Pilarski v. State

• Decision Date: 08 June 1994
• Docket Number: No. 79S00-9212-CR-956,79S00-9212-CR-956
• Citation: 635 N.E.2d 166
• Parties: Stephen John PILARSKI, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 166

635 N.E.2d 166

Stephen John PILARSKI, Appellant, v. STATE of Indiana, Appellee.

No. 79S00-9212-CR-956.

Supreme Court of Indiana.

June 8, 1994.

John M. Sorensen, Lafayette, for appellant.

Pamela Carter, Atty. Gen. of Indiana and Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by jury and convicted of Murder. He was sentenced to a term of sixty (60) years.

The facts are: On April 21, 1992, Ariel Ehler, the one-year-old victim in this case, was at home with her mother, Donna Marie Ehler, her two-year-old sister Audra, and appellant. At approximately 12:30 p.m., Donna left her children with appellant and went to make a telephone call. When Donna returned, she found Ariel lying on the living room floor with a bruised face and coughing up blood. Donna immediately took Ariel next door where an ambulance was called.

Ariel was taken to the Saint Elizabeth Hospital Emergency Room where she was examined by Dr. Jeffery L. Creculius, a neurosurgeon. Dr. Creculius observed that there was a swelling of the brain and hemorrhage in certain spaces around the brain. Because Ariel was in need of intensive pediatric care, a helicopter was dispatched to take her to Methodist Hospital. Ariel died en route to Methodist Hospital.

A pathologist, Dr. Richard Harruff, who performed the autopsy on Ariel observed that Ariel had contusions and abrasions on her face, head and scalp; a fracture of the bone in the back of her head; and bleeding into the coverings around the brain and bruising of the brain itself. He determined that the cause of death was blunt force injuries. The pattern of the injuries was consistent with homicide.

The police arrived at the scene of the crime after receiving a radio dispatch concerning a beaten child. Officer Quinten Robinson testified that he talked with Donna and thereafter went into Donna's apartment with Officer Michael Roberts where they found appellant. Officer Robinson testified that he observed blood on appellant's hands and pants. Appellant was handcuffed and transported to police headquarters.

At police headquarters, lifts of blood were collected from appellant's hands to compare to that of the victim. It was determined that the lift from appellant's right palm was consistent with his and the victim's blood. Also, appellant's blue jeans contained human blood which was consistent with a mixture of body fluids from the victim and appellant.

Detective Michael Roswarski advised appellant of his Miranda rights, and appellant signed a waiver of rights form. Appellant informed Detective Roswarski that he struck the victim five or six times in the face because she was moaning and groaning. Appellant subsequently was charged with murder.

Appellant contends the trial court erred by refusing to read his Tendered Instruction No. 1. The tendered instruction stated:

The crime of murder is defined by statute as follows:

A person who knowingly or intentionally kills another human being commits murder, a felony.

To convict the defendant, the state must have proved each of the following elements:

The defendant

1. knowingly or intentionally,

2. acting with the intent to kill,

3. killed,

4. a human being, Ariel Ehler.

If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty.

If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of murder, a felony.

The court gave the following instruction:

"To convict the Defendant, the State must have proved each of the following elements: The Defendant, one, knowingly or intentionally, two, killed, three, Ariel Elaine Ehler. If the State failed to proved each of these elements beyond a reasonable doubt, you should find the Defendant not guilty. If the State did prove each of these elements beyond a reasonable doubt, you should find the Defendant guilty of murder, a felony. Now a person engages in conduct intentionally if when he engages in the conduct, it is his conscious objective to do so. A person engages in conduct knowingly if, when he engages in this conduct he is aware of a high probability that he is doing so."

Upon review of an issue concerning the giving or refusal of an instruction, we consider whether the tendered instruction is a correct statement of the law, whether there is evidence to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions. Hill v. State (1993), Ind., 615 N.E.2d 97.

