Poling v. State

• Citation: 515 N.E.2d 1074
• Decision Date: 02 December 1987
• Docket Number: No. 1084S377,1084S377
• Parties: Michael W. POLING, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 1074

515 N.E.2d 1074

Michael W. POLING, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below).

No. 1084S377.

Supreme Court of Indiana.

Dec. 2, 1987.

Mary M. Runnells, Lloyd D. Richards, Bloomfield, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Michael W. Poling was found guilty by a jury in the Daviess Circuit Court of murder while in the perpetration of rape, and was subsequently sentenced by the trial judge to a term of sixty (60) years.

Seven issues are raised for our consideration in this direct appeal:

1. error in allowing Poling's oral and written statements into evidence;

2. error in permitting accomplice Christopher Deckard to testify;

3. permitting four prosecutors to sit at the State's table during trial;

4. alleged improper sequestration of the jury;

5. refusal to grant a mistrial due to actions of the Posey County Sheriff's deputies;

6. final instructions; and

7. sentencing.

The facts show that at about 7:00 p.m. on July 2, 1983, fifteen-year-old Cindy Lou Mason went to the carnival in Linton, Indiana. She was supposed to meet a friend there and return home by 11:00 p.m. When she was not home by 11:30, family members began looking for her without success. Her body was found the next evening at a partially built abandoned home in the country in Greene County, known locally as the stone house. Mason had been shot in the head three times, once about five minutes after she died. She had superficial wounds or cuts on her shoulders, which had been made while she was alive and standing. Her face and neck also showed cuts but those had been made after she died. Her pants, which had been cut and torn, were around her ankles. Her bra, which also was cut or torn, and her blouse, which was inside out, were near her head.

On that same evening, Appellant Poling and Christopher Deckard also went to the carnival at Linton. Both boys were seventeen years of age. Before he left home, Deckard put his step-father's .357 magnum Smith & Wesson handgun in the glovebox of the car. He also took along a bottle of whiskey, which the boys drank on their way to the carnival. When they arrived at the carnival they met Cindy Mason, the victim. The three of them later left the carnival and went to the abandoned country home where Mason was found the next day. Poling told the San Francisco, California police that Deckard and Mason first went into the house and came back after ten or fifteen minutes. He stated he and Mason then went into the house while Deckard remained in the car. He stated they were petting in the house and he requested Mason have intercourse with him but she refused and called him a "bastard." He said he had taken the pistol from the glove compartment of the car and he became so enraged at Mason's attitude that he pulled out the gun and shot her in the head "four or five times." He then came out and he and Deckard left the scene immediately.

At trial, Poling stated he did not go into the house with Mason. Rather, he stated Deckard had gone in. Poling said he heard shots and noise, and then Deckard came back and said they had to leave immediately. During Poling's trial, Deckard testified he went into the house with Mason for a short time and then came out. Deckard stated Poling then went into the house with Mason. Deckard heard shots and Poling came out, telling him they must leave immediately. The boys then went to Deckard's house and obtained Deckard's mother's automobile, about $286.00 in cash, and clean clothes, then headed for California. In Missouri they replaced the Indiana license plate on the car with a Missouri license plate. They put the Indiana plate underneath the front seat of the automobile. After spending about three weeks in California, they were arrested in a San Francisco parking lot.

I

Poling first asserts his original arrest was without probable cause and subsequent statements he made were therefore inadmissible as fruit of a poisonous tree. A police officer may make an initial or investigatory stop of a person or automobile under circumstances where probable cause for arrest is lacking when the facts known to the officer at the time of the stop are such as to warrant a man of reasonable caution to believe an investigation is appropriate. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Taylor v. State (1980), 273 Ind. 558, 561, 406 N.E.2d 247, 250. Even in a routine stop, based on safety concerns, an officer may, consistent with the Fourth Amendment, exercise discretion to require a driver who commits a traffic violation to exit the vehicle even though the officer lacks any particularized reason for believing the driver possesses a weapon. New York v. Class (1986), 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81, citing Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331.

