State v. Ashley

• Decision Date: 28 December 1995
• Docket Number: No. 02A05-9501-CR-9,02A05-9501-CR-9
• Citation: 661 N.E.2d 1208
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Larry W. ASHLEY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1208

661 N.E.2d 1208

STATE of Indiana, Appellant-Plaintiff, v. Larry W. ASHLEY, Appellee-Defendant.

No. 02A05-9501-CR-9.

Court of Appeals of Indiana.

Dec. 28, 1995.

Appeal from the Allen Superior Court; John F. Surbeck, Jr., Judge, No. 02D04-9406-CF-402.

Pamela Carter, Attorney General, James A. Joven, Deputy Attorney General, Indianapolis, for Appellant.

Lewis H. Griffin, Deputy Public Defender, Fort Wayne, for Appellee.

OPINION

SHARPNACK, Chief Judge.

The State of Indiana appeals the trial court's granting of a motion to suppress in favor of the defendant-appellee, Larry W. Ashley, based upon alleged fifth and sixth amendment violations. The motion to suppress concerned statements Ashley made to a paid confidential informant about stolen property. The sole issue for our review is whether the trial court erred in granting the motion to suppress. We reverse.

The facts most favorable to the judgment follow. From approximately November 1993, to March 1994, the Allen County Sheriff's Department employed Scott Bell as a confidential informant. Bell was employed to report the criminal activities of any persons with whom he resided. At this time, Bell lived in a house owned by David Purcell where Ashley also resided.

In his capacity as a confidential informant, Bell visited Ashley in jail. During the visit, Bell wore a concealed recording device. Ashley told Bell that there was a safe in the basement of the house where they resided and that Ashley wanted Bell to remove the safe. The safe had recently been stolen. After the visit, Bell contacted Detective Tom Gratz of the Sheriff's Department and turned over the recording of the visit. Bell later inspected the house to confirm the presence of the safe and so informed Detective Gratz.

A few days later, Bell again visited Ashley in jail. This time, Ashley told Bell that there was a white bucket near a freezer in the basement with old rugs on it which needed to "disappear." Record, p. 58. Bell returned to the house and found the bucket in the basement. He contacted Gratz and turned over the bucket. The bucket contained pay envelopes, money drops, and plastic coin tubes. After Bell reported what he had found, Gratz and other detectives went to the house to investigate. Purcell consented to a search of the basement where the detectives found the safe that Ashley had asked Bell to remove. On June 6, 1994, the State charged Ashley with receipt of the stolen safe, a class D felony.

On September 24, 1994, Ashley filed a motion to suppress his statements made to Bell. Ashley argued that the statements were obtained in violation of his fifth and sixth amendment rights. On September 29, 1994, the trial court conducted a hearing on the motion which was granted. The trial court then addressed the issue of whether the physical evidence seized as a result of the statements also needed to be suppressed as the "fruit" of the improper statements. The trial court requested the State to provide any evidence that the safe and bucket would have been discovered without the statements. The State presented evidence of other statements made by Ashley to serve as an independent basis from which to admit the physical evidence. However, the trial court ruled that it would exclude any statements made by Ashley following his first tape recorded statement as a "fruit of the initial violation." Record, p. 74.

Shortly thereafter, the trial court granted the State's motion to dismiss the charges without prejudice. The State now appeals the trial court's granting of the motion to suppress the statements made to Bell and the physical evidence gathered as a result of those statements.

Discussion

Initially, we note our standard of review with respect to an appeal of the granting of a motion to suppress. The State has the burden of demonstrating the constitutionality of the measures it uses in securing information. Therefore, the State is appealing from a negative judgment. State v. Smith (1994), Ind.App., 638 N.E.2d 1353, 1355. We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court. Id. We will consider only the evidence most favorable to the judgment and will not reweigh the evidence or judge the credibility of the witnesses. Id. In its order granting Ashley's motion to suppress, the trial court did not state which grounds supported its decision. Since the trial court did not indicate the grounds on which it granted the motion, we will examine the three possibilities raised in Ashley's memorandum in support of the motion and in his appellate brief.

First, we address whether the conversations between Ashley and Bell violated Ashley's fifth amendment privilege against self-incrimination and, therefore, whether the motion to suppress was properly granted. The United States Supreme Court has analyzed when Miranda warnings are required by an undercover agent prior to questioning a suspect. In Illinois v. Perkins (1990), 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243, an undercover agent was placed in a cell with Perkins, who was being held on charges unrelated to a murder that the agent was investigating. Perkins made statements to the agent implicating himself in the murder. Perkins subsequently filed a motion to suppress and argued that the statements were inadmissible because the agent had failed to give Miranda warnings prior to questioning. Upon reversing the motion to suppress, the Supreme Court thoroughly analyzed the purposes underlying the Miranda warnings but found that those concerns were not implicated in this situation. Specifically, the Miranda doctrine serves to protect a suspect from admitting statements during a "custodial interrogation" without a prior warning. Id. at 296, 110 S.Ct. at 2397. A custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody...." Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694. The Miranda warning is meant to protect a suspect during an interrogation "in a police dominated atmosphere." Id. at 445, 86 S.Ct. at 1612. However, the Supreme Court has determined that the Miranda doctrine is not implicated when the suspect is questioned by an undercover agent while in jail:

"The essential ingredients of a 'police-dominated atmosphere' are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking.... There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.

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We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent.

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Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust is one he supposes to be a fellow prisoner. As we recognized in Miranda: '[C]onfessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.' Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda 's concerns."

Perkins, 496 U.S. at 296-297, 110 S.Ct. at 2397 (citations omitted).

While our case is not factually identical to Perkins, we find the two cases to be analogous and, therefore, find the holding in Perkins to be applicable. Like Perkins, Bell visited Ashley in jail while Ashley was held on unrelated charges. ¹ In addition, Ashley asked for Bell's assistance in removing the incriminating evidence in the house. It is clear that "placing an undercover agent near a suspect in order to gather incriminating information" does not violate the fifth amendment protection against self-incrimination. Perkins, 496 U.S. at 298, 110 S.Ct. at 2398 (citing Hoffa v. U.S. (1966), 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374). We find neither that this situation was a "police-dominated atmosphere" nor that Ashley was coerced into giving the statements. Ashley voluntarily appealed to Bell to help remove the incriminating evidence. We find that Bell's visit to the jail was a "mere strategic deception" in which Ashley put his misplaced trust into one he believed to be a friend. Id. at 297, 110 S.Ct. at 2397. Moreover, while Ashley contends that Perkins is distinguishable, he failed to provide a cogent distinction, and upon our reading of the case, we are unable to discern his...