642 N.E.2d 928 (Ind. 1994), 06S00-9105-DP-00401, Bivins v. State

Docket Nº:06S00-9105-DP-00401.
Citation:642 N.E.2d 928
Party Name:Gerald W. BIVINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Case Date:November 04, 1994
Court:Supreme Court of Indiana
 
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642 N.E.2d 928 (Ind. 1994)

Gerald W. BIVINS, Appellant (Defendant Below),

v.

STATE of Indiana, Appellee (Plaintiff Below).

No. 06S00-9105-DP-00401.

Supreme Court of Indiana.

November 4, 1994

As Amended March 9, 1995.

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Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

ON DIRECT APPEAL

DICKSON, Justice.

The defendant, Gerald W. Bivins, was convicted following jury trial of six crimes committed during a two-day central Indiana crime spree in January of 1991. As a result, he was sentenced to death for the murder of William Harvey Radcliffe and consecutive terms of twenty years for one count of robbery, twenty years for one count of confinement, three years for one count of auto theft, and three years for each of two counts of theft. His direct appeal to this Court presents various issues which we regroup and address as follows: 1) physical restraint at trial; 2) admissibility of defendant's statements; 3) loss or destruction of evidence; 4) evidence and instruction regarding escape; 5) merger of offenses; 6) constitutionality of Indiana's death penalty statute; 7) death penalty aggravator as double jeopardy; 8) penalty phase instructions; 9) failure to find and weigh mitigators; 10) use of non-statutory aggravators including victim impact evidence; and 11) nature of relief to be afforded. Although we find that Count IV of the information, charging money and bank card theft, is merged with Count I, charging robbery, we affirm the remaining convictions and conclude that a sentence of death is proper and appropriate.

A summary of the evidence begins with the evening of January 16, 1991, when the defendant and two other men, Ronald Chambers and Scott Weyls, stopped at a Lazarus Department Store in Lafayette, Indiana, where the defendant stole blue jeans. The men avoided apprehension by pointing a gun at a security guard. After two intervening stops, the three men drove to a Holiday Inn in Lebanon, Indiana, where the defendant and Chambers forced their way into a guest room occupied by Kevin Hritzkowin. The defendant and Chambers pointed their guns at Hritzkowin's head and body; ransacked his room; took his cash, credit card, and van keys; threatened to kill him; struck him on the back of his head; and tied him to a bathtub railing. The defendant then drove from the Holiday Inn in Hritzkowin's van, shortly thereafter parking the van and rejoining Chambers and Weyls in the defendant's wife's car. The three men then headed back toward Lafayette and stopped at an interstate highway rest area just north of Lebanon. There, the defendant and Chambers confronted Reverend William Radcliffe in the public restroom and announced a robbery with their guns drawn. Reverend Radcliffe cooperated immediately, giving the men his wallet. The defendant turned Radcliffe around, pushed him into a stall, and fatally shot him in the head. As they were fleeing the rest area, the defendant told Chambers that he had shot Radcliffe because he wanted to know what it felt like to kill. The next day, he also reiterated this to Weyls.

During the ensuing days, the defendant attempted to conceal his role in the crimes. He burned the shoes he had worn, believing them to be blood-stained. He had the inside of his wife's car cleaned. He discarded the fruits of his robberies in a dumpster near his home and threw the gun and the car's license plate into a creek.

  1. Physical Restraint of Defendant at Trial

    The defendant contends that his rights to the presumption of innocence and to a fair trial were violated by his being required to appear at trial in physical restraints. He also argues that the trial court's emphasis on the seriousness of the charges should not constitute valid grounds for the shackling, because this would allow a trial judge to deny a defendant's constitutional rights whenever the charges are serious.

    In light of his previous escape, escape attempts, and comments about future escapes, the State moved that the defendant be physically restrained during trial. At the hearing on the State's motion, evidence was presented that the defendant had previously escaped from custody on March 26, 1991, while the

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    sheriff had the defendant out of jail for investigatory purposes. The sheriff believed that the defendant was a speedy runner and considered him an escape risk. The defendant had also made a remark to a jail guard regarding the possibility of jumping through a third-story courtroom window. Arguing that he had not attempted to escape from pre-trial hearings and that three to four officers would be in the courtroom at all times, the defendant objected to the motion.

