reciting segments of [his] pretrial statement was
thus superfluous. The only purpose such recitation could have would be to
get the details of [the witness] former statement before the jury as substantive
evidence . . . .
Id. at 126. Despite holding that the jury heard evidence it should
not have due to the States line-by-line recitation of the witness pretrial statement,
the same evidence was properly before the jury through another witness and thus,
the error was harmless. The supreme court noted, however, that [w]hile the
error was harmless in this instance, it might lead to reversal under different
facts. Id. at 127.
Martin contends that the facts of this case are such that reversal is
warranted. Although we express concerns about the method of questioning employed in
this case, we, too, hold the error to be harmless.
Although Martin complains of the States examination of several of its witnesses, we
examine in detail here only the most serious case of improper impeachment.See footnote
Travis Green was called as a witness by the State. He was
with Martin when Martin returned to the Greenwood apartments and discovered that Sanders
had taken his car. The transcript reflects two pages of introductory questions
and answers about Greens name, his acquaintance with Martin, and where he was
on the day of the incident. The State then engaged in the
[Q]: Okay, now on Thursday, May 10
th . . . did you have the
opportunity to actually speak with Detective Thompson?
[Q]: And do you recognize Detective Thompson to be here?
[Q]: Okay, are you aware that on that day you actually, he asked you
questions and you gave a taped recording about what you knew about May
5th, is that correct?
[Q]: And have you had a chance to look at that statement?
[A]: I seen it, I didnt even bother to read it though.
* * *
[Q]: Okay, would you like a chance to read it? Because you know
I am going to be asking you several questions about that correct?
[Q]: And its sort of important that you would know or at least maybe
you could make sure this is the right statement.
Tr. at 56-57. At that point, Martin objected. Although instructing the
State that it needed to ask some questions to lay a foundation to
show the need for the statement, the trial court nonetheless allowed the State
to liberally refer to Greens prior statement. Several pages into the transcript,
the State asked the following:
[Q]: Now, you have already given a statement on May 10th telling Detective Thompson
what you remembered then, right?
[Q]: Okay, now that was five days from when the man was shot, correct?
[A]: Uh huh.
[Q]: And your memory was probably better then than it is now, isnt it?
[A]: Then, yes.
Tr. at 65-66. The State then basically proceeded through Greens prior statement,
asking questions in the form of Did you tell Detective Thompson . .
.? or Do you remember telling Detective Thompson . . .?. When
Martin objected to the leading nature of the questioning, the State asked for
and was granted permission to treat Green as a hostile witness.
We see two basic problems with the way the State conducted its direct
examination of Green. First, the State wanted Green to review his statement
without any showing first that he had no memory of the events reflected
See footnote Thus, it was not properly admitted as a recorded recollection.
Moreover, the State did not allow Green to merely testify as to his
memory of events and upon hearing an inconsistency between his present testimony and
his prior statement, use the statement for impeachment purposes. Rather, the State
basically led Green through his prior statement and in that way, used the
statement as substantive evidence rather than impeachment evidence. We agree with Martin
that this was improper. The trial court should not have allowed the
State to conduct its direct examination of Green in this way.See footnote
However, Green was not a witness to the actual shooting, but only to
the events preceding the shooting, and the State produced and properly questioned other
witnesses who also testified that Martin was upset with Sanders because Sanders had
taken his car. In addition, the State produced and properly questioned an
eyewitness to the shooting. Thus, the error is deemed harmless and does
not warrant reversal in this case.
The trial court did not commit reversible error in its admission of evidence.
Moreover, although the State was allowed to improperly impeach one of its
witnesses, the error is harmless. Accordingly, Martins conviction is affirmed.
RILEY, J., and MATTINGLY-MAY, J., concur.
The supreme court stated in
Kern that the practice of interrogating
a defendant whom the police know to be represented by counsel without notice
to that counsel is not per se impermissible. However, the court also
specifically noted that it did not approve of the practice. 426 N.E.2d
at 387. We, too, are concerned about the practice, but follow our
supreme courts lead in considering it only a factor in the totality of
Martin asked for a mistrial after Jacksons testimony, contending that his
questions had not opened the door to the States investigation into whether Martin
had carried a gun on occasions other than the day in question.
The motion was denied. Although Martin mentions in his brief that he
believes that under the circumstances of this case a mistrial was warranted,
Brief of Appellant at 24, he does not advance a separate argument based
upon the denial of his motion for mistrial. Accordingly, we have limited
our discussion to the admission of evidence.
Footnote: Martin notes that Williams was incarcerated at the time of trial
and that this would raise some questions concerning Williams credibility because one could
speculate that he was attempting to secure a more favorable resolution to his
own case by agreeing to testify against Martin. Brief of Appellant at
25. However, as Martin also notes, the jury was aware that Williams
was incarcerated. Moreover, Martin points out that although Williams gave a statement
to police in the days immediately following the shooting implicating Martin in the
shooting, he later gave Martins counsel a handwritten statement denying that he saw
the shooting. However, Williams testified at trial that he had in fact
seen Martin shoot Sanders and that he gave the contradictory statement because he
did not want to testify. Any credibility issues were for the jury
Footnote: Martin also moved for a mistrial on this basis. He
does not present to us a separate argument regarding the denial of that
Martin also complains that the State improperly questioned its witnesses Elishia
Cheatem, Tina Hammond, and Iman Jackson. To the extent the State improperly
questioned any of these witnesses, the questioning was brief and not always met
by an objection from Martin. We do not find that the State
used any of these witnesses to improperly introduce evidence.
Footnote: The State was unable to accomplish this because Green indicated that
he was unable to read. However, when the court adjourned for the
day in the middle of Greens testimony, the State was allowed to play
the audiotape of Greens statement for him prior to resuming his testimony the
Footnote: Although we hold the error in allowing the State to proceed
as it did was harmless, we do have some concerns about what the
States tactics in this case demonstrate about its intent behind calling Green as
a witness. However, we are unable to say that the States sole
purpose in calling Green was to impeach him and introduce otherwise inadmissible evidence.