693 N.E.2d 921 (Ind. 1998), 71S00-9512-CR-1377, Ajabu v. State

Docket Nº:71S00-9512-CR-1377.
Citation:693 N.E.2d 921
Party Name:Kofi Modibo AJABU, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Case Date:March 06, 1998
Court:Supreme Court of Indiana
 
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693 N.E.2d 921 (Ind. 1998)

Kofi Modibo AJABU, Appellant (Defendant below),

v.

STATE of Indiana, Appellee (Plaintiff below).

No. 71S00-9512-CR-1377.

Supreme Court of Indiana.

March 6, 1998

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Jeffrey A. Lockwood, Anderson, for Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Kofi Modibo Ajabu was convicted of three counts of murder, three counts of criminal confinement, three counts of robbery, and one count of burglary. The trial court sentenced Ajabu to concurrent terms of life in prison without parole for each murder conviction, and to a term of years for each of the other convictions, sixty years of which to be served consecutively to the concurrent life terms. Ajabu's direct appeal presents several issues that we restate as follows:

I. Was Ajabu's state constitutional right to be free from self-incrimination, IND. CONST. art. I, § 14, violated by introduction of a confession obtained after law enforcement authorities failed to honor a lawyer's telephoned request, of which Ajabu was unaware, that Ajabu not be questioned until the lawyer was present?

II. Did this conduct of the authorities violate Ajabu's right to due process of law under the Fourteenth Amendment to the United States Constitution?

III. Do the trial court's findings that Ajabu acted knowingly and was a major participant in the killings satisfy the death penalty statute's requirement of a showing that Ajabu "committed the murder by intentionally killing" the victims in this case, IND. CODE § 35-50-2-9(b)(1)?

We affirm the convictions. Because we hold that error occurred in the sentencing, we remand for reconsideration of the sentence consistent with this opinion.

Factual and Procedural History

At approximately 7 a.m. on March 17, 1994, Nicholas Allemenos, Lisa Allemenos, and Christopher James were found dead in

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the home of Nicholas's and Lisa's father, George Allemenos, in Carmel. The house had been ransacked and the three victims' throats had been cut. Immediately after their discovery, the crimes attracted extensive coverage in both print and electronic news media. Defendant Kofi Ajabu and two other men, James Walls and Raymond Adams, soon became suspects. 1 The next night, at approximately 4:40 a.m., Ajabu was arrested at Adams's apartment and detained in a police vehicle. Around 6 a.m., Ajabu was transported to the Hamilton County Jail and placed in a holding cell, where he slept for a short time. Ajabu's father saw a televised news report that morning reporting that his son "had been arrested in the Carmel situation." Without his son's knowledge, the father retained attorney Kenneth Roberts to represent Ajabu. At approximately 8:42 a.m., Roberts called the jail and asked that Ajabu not be questioned until Roberts was present. The detective who took the call, Vicky Dunbar, put Roberts on hold. Dunbar then asked several police officers and two prosecutors who were discussing the murder investigation in a nearby conference room how to respond. On learning of Roberts's request, one officer got up to halt plans to interrogate Ajabu, but Chief Deputy Prosecutor Wayne Sturtevant essentially overruled that decision. According to Hamilton County Prosecutor Steven Nation, who was also present, Sturtevant said: "Wait a minute ... there is a case on point, you do not have to stop the interrogation." Sturtevant concluded that Ajabu (then twenty-one years old) was an adult and could make his own decision whether he wanted a lawyer present during the planned questioning. Nation believed that Ajabu's right to counsel was personal and could not be asserted by his family. Based on these conclusions, Detective Dunbar was directed to tell Roberts that the "information would be passed along to the appropriate people."

