Borkholder v. State

Decision Date12 October 1989
Docket NumberNo. 50A03-8901-CR-15,50A03-8901-CR-15
Citation544 N.E.2d 571
PartiesPerry BORKHOLDER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Charles H. Scruggs, Kokomo, for defendant-appellant.

Linley E. Pearson, Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Perry M. Borkholder appeals the verdict of the Marshall County Superior Court convicting him of eight counts of child molesting as a Class B felony and one count of child molesting as a Class C felony. He was sentenced to ten years on each of the Class B counts and to five years on the Class C count, all sentences to run concurrently.

Borkholder presents three issues on appeal, which we restate as follows:

1. Whether the trial court erroneously admitted Borkholder's confession into evidence because the confession either was not freely and voluntarily given or was the product of an illegal arrest.

2. Whether the trial court erroneously admitted into evidence the victim's tape-recorded pre-trial statement as part of the state's case-in-chief after she had already testified on direct examination.

3. Whether the trial court erred in not granting Borkholder's motion for judgment on the evidence at the conclusion of the state's case.

We affirm.

Facts

The victim was born March 6, 1975 and is Borkholder's daughter. After Borkholder's divorce in 1983, the victim would spend alternating weekends with Borkholder at his apartment in Bourbon in Marshall County.

Authorities first became aware that Borkholder had molested her in October 1987 when the victim told a school counselor. The welfare department notified Detective Charles Criswell of the Marshall County Sheriff's Department. Detective Criswell and a social worker from the welfare department visited the victim at her mother's home and tape recorded her statement.

In her statement the victim told Criswell that on each weekend of the visitation, Borkholder would remove her clothes, place her on the sink in the bathroom and place his penis in her vagina in such a way that it caused her pain. Borkholder would then discharge his semen into the toilet. She also said Borkholder had fondled her and related how her step-sister had said she had also been fondled by Borkholder.

The next day Criswell, without first obtaining a warrant, drove to Borkholder's place of employment in Nappanee, Indiana and arrested him. Criswell read Borkholder his rights and drove him to the jail in Plymouth, Indiana. Along the way, he advised Borkholder of the victim's allegations. At the jail, Detective Criswell obtained Borkholder's signature on the written waiver of rights form and tape recorded his statement. In his statement, Borkholder confessed to taking the victim into the bathroom, placing her on the sink, putting his penis on her vagina and masturbating. He said he discharged his semen into the toilet. He also admitted that he sometimes could have caused her pain.

At trial, the court admitted both taped recordings into evidence over Borkholder's objections and played them to the jury. At the end of the state's case-in-chief, Borkholder moved for a directed verdict (judgment on the evidence); the trial court denied his motion.

I.
A. Voluntariness of the confession.

Borkholder contends that his confession was inadmissible because it was obtained in violation of his fifth amendment rights. He supports his contention with testimony elicited from prosecution witness Detective Criswell during direct examination. The testimony was that Criswell had arrested Borkholder at his place of employment in Nappanee, Indiana, had read Borkholder his Miranda rights, and was in the process of driving him to the police station in Plymouth, Indiana. On the way, Criswell told Borkholder the reason for his arrest. The prosecution asked Criswell if Borkholder gave him any indication that he would be willing to talk about it, to which Criswell replied, "Well, he just--was that he wouldn't be willing to talk to me about it, but, ah--."

Borkholder contends that at this point he invoked his right to silence and cites Phillips v. State (1986), Ind., 492 N.E.2d 10, for the proposition that he could be subjected to further interrogation only when he himself initiated dialogue with police or made a knowing and intelligent waiver of the right he had previously invoked. We note at the outset that the Indiana Supreme Court expressly repudiated this dictum from Phillips v. State. Moore v. State (1986), Ind., 498 N.E.2d 1, 10. Complete and indefinite cessation of questioning is required only when the accused invokes his right to counsel. When the accused invokes his right to silence, the police must "scrupulously honor" his right to cut off questioning. Michigan v. Mosley (1975), 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321; Moore v. State, supra. The police must cease questioning immediately and may resume questioning only after the passage of a significant amount of time and after giving a fresh set of Miranda warnings. Michigan v. Mosley, supra, 423 U.S. at 106, 96 S.Ct. at 327, 46 L.Ed.2d at 322; Vujosevic v. Rafferty (3rd Cir.1988), 844 F.2d 1023, 1029.

