Flowers v. State

• Decision Date: 02 August 1985
• Docket Number: No. 383S104,383S104
• Citation: 481 N.E.2d 100
• Parties: Thomas FLOWERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 100

481 N.E.2d 100

Thomas FLOWERS, Appellant, v. STATE of Indiana, Appellee.

No. 383S104.

Supreme Court of Indiana.

Aug. 2, 1985.

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant Thomas Flowers was convicted in a trial by jury on four counts, namely burglary, I.C. Sec. 35-43-2-1, and attempting to commit three felonies, I.C. Sec. 35-41-5-1, namely murder, rape, and robbery, I.C. Sec. 35-42-1-1, I.C. Sec. 35-42-4-1, and I.C. Sec. 35-42-5-1, respectively, all class A felonies. He received an augmented sentence of fifty (50) years for attempted murder, and presumptive sentences of thirty (30) years each on the remaining three convictions, to run concurrently with one another, but consecutive to the fifty (50) year sentence for attempted murder, for a total time of eighty (80) years. Appellant was seventeen years and nine months old, stabbed the unarmed victim seven times and hit her on the head with a heavy item, and had a lengthy history of unlawful conduct and confrontations with law enforcement officials shown by eight adjudications of delinquency and four pending felony counts including one for burglary of a dwelling.

In this direct appeal the claims of error are related to court rulings on the following matters: (1) a petition to recuse the prosecutor, (2) admission of a confession, (3) presumption of innocence instructions, (4) defense of intoxication instructions, (5) lesser included offense instructions, (6) admission of prior consistent statements, (7) physical restraints of appellant's person, (8) sufficiency of evidence, (9) double punishment, (10) comment upon silence, and (11) restriction upon the right to counsel.

The proof at trial supporting guilt showed that the prosecutrix Robin Briggs had been acquainted with appellant's family for several years. She had met him specifically the month before when he was employed by her husband. She was awakened in the early morning hours by someone pulling at her bed covers. She recognized appellant, and having locked her doors before retiring, asked him what he was doing there. Appellant switched on the light and said he needed a note from her regarding his employment. He then asked for money and she told him she didn't have any. He then left the room.

Appellant returned, and he was then naked from the waist up, and had his pants unzipped. He asked again for money and she said for him to take the five dollars in her purse. He had a paring knife and moved both hands to his belt buckle. He tugged on the sheets again, whereupon she asked him what he was doing and he replied, "You know." When she replied, "No," he attacked, stabbing and striking her.

Appellant testified that he had no recollection of the attack, and had been drinking, smoking marijuana, and taking drugs. Briggs, on the other hand, testified that he was able to maneuver through the articles in the house, and while his movements were slow and his speech irregular, that was normal for him.

I

Appellant first claims that the trial court erred in denying his petition to recuse the prosecutor and staff, for the reason that the prosecutor had previously represented him as public defender. A non-specific affidavit by appellant that representation had existed was attached to the petition. The prosecutor responded with a pleading that he had no recollection of having represented appellant and that no court records could be located which showed such representation. A hearing was held and the petition denied. The hearing was not reported.

In State v. Tippecanoe County Court (1982), Ind., 432 N.E.2d 1377, this Court held:

"The precepts of professional ethics forbid the participation of a lawyer in the prosecution of a criminal case if by reason of his professional relation with the accused, he has acquired knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith."

Assuming without concluding, that the fact of prior representation of appellant by the prosecutor was established, we nevertheless would hold that this record provides no basis upon which to conclude that the present and prior cases were closely related, or that the prosecutor's knowledge gained in the course of that representation would actually result in prejudice to appellant to the slightest degree. Appellant has not sustained his burden on appeal to show error in this ruling of the trial.

II

Appellant next claims that his oral confession was erroneously admitted at trial. A hearing was held upon a defense motion to suppress the confession, and the motion was then denied with findings of fact by the court. The court concluded that the safeguards for the privilege against self-incrimination erected by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138, and I.C. Sec. 31-6-7-3, did not apply to the circumstances of this confession.

At the time the confession was given, appellant was a juvenile and under arrest and in custody for the attack upon Robin Briggs. He was being treated for a gun shot wound while being confined in a hospital room under armed guard. Shortly after midnight, while under sedation, and sleepy, he observed that he was being guarded by Patrolman Barry G. Richard, with whom he had been acquainted through Boy's Club activities for about eight years. Appellant looked up and spoke first, saying "Barry." Both then spoke about their respective families. Appellant then displayed some pain and spoke about his wound. Without any questioning at this point by Patrolman Richard, appellant described the incidents leading up to his shooting, and then described his attack upon the woman. He offered that he went there to get money from her and stabbed her. He added in apparent justification that he had had "hits of acid" and had drunk a quart of whiskey, and was in need of mental help. None of the warnings or procedures mandated by the Miranda or Lewis cases or our statute, were given before the statement. There is nothing to be found in these circumstances, when viewed from appellant's standpoint, as he rested there in the hospital bed, upon which a court could infer that the patrolman's words of actions were or could have been received or perceived as urging or even desiring an incriminating response. There was therefore no interrogation and no occasion for the application of protective measures for the privilege against self-incrimination. Cf. Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 6 L.Ed.2d 297. A statement such as this which is spontaneously volunteered and not the product of interrogation is admissible, even though the accused was in custody at the time it was made. New v. State (1970), 254 Ind. 307, 259 N.E.2d 696. There is, furthermore, no evidence from which to infer that appellant was motivated to make his statement by the speech or actions of officials, or that the statement was other than voluntary. There was not error in the admission of appellant's confession.

III

The trial court refused appellant's tendered instructions one and two. They related to the presumption of innocence and the manner of weighing evidence in light of the presumption. In reviewing the denial of tendered instructions the Court must consider: (1) whether the tendered instruction correctly states the law; (2) whether the evidence supports the instruction; and (3) whether other instructions have adequately covered the substance of the tendered instruction. Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836.

The trial court gave its own Preliminary Instruction 6, 7, and 8 which dealt with the proper manner of receiving the information or indictment, the presumption of innocence, including its operation as a constant check upon proof tending to show guilt, and the burden of proof beyond a reasonable doubt, respectively. The instructions given did address the manner of weighing evidence in light of the presumption, contrary to appellant's complaint that such matter was absent or inadequately expressed.

IV

Defense counsel tendered two instructions defining and applying the defense of intoxication. They were refused. The trial court did give two final instructions upon the defense of intoxication. Appellant argues that the court's instructions did not include "... the State's continuing burden to prove the necessary intent beyond a reasonable doubt" as had been addressed in his tendered instructions, and that the court's instructions inferred "that the burden is on the defendant." A comparison of the court's instruction with those of the defense, tendered and refused, has resulted in the conclusion that the court's instructions on intoxication, when considered along with the instructions on the burden of proof, are the functional equivalent of appellant's tendered instructions on the same matter. Such comparison has likewise revealed no support for any inference that the defendant carried a burden. The substance of the tendered instructions was covered in the court's instruction. Therefore the refusal of the tendered instruction was not error. Davis v. State, supra.

V

Appellant sought and was refused an instruction defining the offense of criminal recklessness and specifying it as a lesser and included offense. In Humes v. State (1981), Ind., 426 N.E.2d 379, this court held that recklessness was not a lesser and included offense of attempted murder, in that it failed the first part of the two-step analysis required by Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208. The court held that the intentional or knowing state of mind is separate in kind from the reckless state of mind, and that proof of the former would not necessarily constitute proof of the latter. Appellant argues that the proof of intoxication at trial rendered...