Bell v. State

• Decision Date: 14 October 1993
• Docket Number: No. 34S00-9103-CR-222,34S00-9103-CR-222
• Citation: 622 N.E.2d 450
• Parties: Jesse A. BELL, Jr., Appellant, v. STATE of Indiana, Appellee. 1
• Court: Indiana Supreme Court

Page 450

622 N.E.2d 450

Jesse A. BELL, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 34S00-9103-CR-222. ¹

Supreme Court of Indiana.

Oct. 14, 1993.

Brent Westerfeld, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial, appellant Jesse A. Bell, Jr. was convicted of Robbery, a Class A felony, Ind.Code Sec. 35-42-5-1, and Battery, a Class C felony, I.C. Sec. 35-42-2-1(3). The trial court sentenced him to concurrent terms of forty-five (45) years imprisonment for the robbery conviction, enhanced by thirty (30) years by reason of his status as a habitual offender, and six (6) months for the battery conviction.

On direct appeal, appellant Bell raises the following issues:

1. Whether the trial court erred by admitting in evidence testimony regarding plea negotiations and his subsequent confession.

2. Whether the trial court erred by failing to discharge appellant Bell under Ind.Crim.Rule 4(B)(1).

3. Whether the trial court properly admitted evidence of the victim's pretrial photo array and in-court identification testimony.

4. Whether the evidence is sufficient to sustain the jury verdict finding appellant Bell to be a habitual offender.

The convictions are reversed on the basis of issue 1. In addition, issues 2 and 3 are considered below due to the likelihood that they will reoccur on retrial. Finally, issue 4 is also reached below for the purpose of determining whether in the event appellant is again convicted upon retrial for the charged offenses, retrial of the allegation of habitual offender would be barred by principle of double jeopardy. Four additional issues raised by appellant are not here considered because they are not likely to reoccur upon retrial.

I.

The facts most favorable to the verdict show that during the afternoon of December 18, 1989, appellant Bell and his brother, David Bell, had been drinking at the Markland Cafe, a tavern in Kokomo, Indiana. Eventually, the owner asked them to leave the bar. Thereafter, they went to the apartments located above the tavern.

Somewhere between 5:00 p.m. and 6:00 p.m., Gayle Roe, the tavern's janitor, awoke to someone knocking on his apartment door. Roe resided in one of the apartments above the Markland Cafe. As Roe began to approach the door, someone kicked the door partially open. Roe opened the door and saw appellant Bell, whom he recognized, although he could not recall his name.

According to Roe, appellant Bell entered the apartment, shoving Roe down onto the floor. Appellant Bell opened Roe's refrigerator and removed some cartons of generic cigarettes and cans of Budweiser beer.

When Roe got up, he was shoved onto his bed and repeatedly struck by appellant Bell's fists. Roe fell to the floor and appellant Bell began kicking him. While on the floor, another man, later identified by Roe as David Bell, entered the apartment.

David Bell left the room briefly and returned with a tree limb which he subsequently used to bludgeon Roe's head. Thereafter, David Bell and appellant Bell simultaneously assaulted Roe.

Roe testified that appellant Bell remained in his room approximately fifteen minutes before the assault began. Although he was semi-conscious, Roe claims he never completely lost consciousness. Although he did not see them leave, Roe believed that the men were in his apartment for nearly an hour.

Kevin Taylor, a former employee of the Markland Cafe, discovered Roe, still on the floor in the apartment at approximately 8:00 p.m. As a result of the beating, Roe sustained multiple scalp lacerations, contusions on his face and arms, and a fractured left leg. Following the assault, Roe was hospitalized for several weeks.

On December 22, 1989, acting on a warrant for the arrest of Jesse and David Bell, Detectives Edington and Bolan arrested the Bell brothers at their mother's home. Following his arrest, the detectives transported appellant Bell to the police station. During appellant Bell's processing, he agreed to speak to the police about the charges against him. Detective Edington advised appellant Bell of his Miranda rights orally and in writing.

Initially, appellant Bell denied being at the Markland Cafe the afternoon of the assault and burglary. He told Detective Edington that he would make a statement only if he received a "deal." Detective Edington, in response, told him that only the prosecutor had the authority to make a "deal." Thereafter, appellant Bell asked the detective to call the prosecutor.

The police contacted Howard County Prosecutor James Andrews and he came to the station where he met with appellant Bell. Prior to his discussion with Prosecutor Andrews, the police again advised appellant Bell of his Miranda rights.

