Lindsey v. State
| Decision Date | 22 November 1985 |
| Docket Number | No. 1183S382,1183S382 |
| Citation | 485 N.E.2d 102 |
| Parties | Michael LINDSEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Douglas D. Seely, Jr., Mishawaka, for appellant (defendant below).
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).
This is a direct appeal from a jury conviction of two counts of rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1985 Repl.). Defendant-appellant, Michael Lindsey, was sentenced to a prison term of thirty years for each count, to be served consecutively.
Appellant raises the following issues on appeal:
(1) Whether appellant's invocation of his right to counsel during his drug arrest precluded custodial interrogation subsequent to his rape arrest one day later;
(2) Whether the trial court erred by reserving a ruling on appellant's motion for a change of venue until after voir dire of the jury;
(3) Whether the trial court improperly sustained the State's objections made while appellant's attorney was cross-examining the State witnesses;
(4) Whether the trial court's decision to permit testimony by an attorney whom appellant consulted prior to his arrest on the instant charge violated appellant's attorney-client privilege;
(5) Whether imposition of consecutive sentences was erroneous.
These are the facts which tend to support the trial court's judgment. The prosecutrix was raped twice during the late evening hours of June 24, 1982, and the early morning hours of June 25, 1982. On the evening of June 24th, this victim had been socializing with several people at Brian Cart's house. During the course of the evening she left with appellant and two others to buy some beer. She drove her car to the liquor store and returned to Cart's house, where appellant and the others remained. The victim left with another friend for a while, leaving her car parked near Cart's house. This friend drove her back to her car around 10:30 p.m. As the victim was starting her car, appellant approached her, held a knife against her throat, and told her to get down onto the floor of the car. Appellant demanded she put on a blue ski mask he had. Appellant drove the car for a while before stopping at a secluded area. He took the victim out of the car, threw her onto the ground, removed her shoes and pants, and tied her hands together with her shoelaces. Appellant raped her, drove her to another place, threw her onto the ground, and raped her again. After appellant ran off, the victim ran to the closest house and called her mother.
After the hospital examination was concluded, Detective Johnson took a statement and assailant description from the victim at the police station. Detective Lambdin also interviewed her, narrowing the list of people she had seen that night to one possible suspect whom the prosecutrix knew only as Mike.
The next night Detective Lambdin received a call and met with an informant who told Lambdin the last name of the suspect was Lindsey. Lambdin related this information to Johnson and Lieutenant Thomas. Thomas said that he had been working on a case against Lindsey and that they were about to get a warrant for delivery of a controlled substance. Appellant was arrested on the basis of the drug warrant on June 28, 1982. He was released on the morning of June 29th and re-arrested early in the morning on June 30th on the charge of rape. While in custody for this rape charge appellant confessed to the police.
Appellant first argues the trial court erred by overruling his motion to suppress the written and oral statements and a map made by appellant while he was in custody after his second arrest. When appellant was first transported to the police station on the drug warrant, Lieutenant Thomas read both the warrant and Miranda rights to appellant. After the booking procedure, Thomas interrogated appellant, but appellant denied any knowledge regarding the substance of the drug charge. At approximately 9 p.m., Johnson went into the interrogation room to speak with appellant. Before commencing interrogation, Johnson again advised appellant of his Miranda rights and secured a waiver of rights from appellant, which was admitted as State's Exhibit 10. Johnson then began questioning appellant about rape cases. Appellant never made an incriminating statement at this time but rather consistently denied any involvement. Appellant refused to sign a search and seizure waiver for his bedroom, but appellant's sister and brother-in-law, with whom he was living, did sign the search and seizure waiver. After the search was completed, Johnson resumed interrogation. At this point appellant stated he did not wish to talk any further until he consulted with an attorney. When appellant invoked his right to counsel Johnson immediately ceased questioning and appellant was returned to his jail cell.
