Scalissi v. State

• Decision Date: 14 December 2001
• Docket Number: No. 20S00-0003-CR-200.,20S00-0003-CR-200.
• Citation: 759 N.E.2d 618
• Parties: Gary R. SCALISSI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

759 N.E.2d 618

Gary R. SCALISSI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 20S00-0003-CR-200.

Supreme Court of Indiana.

December 14, 2001.

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Gary Scalissi was convicted of murder for shooting a man who had been staying in his apartment. We affirm, holding his claimed intoxication did not render his confession involuntary absent police coercion and testimony that he raped the victim's companion was relevant to his motive and to whether the shooting was accidental. Two trial errors do not require reversal: the first because the error was harmless; the second because there was no objection at trial.

Background

On June 18, 1999, Gary Scalissi came home from work to find his roommate and two of his roommate's friends on the couch drinking beer and smoking marijuana. This had been a pattern for several days. Robert Waller, his roommate, had stopped going to work and Harry Fink and Annette Fouche had been staying at Defendant's apartment without paying rent or contributing any money to household expenses. In fact, Defendant and his roommate were behind on rent and had already received an eviction notice.

Defendant left the apartment several times to get more beer. The last time Defendant came home, an argument with Fink escalated into a fistfight. Fink hit Defendant several times, at one point chipping Defendant's tooth. A little later Defendant went into the bedroom, took out his roommate's shotgun, and shot Fink. As will be seen, the facts surrounding the argument, the fight, and the shooting were in dispute at trial. Fink later died from his wounds.

Early on June 19, 1999, Defendant was found asleep in the back of a taxicab near the crime scene. Detective Mock, the officer assigned to the investigation, took Defendant to the police station. On the way to the police station, Detective Mock orally advised Defendant of his Miranda rights, which Defendant waived at that point. At the police station, Detective Mock again advised Defendant of his Miranda rights, which Defendant again waived. Defendant then gave a statement, which Detective Mock typed. Defendant's statement indicated that he had knowingly and intentionally shot Harry Fink. Defendant was charged with murder¹ and, after a five-day jury trial, was found guilty of Fink's murder. Defendant now appeals his conviction, raising several issues.

We will recite additional facts as necessary.

Discussion

I

Defendant contends that the trial court committed reversible error when it allowed his written confession to be admitted into evidence. Defendant argues that the State did not meet its burden of proving that his confession was voluntary, intelligent, and freely made because of the evidence that he had not slept the night before, had been ingesting large quantities of alcohol, along with LSD, crank (methamphetamine), and marijuana, and had been struck and kicked in the head a short time before the statement was made.

The State bears "the burden of proving beyond a reasonable doubt that the defendant voluntarily and intelligently waived his rights, and that the defendant's confession was voluntarily given." Crain v. State, 736 N.E.2d 1223, 1230 (Ind.2000) (citing Schmitt v. State, 730 N.E.2d 147, 148 (Ind.2000)). Where the State has met its burden and the trial court has ruled to admit the confession, we review the trial court's determination for an abuse of discretion. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind.2000) (citing Jones v. State, 655 N.E.2d 49, 56 (Ind.1995), reh'g denied). When reviewing a challenge to the trial court's decision to admit a confession, we do not reweigh the evidence, but instead examine the record for substantial, probative evidence of voluntariness. Carter v. State, 730 N.E.2d 155, 157 (Ind.2000).

Defendant asks us to infer from certain answers given to the police and the asserted illegibility of his signature on his statement that he was so highly intoxicated (and otherwise mentally impaired) at the time of his confession that it should not be considered knowing, voluntary, and intelligent. Defendant cites several somewhat older cases² for the proposition that a person can be too intoxicated to make a voluntary confession. More recent cases, however, make clear that coercive police activity is a necessary prerequisite to finding a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. Crain, 736 N.E.2d at 1231 (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). A confession is voluntary if, in light of the totality of the circumstances, the confession is the product of a rational intellect and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant's free will. United States v. Dillon, 150 F.3d 754, 757 (7th Cir.1998). The critical inquiry is whether the defendant's statements were induced by violence, threats, promises, or other improper influence. Page v. State, 689 N.E.2d 707, 711 (Ind.1997).

