Barker v. State

• Decision Date: 14 October 1982
• Docket Number: No. 281S38,281S38
• Citation: 440 N.E.2d 664
• Parties: Leroy E. BARKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 664

440 N.E.2d 664

Leroy E. BARKER, Appellant, v. STATE of Indiana, Appellee.

No. 281S38.

Supreme Court of Indiana.

Oct. 14, 1982.

Rehearing Denied Dec. 20, 1982.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Leroy E. Barker, was convicted by a jury in the Marion Superior Court, Criminal Division II, of the crimes of burglary, a class B felony, and theft, a class D felony. He was subsequently sentenced by the trial court to seventeen years for the burglary conviction and to four years for the theft. The sentences were ordered to be served concurrently. Appellant now raises in this direct appeal the following four issues:

1. whether the trial court erred by admitting into evidence, on rebuttal and for impeachment purposes only, Appellant's refuted confession after having ruled that said confession could not be admitted by the State in its case-in-chief;

2. whether the trial court erred by admitting into evidence a copy of a document because the State claimed that it had misplaced the original 3. whether the trial court erred by denying Appellant's Mistrial Motion raised after one witness inadvertently made one comment which could possibly have been interpreted by the jury to mean that Appellant had been previously involved in other crimes; and

4. whether the trial court erred by giving to the jury its Final Instruction No. 10 which directed that the jury "must" find Appellant guilty if the State had "proven beyond a reasonable doubt the material allegations of either of the charges".

The record shows that on August 5, 1979, a break-in occurred at the residence of Alice B. McKinney located at 3040 North College Avenue, Indianapolis, Indiana. Mrs. McKinney lived there with four of her five children. After the burglary, the interior of her home was described by several witnesses as "a mess" in that the house had been ransacked with things thrown about and drawers dumped. According to the victims, many items of personal property were missing, including some assorted jewelry and a stereo component set comprised of two large speakers, an AM-FM radio, a tape-player and a turn-table. Two glass panels were removed from the back door, thereby allowing entry by reaching through the door and unlocking it from the inside. The door had been locked when the McKinneys last left.

I

Leroy Barker was fifteen years-old at the time of the commission of these crimes and was sixteen when subsequently arrested. The Juvenile Court waived its jurisdiction over Barker allowing him to be charged and tried as an adult. On January 9, 1980, Barker was taken from the Juvenile Center, where he was being detained on an unrelated charge, to the office of the Juvenile Branch of the Indianapolis Police Department for questioning about the instant offenses. Barker was informed that he was a suspect in these crimes. Detective Sergeant Watford testified that in anticipation of Barker's interrogation, he telephoned Barker's mother and requested that she meet her son at the police station and accompany him during the interrogation. When Barker's mother said that she could not come at that time, Watford requested that she send someone to act as her son's guardian. Mrs. Barker sent her daughter, Barker's eighteen year-old sister. The police admit that neither of Barker's parents were present with Barker during his interrogation on January 9th. Barker's sister was present, however, and both she and Barker were fully advised about Barker's constitutional rights according to Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Both were also informed that Barker had the right to have one or both of his parents present if he desired. Both Barker and his sister agreed to Barker's waiver of his rights and they both signed an advisement of rights and waiver form to that effect. As a result of his interrogation, Barker made an oral confession to the instant crimes and was arrested.

After the commencement of Barker's trial, a hearing was held during which the trial judge suppressed Barker's confession. The trial judge specifically ruled that the State could not put Barker's confession into evidence during the State's case-in-chief since the police had violated this Court's pronouncements in Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138. See also: Ind. Code Sec. 31-6-7-3 (Burns 1980); Hall v. State, (1976) 264 Ind. 448, 346 N.E.2d 584, reh. denied. During the hearing, the State informed the Defense, with the trial court's tacit approval, that should Barker testify in his own behalf, the State could, and would, use his confession to impeach him if his testimony was in any way contrary to his confession. Barker subsequently testified in his own behalf and denied having been involved in the burglary and theft. After the Defense rested, the State in rebuttal presented Detective Watford who put Barker's confession into evidence. The confession was allowed for the purpose of proving Barker's prior inconsistent statements. Barker now contends that his confession was inadmissible for any purpose since the police did not comply with the requirements of Miranda and Lewis. He further claims that his confession was involuntarily given. He neither alleges nor shows, however, that the confession was obtained by duress, by threat, or by any other kind of undue influence. The State argues that the trial court properly admitted the confession in rebuttal to show Barker's prior inconsistent statements. The State relies upon Harris v. New York, (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and Purcell v. State, (1980) Ind.App., 406 N.E.2d 1255, on rehearing (1981) Ind.App., 418 N.E.2d 533.

In Harris, the United States Supreme Court faced the same issue as is presented to us here. Specifically, that Court considered Defendant Harris' claim that a statement made by him to police under circumstances rendering the statement inadmissible to establish the State's case-in-chief may not be used to impeach his credibility. A New York trial court determined that the police had elicited from Harris certain inculpatory statements without having first advised him of his constitutional right to counsel. Notwithstanding, Harris never claimed that his statements were coerced or involuntarily made. At trial, the prosecution recognized the general inadmissibility of the statements and made no effort to use them in its case-in-chief. When Harris took the stand in his own defense, however, he gave testimony which partially contradicted his previously made statements. The trial judge then permitted the State to impeach Harris' credibility by allowing the State to make extensive use of the prior statements during its cross-examination of Harris. The trial judge was careful, though, to instruct the jury that the statements attributed to Harris by the prosecution could be considered only in passing on Harris' credibility and not as evidence of his guilt. In their closing summations, both counsel argued the substance of the impeaching statements before the jury. Affirming the trial court and the New York Court of Appeals, the United States Supreme Court held the following:

"It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. * * *

The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. [footnote omitted] Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements."

Harris v. New York, 401 U.S. at 224-225, 91 S.Ct. at 645, 28 L.Ed.2d at 4.

In Purcell, our Court of Appeals followed Harris to reach the same result as did the U. S. Supreme Court. Purcell involved a juvenile whose statement to the police was suppressed by the trial judge because the police had not abided by the dictates of Lewis. The trial judge, however, advised the defendant that his statement could still be used by the State in rebuttal should the defendant take the stand and testify contrary to his previously tendered statement. On rehearing, the Court of Appeals emphasized that the defendant's prior inconsistent statements were admissible because they met the legal standards of trustworthiness required for admissibility, as stipulated by Harris.

In the instant case, the record shows that Appellant Barker was allowed to consult with his older sister, who was acting in...