Lord v. State

• Decision Date: 08 December 1988
• Docket Number: No. 26S00-8711-CR-1058,26S00-8711-CR-1058
• Citation: 531 N.E.2d 207
• Parties: Charles Thomas LORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 207

531 N.E.2d 207

Charles Thomas LORD, Appellant, v. STATE of Indiana, Appellee.

No. 26S00-8711-CR-1058.

Supreme Court of Indiana.

Dec. 8, 1988.

Rehearing Denied March 8, 1989.

Timothy R. Dodd, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in a finding of guilty of Murder, for which appellant was sentenced to fifty (50) years; Attempted Criminal Deviate Conduct While Armed With a Deadly Weapon, a Class A felony, for which the trial judge imposed no sentence; and a finding that appellant was an habitual offender, for which appellant received a sentence of thirty (30) years. This Court sua sponte notes that the trial court erred in sentencing appellant in that the status of habitual offender is not a separate offense. It is merely a fact which, when found by a jury, requires the trial court to enhance the sentence for the instant crime by the statutory term. This cause, therefore, will be remanded to the trial court for its determination as to the enhancement of the fifty (50) year sentence imposed on appellant for the crime of Murder.

The facts are: On September 6, 1986, appellant and Fredrick Michael Thompson were riding around in appellant's automobile and each consumed a couple of beers. They eventually went to a secluded area and parked the car where an altercation ensued between the two concerning the company Thompson had been keeping with other men in the community.

A few days earlier appellant had found a handgun near a dumpster and on the evening in question had it in his belt. During the altercation, homosexual overtures were made by appellant to Thompson, who became prostrate on the ground. Appellant was on his knees on top of Thompson. Appellant later stated that he intended to shoot the gun over Thompson's head to "settle him down" but that Thompson's foot hit his hand causing the gun to point lower and fire at the same time. The bullet struck Thompson behind the ear, killing him. Appellant stated he then panicked and rolled Thompson's body into a nearby open cistern and placed the cover over it. On September 24, 1986, Thompson's body was discovered in the cistern.

Appellant claims his incriminating statements to police officers should have been suppressed because he was questioned after he requested appointment of counsel. There is no question that at any time during custodial interrogation when the prisoner indicates his desire for counsel the interrogation must stop, and it cannot be continued until the arrested person either employs counsel or has counsel appointed. The only exception to this rule is if the accused person spontaneously initiates further contact with the police indicating his desire to make a statement without the presence of counsel.

In the case at bar, appellant had voluntarily come to the police station to consult with the officers after Thompson's body was discovered. Appellant first was given full Miranda warnings then voluntarily submitted to a polygraph examination following which he gave a statement in which he freely admitted the facts above recited. Following this admission to the police officers, appellant stated: "I can't afford a lawyer, but is there any way I can get one?"

In ruling on a motion to suppress, the trial judge gave a written memorandum to defense counsel and to the State in which he ruled that appellant's statement concerning counsel appeared to be in the nature of queries regarding future access to counsel for a court hearing and should not be interpreted as a request for counsel at that time. The trial court cited Heald v. State (1986), Ind., 492 N.E.2d 671.

The case at bar differs from the Heald case in that in Heald the defendant interrupted the police during the Miranda warnings to say she wanted to see an attorney. The policeman then indicated he wished to finish the Miranda warning, which he did. At that time, Heald was asked if she then wished to talk to counsel. However, she specifically waived counsel at that time. In the case at bar, appellant at no time, pursuant to a direct question by the police, expressly waived his right to counsel following his statement above quoted.

If we would assume for the sake of argument that appellant should not have been interrogated following his statement concerning counsel, we nevertheless find that no reversible error occurred in view of the fact appellant had made a complete confession before inquiring about a lawyer. An examination of the statements made by appellant after that time clearly demonstrate that he made no additional statement nor did he contradict anything he had stated previously. Appellant suffered no prejudice by the interrogation which followed his inquiry concerning a lawyer. Malott v. State (1985), Ind., 485 N.E.2d 879.

Appellant also claims his confessions were coerced because the interrogating officer proposed that if appellant would talk they would promise that a deal would be cut with the prosecuting attorney. In the case at bar, no direct promise was made to appellant by the police officers.

The officers stated:

"If I could get George down here right now and tell him the truth, if I could get him down here and you were willing to tell him the truth, and I could cut him a deal, would you ... would you talk to him? If I could promise you ... if I could promise you ... if I could promise you he'd cut a deal with you, would you then talk and tell the truth?"

This was followed by a statement by the officer:

"[I]f I can get him down here, would you tell the truth, if he'd cut you a deal?"

It is obvious from this language the officer was not making any promise or offering to make a deal himself. He was merely asking appellant "what if" the prosecutor would make a deal, would appellant then be willing to talk. This Court has held that such vague and indefinite statements do not constitute improper promises. Long v. State (1981), Ind., 422 N.E.2d 284; Perry v. State (1978), 176 Ind.App. 120, 374 N.E.2d 558.

When the entire transcript of the interrogation is examined, it becomes clear that the officers in this case did not induce appellant's statements by making improper promises. The trial court did not err in allowing the statements into evidence.

Appellant claims the habitual offender finding was improper because one of the supporting felonies showed on its face that he was not afforded the aid of counsel during a plea of guilty and that he was unable to understand the trial judge at that hearing because of the judge's alleged speech impediment.

In the case at bar, as in Smith v. State (1985), Ind., 477 N.E.2d 857, the records of prior convictions purport verity. Anderson v. State (1981), Ind., 426 N.E.2d 674; Ind.Code Sec. 34-1-17-7. As pointed out by the State, if matters dehors the record would indicate an improper sentencing, appellant may raise those questions by the use of post-conviction remedies. See Mills v. State (1987), Ind., 512 N.E.2d 846.

We would point out that the trial court did allow appellant to present evidence in the form of his own testimony regarding his understanding of his prior convictions....