Sauerheber v. State, 89S00-9701-CR-18

Citation698 N.E.2d 796
Case DateSeptember 01, 1998
CourtSupreme Court of Indiana

Page 796

698 N.E.2d 796
Earl E. SAUERHEBER a/k/a Earl E. Sauerheber III, Appellant
(Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 89S00-9701-CR-18.
Supreme Court of Indiana.
Sept. 1, 1998.

Page 800

E. Thomas Kemp, Richmond, for Appellant.

Jeffrey A. Modisett, Attorney General, Janet Brown Mallett, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Earl Sauerheber was convicted of murder and sentenced to sixty years imprisonment. In this direct appeal, Sauerheber raises six issues for review: (1) whether the trial court erred in admitting his confession, (2) whether the trial court committed reversible error in admitting testimony, without objection, that he was incarcerated on an unrelated charge, (3) whether the trial court erred in admitting a photograph of the victim and her younger brother, (4) whether delay of one year between arrest and trial violated his Sixth Amendment right to a speedy trial, (5) whether the trial court erred in sentencing him to an aggravated sentence, and (6) whether he received ineffective assistance of counsel at trial and at sentencing.

We affirm the conviction and sentence.

Factual and Procedural Background

On June 16, 1986, Mary Kathleen Phillips reported to Richmond Police that her eleven-year-old daughter Katina had been missing since June 15. Eight weeks later, Katina's badly decomposed body was discovered in a vacant house about one block from her home. She was found nude with a shirt tied around her neck. Her remaining clothing was piled in another room. Underneath the clothing, the police found a light bulb from which they later obtained a latent fingerprint. An autopsy concluded that Katina had died from asphyxia due to ligature strangulation.

Police attempted to question some minors who lived in a group home within a block of the vacant house where Katina's body had been found. Katina had been known to associate with some of them and even had two of their names written on her shoes. The director of the home refused the police access to the minors. Earl Sauerheber, then fifteen years old, was a resident of that home. Attendance records revealed that Sauerheber was missing from the home between June 14 and June 16.

In 1995 police first obtained Sauerheber's fingerprint record and determined that the print on the light bulb matched Sauerheber's right thumb print. In early August, Detective Dunnington of the Richmond Police Department traveled to southern Indiana where Sauerheber was being detained on a Floyd County conviction. After being advised of and waiving his Miranda rights, Sauerheber told Detective Dunnington that he did not know Katina, did not recall her murder, was never in the vacant house where her body was discovered, and did not kill her.

The State then secured a search warrant for samples of Sauerheber's hair, saliva, and blood. The Wayne County Sheriff's Department transported Sauerheber, who was still being held on the Floyd County conviction, to Richmond for the collection of those samples. Detective Dunnington was present prior to and during the collection, which occurred on August 21, 1995. Sauerheber made several

Page 801

requests for an attorney during this encounter. Dunnington responded that Sauerheber was not entitled to an attorney at that time and did not question Sauerheber regarding the case.

Although there were no charges pending against him in Wayne County, Sauerheber remained in the Wayne County Jail until August 25 when he was transported to the Richmond Police Department. Detective Dunnington had requested that another officer conduct the interview based on his poor relationship with Sauerheber from prior contacts. Captain William Shake began his interview with Sauerheber by reviewing a standard waiver of Miranda rights form. Shake informed Sauerheber that he had the right to remain silent and the right have an attorney present before and during questioning. Sauerheber then asked Shake why he had not been provided an attorney when he requested one four days earlier. Shake explained that an attorney would serve no purpose during the execution of a search warrant. As Shake proceeded to the advisement that Sauerheber could request the appointment of an attorney if he could not afford one, Sauerheber asked if the attorney would be appointed "even before I'm arrested or after I'm arrested?" Shake responded, "probably after you're arrested." Sauerheber indicated that he understood his rights and that he wished to waive them. He then gave a videotaped statement in which he admitted the killing.