    The trial court granted the State's request, ordering that the defendant be shackled in leg irons during the trial. The prosecutor informed the court that she planned to bring the defendant into the courtroom when the jury was not present and also agreed to the defendant's suggestion that screens be set up in front of the prosecution and defense tables to block the jury's view of both parties' feet.

    In Evans v. State (1991), Ind., 571 N.E.2d 1231, this Court stated:

    The general rule is that a criminal defendant is not to appear before the jury in bonds or shackles; however, certain exceptions exist which permit the trial court to use its discretion to have the defendant restrained when necessary to prevent his escape, to protect those present in the courtroom, and to maintain order during the trial.

    Id. at 1238 (citing Walker v. State (1980), 274 Ind. 224, 229, 410 N.E.2d 1190, 1193). Upon appellate review of an order to restrain the defendant, we consider whether the trial court abused its discretion. Evans, 571 N.E.2d at 1238.

    The defendant does not assert that the jury ever saw the shackles or had any awareness of his restraint. From this, together with the defendant's proclivities for escape, we find no abuse of discretion in the trial court's order that the defendant be shackled in leg irons during the course of the trial.

  2. Admissibility of Statements

    The defendant argues that his rights under the fifth, sixth, and fourteenth amendments of the U.S. Constitution and under Article 1, Section 13 of the Indiana Constitution 1 were violated by the admission of various statements made by the defendant. The defendant filed a motion to suppress all of these utterances, which was denied.

    This Court has recently summarized applicable law on this issue as follows:

    Statements made to police or to their agents by those in police custody in response to police interrogation are inadmissible at trial, unless the State sustains its burden to prove beyond a reasonable doubt, that they were preceded by a knowing and voluntary waiver of the privilege against self-incrimination and the right to counsel and were themselves voluntarily given. In determining whether a statement or waiver was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was the product of any violence, threats, promises, or other improper influence. The appropriate standard for evaluating the voluntariness of a waiver of rights is the totality of the circumstances test.

    Johnson v. State (1992), Ind., 584 N.E.2d 1092, 1098-99, (citations omitted), cert. denied, 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105. Furthermore,

    [a] review of voluntariness of statements made during a custodial interrogation involves looking at all the evidence. Among the considerations are the defendant's low level of intelligence, inconsistencies in the defendant's statement, explicit or implicit promises by police interrogators, and the coercive nature of the interrogation atmosphere.

    Light, 547 N.E.2d at 1077 (citations omitted). Accordingly, a signed waiver "is not conclusive evidence of a knowing, intelligent and voluntary waiver." Houchin v. State (1991), Ind., 581 N.E.2d 1228, 1231.

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    Applying these standards, we now turn to an analysis of each of the questioned statements.

    1. February 20, 1991, Statement

      Following the events of January 16, 1991, the defendant was arrested on February 20, 1991, in Lafayette on an unrelated Carroll County forgery charge. The defendant was read a standard advice of rights form and a waiver of rights form, both of which he signed. He did not ask and was not told whether he would be questioned about any crimes other than the forgery charge. Following the taking of a recorded statement regarding the forgery, the defendant was asked if he had any knowledge regarding other crimes, including the robberies and murder in Boone and Tippecanoe counties on January 16. The defendant offered to provide information about the caliber of gun used to kill the minister, the precise location of the murder, and various other crimes, including a Lazarus shoplifting.

      The defendant argued at trial that the advisements only covered the questioning about the Carroll County forgery charge and did not establish his waiver of rights to be questioned about the offenses in Tippecanoe and Boone counties. He asserts that he did not knowingly, intelligently, and voluntarily waive his right to silence in regard to those crimes and that the resulting evidence, part of the burnt tennis shoe and a photograph thereof, were erroneously admitted as evidence.

      A suspect's awareness of all of the possible subjects of questioning in advance of interrogation "is not...

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