Malott v. State

• Decision Date: 03 December 1985
• Docket Number: No. 584S184,584S184
• Citation: 485 N.E.2d 879
• Parties: Charles R. MALOTT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 879

485 N.E.2d 879

Charles R. MALOTT, Appellant, v. STATE of Indiana, Appellee.

No. 584S184.

Supreme Court of Indiana.

Dec. 3, 1985.

John D. Clouse, Michael C. Keating, Laurie A. Baiden, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a jury conviction for burglary resulting in bodily injury, a class A felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), attempted murder, a class A felony, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.) and Ind.Code Sec. 35-41-5-1 (Burns 1985 Repl.), and two additional burglary counts, class C felonies, Ind.Code Sec. 35-43-2-2 (Burns 1985 Repl.).

Defendant-appellant Malott received an aggregate prison term of fifty years: a fifty-year sentence for the class A burglary to be served concurrently with a fifty year sentence imposed for attempted murder and with two eight year sentences imposed for the burglaries.

Appellant raises six issues on appeal: (1) Whether the prospective jurors' viewing of appellant while manacled necessitated discharge of the jury panel; (2) Whether the statements which appellant gave to the police were made voluntarily; (3) Whether an inadequate foundation rendered specified State's exhibits inadmissible; (4) Whether the trial court improperly refused to instruct the jury that attempted voluntary manslaughter and battery with a deadly weapon are lesser and included offenses of attempted murder; (5) Whether there is sufficient evidence to establish the breaking element required for a burglary conviction; and (6) Whether imposition of sentences for both attempted murder and burglary resulting in bodily injury was erroneous.

These are the facts which tend to support the determination of guilt. On August 18, 1983, Ruth Hacker, an employee of Munnier Electric, locked the store at closing time. When she left the store the windows were intact, the safe was locked, and the cash drawer was placed underneath the cash register.

On August 19, 1983, George Munnier was awakened at 3:30 a.m. when the security alarm from his appliance store was activated. Armed with a .45 pistol, Munnier proceeded to investigate. After noticing a broken window on the northeast corner of the building, Munnier asked his wife to call the police. Munnier returned to the building to keep guard until the police arrived. Suddenly Munnier heard a loud sound behind him and observed appellant crashing out of the bathroom window on the west side of the building. Munnier told appellant to stop and informed appellant that he was armed. Appellant immediately fired shots at Munnier, who sustained two gunshot wounds which caused injury to his colon, liver, diaphragm, stomach, and both lungs. Munnier returned fire, but appellant escaped by running away in a westerly direction from the appliance store. After calling an ambulance, the police proceeded west in pursuit of appellant.

A number of local and State police officers converged on the area in search of appellant. Appellant, who was also wounded, was apprehended within fifteen minutes in the yard at the Weber residence, which is located three blocks southwest of the appliance store.

After handcuffing appellant at the Weber residence, the police confiscated his gun, a pair of brown gloves, a dark colored ski mask, a flashlight, a holster, and two envelopes labeled Gibson T.V. Incorporated. When investigating the vicinity around the appliance store, the police recovered a blue denim sleeveless jacket from the yard of the Kruse residence located two houses west of the appliance store. Inside the denim jacket the police found assorted tools and a money bag labeled "Hoefling's Texaco."

At 4:00 a.m. on August 19, 1983, Hacker was requested to come to Munnier's store because she had the keys. When she went inside she observed two broken windows, the cash drawer was on the floor minus the $85 which it had contained, and the safe was open with its contents strewn on the floor.

In addition to Munnier Electric, three other businesses located nearby were also burglarized that evening: Gibson Cable T.V., Hoefling's Texaco, and J.C.'s Drive-in. Gibson Cable T.V. rents space in the Munnier Electric Building. The manager, Michael Kieffer, testified that the chainlink fence used to partition Cable T.V. from Munnier Electric was torn completely from the wall. Inside the Cable T.V. store the contents of the secretary's desk were found on the floor. In addition, the money box was lying on the floor opened, as was the deposit bag and petty cash box. A total of $128.38 was missing.

