Harden v. State

• Citation: 576 N.E.2d 590
• Decision Date: 20 August 1991
• Docket Number: No. 49S00-8807-CR-625,49S00-8807-CR-625
• Parties: Mark Lewis HARDEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 590

576 N.E.2d 590

Mark Lewis HARDEN, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8807-CR-625.

Supreme Court of Indiana.

Aug. 20, 1991.

William L. Soards, Soards & Fruechtenicht, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of three counts of Murder, one count of Robbery, a Class A felony, one count of Rape, a Class A felony, and one count of Confinement, a Class B felony. The three murder convictions were merged by the trial judge by reason of the fact that only one person had been killed. Although the jury recommended the death penalty, the trial judge found mitigating circumstances and sentenced appellant to forty (40) years enhanced by twenty (20) years for the murder, thirty (30) years for the robbery, and thirty (30) years for the rape, all of these sentences to be served consecutively. In addition, he gave a sentence of ten (10) years for the confinement to run concurrently with the murder conviction.

The facts are: On the night of June 3, 1986, Eunice Stone was a visitor in the home of appellant's parents. Appellant asked her for money. When she said she did not have any, he forced her to the garage where he raped her and beat her to death with his fist, a piece of concrete block, and a garage door spring. Her nude body was discovered by Almond Harden, the father of appellant. The police were summoned, and after questioning members of the family, they took appellant, who at that time was seventeen years of age, to police headquarters for further questioning. He requested that his father be present, which request was granted.

After consulting with his father in private for approximately twenty minutes, appellant gave a videotaped statement in which he admitted robbing, raping, and beating the victim to death with his fists, a spring from a garage door, and a piece of concrete block. Appellant stated that he had been drinking and smoking marijuana earlier on the day of the crime and that during its commission he had no control over his actions.

Appellant claims the trial court erred in failing to grant his motion to suppress his videotaped statement. He concedes that on the day of his arrest and prior to giving the statement, he and his father signed a juvenile rights waiver. However, he argues the waiver was improper because the State did not comply with Ind.Code Sec. 31-6-7-3, which provides in pertinent part as follows:

"(a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:

(1) by counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or

(2) by the child's custodial parent, guardian, custodian, or guardian ad litem if:

(A) that person knowingly and voluntarily waives the right;

(B) that person has no interest adverse to the child;

(C) meaningful consultation has occurred between that person and the child; and

(D) the child knowingly and voluntarily joins with the waiver."

Appellant claims the statute was violated in that he was not allowed "meaningful consultation" with his father. He cites Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138 for the proposition that in order for the waiver to be valid they must have been advised of their rights and they must have been given the opportunity for meaningful consultation. He cites Hall v. State (1976), 264 Ind. 448, 346 N.E.2d 584 for the proposition that the consultation must be held in the absence of police officers.

Appellant contends he was placed in an interrogation room at approximately 2:00 p.m. but that his father did not enter until about 6:00 p.m. at which time appellant was "cold, hungry, crying, and distraught," and that he was unable to say anything to his father. He claims that during the twenty minutes he and his father were alone in the room, all his father told him was that the police officers stated it would be easier on him if he talked. After this, the police officers entered the room, advised both of them of their rights, they executed the waiver, and the videotaped statement was made.

At trial, after the State rested, appellant took the stand and testified as to the rape and murder of the decedent; every damaging admission contained in the tape was reiterated in appellant's testimony. The principle of law applicable in such circumstances is that a legal error in admitting proof of a fact is rendered harmless when the defendant himself testifies to the same fact. MacGregor v. State (1967), 249 Ind. 195, 231 N.E.2d 241. See also Vaden v. State (1978), 270 Ind. 29, 383 N.E.2d 60.

When the error is a constitutional one rather than a simple legal one, the constitutional harmless error standard applies. Before a constitutional error can be held harmless, the Court must be sufficiently confident to declare the error harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Thus, in the case before us, any error in admitting proof of appellant's damaging admission to his interrogators would be rendered harmless if, when appellant testified and reiterated what was in his admission, he was not compelled to do so in order to deny or explain away the admission nor substantially restricted thereby in his choice of defense tactics. Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158.

However, we find no defect in the manner in which the police proceeded in this case. Both appellant and his father were given their full advisement of rights, after which each signed the waiver. The father was permitted twenty minutes of private consultation with his son. The fact that the father advised the son to cooperate with the police in no way negates the fact they were provided the opportunity for consultation in compliance with the statute. See Williams v. State (1982), Ind., 433 N.E.2d 769.

Appellant further claims that his interrogation violated Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He claims the facts that he was in a room alone for over three hours without food or drink and was cold rendered his confession involuntary. The State points out that appellant was not taken into custody until 2:30 in the afternoon, well after the lunch hour, and that his father arrived at 6:00 p.m. and appellant's taped statement was taken shortly thereafter. There is nothing in the evidence, other than appellant's statement, to indicate that the room temperature was below normal or that there was any undue deprivation.

Detective Matthews testified that he told appellant only that it might be in his best interest to make a statement but did not say that the State would go easy on him. We see nothing in this case to indicate a violation of the standards set out in Miranda, supra. See Poling v. State (1987), Ind., 515 N.E.2d 1074, cert. denied, 490 U.S. 1008, 109 S.Ct. 1646, 104 L.Ed.2d 161. The trial court did not err in denying appellant's motion to suppress his statement.

Appellant raises four separate questions with regard to the trial court's rulings concerning prospective jurors. He contends the trial court erred when it refused to permit defense counsel to rehabilitate prospective jurors who were dismissed by the court because of an apparent opposition to the death penalty. Several prospective jurors emphatically stated that they would not give the death penalty. When this occurred, the trial judge dismissed them and did not permit counsel for appellant any further questioning of that prospective juror. Appellant cites Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 and Lamar v. State (1977), 266 Ind. 689, 366 N.E.2d 652 for the proposition that before a juror can be dismissed for cause due to his opposition to the death penalty, he must be irrevocably committed to vote against the death penalty regardless of the facts in the case. If a juror's answer is equivocal, then the court must pursue the matter further.

In the case at bar, the trial court clearly demonstrated its familiarity with this proposition of law and did not dismiss any juror until that juror had unequivocally stated that he would not give the death penalty under any circumstances.

During voir dire of the jury, a Mrs. Miller tentatively was selected one day but was excused the following day by the court due to hardship. Appellant objected on the ground that this destroyed the "cohesive and uniform group of jurors" thus prejudicing appellant. A trial court has broad discretion to govern the conduct of voir dire examination of a jury. Rondon v. State (1989), Ind., 534 N.E.2d 719, cert. denied, --- U.S. ----, 110 S.Ct. 418, 107 L.Ed.2d 383. In a situation very similar to the case at bar, this Court held in Newman v. State (1985), Ind., 485 N.E.2d 58 that it was not an abuse of discretion for the trial court to excuse a prospective juror for hardship several days after she had been accepted at a time when the defendant had only one remaining peremptory challenge. We see nothing in this record to indicate the trial court abused its discretion in excusing Mrs. Miller.

Just prior to closing argument at the guilt phase of the trial, the court separately examined juror Kizer as to whether he had been sleeping during the presentation of evidence. Appellant claims this singled out juror Kizer and had a tendency to intimidate him; he thus should have been replaced with an alternate juror. Appellant cites Ind. Trial Rule 47(b) and Campbell v. State (1986), Ind., 500 N.E.2d 174. However, appellant concedes that the decision to excuse a juror in such a situation is within the trial court's discretion. After examining juror Kizer, it is obvious the trial court felt that the situation did not rise to the necessity of dismissing him. We cannot say that there was an...