Pasco v. State
| Decision Date | 12 December 1990 |
| Docket Number | No. 82S00-8908-CR-617,82S00-8908-CR-617 |
| Court | Indiana Supreme Court |
| Parties | Cephis E. PASCO, Appellant, v. STATE of Indiana, Appellee. |
Terry A. White, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in the conviction of appellant of Murder and Felony Murder. The trial court merged the counts and sentenced appellant to a term of sixty (60) years.
The facts are: On August 4, 1988, Rosalie Chilleli, the victim, and her boyfriend, Gary Mullins, arrived at 1:00 a.m., at Buck's Tavern in Evansville, Indiana. Following an argument with her boyfriend, he left. Thereafter, the victim asked appellant for a ride home. Instead of going home, the victim and appellant drove to a secluded area of Vanderburgh County.
Appellant claims the victim encouraged him to engage in sexual relations with her. A fight ensued and appellant fatally stabbed the victim in the neck and crushed her skull with a tire rim. Appellant left the area, and the next day he returned to the scene to place her body on the edge of the road to be discovered. On August 5, 1988, the victim's body was discovered.
The police investigated the scene, and appellant was discovered to have been one of the last persons with the victim at the bar. They asked him to go to the station and while there, Officer Tom Wallis asked him to give any information concerning the victim. Eventually, Officer Wallis and appellant went to a restaurant for dinner, and upon returning at approximately 8:00 p.m., appellant told the officer that he left the bar a little before closing time, which was around 3:00 or 3:30 a.m. on August 4. However, Officer Wallis received information from another police officer that the bartender at Buck's Tavern was positive appellant left with the victim at 2:00 a.m. At this point, Officer Wallis viewed appellant as a suspect and advised him of his Miranda rights.
Appellant contends that, as a matter of law, one of his convictions should have been vacated because only one murder had occurred.
Appellant was convicted of murder and murder while committing the crime of rape. Appellant originally was sentenced to a sixty (60) year term of imprisonment on each count with the sentences to be served concurrently. However, the trial court amended its sentencing order as follows:
Appellant claims the trial court erred in failing to vacate the murder conviction. When a jury returns a verdict finding the defendant guilty of two separate crimes resulting from a single killing, it is error for the trial court to allow both to stand as separate convictions. See Smith v. State (1989), Ind., 547 N.E.2d 817, Rondon v. State (1989), Ind., 534 N.E.2d 719, and Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731. In the latter two cases, the jury returned a verdict of guilty of both murder and felony murder. However, the trial judge in rendering judgment made no statement of merger and allowed both convictions to stand. In the case at bar, the trial court at first entered an erroneous judgment. However, that error was corrected. Thus we see no reason to remand this case for a corrected judgment as we did in Rondon and Martinez Chavez.
Appellant argues there was insufficient evidence to sustain his conviction for felony murder (rape) because there was insufficient evidence on the element of penetration.
It is well established that evidence of the slightest degree of penetration of the female sex organ by the male sex organ is sufficient to sustain a rape conviction, and such penetration can be inferred from circumstantial evidence. Brown v. State (1982), Ind., 442 N.E.2d 1109. In addition, the fact-finder may infer penetration from circumstantial evidence such as the physical condition of the victim soon after the incident. Id.
To support his position, appellant cites Goolsby v. State (1987), Ind., 517 N.E.2d 54 as being parallel to the instant case. We note however that appellant's reliance on Goolsby does not support his position. In Goolsby, the defendant was convicted by a jury of attempted murder, rape, burglary, and battery. Defendant argued there was insufficient evidence on the element of penetration to sustain his rape conviction. The evidence revealed that the victim was knocked unconscious during the attack. She complained of tenderness in the vaginal area and believed she might have been raped. She informed hospital personnel of her belief and a doctor examined her shortly after the attack. He testified that her vagina appeared normal with no signs of forcible penetration. He also indicated that a small amount of non-motile sperm was discovered. He explained that most male sperm is motile for one to two days and the existence of non-motile sperm either meant that the male was abnormal or sexual intercourse had occurred two to three days previously. The victim had told the doctor that she had engaged in voluntary sexual intercourse approximately forty-eight hours before the examination. Thus the only evidence presented was her testimony of tenderness in the vaginal area. On this issue, we reversed the trial court and directed that appellant be acquitted on the rape charge.
In the instant case, when the victim's body was discovered, it was unclothed and her legs were spread apart. In addition, appellant's palm print was found on the inside of the upper portion of the victim's thigh. Expert medical testimony revealed that a vaginal smear of the victim showed sperm. We cannot reweigh the evidence. From the evidence presented at trial, the trier of fact could have inferred appellant committed the rape. We find no error.
Appellant contends the trial court erred in denying his motion to suppress introduction of statements made by him. He asserts that his Miranda rights were not knowingly and intelligently waived and that his confession was caused by duress and coercion.
After discovery of the conflict of the time when appellant left the bar, he was viewed as a suspect and was advised of his Miranda rights. Upon advising appellant of his Miranda rights, an interrogation occurred. During this appellant stated that he understood his rights and that neither Officers Wallis nor Buchanan coerced or threatened him to give a statement nor was he under the influence of alcohol or drugs. During the interrogation, appellant was advised of his Miranda rights four times. After one of the advisements, the following conversation occurred between appellant and Officer Wallis:
Following that advisement, Officer Wallis again repeated the Miranda warning, at which time appellant had the following exchange with the officer:
Thereafter appellant did admit to striking the victim with a tire rim and a screwdriver.
Prior to trial appellant filed a motion to suppress his confession claiming he did not knowingly and intentionally waive his Miranda rights. Instead, he claims the confession was caused by coercion and duress. In support of his claim, appellant cites the above conversations.
During appellant's motion to suppress hearing, he testified that Officer Buchanan hit him and recommended he sign the Miranda waiver. He also stated he was unaware that he had a right to counsel during questioning. The trial court denied appellant's motion.
The admissibility of a statement or confession is controlled by determining, from the totality of the circumstances, whether it was made voluntarily and not through inducement, violence, threats, or other improper influences so as to overcome the free will of the accused. Lyons v. State (1987), Ind., 506 N.E.2d 813. The question of voluntariness is a question of fact for the trial court. Townsend v. State (1989), Ind., 533 N.E.2d 1215, cert. denied, --- U.S. ----, 110 S.Ct. 1327, 108 L.Ed.2d 502.
Appellant's argument that the reassuring of a suspect is an improper inducement has been addressed by this Court. See Neal v. State (1983), Ind., 447 N.E.2d 601; see also Ward v. State (1980), Ind.App., 408 N.E.2d 140. Appellant's contention in the present case is that Officer Buchanan's comment, ...
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