Kerr v. State Of Ind.
| Decision Date | 13 July 2010 |
| Docket Number | No. 49A05-0911-CR-639,Cause No. 49F19-0906-CM-056213,49A05-0911-CR-639 |
| Parties | WILLIAM KERR, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ATTORNEYS FOR APPELLANT: RUTH JOHNSON Marion County Public Defender Indianapolis, Indiana
JONATHAN ARMIGER Certified Legal Intern Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana Indianapolis, Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Rebekah Pierson-Treacy, Judge
Appellant William Kerr appeals his conviction for operating a vehicle while intoxicated as a class A misdemeanor.1 We affirm.
Kerr raises three issues for review, which we restate as:
On June 14, 2009, Officer Robert Ferguson of the Indianapolis Metropolitan Police Department was dispatched to the intersection of Shelby Street and Southern Avenue in Indianapolis to investigate a report of a motorcycle accident. Upon arriving at the scene, Officer Ferguson saw that another officer, a fire engine and an ambulance were present. Two men, Kerr and his friend Larry Coin, were sitting on motorcycles parked on the side of the road with their kickstands down. Kerr and Coin's motorcycles were not parked in parking spaces and were blocking an alleyway.
As Officer Ferguson approached Kerr and Coin, he saw that Kerr was swaying back and forth in his seat. Officer Ferguson told Kerr that he was dispatched to the scene on a report of a motorcycle accident and asked Kerr what happened. Kerr stated that hewas riding his motorcycle southbound on Shelby Street, and as he attempted to turn onto Southern Avenue, he rode his motorcycle up onto the sidewalk and wrecked it. Kerr also admitted that he had been drinking at a bar. Officer Ferguson asked Kerr if he was injured, and Kerr showed Officer Ferguson a large laceration on his elbow.
As the two talked, Officer Ferguson smelled a strong odor of alcohol on Kerr's breath and person. When Officer Ferguson asked to see Kerr's license, Kerr had difficulty removing his wallet from his back pocket and only succeeded after several attempts. In addition, Kerr's voice was slurred, and his eyes were red, bloodshot and watery. Kerr was so unsteady on his feet that he needed assistance from two firemen to walk over to the ambulance for treatment.
Officer Ferguson noted that Kerr's motorcycle was scratched. Furthermore, either the front handbrake or the clutch had broken off of the handlebars on Kerr's motorcycle, which indicated that the motorcycle was "possibly inoperable." Tr. p. 21.
The State charged Kerr with operating a vehicle while intoxicated. After a bench trial, the trial court found Kerr guilty as charged.
We observe that questions regarding the admission of evidence are within the sound discretion of the trial court, and we review the court's decision only for an abuse of that discretion. Laster v. State, 918 N.E.2d 428, 432 (Ind. Ct. App. 2009). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id.
Kerr contends that the trial court abused its discretion by allowing Officer Ferguson to testify as to what Kerr told him at the scene. Specifically, Kerr contends that his answers to Officer Ferguson's questions were inadmissible under the Fifth Amendment to the United States Constitution because Officer Ferguson did not advise Kerr of his Miranda rights prior to asking him what happened.
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that when law enforcement officers question a person who has been "taken into custody or otherwise deprived of his freedom of action in any significant way," the person must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003). Rights under Miranda apply only to custodial interrogation. White v. State, 772 N.E.2d 408, 412 (Ind. 2002).
Kerr asserts that when Officer Ferguson questioned him, Kerr was both in custody and subject to interrogation. When determining whether a person was in custody or deprived of his or her freedom, "the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Luna, 788 N.E.2d at 832 (quotingCalifornia v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 77 L.Ed.2d 1275 (1983) (internal quotation omitted)). A person is deemed to be in custody if a reasonable person in the same circumstances would not feel free to leave. Gauvin v. State, 878 N.E.2d 515, 520 (Ind. Ct. App. 2007), transfer denied.
Whether a person was in custody depends on objective circumstances, not upon the subjective views of the interrogating officers or the subject being questioned. Id.
In State v. Hicks, 882 N.E.2d 238, 239 (Ind. Ct. App. 2008), an officer was dispatched to the scene of a vehicle stopped on railroad tracks. Several people were standing near the vehicle, which was unoccupied. Id. at 240. The officer spoke with several persons, who stated that they did not know who had driven the vehicle. Id. Hicks, who was also present, accused one of the other persons of driving the truck. Id. The officer noticed that Hicks smelled of alcohol and had slurred speech, bloodshot eyes, and unsteady balance. Id. The officer asked Hicks a series of questions, and she conceded that she had driven the truck. Id. On appeal, the Court concluded that Hicks was not in custody when the officer questioned her. Id. at 243. The Court noted that the officer Id. at 242.
In this case, when Officer Ferguson approached Kerr, Kerr and a friend were sitting on their motorcycles on a public street. Another police officer, a fire engine, and an ambulance were also present. Officer Ferguson told Kerr he was dispatched to the scene for a motorcycle accident and asked him what happened, at which point Kerr stated that he had been drinking and subsequently wrecked his motorcycle while attempting to make a turn. After ascertaining that Kerr was injured, firemen took Kerr to the ambulance. Under these circumstances, as in Hicks, we conclude that Officer Ferguson was not restraining Kerr to a degree associated with a formal arrest, and that a reasonableperson would have felt free to leave, as Kerr did to seek treatment. Thus, Kerr was not in custody for purposes of Miranda.
Kerr argues that he was in custody pursuant to the holding in Johnson v. State, 269 Ind. 370, 380 N.E.2d 1236, 1240 (Ind. 1978), but that case is distinguishable. In that case, prior to approaching Johnson at his residence, the police were told by witnesses that Johnson had murdered someone and where Johnson could be found. Id. at 1240. Our Supreme Court concluded that when three officers approached Johnson on his front porch, they intended to arrest Johnson for murder, so he clearly was not free to leave and was in custody for purposes of Miranda. Id. By contrast, in Kerr's case Officer Ferguson was simply investigating an accident report and had no reason to believe that Kerr or anyone else had committed a crime when he first spoke to Kerr2. Therefore, Johnson is inapplicable.
Because we conclude that Kerr was not in custody for purposes of Miranda, we do not reach the question of whether Officer Ferguson's questioning of Kerr was an interrogation pursuant to Miranda. The trial court did not abuse its discretion by admitting Officer Ferguson's testimony as to what Kerr told him at the scene of the accident.
Indiana Trial Rule 41(B) governs motions for involuntary dismissal during bench trials. That rule, which applies to criminal trials by way of Indiana Criminal Rule 21, 3provides, in relevant part:
After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.
The grant or denial of a motion to dismiss under Trial Rule 41(B) is reviewed under the clearly erroneous standard. Thornton-Tomasetti Eng'rs v. Indianapolis-Marion County Public Library, 851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006). In reviewing a motion for involuntary dismissal, this Court will not reweigh the evidence or judge the credibility of the witnesses. Id. We will reverse the trial court only if the evidence is not conflicting and points unerringly to a conclusion different from the one reached by the lower court. Id.
In this case, Kerr contends that the State's case was subject to dismissal because the State failed to present independent evidence of the corpus delicti of...
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