Carter v. State

Decision Date31 March 1977
Docket NumberNo. 975S246,975S246
Citation266 Ind. 140,361 N.E.2d 145
PartiesMikel Lee CARTER and Horace Laws, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Nicholas J. Schiralli, Merrillville, for appellants.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) Carter and Laws were charged with other co-defendants, Hodge and Hunter, with two counts of first degree murder in connection with the killing of Edward Kitowski in the course of an armed robbery. Count I charged the traditional offense of killing purposefully and with premeditated malice; and Count II charged killing while perpetrating a robbery. The four defendants were tried jointly before a jury. Hodge's motion for a judgment on the evidence was sustained; and Hunter was acquitted.

Defendant, Carter, was convicted of murder in the second degree upon Count I and a sentence of fifteen to twenty-five years specified by the verdict. He was also convicted upon Count II and a life sentence was provided by that verdict.

Defendant, Laws, was found guilty of murder in the first degree upon both Counts and life sentences were provided by each verdict.

The issue to be determined is whether or not the Sixth Amendment confrontation rights of Carter and Laws were violated by the introduction into evidence, over objection, of their extrajudicial statements and the statement of Hunter, all given during police interrogation. All statements were inculpatory of Carter and Laws.

The evidence reflects that the defendants, Carter and Laws, entered a business-house in or near the City of Gary, Indiana, on April 5, 1974, at about 3:00 p.m. and purported to be seeking employment. The owner, Mr. Neugebauer, and one employee, Mr. Darrow, were present. As Mr. Neugebauer arose from his chair to obtain an employment application form, Laws fired a gun. Carter grabbed Mr. Neugebauer, overpowered him, and went through his pockets and took approximately $270.00 from him. During this time, Laws overpowered Mr. Darrow, and both Mr. Neugebauer and Mr. Darrow were forced to the floor and tied. Laws went to the backroom of the premises, where he encountered the victim, Mr. Kitowski making plumbing repairs. He issued a command to Mr. Kitowski which was not followed; whereupon Carter shot and killed him.

Carter and Laws fled, stealing an automobile from the parking lot. They were followed by the defendants, Hodge and Hunter to another part of the city where the stolen vehicle was abandoned. They then went together and in Hodge's automobile to another site, where the stolen money was divided.

Carter, Laws and Hunter, during police interrogation, executed waivers and gave signed statements. The statements of Carter and Laws were confessions in substantial conformity with the facts as above related. The statement of each related not only the declarant's role in the crime but also the role of his co-defendants. The statement of Hunter was a denial of participation by him but was inculpatory of the others. Motions to suppress these statements were filed, charging that they had been obtained by police coercion. A pre-trial hearing was had upon that motion, and it was denied. It does not appear from the record how the right of confrontation question was first presented to the trial judge, and the defendants may have waived their rights under Ind.Code § 35--3.1--1--11(b) by having failed to move for separate trials. Ind.Code § 35--3.1--1--12. Also, the only objections made at the time the statements were offered for evidence were made by each defendant in respect to his own statement and were mere renewals of the coercion claims previously determined upon the motion to suppress. We go to the issue, nevertheless, because from the record of the proceedings surrounding the introduction of redacted versions of the statements, it is apparent that the trial court was aware of the Sixth Amendment problem and that the prosecutor had opted for redaction in preference to separate trials. (Tr. p. 841). Also, the defendants made vigorous objections to the admission of the redacted statements and clearly stated their grounds.