Ajabu was not informed of Roberts's call at that point and two officers began questioning him five minutes later at 8:49 a.m. Before the interrogation, Ajabu received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and signed a waiver of rights form. The videotaped questioning lasted until 10:40 a.m., recessed for a brief period, and then continued. Ajabu confessed his involvement in the multiple homicide. At no point during the questioning did he request the assistance of a lawyer. Around 12:30 p.m., police asked Ajabu if he would submit to a second interview at the house where the murders occurred and he agreed. Police took Ajabu to the murder scene and interviewed him there on videotape for approximately forty-five minutes. Before this questioning, an officer asked Ajabu if he understood his rights and he indicated that he did. Ajabu again confessed his involvement in the killings. As Ajabu was being transported back to the Hamilton County Jail around 2:22 p.m., he asked for an attorney and was not questioned further. At some point that afternoon, after demanding counsel, Ajabu was told about Roberts's call earlier that day. 2

Ajabu was charged with three counts of murder, three counts of criminal confinement, three counts of robbery, and one count of burglary. Venue was changed to St. Joseph County and Ajabu was tried there in

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August 1995. A jury convicted him on all counts and he appeals. We have jurisdiction under Indiana Appellate Rule 4(A)(7).

  1. Indiana Constitutional Right to be Free From Self-Incrimination

    Ajabu moved unsuccessfully before trial to suppress the statements he gave at the Hamilton County Jail and at the Allemenos residence. He contends the trial court erred in denying the motion and in subsequently admitting the statements into evidence over objection. Ajabu's principal contention is that the conduct of the police and prosecutors in not informing him of Roberts's phone call before any interrogation violated his right to be free from self-incrimination protected by Article I, Section 14 of the Indiana Constitution. He also argues that this conduct was so shocking that it denied him due process of law under the Fourteenth Amendment. The latter claim is discussed in Part II.

    A. The nature and constitutional footings of Ajabu's claim

    The Supreme Court of the United States has rejected nearly identical contentions under the Constitution of the United States. In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Court squarely held that neither the Fifth Amendment nor the Fourteenth Amendment guarantee of due process is violated by admission of a confession obtained after an attorney, unknown to the suspect, unsuccessfully seeks to intervene in an interrogation. Recognizing the insuperable hurdle Burbine presents as a matter of federal constitutional doctrine, Ajabu urges us to hold that the Indiana Constitution is violated where (1) police fail to inform a suspect prior to interrogation of a lawyer's unsolicited and unknown efforts to contact the suspect; or (2) police do not honor counsel's request to be present during any questioning. He argues that his waiver of his right to be free from self-incrimination was not knowing, voluntary, and intelligent under these circumstances. Stated another way, Ajabu's claim is that a confession that is "voluntary" in a volitional sense must nonetheless be excluded, because he was unaware of the lawyer's efforts to reach him, and this knowledge would have affected his decision to speak with authorities. Ajabu correctly observes that Burbine does not prevent Indiana from providing greater procedural guarantees for defendants on independent state grounds. Id. at 428, 106 S.Ct. at 1144-45. The State responds that the Indiana constitutional right is equivalent to the Fifth Amendment, and therefore reflects Burbine, or at least the Indiana right is not more protective than the Fifth Amendment.

    In assessing this claim, we first must be clear about the nature of the right at issue. The federal right to counsel as protected by the Sixth Amendment, so as to ensure a fair trial after charges are filed, cf. United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), is not implicated here because Ajabu had not been charged or arraigned at the time of the alleged constitutional deprivation. 3 Nor does Ajabu cite the state constitutional provision guaranteeing that "[i]n all criminal prosecutions, the accused shall have the right to ... be heard by himself and counsel...." IND. CONST. art. I, § 13. Rather, in moving to suppress his statements at trial, Ajabu relied solely on his right to be free from self-

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    incrimination under the Constitutions of Indiana (Article I, Section 14) and the United States (Fifth Amendment). Accordingly, we do not address the possible application of the Section 13 right to counsel to these facts. 4 Because it is rooted in the right to be free from self-incrimination, Ajabu's claim is grounded on his right to elect to have a lawyer present during pre-charge interrogation for prophylactic reasons established in Miranda. The issue presented, therefore, is whether that right was violated where Ajabu did not request an attorney during or before interrogation and did not know of the activities of the lawyer his father had contacted. 5

    B. Sources of construction for Indiana constitutional claims

    Article I, Section 14 of the Indiana Constitution provides that "[n]o person, in any criminal prosecution, shall be compelled to testify against himself." 6 Neither party cites any directly controlling precedents, and Ajabu conceded in his motion to suppress that there appear to be none. 7 In the absence of relevant Indiana cases, a variety of sources may be taken into...

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