Scott v. State

• Citation: 510 N.E.2d 170
• Decision Date: 16 July 1987
• Docket Number: No. 1085S412,1085S412
• Parties: David SCOTT, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 170

510 N.E.2d 170

David SCOTT, Appellant, v. STATE of Indiana, Appellee.

No. 1085S412.

Supreme Court of Indiana.

July 16, 1987.

Larry J. Wagner, Terre Haute, for appellant.

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

GIVAN, Justice.

A jury trial resulted in the conviction of appellant for Burglary, a Class A felony, and Murder While Committing a Burglary. He received a thirty (30) year sentence for burglary and a forty (40) year sentence for murder, enhanced by ten (10) years by reason of aggravating circumstances, for a total term of eighty (80) years imprisonment.

The facts are: On the evening of April 18, 1984, appellant, a juvenile, and his companion decided to burglarize the home of an 89-year-old woman for whom appellant had done odd jobs. Appellant broke the window of her back door with an iron bar and entered the home with his partner to look for money. Both were under the influence of heroin. As appellant searched the home, he discovered the woman lying in bed, awake. She recognized appellant, so appellant beat her in the head with the iron bar.

Appellant and his partner left the victim's home and went to the partner's home, where appellant took a bath and burned his bloodstained clothes. At this time, appellant talked his partner into believing that he, not appellant, murdered the victim.

Next they went back to the victim's home, covered the body with an electric blanket and turned it on so that it would keep the body warm. Appellant was hoping this would delay the time of her death estimated by investigators.

Appellant then convinced three companions to assist him in the burglary of the West Vigo High School that night, so that he could confess to the burglary and have an alibi for any murder charges, which might come against him. Before he burglarized the school, appellant returned to the victim's home and removed the blanket, which he later burned.

Appellant and his three companions broke into the high school and removed some audiovisual equipment. The next day the victim's son discovered her body and called the police.

The police soon received an anonymous call and were told where to find the stolen audiovisual equipment, and that appellant was involved in the burglary of the school. Police arranged for an interview with appellant, which occurred on April 21 with his mother present. After appellant was advised of his rights, he signed a rights waiver. He then described the burglary of the school in detail and confessed.

The following September Clifford Allison had conversations with appellant about the murder which led Allison to believe appellant was involved. Allison contacted police and set up a meeting with them. At the meeting, Allison informed police that he knew who murdered the victim, and that he would divulge this information if police would help him with the theft by deception charges pending against him in Illinois. Although police told Allison that they could not help him, Allison agreed to assist the police anyway.

Allison hired appellant as an employee in his extermination business. He arranged a time and place with police in which he planned to discuss the murder with appellant. Police reserved a hotel room in Indianapolis and placed a microphone in the room so that police could record their conversation. Allison and appellant arrived at the hotel room on September 25 and their conversation eventually turned to the subject of the murder. Allison convinced appellant that he must tell him the truth so that they could trust each other. Appellant then told in explicit detail the events of the break-in, murder and burglary of the school. Appellant cried as he told about the beating of the victim.

Appellant was arrested on September 27, 1984. Prior to trial, appellant filed a motion to suppress his confession of the murder, which was denied. He claimed the use of his taped confession violated his Sixth Amendment right to counsel, and that he did not knowingly and fully waive his Miranda rights.

The Sixth Amendment right to counsel attaches only after a critical stage of the proceeding has been reached. Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Edwards v. State (1976), 265 Ind. 239, 352 N.E.2d 730.

In United States v. Hansen (7th Cir.1983), 701 F.2d 1215, the Seventh Circuit held that the defendant's Sixth Amendment right to counsel did not attach until after adversary judicial proceedings were initiated against him. The defendant's taped, inculpatory statements made before his arraignment were correctly admitted into evidence because his right to counsel had not yet attached at the time his statements were taped. Id. at 1220.

Similarly, the Seventh Circuit has held that mere interrogation of a suspect before the filing of any charge does not bring the Sixth Amendment right into play. Sulie v. Duckworth (7th Cir.1982), 689 F.2d 128.

The cases which appellant cites to support his position are factually distinguishable from his own. In United States v. Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115, the Supreme Court held that the government had intentionally created a situation likely to induce the defendant to make incriminating statements without counsel. The informant was paid by the government, he was a fellow inmate, and the defendant was in custody and under indictment when he divulged information to the informant.

In the case at bar, appellant was not in jail or in police custody or confinement when his conversation about the murder occurred. In United States v. Reynolds (6th Cir.1985), 762 F.2d 489, the defendant met with an undercover police officer whom he believed to be a private purchaser of his trucks. The meeting was videotaped by Kentucky State Police in an unmarked van at a truck stop. The undercover officer was wired with a transmitter. When the parties met, the defendant suggested that they go into his car to talk. In the car, he made a number of incriminating statements. At the end of the conversation, the undercover officer executed an arrest warrant which he had in his possession. After reciting the above facts and citing several United States Supreme Court cases, the Court stated:

"In the present case it is clear that defendants were unaware of the existence of warrants for their arrest or that their freedom of movement would be curtailed by police. Since the warrants were unknown to defendants, their existence could not have affected how the defendants understood their position, which is the only relevant consideration under Berkemer. [Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317]. Reasonable men in the defendants' position would have felt free to leave at any time. Defendants were therefore not in custody and were under no compulsion when the incriminating statements were made. Introduction of the recordings did not violate the fifth amendment." Id. at 493.

The facts in the case at bar are very similar. Appellant was not deprived of his Sixth Amendment right to counsel when he gave his non-custodial confession before charges regarding the murder were filed.

Appellant further argues that the confession should not have been admitted because the procedural safeguards for the waiver of a juvenile's constitutional rights, as required by Ind.Code Sec. 31-6-7-3, were not followed.

Because appellant was not in custody or deprived of his freedom when he confessed to the murder, neither the safeguards of the Miranda warning nor Ind.Code Sec. 31-6-7-3 applies to him. See Flowers v. State (1985), Ind., 481 N.E.2d 100.

Appellant prays that we void the sentence of fifty (50) years for the felony murder because it is manifestly unfair, disproportionate and unconstitutional. This Court reviews a sentence to determine whether it is manifestly unreasonable in light of the nature of the offense and the character of the offender. Wagner v. State (1985), Ind., 474 N.E.2d 476; Ind.R.App.Rev.Sen. 2(1).

A punishment is excessive and unconstitutional if it constitutes nothing more than the purposeless and needless imposition of pain and suffering, or is grossly out of proportion to the severity of the crime. Bray v. State (1982), Ind., 430 N.E.2d 1162.

At appellant's trial, the judge found as aggravating circumstances appellant's long history of criminal and violent acts, both as a juvenile and an adult, the age and vulnerability of the victim, the brutal nature of the killing and the fact that appellant showed no remorse and stated that he could kill again.

The penalty for murder is a fixed term of forty (40) years with not more than twenty (20) years added for aggravating circumstances. Ind.Code Sec. 35-50-2-3. The trial court specified the factors in the record which constituted the aggravating circumstances. Appellant's sentence of fifty (50) years for the murder was not unreasonable in light of the nature of the...