Mulligan v. State, 484

• Decision Date: 27 January 1986
• Docket Number: No. 484,484
• Citation: 487 N.E.2d 1309
• Parties: Daniel Roger MULLIGAN, Appellant, v. STATE of Indiana, Appellee. S 146.
• Court: Indiana Supreme Court

Page 1309

487 N.E.2d 1309

Daniel Roger MULLIGAN, Appellant, v. STATE of Indiana, Appellee.

No. 484 S 146.

Supreme Court of Indiana.

Jan. 27, 1986.

John R. Stanish, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant Daniel Roger Mulligan was convicted by a jury of burglary, a class B felony, and of attempted burglary, also a class B felony. He received twelve years for each conviction, to be served concurrently.

Appellant raises five issues in this appeal:

(1) Whether his drug consumption rendered his confession involuntary;

(2) Whether the trial court erred by allowing counsel to forego transcription of voir dire;

(3) Whether an officer's testimony regarding information received from a radio dispatcher constituted inadmissible hearsay;

(4) Whether photographs were erroneously introduced into evidence and impermissibly allowed in the jury room during deliberations; and

(5) Whether the evidence is sufficient to sustain his convictions.

We affirm.

These are the facts which tend to support the trial court's judgment. At 9 a.m. on January 11, 1983, Janet La Rose left her house at 317 Belden Place; all the doors and windows were locked. Returning home at 11 a.m. for lunch, she noticed a blue, four-door car with a black vinyl roof parked in front of her house and she observed a man walk away from the side of her house and get into the blue car. The rear basement window of her house was open and the dryer vent was broken. The back door frame had been pushed two inches from the wall and there were pry marks on and around the door.

Marcia Miller lived at the opposite end of the block. On January 11, 1983, she left her home, doors locked, at 9:30 a.m. She came home at 1 p.m. to find police at her house. Someone had broken in through the door to an attached garage. A video recorder, Coleco game and two remote controls were determined to be missing.

Officer John Tsolakos had been directed to investigate a possible burglary in progress at the La Rose house, but when he arrived on the scene there were already officers present, so he began patrolling the area. Radio dispatch advised that a blue, full size, older model car with a white male driver might be involved. One block from the burglary site he observed this vehicle. Tsolakos began to follow it and advised other units of his location and requested back-up. He gave a description of the vehicle and the license plate number to the police dispatcher. Officer Tsolakos stopped appellant after learning that the license plate did not match the vehicle. He observed a video machine and other television apparatus on the back seat of this car. Tsolakos identified Mulligan in court as the person he stopped and apprehended.

Officers Pestikas and Abbott interrogated appellant at the police station and Mulligan gave a full confession to the crimes charged. Other items of evidence included an eleven-inch metal pry bar, removed from appellant's car when he was apprehended, and photographs of pry marks which were on and near the door of the victim's residence.

I. Confession

Appellant argues that the trial court should have suppressed his confession. He claims that he was under the influence of heroin when he gave his statement and therefore maintains that his confession was not made voluntarily.

At the hearing on the motion to suppress the confession, Officer Steve Pestikas testified that he advised appellant of his Miranda rights before commencing interrogation. Appellant signed the Miranda rights form, a waiver form, and his completed statement. Pestikas had previous experience with drug addicts and testified that Mulligan did not display any of the symptoms of an addict and did not appear to be under the influence of drugs at the time. Officer Michael Abbott was also present during appellant's interrogation. He testified that appellant did not appear to be suffering from withdrawal at the time he gave his statement.

Mulligan testified at the suppression hearing that he had been addicted to heroin for the past eight to ten years, that he had injected an $80 gram of heroin at 6 a.m. that morning, and that he was under the influence of heroin at the time he gave his statement. He also testified that his addiction necessitated an average daily consumption of $200-$500 worth of heroin. The waiver was signed at 3:30 p.m. and the statement was signed at 5:30 p.m.

The trial court denied the motion to suppress, noting that Mulligan's own testimony indicated that his mental faculties were adequate since he could recall the conversation "right down to the last word."

Mulligan has the burden to introduce evidence to establish that the amount and nature of the heroin consumed would produce an involuntary statement. Buck v. State (1983), Ind., 453 N.E.2d 993. While appellant testified that he injected an $80 gram of heroin early that morning, he did not waive his rights and give a statement until late afternoon. Moreover, Mulligan would ordinarily consume several hundred dollars worth of heroin each day. Neither interrogating officer observed any symptoms of drug usage or withdrawal, although each was familiar with behavior indicative of both conditions. The evidence does not indicate that Mulligan's claimed drug consumption resulted in an involuntary statement.

II. Voir Dire

Appellant argues that the trial court erred by allowing counsel to forego appellant's right to have voir dire proceedings transcribed. He claims that the absence of the court reporter during the examination of prospective jurors now prevents him from adequately presenting as an issue one juror's knowledge of Mulligan's family.

When the trial judge inquired whether there was any objection to excusing the court reporter during voir dire, both defense and prosecution indicated they had none. After presentation of the evidence had commenced and Mulligan's confession had been read to the jury, there was a recess. During this recess juror White told the judge in the hallway that he recognized the appellant's father as a man whom he had known for a number of years and assumed that the defendant was his son. White was not a close personal friend of Mr. Mulligan but they had met at social affairs and White had several mutual friends with the Mulligan family. The trial judge questioned White outside the presence of the jury. At this hearing, White stated he could still honor his oath to try the case and render a true verdict in accordance with the law and evidence presented. The State and the defendant did not utilize this opportunity to question White.

The State moved to exclude White and allow the alternate to sit. Defense counsel argued that if White is excluded the only proper recourse would be to grant a mistrial. The trial court denied the mistrial motion and the motion to exclude White.

Appellant essentially challenges the competency of his attorney to make the decision to forego recording voir dire. However, we fail to see how trial counsel's decision shows incompetency or how his decision was harmful to the appellant. Mulligan's claim of incompetency is presumably predicated upon the juror's familiarity with the appellant's father. It is unclear from the record whether this juror's relationship to appellant's father would have been revealed during voir dire since it appears that White alerted the trial judge to this acquaintance shortly after seeing Mr. Mulligan sitting in the gallery. In any event, a hearing on this issue was immediately held by the trial court and both attorneys were provided an opportunity to question White.

If appellate counsel believes that review of voir dire by this Court might aid his client, counsel could have prepared a statement of the unrecorded voir dire proceedings to submit for appellate review. Ind.R.Ap.Pro. 7.2(A)(3)(c). This appellate rule provides a means for presenting evidence or testimony when no record was made or when the transcript is unavailable. Failure to comply with this rule operates as a waiver of any alleged error attributed to nonrecordation. Craig v. State (1980), 273 Ind. 361, 404 N.E.2d 580.

Alternate jurors were available to replace White, but trial counsel chose to object to the substitution. On appeal, Mulligan has failed to provide us with any record or even any explanation to indicate how he was harmed by this choice. Hence, we decline to reverse his conviction on the basis of this issue.

III. Hearsay

Appellant argues that the trial court erroneously permitted hearsay evidence of the commission of an unrelated offense.

Officer Tsolakos testified at trial that he noticed a car which matched the description of the vehicle which was possibly involved in the burglary and attempted burglary. He then called in the license plate of this vehicle on his police radio. When the prosecutor asked what information the police dispatcher then relayed to him, counsel for appellant objected to the question on hearsay grounds. The State responded that the testimony was not being offered as evidence for the truth of the matter asserted but merely to...