Davidson v. State

• Decision Date: 29 October 1991
• Docket Number: No. 18S00-9006-CR-430,18S00-9006-CR-430
• Citation: 580 N.E.2d 238
• Parties: Daniel L. DAVIDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 238

580 N.E.2d 238

Daniel L. DAVIDSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 18S00-9006-CR-430.

Supreme Court of Indiana.

Oct. 29, 1991.

Michael J. Alexander, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

After a jury trial, appellant Daniel L. Davidson was found guilty of murder, a felony, Ind.Code Sec. 35-42-1-1(1) (West Supp.1991) and rape, a class A felony, Ind.Code Sec. 35-42-4-1 (West 1986). He was sentenced to consecutive terms of sixty years for the murder and fifty years for the rape, and assessed a $10,000 fine on each conviction.

Davidson brings this direct appeal, raising four issues:

I. Whether the trial court erred by permitting the State to question a police officer about statements Davidson made while under custodial interrogation without establishing the voluntary nature of the statement and his waiver of counsel, and in failing to grant a mistrial after the officer made a comment concerning Davidson's failure to make certain statements.

II. Whether the trial court erred in permitting the State to file an amended rape count and in joining it for trial with the murder charge.

III. Whether the trial court erred in permitting the State to present DNA identification evidence without first holding a hearing on admissibility outside the jury's presence.

IV. Whether the trial court erred in denying Davidson's motions for change of venue from the county.

The evidence which tends to support the jury's verdict shows that on the evening of November 1, 1988, Davidson and his friend Ronnie Swift went to Michelle Cortwright's house to find some marijuana. Michelle, her boyfriend, and twenty-one year old Lisa Roberts (the victim) were at Michelle's house. The three men soon left, but Davidson and Swift returned to the house later in the evening. Swift brought an ice pick into the house from Davidson's truck; Davidson took the pick into his possession that evening. Davidson expressed interest in a gun Lisa had in her jacket, and he unsuccessfully attempted to purchase it from her.

Davidson and Swift left Michelle's house around midnight; Lisa left shortly thereafter. Davidson returned to Michelle's house at approximately 2 a.m. He made sexual advances toward Michelle; however, she was able to convince him to leave. The phone company reported that at 2:32 a.m., someone used a phone booth near Michelle's home to place a collect call to Lisa's trailer.

Davidson went to Lisa's trailer in the early hours of November 2. He stabbed her multiple times in the chest and head. She also suffered blunt force injuries to her head. She was left in her trailer, with her hands and feet bound together in a fetal position. She was naked, blindfolded, and gagged. Her mother discovered her body two days after the murder.

Lisa had been sexually assaulted; she suffered injuries to her vaginal and rectal areas. Cellmark Laboratory performed DNA (deoxyribonucleic acid) identification tests on pubic hairs found on Lisa. These tests showed that the DNA from the pubic hairs genetically matched the DNA from Davidson's blood, as did DNA from the semen found on Lisa's bedsheet. Davidson admitted to his friend Ronnie Swift that he killed Lisa. Several of her stab wounds were consistent with injuries that could be received from an ice pick. When the police arrested Davidson, he was in possession of Lisa's gun.

I. Custodial Statement

Davidson argues the trial court erred when it allowed into evidence a statement Davidson made to the police while under custodial arrest. He says the State failed to establish the voluntary nature of the statement and his waiver of the right to counsel, in violation of the fifth and sixth amendments.

Davidson's fifth amendment claim is that he was coerced into being a witness against himself because his statement was not given voluntarily. He offers no evidence to demonstrate that his statement was coerced in any manner; indeed, he does not even claim that such evidence exists. The State responds in a modest way, pointing out that Davidson was given the Miranda warnings prior to his statement.

