Davies v. State

• Decision Date: 15 June 2000
• Docket Number: No. 61A04-9910-CR-448.,61A04-9910-CR-448.
• Parties: Bradley J. DAVIES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

730 N.E.2d 726

Bradley J. DAVIES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 61A04-9910-CR-448.

Court of Appeals of Indiana.

June 15, 2000.

Rehearing Denied August 15, 2000.

William G. Smock, Michael A. Slagle, Smock & Etling, Terre Haute, Indiana, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

KIRSCH, Judge

After a jury trial, Bradley J. Davies was convicted of two counts of child molesting as Class A felonies, and one count of child molesting as a Class C felony.¹ He now appeals, raising the following issues for review:

I. Whether Davies's pre-polygraph statement was voluntary and comported with his Miranda rights.

II. Whether the trial court erred in admitting audiotapes of Davies's pre-polygraph statement.

III. Whether the results of Davies's polygraph examination were admissible, in that his consent was voluntary, the test was performed pursuant to a valid stipulation, and the results were reliable.

IV. Whether Davies's post-polygraph statement was voluntary.

V. Whether Davies's convictions are supported by sufficient evidence.

VI. Whether Davies's convictions violate double jeopardy.

VII. Whether the trial court erred in sentencing Davies.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On October 11, 1998, twenty-three-month-old K.S. drowned. While cleaning the body, Marjorie Frey, a morgue technician, noticed a possible rectal tear. Dr. Roland Kohr performed an autopsy and found evidence that K.S. had been sexually abused.

Davies, who lived with K.S.'s mother, Melissa Stinson, heard news reports about injuries to the child not caused by the drowning and contacted police, insisting on discussing the matter. He and Stinson went to the Parke County Sheriff's Department, where each was interviewed separately in the conference room. Deputy Randy Kneeland conducted Davies's interview; Conservation Officer Kent Hutchins was also present. During Davies's interview, he admitted that he molested the child, then retracted his admission and agreed to take a polygraph examination.

Kneeland and Hutchins transported Davies to Boone County, where Kneeland had arranged for the polygraph to be administered by Boone County Sheriff Ern Hudson, who was a certified polygraph examiner. Hudson read Davies a standard interrogation form and a polygraph waiver of rights form, both of which contained the Miranda warnings. Hudson then read to Davies a written polygraph stipulation. Davies signed all three documents. Davies failed his polygraph test, and after again receiving the Miranda warnings, gave a more complete confession both in his post-polygraph interview and in the car on the return trip to Parke County.

The jury convicted Davies as charged. The trial court sentenced him to fifty years' imprisonment on each Class A felony conviction, and eight years' imprisonment on the Class C felony conviction, all to run concurrently. He now appeals.

DISCUSSION AND DECISION

I. Pre-polygraph statement

Davies first argues that the statement he made before he took the polygraph test was inadmissible. He argues that the pre-polygraph statement was involuntary and was taken in violation of his Miranda rights.

A. Voluntariness

Davies claims that his pre-polygraph statement should not have been admitted at trial because it was not voluntary. He argues that the totality of the circumstances suggest that police coercion overcame his free will.

The decision whether to admit a defendant's statement is within the discretion of the trial court. Schmitt v. State, 730 N.E.2d 147, 148 (Ind.2000). On appeal from a determination that the accused's statement was admissible, we do not weigh the evidence nor resolve questions of credibility, but consider the evidence which supports the decision of the trier of fact in the case of contested evidence and any uncontested evidence presented by the appellant. Snellgrove v. State, 569 N.E.2d 337, 343 (Ind.1991). The trial court's finding will be upheld if there is substantial evidence of probative value to support it. Id.

The State has the burden of proving beyond a reasonable doubt that the confession was voluntary and not induced by violence, threats, promises, or other improper influences so as to overcome the free will of the accused at the time he confessed. Id. (citing Taylor v. State, 479 N.E.2d 1310 (Ind.1985)). When we review the voluntariness of a confession, we take into consideration the entire record and look at the totality of the circumstances. Johnson v. State, 584 N.E.2d 1092, 1099 (Ind.1992),cert. denied, 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992); Patterson v. State, 563 N.E.2d 653, 655 (Ind.Ct.App.1990). Among other circumstances, we consider "inconsistencies in the defendant's statement, explicit or implicit promises by police interrogators, and the coercive nature of the interrogation atmosphere." Patterson, 563 N.E.2d at 655. "Coercive police activity is a necessary prerequisite to finding a confession is not `voluntary' within the meaning of the due process clause of the fourteenth amendment." Id. (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473, 484 (1986)).