According to that statement, Sauerheber and Katina had initially engaged in consensual touching and kissing in the vacant house. This escalated to the point where she was naked and he was rubbing his penis between her legs. He continued even after she expressed concern about getting pregnant and asked him to stop. Katina then bit his finger, and he grabbed her around the neck to get her to release his finger. He continued to choke Katina until she was either unconscious or dead. Fearing that he had killed her, he tied her shirt around her neck and dragged her to the room where her body was later discovered.

Sauerheber was arrested on August 28, 1995, after signing the transcribed copy of his August 25 statement. Because Sauerheber was fifteen years old at the time of the offense, the State initiated juvenile proceedings against him. Juvenile jurisdiction was waived on May 9, 1996, and the State charged Sauerheber on May 21 with murder, felony murder, and attempted rape as a class A felony. Prior to trial, Sauerheber's counsel filed a motion to suppress his August 25, 1995 statement on the ground that his waiver of Miranda rights was not made knowingly, voluntarily, or intelligently. The trial court denied this motion after a hearing. Sauerheber was convicted of all counts after a three day jury trial. Prior to sentencing, the trial court vacated the felony murder charge because of merger and the attempted rape count because the statute of limitations had run on that charge as reduced to a class B felony. The trial court then imposed the maximum sentence of sixty years for murder.

I. Admissibility of Confession

A. Invocation of Right to Counsel

Sauerheber first argues that any further police questioning was prohibited after his request for counsel at the August 21 sampling of his blood. Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), any person in custody has the right to have counsel present (or even appointed) prior to and during interrogation. When a defendant has invoked this right to counsel, the police must cease questioning until counsel has been made available or until the accused initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). 1

The purpose underlying the Miranda warnings is to protect an individual's Fifth Amendment privilege against self-incrimination by placing reasonable limitations

Page 802

on police interrogations. Miranda, 384 U.S. at 478-79, 86 S.Ct. 1602. This privilege does not apply to the taking of blood samples. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). For that reason alone, Sauerheber's request had no effect at the time it was made on August 21. Nor did the August 21 request prevent the police from initiating contact with Sauerheber on August 25. Unlike the defendants in Miranda and Edwards, Sauerheber was not being questioned when he requested counsel. The holdings of those cases are explicitly limited to circumstances in which an individual is "subjected to questioning" or "during custodial interrogation[.]" Miranda, 384 U.S. at 478, 86 S.Ct. 1602; Edwards, 451 U.S. at 484, 101 S.Ct. 1880. The Indiana cases cited by Sauerheber also dealt with an assertion of the right to counsel at a time when that right exists, i.e., in the context of custodial interrogation. See Propes v. State, 550 N.E.2d 755 (Ind.1990); Sleek v. State, 499 N.E.2d 751 (Ind.1986); Minnick v. State, 467 N.E.2d 754 (Ind.1984). 2

The rationale of the authorities on which Sauerheber relies is that the combined effect of custody and interrogation is potentially inherently coercive. In the absence of either, these authorities are not controlling. We are dealing here with an issue of federal constitutional law on which the Supreme Court of the United States has the last word. The Supreme Court has stated recently that Edwards

applies only when the suspect ha[s] expressed his wish for the particular sort of lawyerly assistance that is the subject of Miranda. It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.

McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (internal quotation marks and citations omitted, emphasis in original). The Supreme Court further observed, albeit in dicta: "We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than 'custodial interrogation'.... Most rights must be asserted when the government seeks to take the action they protect against." Id. at 182 n. 3, 111 S.Ct. 2204. This strongly suggests that the rights under Miranda and Edwards do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins. To the contrary, as put by the Seventh Circuit, "there are certain 'windows of opportunity' in which a defendant must assert his Miranda right to counsel." United States v. LaGrone, 43 F.3d 332, 338 (7th Cir.1994). See also United States v. Thompson, 35 F.3d 100 (2d Cir.1994) (Miranda rights may not be invoked outside of the context of custodial interrogation); accord Alston v. Redman, 34 F.3d 1237 (3d Cir.1994); United States v. Wright, 962 F.2d 953 (9th Cir.1992). The...

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