Prosecutor Andrews told appellant Bell that he understood that he was contacted in order to discuss a possible deal. When asked what kind of a deal he wanted, appellant Bell responded that he would cooperate in exchange for a fifteen year sentence. Prosecutor Andrews rejected this proposal and made a counteroffer. As the result of these negotiations, they arrived at a plea agreement. Prosecutor Andrews put the plea agreement into writing and signed it. ²

After accepting this plea agreement, appellant Bell gave a recorded statement to Detective Edington in which he confessed to hitting and robbing Roe. However, once his statement was transcribed and presented for his signature, appellant Bell refused to sign it. Instead, he told Detective Edington that his signature would be tantamount to perjury.

Prior to trial, the trial court denied appellant Bell's motion to suppress his confession. At trial, over appellant Bell's contemporaneous objection, the court admitted this confession as evidence.

II.

Appellant Bell contends that his statement to the police was given in the course of discussing a plea agreement, and, therefore, it cannot be used at trial by the prosecution. We agree.

In order for appellant Bell's confession to be properly admitted, it must surpass two barriers. The first barrier is erected by Ind.Code Sec. 35-35-3-4, which provides:

A plea agreement, or a verbal or written communication concerning the plea agreement, may not be admitted into evidence at the trial of the case, should the plea agreement not culminate in approval by the court.

The second barrier is erected by the Fifth Amendment of the United States Constitution, which provides in pertinent part that:

No person ... shall be compelled in any criminal case to be a witness against himself.

U.S. Const.Amend. V. Appellant Bell's confession does not surmount either barrier. It is privileged under the statute and involuntary under the Constitution.

The purpose of I.C. Sec. 35-35-3-4 and related case law is to facilitate final disposition of felony and misdemeanor charges through a communicative process of negotiations free of legal consequences. Chase v. State (1988), Ind., 528 N.E.2d 784, 786. The policy behind this statute protects the State, not just the defendant. Wright v. State (1977), 266 Ind. 327, 363 N.E.2d 1221. Statements made as part of plea negotiations as well as evidence of actual agreements, and all of their parts, are declared inadmissible. Chase, 528 N.E.2d at 786, Wright, 363 N.E.2d at 1228, Moulder v. State (1972), 154 Ind.App. 248, 289 N.E.2d 522, 528. The purpose of this rule of inadmissibility mirrors its federal counterpart, Fed.R.Crim.P. 11(e)(6)(D), which declares that no "statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty, or which result in a plea of guilty later withdrawn," shall be admissible. ³ The rule of inadmissibility safeguards the plea bargaining process, which is so important to the administration of criminal justice.

Here, as the product of negotiations with the prosecutor, appellant Bell confessed and orally agreed to plead guilty in exchange for either a lesser charge or a lighter sentence. Judicial approval and acceptance of the plea agreement stand as the lone events that could lift the protective cloak of inadmissibility from this confession. Crandell v. State (1986), Ind.App., 490 N.E.2d 377, 380, Moulder, 289 N.E.2d at 528. See also I.C. Sec. 35-35-3-4. Appellant Bell refused to sign the confession and consequently there was no judicial approval of this plea agreement. Therefore, the statute rendered this confession inadmissible.

Moreover, the policy of the Fifth Amendment privilege provides protection against compulsory self-incrimination. This principle renders a confession inadmissible if it is obtained by a promise of immunity or mitigation of punishment. Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. Appellant's statement to the prosecutor, when made, was the result of direct or implied promises by the prosecutor. It is involuntary and inadmissible. See Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976).

III.

Appellant Bell claims the trial court erred in failing to discharge him under Ind.Crim.Rule 4(B)(1). Appellant Bell asserts that the error occurred when the trial court, despite his objection, rescheduled his trial beyond the seventieth day following his motion for speedy trial.

At the outset of this case, on January 26, 1990, appellant Bell, by counsel, moved for a speedy trial. The trial court granted his motion January 31, 1990 and scheduled the trial for March 23, 1990. Subsequently the trial court granted appellant Bell's motion to serve as co-counsel for his trial. Based on the date of appellant Bell's motion for a speedy trial, the seventy-day period, as required by Crim.R. 4(B)(1), would expire on April 6, 1990.

On March 13, 1990, appellant Bell, by counsel, filed a motion for a continuance in order to depose witnesses and waived his right to a speedy trial. The trial court, on March 20, 1990 granted this motion, over the objection of the State, and...