Factors such as intoxication and lack of sleep may be factors in determining voluntariness. Ringo, 736 N.E.2d at 1213 (Ind.2000) (citing Pettiford v. State, 619 N.E.2d 925 (Ind.1993) (citing in turn Connelly, 479 U.S. 157,107 S.Ct. 515,93 L.Ed.2d 473)). However, Defendant makes no argument that there was any violence, threats, promises, or improper influence in this case.³

We find that the trial court did not abuse its discretion in denying Defendant's motion to suppress because the record contains substantial probative evidence sufficient to establish beyond a reasonable doubt that there was no evidence of improper police influence or coercion in obtaining the confession.

II

Defendant contends that evidence of a prior uncharged act of rape was improperly admitted under Indiana Evidence Rule 404(b).⁴ Defendant argues that the trial court committed reversible error by allowing Annette Fouche to testify that Defendant had raped her.

The events giving rise to this claim took place a short time prior to the shooting of Fink. Defendant had returned to his apartment at around 11:00 in the evening, and about a half hour later, he sent Rob Waller out to obtain more marijuana, as they had run out. After Waller left the apartment, Defendant, Fouche, and Fink sat down to watch television. At one point, Defendant went into the kitchen to get a beer. After Defendant came back from the kitchen, he and Fouche had sexual intercourse. Defendant contends that he was invited to have sex with Fouche by Fink and that she consented. Fouche contends that Defendant raped her despite her (and Fink's) efforts to resist. There is agreement that after this, Fouche took a shower and came back into the living room to hear the Defendant and Fink arguing. But the accounts of the events that took place after the argument are in dispute.

Defendant testified that after the argument, he threatened to call the police to report Fink. Fink prevented this by pulling Defendant away from the phone, and also prevented Defendant from leaving the apartment. Defendant testified that he felt threatened and went to get the shotgun just to scare Fink. But in his walk from the bedroom to the living room, Defendant testified that he stumbled on the carpet and the shotgun fired accidentally, hitting Fink.

Fouche's testimony is the opposite. Fouche testified that after she got out of the shower, she heard Defendant and Fink fighting. Fink threatened to call the police to report the rape, and Defendant pulled the phone cord out of the wall to prevent Fink from dialing the phone. Another fistfight ensued, and then it ended abruptly. After the fight, Defendant went to the kitchen to get more beer for himself and Fink, and then sat down on the couch with Fink and Fouche. Defendant then stated to Fink, "I'm gonna take you down just like you took me down." Fink replied, "The only way you're gonna take me down... is to shoot me, and when you shoot me, make sure that I'm dead." According to Fouche, Defendant got up from the couch, went to his room, and came back with the shotgun. Fouche testified that Defendant deliberately aimed the shotgun at Fink before he pulled the trigger.

The trial court allowed Fouche to testify about the alleged rape for the limited purpose to show intent, motive, and absence of accident or mistake. In its ruling, the trial court stated, "the relevancy [of Fouche's rape testimony] would be dictated by [Defendant's] choice of defense of accident. In that sense it seems to me it'd be clearly relevant as to whether or not this was an accident."

When addressing the admissibility of evidence under Rule 404(b), a trial court must utilize a two-prong analysis. First, the trial court must assess whether the evidence has some relevancy to a matter at issue other than the defendant's propensity to commit the charged act. Second, the trial court must weigh the probative value of the evidence against its prejudicial effect, pursuant to Indiana Evidence Rule 403.⁵ Dickens v. State, 754 N.E.2d 1, 4 (Ind.2001); Hicks v. State, 690 N.E.2d 215, 221 (Ind.1997). This court will review the trial court's determination and only reverse when there is an abuse of discretion. Dickens, 754 N.E.2d at 4.

Our review of the record reveals that the rape testimony given by Fouche was relevant. The alleged rape immediately preceded the shooting of Fink and together with the argument and fistfight, Fouche's testimony provided a potential motive for Defendant deliberately to shoot Fink. Fouche's testimony was therefore relevant to rebut Defendant's defense of accident. In addition, the timing of the prosecution's request to offer the rape testimony suggests that the prior...