The trial court denied Borkholder's motion to suppress. Borkholder, represented by counsel, sought to suppress the confession because it was the fruit of an illegal arrest (a contention we address infra ) and because it was involuntary due to Borkholder's inability to read and write and the stress he was undergoing because of his wife's surgery. That the confession was obtained in violation of Borkholder's right to remain silent was not raised in the motion to suppress. Similarly, Borkholder objected to the admission of the taped confession at trial for the same reasons. He again did not object on the ground that Borkholder's right to silence had not been scrupulously honored. After Borkholder's objection was overruled, Criswell testified as to Borkholder's unwillingness to talk. Borkholder did not renew his objection or state any new grounds for objecting. The court then admitted the taped confession into evidence, saved Borkholder's objection, and played the taped recording for the jury.

Errors asserting the improper introduction of evidence at trial must have been raised at trial to be considered on appeal. This rule applies even to constitutional errors. Bennett v. State (1976), 168 Ind.App. 680, 681, 345 N.E.2d 254, 255. While Borkholder objected to the admission of the taped confession, he did not point out to the court the alleged error in obtaining his confession after he had invoked his right to silence. Therefore, he did not raise this error at trial and raises it for the first time on appeal. Cf. Bruce v. State (1978), 268 Ind. 180, 215, 375 N.E.2d 1042, 1061, cert. denied 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. We will not consider errors raised on appeal for the first time unless they constitute fundamental error. Fundamental error is error that seriously affects the fairness, integrity or public reputation of judicial proceedings. Winston v. State (1975), 165 Ind.App. 369, 375, 332 N.E.2d 229, 233. Erroneous admission of evidence without objection is not ordinarily the type of error to which the doctrine of fundamental error applies. Bruce v. State, supra 268 Ind. at 215, 375 N.E.2d at 1062; Winston v. State, supra, 165 Ind.App. at 374, 332 N.E.2d at 232. See also U.S. v. Taylor (7th Cir.1967), 374 F.2d 753, 756; U.S. v. Childress (7th Cir.1965), 347 F.2d 448, 451, cert. denied 384 U.S. 1012, 86 S.Ct. 1936, 16 L.Ed.2d 1030. We hold that the alleged erroneous admission of the taped confession was not fundamental error and therefore do not consider whether Borkholder's right to cut off questioning was scrupulously honored.

Borkholder also contends that he was coerced into making a confession, and with respect to these alleged errors, he properly objected at trial. Three conditions invalidate his confession, according to Borkholder. First, he cannot read or write and therefore was unable to understand the waiver of rights form that he signed before he confessed. First, we note that Detective Criswell testified that he read and explained the Miranda warnings to Borkholder, and Borkholder's testimony corroborates that testimony. Second, in reviewing the question of the admissibility of a confession, we determine whether there was substantial evidence of probative value to support the trial court's finding, regardless of conflicting evidence. Mitchell v. State (1983), Ind., 454 N.E.2d 395, 397. Borkholder is an adult, who at the time of his confession had a full-time job and who signed the waiver of rights form after it had been read and explained to him. There is evidence that he had sufficient intellectual ability to make the decision to waive his rights. Mitchell, supra, at 398.

Next Borkholder alleges that he was under stress from the fact that his wife had been hospitalized, and that this impaired his ability to appreciate the consequences of his arrest and waiver. When the evidence indicates that the accused was coherent and in control of his faculties at the time of his waiver and statement, then his decision to waive his rights and confess was freely chosen. Brown v. State (1985), Ind., 485 N.E.2d 108, 113. There is no evidence that Borkholder was incoherent or distraught.

Finally, Borkholder contends that his confession was induced by Detective Criswell's speech on the way to the station, that if he told the truth, all would be better for him in the long run. This type of speech by a police officer can amount to interrogation. When the accused has invoked his right to counsel or his right to silence, confessions obtained after this type of speech may be deemed coerced. Brewer v. Williams (1977), 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424, 438. Because we do not review the issue of whether Detective Criswell scrupulously honored Borkholder's...

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