Clark v. State

Citation808 N.E.2d 1183
Decision Date19 May 2004
Docket NumberNo. 48S00-0205-CR-270.,48S00-0205-CR-270.
PartiesDerrick Daron CLARK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.

In this direct appeal, Derrick Clark appeals his conviction of murder and sentence to life without parole. We affirm the trial court.

Factual and Procedural Background

Jeff Phillips lived with his fiancée, Kimberly Hester at the Courtyard Apartments in Anderson, Indiana. Between 10 and 11 p.m. on April 11, 2001, Hester reported to Phillips that two people were loitering in the parking lot near Phillips's car, and one of them was sitting on the car. Phillips went outside, and after a brief exchange one loiterer returned to a group about twenty to twenty-five feet away and the second drove off. Clark, who was among the group, then approached Phillips, and an argument broke out. After a brief exchange Phillips returned to his apartment, and Clark retrieved his hooded jacket from the woman who had been holding it and told the group to go inside the apartment building.

After Phillips had turned off most of the lights in the apartment, Phillips and Hester peeked out of their bedroom window. Phillips saw someone with a hood approach their apartment building and fire three shots into the apartment. One of the bullets struck Hester and she died a short time later. Clark was identified as the shooter by one member of the group. Two other witnesses, an adult and a nine-year-old boy, also implicated Clark in the shooting, and Clark confessed to the shooting in police interviews under circumstances set forth below.

Clark was charged with the Murder of Hester, Attempted Murder of Phillips, and handgun violations. The State requested that Clark be sentenced to life without parole based on the charge that he discharged a firearm into a residence. The jury found Clark guilty of Murder, Attempted Murder, and Carrying a Handgun Without a License.1 The jury recommended a sentence of life without parole, and the court imposed that sentence.

In this direct appeal, Clark contests the admission of statements he made while in custody at the police station and other statements made during an encounter with a police officer in a parking lot. He also contests the admission of a witness's statement, arguing that the witness was incapable of making a statement at the time he made it, and that the admission of the witness's statement violated his constitutional Right to Confrontation. Finally, Clark challenges the sentence as inappropriate, based on an improper consideration of aggravating and mitigating circumstances, and based on an unconstitutional statute.

I. Witness' Statement

The State called Michael Watson as a witness. Before Clark was arrested, Watson had been interviewed under oath by the prosecutor about the events of the night of the shooting. In this interview, Watson testified that he was at the Courtyard apartments with Clark and others when Clark got into an argument with Phillips and told everyone to go inside. Shortly after that, Watson heard shots. At trial, when asked about these facts, Watson asserted that he did not remember being at the scene and did not recall whether anyone else was there. The State then asked Watson to read the transcript from his interview, and Watson testified that nothing in it was true. The prosecutor then asked Watson if specific statements in his interview were lies, and Watson said they were. The prosecutor said, "And you're telling this jury under oath here today that everything in here that you've said about Derrick Clark was a lie?" Clark unsuccessfully objected to this line of questioning as an effort to get Watson's prior statements before the jury as impeachment without Watson's having made any inconsistent statements.

The State then offered the transcript of Watson's statement into evidence and the court admitted it. Clark argues that Watson's statement was improperly admitted because, at trial, Watson claimed he was under the influence of medication at the time of the statement and denied having knowledge of the facts presented in the statement at the time he made it. The trial court ruled the transcript admissible under Evidence Rule 803(5), which provides:

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The State concedes the statement was not properly admitted as an exhibit pursuant to Rule 803(5) because the Rule permits it to be read to the jury, but not admitted as an exhibit. However, the State points out that an appellate court may affirm a trial court's judgment on any theory supported by the evidence. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.2002) (citation omitted). The State argues that Watson's statement was nevertheless admissible under Evidence Rule 801(d)(1)(A) as substantive evidence as a prior inconsistent statement made under oath. That Rule provides:

A statement is not hearsay if: ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition.

In order for a prior inconsistent statement to be admissible under this Rule: "(1) the statement must have been given under oath subject to penalty for perjury at a trial or other proceeding and (2) the declarant who made the prior statement must both testify and be subject to cross-examination concerning the statement at the trial where the statement is sought to be introduced." See United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir.1985)

. Here, Watson's statement satisfied both requirements. It was given under oath subject to penalties for perjury in the course of the prosecutor's investigation of the case. If a declarant has not been cross-examined, his availability for recall for cross-examination satisfies the requirement that he be available for cross-examination. Kielblock v. State, 627 N.E.2d 816, 821 (Ind.Ct.App.1994). Clark thus had the opportunity to cross-examine Watson at trial even though he chose not to use it.

Clark also argues that admission of Watson's prior statement violated his right to confront witnesses under both the state and federal constitutions. For the same reason, this contention is unavailing. The federal right of confrontation has not been denied when the witness is available for cross-examination. United States v. Valdez-Soto, 31 F.3d 1467, 1470 (9th Cir. 1994).2 Under the Indiana constitution, although the accused must have an opportunity to cross-examine the witness during the face-to-face confrontation, the "opportunity does not have to be seized or successful and the right can be waived." Pierce v. State, 677 N.E.2d 39, 50 (Ind. 1997) (citation omitted). Clark argues that because Watson's statement was admitted after Watson left the stand, Clark had no opportunity to cross-examine Watson, but he gives no reason why he could not have recalled Watson. He has not established a violation of his right to cross-examine.

II. Statements to Police While in Custody

Seven days after the shooting, Anderson police executed a warrant for the limited purpose of taking Clark's photographs and fingerprints. After Clark was brought to the police station, Detective Randy Tracy interrogated Clark and ultimately Clark confessed to the shooting. Clark argues that his Miranda rights were violated because Tracy ignored his request to end the questioning. He also contends that his confession was not voluntary, and that the custodial interrogation was improper because police did not have probable cause to arrest him and the interrogation exceeded the scope of the limited warrant used to bring Clark into custody.

Review of a trial court's denial of a motion to suppress is similar to other sufficiency matters. Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999). The record must disclose substantial evidence of probative value that supports the trial court's decision. Id. We do not reweigh the evidence and we consider conflicting evidence most favorably to the trial court's ruling. Id.

A. Requests to End Questioning

Clark first argues that the statements made in police custody should have been excluded because they were taken in violation of his Miranda rights after four requests that the interview end. Clark argues each of the following statements constituted an assertion of his right to remain silent:

"This is crazy. Y'all might as well send me across the street (referring to jail)."

"Please, man, you might as well take me across the street."

"You already tryin' to charge me with this. So leave me alone and take me over here."
When the officer agreed to take Clark to jail, he said to Clark, "Okay. That's what we'll do. We're going to end the tape. Anything else you want to say?" and Clark responded "No."

An assertion of Miranda rights must be clear and unequivocal, and in determining whether a person has asserted his or her rights, the defendant's statements are considered as a whole. Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir.2001). A person must do more than express reluctance to talk to invoke his right to remain silent. Taylor v. State, 689 N.E.2d 699, 705 (Ind.1997). A statement that "I'm through with this," followed by...

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