Cox v. State

• Decision Date: 19 May 1986
• Docket Number: No. 284-S-43,284-S-43
• Citation: 493 N.E.2d 151
• Parties: Michael J. COX, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 151

493 N.E.2d 151

Michael J. COX, Appellant, v. STATE of Indiana, Appellee.

No. 284-S-43.

Supreme Court of Indiana.

May 19, 1986.

David W. Stone, IV, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of First Degree Murder. The court imposed a life sentence.

The facts are: Ruth Heaton, an elderly and nearly blind widow, was killed during the evening of April 7, 1977. She had been struck five times on the head with a candelabra and rendered unconscious. Her assailant then placed one end of a rope around her neck and the other end of the rope was tied to a doorknob. Strangulation was the cause of death.

Appellant was tried under the theory he aided and assisted the actual assailant, John Drake. Drake was tried first and convicted. His conviction was affirmed by this Court in an opinion reported as Drake v. State (1984), Ind., 467 N.E.2d 686.

Appellant had assisted the Heaton family as a handyman prior to the death of Mr. Heaton. After Mr. Heaton's death, Mrs. Heaton's condition required that appellant provide greater assistance. Heaton paid appellant for his services and gave him monetary gifts. Appellant began to tell acquaintances he anticipated receiving a large sum of money at the time of Heaton's death. Shortly before her death, Heaton became less generous with appellant and began to rely on her housekeeper to perform the tasks previously done by appellant.

On the day of her death appellant accompanied Heaton to lunch. He also drove her to the drive-through window of a local bank. Appellant had worked at this branch and was familiar with the tellers and the bank procedures. After Heaton had completed her banking business, appellant gave the teller an $11,000 check and a deposit ticket reflecting a deposit to his account for that amount. The check was drawn on Heaton's account and was made payable to the bank. Appellant told the teller he did not need a receipt and drove away. In 1978 appellant was convicted of uttering a forged instrument for his actions involving this check.

Appellant was the initial suspect in the case. The police found Heaton's garage door opener in appellant's automobile after his arrest. After several days of detention he was released due to a lack of other evidence. In the days following the murder, John Drake and his brother and sister-in-law, Charles and Amy Drake, travelled to Miami, Florida, where Amy owned a condominium. The trio was joined there by John Drake's wife Nancy.

After consuming alcohol and drugs one evening, John Drake became very emotional and told the others that he had killed Heaton while appellant watched and smiled.

Information concerning Drake's statement did not surface for several years. Amy Drake, after becoming concerned that John Drake was interfering in her marriage, called the Anderson police. She told them of Drake's statement. The police then obtained statements from Charles Drake and Nancy Drake. These statements formed the basic evidence in Drake's trial. While investigating Drake's involvement, the police obtained other information linking appellant to the crime. Included was testimony that appellant had been able to describe the interior of Heaton's home as it existed following the murder. This included the position of the body and the nature of the disorder within the room. Appellant had also told others that John Drake killed Heaton. Further testimony placed appellant alone with John Drake on the evening of the homicide and in possession of a garage door opener to the victim's garage.

Appellant contends the evidence does not support the conviction. He argues the circumstantial evidence did nothing more than raise the mere suspicion of his guilt. He cites several appellate decisions reversing convictions on sufficiency of evidence grounds.

We do not reweigh the evidence or judge the credibility of the witnesses. When there is substantial evidence of probative value to support the conviction, it will not be reversed. Brown v. State (1981), Ind., 421 N.E.2d 629. The evidence presented above does more than create a mere suspicion of appellant's guilt. Appellant's own statements indicate his involvement. We find sufficient evidence to support the conviction.

The trial court granted appellant's Motion in Limine which prevented the State from introducing the testimony of Amy, Charles or Nancy Drake concerning statements John Drake made while at the condominium in Miami. The State then sought, and the court granted, an order certifying an interlocutory appeal on the question of the granting of the Motion in Limine. The court also granted a continuance pending the outcome of the interlocutory appeal.

