Gilliam v. State

• Decision Date: 27 April 1995
• Docket Number: No. 06A01-9411-CR-382,06A01-9411-CR-382
• Parties: Kevin L. GILLIAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 45

650 N.E.2d 45

Kevin L. GILLIAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 06A01-9411-CR-382.

Court of Appeals of Indiana First District.

April 27, 1995.

Rehearing Denied July 6, 1995.

Transfer Denied Sept. 14, 1995.

Richard K. Milam, Lebanon, for appellant.

Pamela Carter, Atty. Gen., Janet L. Parsanko, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Kevin L. Gilliam appeals from his convictions for Burglary, as a Class B felony, Residential Entry, as a Class D felony, and two counts of Theft, as Class D felonies, following a jury trial. We affirm.

ISSUES

Gilliam presents three issues for our review which we restate as follows:

1. Whether the trial court erred when it admitted into evidence statements Gilliam made to a police officer.

2. Whether the trial court abused its discretion when it denied Gilliam's request for change of counsel.

3. Whether Gilliam was denied the effective assistance of trial counsel.

FACTS

The facts most favorable to the verdicts show that, on December 1, 1993, Gilliam and a companion, David Pemberton, drove to the residence of DeeAnn Moore and parked their vehicle in the driveway. Pemberton went into the house and returned to the vehicle with several items. Gilliam assisted Pemberton in placing the items into the vehicle. DeeAnn Moore's brother, who lived across the street, noticed a strange vehicle parked in his sister's driveway. When Gilliam and Pemberton realized that the man was watching them, they retreated into the residence to hide. The two later exited the residence by opening a window and kicking out a screen.

Gilliam and Pemberton left the vehicle at the Moore residence and fled on foot to the home of Richard Hawkins. Gilliam broke a window, climbed inside the house and opened the front door for Pemberton. While inside the Hawkins residence, Gilliam telephoned a friend in an attempt to get a ride. Before leaving, Gilliam took some coins and a pair of coveralls. Gilliam, dressed in the coveralls, was arrested later that day.

Gilliam was charged with two counts of burglary, as Class B felonies, one count of Class D felony residential entry as a lesser included offense of burglary and two counts of theft, as Class D felonies. After a jury trial, Gilliam was convicted on only one count of burglary, the residential entry count, and both counts of theft.

DISCUSSION AND DECISION

Issue One: Statements to Police

Less than 48 hours before trial, Gilliam made several statements to Detective Paul Myers. During his communication with Detective Myers, Gilliam admitted his participation in the thefts that occurred at the homes of DeeAnn Moore and Richard Hawkins. He admitted that he entered both dwellings and also handled property. Gilliam contends that these statements occurred during plea negotiations and, thus, were inadmissible. We cannot agree.

Gilliam is correct that statements made by a defendant as part of plea negotiations are not admissible in a subsequent trial on the charged offense. Martin v. State (1989), Ind., 537 N.E.2d 491, 493; see IND.CODE § 35-35-3-4. Similarly, Evidence Rule 410 prohibits the admission of "any statement made in connection with" a plea offer. Rule 410 provides no test for determining whether a statement was made "in connection with" a plea offer. However, under our common law rules of evidence, to be privileged, "the communication must have as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant." Crandell v. State (1986), Ind.App., 490 N.E.2d 377, 380, trans. denied.

Whether the parties were engaged in plea negotiations is a question of fact for the trial court which we review only for clear error. See United States v. Sitton (9th Cir.1992), 968 F.2d 947, 956, cert. denied 506 U.S. 979, 113 S.Ct. 478, 121 L.Ed.2d 384. The parties here do not dispute that Gilliam contacted Detective Myers in an attempt to negotiate a plea agreement. However, Detective Myers testified, and Gilliam concedes that during their one-hour communication, only approximately half of that time was devoted to discussing the possibility of a plea agreement. Brief of Appellant at 31, 34.

In ruling on a motion to suppress filed by Gilliam, the trial court suppressed any statements made by Gilliam during his attempt to reach a possible plea agreement, including statements which concerned his criminal history. Record at 139. The trial court deemed admissible other statements made by Gilliam in which he admitted his participation in the crimes charged in this case. Record at 139. It is apparent from our review of the record that the trial court determined Gilliam's statements regarding his participation in the crimes charged were not made "in connection with" his attempt to negotiate a plea and, thus, were admissible and relevant to the crimes charged. We cannot say that the trial court erred in that determination.