Davies argues that the factors cited in Patterson demonstrate that his statement was not voluntary. He cites the numerous inconsistencies in his answers in the interview, in which he admitted molesting K.S., then retracted his previous statement. Davies also argues that the atmosphere of the interview was coercive because of the interrogation tactics used by Kneeland, and the fact that he had slept and eaten inadequately at the time of the interview.

A review of the entire record discloses that Kneeland was never rude, threatening, or abusive to Davies throughout the interview. On the contrary, Kneeland and Hutchins were respectful throughout the process, offered Davies food and water, and took a break in the middle of the interview. While Kneeland did use forceful questioning techniques, standard police interrogation does not equate to coercion. See Houser v. State, 678 N.E.2d 95, 102 (Ind.1997)

(confession not rendered involuntary by officers' use of typical interview techniques such as "good cop, bad cop"); French v. State, 540 N.E.2d 1205, 1207 (Ind.1989) (statement properly admissible where defendant treated kindly and politely, was allowed to use the bathroom, was given water, and was allowed to take breaks while giving his statement); Clephane v. State, 719 N.E.2d 840, 842 (Ind.Ct.App.1999) (defendant's statement voluntary where he returned caseworker's telephone call and went to the office for an interview, knowing that he was free to go at any time).

B. Miranda

Davies next contends that the trial court erred in admitting his pre-polygraph statement because the statement was given in violation of his Miranda rights. The Miranda warnings were designed to secure the criminal defendant's constitutional right against compulsory self-incrimination. Hayes v. State, 667 N.E.2d 222, 225 (Ind.Ct.App.1996), trans. denied; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A defendant is entitled to receive Miranda warnings if he is subject to custodial interrogation. Hurt v. State, 694 N.E.2d 1212, 1217 (Ind.Ct.App.1998), trans. denied, cert. denied, 525 U.S. 1008, 119 S.Ct. 525, 142 L.Ed.2d 435 (1998) (citing Cliver v. State, 666 N.E.2d 59, 66 (Ind.1996)). A defendant is in custody if he is formally arrested or is subjected to restraints on his freedom such that a reasonable person in defendant's position would believe he is not free to leave. Id. (citing Pasco v. State, 563 N.E.2d 587, 593 (Ind.1990)).

When an accused is subjected to custodial interrogation, the prosecution may not use statements stemming from that interrogation unless it demonstrates the use of procedural safeguards effective to secure the accused's privilege against self-incrimination. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Miranda warnings apply only to custodial interrogation because they are meant to overcome the inherently coercive and police dominated atmosphere of custodial interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

Courts have examined the concept of "custody" in numerous cases. For instance, in Clephane, 719 N.E.2d at 840, the defendant contended that his statement was inadmissible because he was not advised of his Miranda rights. In that case, a caseworker was investigating the possible sexual abuse of a teenager. The caseworker contacted the defendant and asked him to come to her office for an interview. Once at the office, the defendant volunteered that he knew the purpose of the investigation. This statement was offered against him at trial. The court held that the defendant was not entitled to Miranda warnings because he was not in custody at the time he made the damaging statement. Id. at 842. He voluntarily returned the caseworker's telephone call and came to her office, and he knew that he was at all times free to leave, and in fact, left at one point and came back. Id. Because a person in the defendant's position would not believe that he was prohibited from leaving, he was not in custody. Therefore, no Miranda warnings were needed and the defendant's statements were admissible. Id. at 842-43.

Similarly, in Zook v. State, 513 N.E.2d 1217 (Ind.1987), police were investigating a fire. Eventually, they narrowed their investigation to the defendant. An officer telephoned the defendant and asked him to come to the station for an interview. He agreed and voluntarily accompanied the officers to an interview room. The questions were thorough, but polite, considerate, and not aggressive. The defendant asked if he was under arrest and was told he was not. Our supreme court held that these circumstances did not constitute custody, and the defendant's M...