In Bruton v. United States, (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which overruled Delli Paoli v. United States, (1957) 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, the United States Supreme Court held that at a joint trial the admission into evidence of a non-testifying defendant's confession inculpatory of the co-defendant being jointly tried with the declarant, violated the co-defendant's Sixth Amendment right to confront witnesses. It was further held that such constitutional error could not be cured by the formerly approved practice of instructing the jury that the confession could be considered only as against the declarant and not as against the co-defendant. 1

Responding to the Bruton decision, the Indiana Legislature enacted Ind.Code § 35--3.1--1--11 which provides that in cases where the state has an extrajudicial statement admissible in evidence as to one co-defendant but not as to the other, the court shall require the prosecutor to elect (1) a joint trial at which the statement is not admitted, (2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted, or (3) separate trials for the defendants. It is this statute, with which the trial court was attempting to comply when it edited the three extrajudicial statements and permitted the redacted versions to be entered into evidence.

This Court recently had this problem before it in the case of Sims & Irons v. State, (1976) Ind., 358 N.E.2d 746. In that case, the Court had excised the declarant's references to the co-defendants and substituted either a blank or the letter 'X'. This procedure was challenged as not being an 'effective' deletion, as required by the statute. In that case, Justice Arterburn stated: 'It strains the limits of common sense to suggest that the simple deletion of a name and/or substitution of the letter 'X' can act as an 'effective' deletion in a case such as here. The appellants were jointly indicted and jointly tried. The confession of each defendant refers to the declarant and another person. The jury can draw only one inference--that the other person in each confession is the declarant's co-defendant.'

In the case before us, as in Sims and Irons v. State, supra, it probably was impossible to delete references to the declarants' co-defendants effectively and yet retain any semblance of the meanings. Each statement was so interlaced with references to the co-defendants and their alleged role in the crime that the effective deletion of all such references would have resulted in the loss of all context; and the few sentences remaining would have had virtually no meaning. In holding that the deletions made by the trial court were not 'effective' we have regard for the policy pronounced in Bruton v. United States, supra, and that is that a co-defendant shall not be tainted by the out-of-court declarations of a non-testifying defendant. In protecting this right of confrontation, we cannot permit references by logical inference that could not be made directly. Because of the context in which the out-of-court statements are to be used, i.e. in a trial of two or more defendants wherein all are charged with the same offense, it will require more than a fig leaf to shield the non-declarants from the declarations of a declaring co-defendant. In consequence, there probably will be but few such statements that are susceptible to effective deletion within the meaning of the statute. Where such effective deletion is not clearly possible, due regard being had for the context in which the statement will be used and the normal inclination of a jury to associate a declarant's co-defendants with pronouns or blanks or other vagaries in the edited version, the state must be left to choose between separate trials or foregoing the use of the coveted statement. In the following cases, the Court held that the redaction was ineffective because of the almost inevitable association of the appellant with the non-testifying declarant, under the circumstances of the case. United States ex rel. La Belle v. Mancusi, (1968, CA 2 N.Y.) 404 F.2d 690; Serio v. United States, (1968) 131 U.S.App.D.C. 38, 401 F.2d 989.

In consideration of the claim of harmless error, the following quotation from Smithson v. Maryland, (1968) 5 Md.App. 378, 382, 247 A.2d 542, 544 is appropriate: '* * * It is difficult for us to find beyond a reasonable coubt that this evidence did not in any way contribute to the conviction, even though there was other ample evidence to support the conviction.' (Emphasis added). That court did not recite the other evidence but only stated that it was ample to convict. To us, there is a vast difference between evidence that is ample, that is to say evidence that would prevail upon review over a claim of insufficiency, and evidence that is so convincing that a jury could not properly find against it. When we find the latter, we are warranted in a determination that error was harmless beyond a reasonable doubt.

The defendants, Carter and Laws, were identified without equivocation by both Mr. Neugebauer and Mr. Darrow, two of the victims of the crime. Carter, when chastised by Mr. Neugebauer for his roll in the crime, not only did not deny it, he admitted to having planned it earlier. There was no consequential difference in the statements given by Carter and by Laws; and neither of these defendants was charged in Hunter's statement with any act nor fully confessed by his own statement. No rebuttal was offered by either Carter or Laws. Thus, we have, as the sole evidence in the case, the confessions of the defendants, admissible as to the declarants, corroborating...

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