James Verley, an Indiana State Police firearms examiner, testified that a ballistics test indicated the bullet retrieved from appellant's body was fired from Munnier's gun.

I

Appellant contends that the trial court erred by denying his motions to discharge the jury panel and to declare a mistrial. These motions were based upon prospective jurors having observed appellant in handcuffs and leg irons. He claims that the prospective jurors would perceive him as an incarcerated and potentially dangerous person. Appellant contends that admonishments to extinguish this impression would be ineffectual and therefore the presumption of innocence was lost.

Appellant was manacled when the police escorted him from the county jail to the courtroom hallway where prospective jurors were waiting. Prior to commencement of voir dire, defense counsel made the motion to discharge the prospective jury and declare a mistrial. Appellant testified to the aforementioned facts at a brief pretrial hearing which was held on these motions. After argument by defense counsel, the trial court denied appellant's motions, but did voir dire on the specific question. The trial court also accorded both defense and prosecution an additional five minutes for voir dire.

A prisoner is entitled to be brought into the court room unrestrained unless shackles are necessary "to prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during the trial." Walker v. State (1980), 274 Ind. 224, 229, 410 N.E.2d 1190, 1193. The accused's freedom from shackles is an important component of a fair and impartial trial, however, essential fairness is not necessarily lost by the potential jurors' observation of him in a restrained state while he is being transported from the jail to the courtroom. Jessup v. State (1971), 256 Ind. 409, 269 N.E.2d 374. Potential jurors would reasonably expect that anyone in police custody would be restrained, regardless of the precise nature of the charge against the accused. The trial court's voir dire on this question minimized any potential for prejudice. Moreover, appellant was not restrained during the trial proceedings. Under these circumstances, the fairness and impartiality of appellant's trial was adequately preserved.

II

Appellant argues that the statements which he made to the police were not voluntary. This argument is predicated upon two claims: one, appellant's physical condition at the time he gave his statements and, two, an alleged perfunctory Miranda advisement.

While the police proceeded west in pursuit of appellant, Officer Hedges observed appellant kneeling on the grounds of the Weber residence, which is located three blocks southwest of Munnier Electric. Hedges told appellant to drop his weapon and stand up. Officer Sides walked toward appellant and then handcuffed appellant. Appellant informed the police that he had been shot. The police checked appellant for wounds and then called an ambulance. The police then carefully removed appellant from the Webers' backyard to the street and waited for an ambulance. After the ambulance arrived, the police assisted in placing appellant into the ambulance. Officer Bube accompanied appellant in the ambulance ride to the hospital. Appellant talked continuously and spontaneously throughout his apprehension and transportation to the hospital, oftentimes complaining that the location of the handcuffs behind his back caused him pain. Officers Sides and Clark testified that appellant appeared to be coherent, alert, and appreciative of the statements made.

Appellant maintains the trial court erred by allowing police testimony regarding the following statements which he made to the police:

(1) When appellant was first apprehended he informed the police that he had been shot and complained about his injuries;

(2) While appellant was being carried to the street and before he was Mirandized, appellant told Sides that the man at the store shot him;

(3) After carrying appellant to the street, Sides advised appellant of his Miranda rights. While appellant was being placed into the ambulance he stated, in Sides' presence, that he "did not mean to hurt anybody.";

(4) While appellant was lying on the ground by the Weber residence he stated, in Officer Clark's presence, that there was a pick-up truck and a suitcase or a bag which he left on County Road 150. He also stated that the reason he was in the building was because he "is a f------ burglar."; and (5) During the ambulance ride appellant told Officer Bube he had worked alone in this burglary and shooting, had gone by the Munnier Electric store three or four times prior to entering the building, and had gone into Munnier Electric looking for money.

The police testified that appellant's statements one through four were volunteered and were not elicited by police questioning.

The Miranda procedural safeguards apply only to custodial interrogations. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Custodial means a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Not all statements obtained by the police from a person in custody are the product of interrogation. Interrogation occurs when a person in custody is subjected either to express questioning or its...