To support his tendered instruction, appellant relies on Spradlin v. State (1991), Ind., 569 N.E.2d 948. In Spradlin, this Court held that a jury instruction was insufficient because it failed to inform the jury of the necessity of finding that the defendant acted with specific intent to kill the victim before they found the defendant guilty of attempted murder. The instant case is distinguishable from Spradlin. Unlike the defendant in Spradlin who was charged with attempted murder, appellant was charged with murder.

The intent to commit murder may be inferred from the nature of the attack and the circumstances surrounding the crime. Nunn v. State (1992), Ind., 601 N.E.2d 334. The trial court's instruction is a correct statement of the law. The trial court did not err in refusing the tendered instruction.

Appellant claims the trial court erred by allowing in evidence statements which he made to the police. He contends the statements were inadmissible because they were obtained in violation of his fifth, sixth, and fourteenth amendment rights. Appellant claims his statements were obtained by the police after he asserted his right to counsel and right to remain silent.

The Fifth and Fourteenth Amendments to the United States Constitution secure each citizen the right to the presence and advice of counsel during custodial interrogation by the police. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Once the suspect asserts his right to counsel, the interrogation must cease until counsel has been made available to him or until the suspect initiates further communication with the police and knowingly and intelligently waives the right to counsel which he previously invoked. Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378; Oregon v. Bradshaw (1983), 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405. If a suspect's request for counsel is perceived to be inherently ambiguous or equivocal in light of the preceding events any further questioning should be narrowly limited to clarifying whether the suspect actually wished to have counsel present. Jackson v. State (1992), Ind., 597 N.E.2d 950; Sleek v. State (1986), Ind., 499 N.E.2d 751.

In the present case, appellant was arrested at the apartment of Donna Ehler by Officers Quinten Robinson and Michael Roberts. Officer Roberts immediately read him the Miranda warnings. Afterwards, appellant was asked if he understood his rights to which he answered in the affirmative; he then informed the officers that he did not want to talk to them. Appellant claims it was at this point that he invoked his right to counsel. Officer Robinson, who was standing next to appellant, testified at the trial that he did not hear him ask for a lawyer. However, Officer Roberts testified that he heard appellant mumbling something that he thought was a request for a lawyer.

The officers did not ask appellant any more questions at that time. They transported him to the police station. Approximately ninety minutes after appellant was arrested, he was taken to Officer Anthony Roswarski's office. Because he was informed that appellant did not want to talk to the police and may have requested a lawyer, Officer Roswarski advised appellant of his Miranda rights once again. Appellant then signed a waiver of rights form and gave his statement.

The trial court ruled that appellant's statements made to the police were admissible. We agree with that ruling. Appellant's mumbling after his initial Miranda advisement raised the question of whether he asserted his right to counsel. Consequently, he was informed of his rights once again prior to his statements. It was proper for the police to follow this procedure to clarify whether appellant wished to have a lawyer present. Appellant knowingly and intelligently waived his right to counsel and his statements were admissible at trial.

Appellant also claims his statements were obtained by the police after he asserted his right to remain silent. In Moore v. State (1986), Ind., 498 N.E.2d 1, this Court held that when the accused invokes his right to remain silent, the police must "scrupulously honor" his right to cut off questioning. The police must cease questioning immediately and may resume questioning only after the passage of a significant amount of time and after giving a fresh set of Miranda warnings. Id.

In the present case, the police commenced the questioning of appellant approximately ninety minutes after he allegedly invoked his right to remain silent and after he was read the Miranda warnings again. Inasmuch as it was unclear as to whether appellant had requested counsel, it was proper to make inquiry of appellant in that regard. Moore, supra. Upon such inquiry appellant voluntarily decided to make a statement. The trial court did not err in admitting appellant's statements made to the police.

Appellant claims the trial court erred by admitting State's Exhibit No. 20 which was a photograph showing the victim hooked to a life support system with multiple bruises on her face. Appellant argues that the photograph was prejudicial and inflammatory.

Admission of photographs is within the sound discretion of the trial court. Williams v. State (1990), Ind., 555 N.E.2d 133. We will not disturb that decision on appeal unless there is an abuse of that discretion. Id. Photographs are generally admissible if they depict an...