Consistent with Terry and its progeny, it was reasonable for the police to make a routine investigation of the circumstances under which they observed Poling and Deckard in this area. San Francisco Police Sergeant Michael W. McNeil was on patrol with Recruit Officer Charles Lyons in the area of Polk and Bush Streets. They testified this was an extremely high crime area in San Francisco, known for homosexual prostitutes, a great deal of trafficking, and drug abuse, particularly use of cocaine. They saw the two boys in a car in the parking lot. They noticed the automobile had a Missouri license plate and also observed that because of the ages of the boys they could be runaways. The officers could not tell if the boys were asleep or unconscious from drug use, and decided to investigate. They approached the vehicle and asked the boys to get out. When asked his identity, Poling first gave his true name and then changed it. Deckard said there was a knife under the front seat on the passenger side and began to reach for it. McNeil ordered Deckard out of the car and then, for his own protection, McNeil reached under the seat to retrieve the knife himself. He first found the car's original Indiana license plate and a holster for a handgun. He also found the knife. The police had probable cause to believe the vehicle was stolen and the boys had used it to run away from home. This was sufficient probable cause to take the boys into custody and the trial court properly denied the motion to suppress.

Poling next claims the statements were inadmissible because he was denied access to an attorney and he did not have an opportunity to have a meaningful consultation with his mother before making the statements, citing Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138, 142, and Chandler v. State (1981), 275 Ind. 624, 419 N.E.2d 142. The requirements for juvenile admissions are codified in Ind.Code Sec. 31-6-7-3. These requirements are adjuncts to the requirements of the Miranda case which sets forth procedural safeguards which must be met prior to custodial interrogations by police.

Poling's statements were not the result of custodial interrogation, but were volunteered. There is no conflict in the fact that Poling volunteered the oral statements with no prompting from the police officers. Miranda and Lewis are not therefore applicable. Poling had, nevertheless, been given his constitutional advisements pursuant to Miranda, had acknowledged he understood them, and had signed a waiver form declining to assert any of the rights thereunder. Sergeant McNiel said he advised Poling that he ought to talk to his parents and asked Poling if he wanted to call them. Poling said he did not. McNiel then offered to call Poling's parents for him but got no response from Poling. Poling testified at trial that he was not given an opportunity to call his parents until after the statements were made but this was in direct conflict with the testimony of the officers. Furthermore, there is no evidence nor is it claimed Poling called his mother even at this time. Officer Antonio T. Parra was in the room with Poling and heard Poling begin talking softly while looking at the floor. Poling apologized for shooting the victim and said he could remember seeing the blood on her head. He said he shot her because she refused "to make love with him and called him a bastard." None of these statements was in response to any conversation between Poling and Parra. Poling then looked up at Parra and said what he had done was wrong and he was ready for his punishment.

Parra again read Poling his Miranda rights and asked him if he wished to make a written statement. Poling asked if Deckard had given a statement. Parra answered Deckard had done so, and without any further prompting or interrogation, Poling said he would like to make a statement. Parra gave Poling a form containing an advisement of rights and room to write out his statement. Parra explained to Poling how to fill out the form, asked him to read the advisement of rights, and asked that the statement be in chronological order. Parra asked no questions nor in any way interrogated Poling. Poling wrote a short statement relating that he and Deckard had picked up Cindy Mason at the carnival. Mason was known to Deckard but not to Poling. They went to the old stone house and Deckard and Mason first went in "to find a good place" while Poling stayed in the car. While looking in the glove box for some matches, Poling found a gun and put it in the pocket of his trousers. Mason and Deckard soon came back and Poling and Mason then went into the house. They were petting very heavily and Poling requested she go further with him. She refused, telling him she was not a "slut" and finally calling him a bastard. Poling said this so enraged him that he pulled out the gun and shot her five or six times. Officer Parra read Poling's statement and then said, "You should tell what happened to the gun." Poling then wrote, on a separate page, a single...