Appellant then filed a motion for discharge pursuant to Ind.R.Cr.P. 4(B). This was denied and appellant sought a writ to order his discharge. This Court denied the writ in an opinion reported as State ex rel. Cox v. Superior Court of Madison County, Division III (1983), Ind., 445 N.E.2d 1367. The Court of Appeals refused to accept jurisdiction on the question of the Motion in Limine. Trial commenced shortly thereafter. The delay pending the appeal totaled nearly nine months.

Appellant now contends the appeal was patently frivolous. He argues the delay occasioned by the appeal did not hamper both sides equally because the police had contemporaneous notes which they could use to refresh their memories. He maintains the delay, coupled with the fact the trial concerned an incident which occurred several years earlier, placed him in a position of unacceptable prejudice. He also advances a public policy argument that the State should not be permitted to use frivolous interlocutory appeals to delay trials and deny criminal defendants their right to a speedy trial.

The State argues the issue of prejudice due to delay is essentially the same question presented to this Court in appellant's mandate action. Although the issue here is couched in different language, the issue of prejudice due to delay is at the heart of both this question and the one presented in the writ. We hold this question was resolved earlier against appellant's position. There was no error in granting the continuance.

Appellant contends the trial court erred when it permitted Detective Levi to testify concerning statements he made to Levi. While appellant was incarcerated following the forgery conviction, Levi informed him of the fact that Amy Drake had made a statement implicating him.

Levi did not carry a standard waiver of rights form with him when he spoke with appellant. Levi did provide appellant with verbal Miranda warnings. No recording was made of the conversation. The only memorializations of the meeting were Levi's notes and a report completed after the meeting. Following Levi's statement of rights, appellant indicated he thought he should talk to an attorney. Appellant immediately followed the statement with an inquiry as to what Levi wanted to discuss. Levi told appellant of Amy Drake's statement. Appellant then discussed the murder with Levi. In the course of the conversation, appellant made several incriminating statements. These statements were placed before the judge at a hearing out of the presence of the jury. Only a small portion of the statement was placed in evidence for consideration by the jury.

Appellant argues the statements made to Levi should have been suppressed. He contends they were taken in violation of the rights announced in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. We find under the facts of this case Levi did conduct a custodial interrogation of appellant.

An accused who is undergoing custodial interrogation and who expresses a desire to have counsel may not be interrogated by the authorities until counsel has been made available. Edwards, supra. This right may be waived after its assertion when the defendant has initiated further discussion and knowingly and intelligently waived the right previously invoked. Smith v. Illinois (1984), 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488.

In the case at bar, appellant's statements at the onset of the interview were ambiguous. In one response he both indicated a desire to converse with the police and to confer with counsel. In light of this ambiguity, we find appellant did not adequately assert his desire to deal with the authorities only through counsel. We adopt the view expressed in People v. Krueger (1980), 82 Ill.2d 305, 311, 45 Ill.Dec. 186, 189, 412 N.E.2d 537, 540 which reads as follows:

"Miranda's 'in any manner' language directs that an assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity. We do not believe, however, that the Supreme Court intended by this language that every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel."

Assuming arguendo appellant did assert his right to counsel, his actions in continuing to ask questions of the officer constituted a knowing waiver of the right to counsel.

Appellant argues the statements to Levi were the product of a promise of lenient treatment. Levi testified he advised appellant that he could not make any deal at that time. Levi did inform appellant that with full cooperation they could talk later in terms of an agreement. We do not find these statements constituted improper conduct requiring the testimony to be declared inadmissible.

Appellant challenges that portion of Levi's testimony in which he related to appellant what Charles and Amy Drake had told him concerning the statements made by John Drake. He argues this testimony by Levi was but a backdoor scheme to receive the testimony by the Drakes which was excluded under the Motion in Limine. He contends the testimony of the Drakes...