Between 11:30 and 12:00 p.m. Officer Petgen, a juvenile investigator, interrogated appellant. Petgen had been investigating a case of two runaway girls who lived near appellant. During the course of this investigation Petgen learned appellant assisted the runaway girls by showing them a place where they could stay. Before questioning appellant about this runaway investigation, Petgen read appellant his Miranda rights, and appellant agreed to talk with Petgen. Appellant denied he assisted the girls in any way. Petgen also discussed the present rape case with appellant, who again denied any involvement. This information was presented at the motion to suppress hearing and was not evidence admitted at trial. At 3:30 a.m. on June 29, 1982, appellant was released from jail on bond.
Later that same day, appellant and his sister consulted first with attorney Brennan and then later with attorney Mehl. Appellant indicated to Brennan that he had been arrested on a drug charge and questioned about a rape case. Brennan did not have time to take appellant's case and referred him to Mehl. Appellant similarly told Mehl the circumstances surrounding his arrest. Appellant testified at trial that he discussed only terms of employment and not the merits of his case with both Brennan and Mehl and that he did not receive any advice from Mehl. Mehl testified that he discussed appellant's rights regarding the drug charge. Mehl also specifically informed appellant that appellant should not give any statements or talk with any police officers without first talking with Mehl. This advice pertained to both the drug charge and the potential rape charge.
Twenty-two hours after appellant's release he was arrested again. On June 30, 1982, at 1:30 a.m., appellant was arrested for the present rape charges. At 9 a.m. on June 30th, Officer Converse's interrogation of appellant culminated in appellant's signed confession and map which are now challenged. Before questioning appellant Converse advised him of his Miranda rights, and appellant waived these rights. Appellant told Converse he would not take a polygraph test but would talk. Appellant then orally confessed to this rape. Subsequently his statement was reduced to typewritten form by Officer Coryne and signed by appellant. Before his statement was reduced to writing, appellant was informed of his Miranda rights one more time and he waived these rights again. Appellant's confession was offered into evidence as State's Exhibit 16 without a contemporaneous objection. Appellant also drew a map the police requested which provided directions to the location where the prosecutrix was raped the first time. The map was also admitted into evidence as State's Exhibit 15 without a contemporaneous objection by appellant.
Appellant maintains that the invocation of his right to counsel at his first arrest precludes admission of incriminating statements made at his second arrest. He cites Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 63 L.Ed.2d 378, for the proposition that once a detainee has asserted his right to consult counsel during an interrogation, the interrogation must cease and the police may not initiate further questioning in the hope that a suspect may be induced to change his mind. While appellant claims he repeatedly requested that police questioning cease until appellant consulted with an attorney, the evidence favorable to the judgment indicates appellant made such a request only to Johnson subsequent to his drug arrest on June 28th. Johnson immediately ceased questioning appellant when he invoked his right to counsel. Petgen did interrogate appellant that same evening, initially about the runaway case and then regarding this rape case. Any statement which appellant made during Petgen's interrogation would therefore be entitled to suppression under Edwards.
As for the admissibility of the defendant's confession made after his second arrest, we find Edwards to be inapplicable. In Edwards the defendant was in continuous custody. When a defendant is arrested, released, and then arrested on a different charge, Edwards is not controlling.
Whether there has been a valid waiver of the right to remain silent and to consult with counsel depends in each case upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Kern v. State (1981), Ind., 426 N.E.2d 385. The evidence here is sufficient to support beyond a reasonable doubt the conclusion that appellant's confession and map were the product of a free will and not induced by any violence, threats, promises, or other improper influences. Polk v. State (1984), Ind., 467 N.E.2d 666. The confession and map were properly admitted.
In any event, filing a motion to suppress is insufficient to preserve error for appellate review. When the evidence which was sought to be suppressed is later offered at trial a contemporaneous objection is required. Wagner v. State (1985), Ind., 474 N.E.2d 476.
Appellant claims the...
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