Even if we were to accept Gilliam's assertion that his admissions "were in connection with" his attempt to negotiate a plea, we find no error. Gilliam asserts that Evidence Rule 410 is not as narrow as its federal counterpart, which limits its protection to statements made "in the course of plea discussions with an attorney for the prosecuting authority." FED.R.EVID. 410(4). Although Rule 410 does not contain the limiting language contained in the Federal Rule, we conclude that the rule retains Indiana common law. Our common law provided that a defendant's statements made to a police officer who had no authority to enter into a binding plea agreement were not privileged plea negotiations and, thus, were admissible. Martin, 537 N.E.2d at 493. We can discern no sound reason why this common law rule should not continue under the Rules of Evidence.

"The plea bargaining process does not start until persons having the authority to make a binding agreement have agreed to negotiate." Chase v. State (1988), Ind., 528 N.E.2d 784, 786. To qualify as a privileged communication, a statement must meet two requirements: (1) the defendant must have been charged with a crime at the time of the statement, and (2) the statement must have been made to someone with authority to enter into a binding plea agreement. Martin, 537 N.E.2d at 493. Gilliam's statements fail to meet the second requirement. Detective Myers neither had the authority to negotiate on behalf of the prosecutor nor entered into any agreement with Gilliam. Gilliam's statement was merely a "unilateral offer of evidence to induce the State to negotiate" and, thus, was not privileged. See id.

Gilliam also asserts that his statements were taken in violation of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Again, we cannot agree.

Statements made by those in police custody in response to police interrogation are inadmissible at trial unless the State proves beyond a reasonable doubt that the defendant knowingly and voluntarily waived his privilege against self-incrimination and his right to counsel and that the statements themselves were voluntarily given. Johnson v. State (1992), Ind., 584 N.E.2d 1092, 1098-99, cert. denied 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105. In determining whether both the statement and waiver were voluntarily given, we look at the totality of the circumstances to determine if they were the product of any violence, threats, promises, or other improper influence. Id. Even when a defendant is represented by counsel, he can waive both his fifth amendment and sixth amendment protections by initiating the conversation or discussion with authorities. Weaver v. State (1991), Ind., 583 N.E.2d 136, 139.

Gilliam initiated contact with Detective Myers at which time he informed Detective Myers that he was unhappy with his attorney. Prior to taking Gilliam's statement, Detective Myers attempted to contact Gilliam's attorney but was unable to reach him. Detective Myers then obtained a Request to Make a Statement and Waiver of Rights form. Detective Myers read the Miranda advisements included on the form and explained to Gilliam that he would waive those rights by giving the statement. The waiver of rights section on the form provided in pertinent part:

I hereby acknowledge that I at one time requested a lawyer, but now I wish to WAIVE that RIGHT. I further acknowledge that I have INITIATED this interview and that I have REQUESTED to make a statement.

I hereby WAIVE my RIGHTS and state that I do not want a lawyer at this time and that I am willing to make a statement and answer questions.

This WAIVER of my RIGHTS has been KNOWINGLY and VOLUNTARILY made by me without any promises or threats having been made to me and further without any pressure or coercion having been used against me.

Record at 247. Gilliam told Detective Myers that he understood his rights and then signed the form.

Despite the fact that he had an attorney, Gilliam personally contacted Detective Myers. After being advised of his rights Gilliam proceeded to make statements without his attorney present. Gilliam admits that he signed the advisement of rights form and was made aware of his constitutional rights. Brief of Appellant at 36. There is no evidence in the record that Detective Myers threatened or coerced Gilliam to make statements. Indeed, the evidence shows that Gilliam was unsatisfied with his attorney and was inclined to waive his right to have counsel present during his statements. Gilliam clearly initiated the communication and his statements were preceded by a knowing and voluntary waiver of his privilege against self-incrimination and his right to have counsel present. See Weaver, 583 N.E.2d 136, 139-40; see also Kern v. State (1981), Ind., 426 N.E.2d 385, 387 (representation by an attorney does not mean that law enforcement officers cannot take defendant's statement without notice to the attorney). The statements were not taken...