The nature of Davidson's fifth amendment rights, as applicable to the states under the fourteenth amendment, has been settled by the U.S. Supreme Court, which has held that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). Once a defendant makes a claim that governmental coercion led to his confession, the burden shifts to the State to establish a voluntary and intelligent waiver of a defendant's Miranda rights. Johansen v. State (1986), Ind., 499 N.E.2d 1128. "The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion." Colorado v. Connelly, 479 U.S. at 170, 107 S.Ct. at 523. The voluntariness of a waiver of the fifth amendment privilege has always depended "on the absence of police overreaching...." Id. at 170, 107 S.Ct. at 523. The record in this case is devoid of any evidence or suggestion that the police resorted to pressure to elicit the statement from Davidson. The trial court did not err in allowing the State to offer testimony about Davidson's statement.

As for his sixth amendment claim, Davidson argues his statement was erroneously admitted because the State did not establish a knowing and voluntary waiver of counsel. Davidson was informed of his Miranda rights, including the right to have an attorney present. He chose to speak briefly. When Davidson later exercised his right to have an attorney present, the officers immediately ceased questioning him. We see no error.

Davidson's next contention is that the trial court erred in failing to grant his request for a mistrial. He alleges one of the State's questions to the police officer constituted an impermissible comment on his right to remain silent. The prosecutor asked: "At anytime did [Davidson] tell you that he had sex with Lisa Roberts?" and the officer responded: "No." This hardly seems like a comment on post-arrest silence, but in any event, Davidson's objection to this question was sustained by the trial court. The court ordered the question and answer stricken from the record, and instructed the jury to ignore completely the question and its answer.

The trial court has broad discretion in determining whether to grant a mistrial. Kelley v. State (1990), Ind., 555 N.E.2d 140; Palmer v. State (1985), Ind., 486 N.E.2d 477. To succeed on appeal from a denial of a motion for a mistrial, an appellant must demonstrate that he was placed in a position of grave peril to which he should not have been subjected. Kelley, 555 N.E.2d 140; Palmer, 486 N.E.2d 477. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision. Kelley, 555 N.E.2d 140. "The declaration of a mistrial is an extreme action which is warranted only when no other recourse could remedy the perilous situation." Palmer, 486 N.E.2d at 483. We seldom find reversible error when the trial court admonishes the jury to disregard the statement made during the proceedings. Id. Assuming arguendo the prosecutor's question was improper, we think it did not place Davidson in a position of grave peril. The court immediately instructed the jury to disregard the question, the question was early in the lengthy trial, and a great amount of evidence followed. The trial court did not err in denying the request for a mistrial.

II. Rape Charge and Conviction

Davidson has two complaints concerning the rape conviction. He first argues the trial court erred in permitting the filing and joinder of the rape charge. The information for murder was filed on November 7, 1988. The State filed the information for rape on May 1, 1989, and amended it on May 5, 1989. The two charges were tried together as Counts I and II, respectively.

The joinder statutes do not require that the State simultaneously file all related charges. Seay v. State (1990), Ind., 550 N.E.2d 1284. When a defendant has been charged with two or more offenses in two or more informations, the trial court may join the informations for trial if the offenses could have been joined under Indiana Code Sec. 35-34-1-9(a)(2). Under that section of the Code, two offenses may be joined with each offense stated in a separate count when the offenses "are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." Ind.Code Sec. 35-34-1-9(a)(2) (West 1986); Abner v. State (1986), Ind., 497 N.E.2d 550, 554.

The murder and rape charges arose from a series of acts committed as part of a single scheme. The events took place on the same morning and against the same victim. Davidson does not indicate why the offenses should not have been joined. There was no error committed by the joinder of these offenses. See, e.g., Turnpaugh v. State (1988), Ind., 521 N.E.2d 690 (charged crimes were properly joined when they took place on the same night and were committed against young sisters who were both spending the night in defendant's home).

Davidson next argues there was insufficient evidence to sustain his conviction for rape because there was no evidence of vaginal penetration. Rape is defined by statute in part as sexual intercourse with a member of the opposite sex when the other person is compelled by force. Ind.Code Sec. 35-42-4-1(1) (West Supp.1991). Sexual intercourse is defined as an act that includes any penetration of the female sex organ by the male sex organ. Ind.Code Sec. 35-41-1-26 (West 1986). It is well settled that proof of the slightest degree of penetration is sufficient to sustain a rape conviction. Rowan v. State (1982), Ind., 431...