Rainey v. State

• Decision Date: 06 August 1990
• Docket Number: No. 82A01-9001-CR-15,82A01-9001-CR-15
• Parties: Jerry A. RAINEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1071

557 N.E.2d 1071

Jerry A. RAINEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82A01-9001-CR-15.

Court of Appeals of Indiana,

First District.

Aug. 6, 1990.

Terry A. White, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Jerry A. Rainey appeals his convictions of burglary, and theft, Class B and D felonies respectively, and the finding that he is an habitual offender.

We affirm.

I.

Rainey contests the admissibility of statements made by him to the police. He maintains these statements were involuntarily extracted by police intimidation. Rainey contends that in addition to the apprehension he felt for his own safety, the police officers also threatened to charge his pregnant girlfriend if he did not confess and refused to provide him with an attorney though he requested counsel three times.

Without dispute, at least one police officer struck Rainey about the legs and Rainey's face was bruised in the course of his arrest, before Rainey was taken to the jail and made any statements implicating himself in the present offenses. The first question before us is therefore whether the actions of the police in effectuating Rainey's arrest were causally related to his confession. We examine the totality of circumstances surrounding the arrest and interrogation to determine whether Rainey's free will was overborne. Carter v. State (1986), Ind., 490 N.E.2d 288, 291 citing Frazier v. Cupp (1968), 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684. The trial court's determination that the statements were freely made will not be disturbed if it is supported in the record by substantial evidence of probative value, even though the evidence of record is conflicting. Johnson v. State (1987), Ind., 513 N.E.2d 650, 651. The State bears the burden of proving beyond a reasonable doubt that a confession was voluntarily given. Heald v. State (1986), Ind., 492 N.E.2d 671, 677.

Evansville police officers sought Rainey on the afternoon of March 1, 1989 in connection with the battery of a police officer. Rainey had resisted arrest for a traffic violation and critically injured a female officer. Officer Winters, who effectuated the arrest, testified that Rainey again resisted arrest, kicked, and became combative when the officers tried to cuff him. According to Officer Winters, Rainey sustained injury when Officer Erk tried to knock Rainey's leg away with his nightstick. Rainey had already been placed in a squad car when Detective Chapman arrived.

Detective Chapman interrogated Rainey at about 3:51 p.m. At that time, Rainey's companion at the time of arrest, Beach, had not yet implicated Rainey in the burglary and theft which are the subject of this appeal. At about 8:00 p.m., Officer Bequette of the Vanderburgh County sheriff's department went to Rainey's cell and asked Rainey if he would discuss the burglary. Rainey had coins on his person when he was booked into jail which Beach, subsequent to the afternoon questioning of Rainey, indicated had come from a burglary on Old Henderson Road. Officer Bequette met with Rainey a third time, on March 3, at Rainey's request. Rainey was arraigned on March 2 for the battery and resisting arrest charges and met with an attorney.

The officers reported that Rainey was advised of his Miranda rights and executed a waiver of rights form each time he was questioned. He agreed to talk with them, did not cut off questioning or ask for an attorney and never complained of mistreatment. He did not request medical care, though he complained of physical discomfort, until after the third statement on March 3.

Although Rainey maintains that he was induced to confess by the threat or fear of further violence, several factors militate against that conclusion. Notably, the police officers did not learn of Rainey's involvement in the burglary which is the subject of this appeal until after Rainey gave his first statement and the officers had talked to his confederate. Indeed, the officer investigating the burglary was from another police department altogether and was not present for any of the earlier proceedings. Rainey knew the officer was with another department before he agreed to talk. Thus, the force used upon him, whether an actual beating or necessary to accomplish his arrest, could not have been intended nor could Rainey have reasonably believed that it was intended to coerce him into confession of another crime.

Rainey makes no claim of any violence during his detention. His failure to utilize counsel on March 2 to obtain protection and his unsolicited request to speak with Officer Bequette dispel the notion that he feared further injury. Likewise, though the record shows Rainey was in pain, it does not disclose that his pain was so great as to affect his ability to give a voluntary confession. Lastly, although Rainey appeared nervous and scared, the record does not indicate that his emotional state was any different than that of other criminal defendants in police custody.

Certainly, the record substantiates Rainey's assertion that emotions were running high when Rainey was arrested. Even so, the trial court was justified, based upon an examination of all the circumstances, in determining that Rainey's confrontation with the police at the time of his arrest did not result in the making of statements by Rainey against his will. Cf. Willis v. State (1987), Ind., 510 N.E.2d 1354, cert. denied 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670.

Rainey's claims that the officers denied him the opportunity to speak with an attorney and threatened his girlfriend with prosecution are directly refuted by the testimony of the officer. On appeal, we do not reassess conflicting evidence. Johnson v. State (1987), Ind., 513 N.E.2d 650, 651.

II.

Rainey next contends he should have been granted a mistrial when Officer Winters testified that he and his partner identified Rainey from a picture that had been put out on a "BOL." "BOL" is an acronym for "be on the lookout for." Rainey argues that this testimony impermissibly suggested to the jury that he had been involved in other criminal activity.

True, evidence of unrelated criminal activity is inadmissible as evidence of guilt. Storey v. State (1990), Ind., 552 N.E.2d 477, 481. But, where the defendant's involvement in other criminal offenses is revealed, reversal is not warranted unless the defendant has been subjected to grave peril or the testimony has been deliberately elicited in an attempt to prejudice the defendant. Coleman v. State (1986), Ind., 490 N.E.2d 325, 328.

We find nothing in Officer Winter's testimony or the record as a whole which relates the "BOL" reference to a particular crime. No evidence of the battery of the female officer had been introduced by either party at that point in the trial and none was offered thereafter, even though defense counsel twice succeeded in suggesting to the jury without any explanation from the State that the officers "beat the crap out of [Rainey]."

Rainey maintains that the jury could infer his involvement in other crimes from the "BOL" reference because the jury had already been told that the officers did not connect Rainey with the charged burglary until he and his companion were in custody. The inference Rainey argues placed him in grave peril, that he was wanted for some crime other than the charged burglary could have been drawn by the jury anyway from the fact of arrest which was properly before the jury. Officer Winters testified that when he arrested Rainey, Rainey had on his person coins later determined to have been taken from the Old Henderson Road residence.

Finally, we observe that while no admonition was given, none was requested by Rainey. An admonition would have been an adequate curative under the circumstances. Cf. Clifton v. State (1986), Ind., 499 N.E.2d 256. We find no abuse of discretion in denying Rainey's motion for mistrial.

III.

Rainey's next allegation of error concerns the granting of the State's motion to amend the habitual offender charge the day of trial to reflect that Rainey was convicted and sentenced on December 21, 1984 under cause number 4557 instead of 4554. Rainey also challenges two other amendments: the deletion of various items from the theft charge which is the subject of this action and the deletion of the reference to a second theft conviction in corrected cause number 4557 of the habitual offender count.

IND. CODE 35-34-1-5(a)(9) allows the amendment of any immaterial defect which does not prejudice the substantial rights of the defendant. However, an information may not be amended to change the theory of the case or the identity of the offense charged. If a defense under the original information would be equally available after the amendment is made and the accused's evidence would be equally applicable to the information in one form as in the other, the amendment is one of form and not substance. An amendment is of substance only if it is essential to the making of a valid charge of the crime. Sharp v. State (1989), Ind., 534 N.E.2d 708, 714.

The original habitual offender information alleged three felony convictions under two cause numbers. Rainey knew from the original habitual offender information that the State intended to prove he had been convicted of the felonies of theft and carrying a handgun without a permit in the Vanderburgh Circuit Court on December 7, 1984....