Vitek v. State

• Decision Date: 29 June 2001
• Docket Number: No. 02S00-0002-CR-109.,02S00-0002-CR-109.
• Citation: 750 N.E.2d 346
• Parties: Gary L. VITEK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

750 N.E.2d 346

Gary L. VITEK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 02S00-0002-CR-109.

Supreme Court of Indiana.

June 29, 2001.

Stanley L. Campbell, Fort Wayne, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

We affirm Defendant Gary Vitek's murder conviction for his role in killing a man and burying his body in cement. We find that Defendant's actions after the killing constituted sufficient evidence to convict. Because the police were conducting a valid missing person investigation, we reject his argument that there was an illegal warrantless search. And because Defendant claimed cooperation with police, we affirm the State's use of his refusal to give a videotaped statement.

Background

The facts most favorable to the verdict indicate that on January 7, 1999, Defendant was staying at David Carter's residence. Anthony Bennett came over to purchase crack cocaine, but Carter refused to give him any crack because Bennett didn't have any money. Sometime shortly thereafter, Bennett shot Carter with a shotgun, killing him. Defendant and Bennett then smoked Carter's crack. They also found $160 that belonged to Carter and used it to buy more crack. They wrapped Carter's body up in a rug and left it in the hallway for several days. Eventually, Defendant and Bennett decided to hide Carter's body. They rented a jackhammer and used it to dig a hole in the basement. Then they put the body in the hole and poured lime over it and finally covered it up with dirt and cement.

Defendant was charged with Murder¹ and Failure to Give Notice of Violent or Suspicious Death, a Class D Felony.² A jury found Defendant guilty of both counts. The trial court sentenced Defendant to concurrent sentences of 60 years for the murder and one and a half years for failure to give notice.

We will recite additional facts as necessary.

Discussion

I

Defendant contends that the trial court erred in denying his motion to suppress. Defendant requested that the court suppress evidence that was obtained as a result of a warrantless search of Defendant and Carter's residence.

Because Carter's ex-wife Tina Crozier had not heard from him, she called Detective Wilson on January 18, 1999. She informed Wilson that she had not seen Carter since December 31 and she was worried about his well-being. Carter had suffered from a number of physical disabilities, including excessive weight, a knee injury, sleep apnea, and a heart problem that required him to use an oxygen machine. Because of these disabilities, he did not leave the house very often or for more than a few hours at a time.

Wilson, following standard procedure, told Crozier to wait a few days and that she should call back if she still had not heard from Carter. Crozier called again on January 20. Wilson went to Carter's house and knocked, but received no answer. He returned 45 minutes to an hour later and left his card in the door. On the back of his card he left a note for Carter to call him. Wilson later received a voice mail from a man claiming to be Carter, but Crozier identified the man on the voicemail tape as Defendant.

Wilson entered Carter's house, looking for him. When he looked in the basement he found a mound of dirt and newly poured concrete in a three feet by six feet area. He also noticed empty cement bags and chunks of old cement that he believed had been in the floor where the new concrete now lay. At this point, Wilson left the house because he felt "there might be something wrong there." Wilson then called homicide detectives who took over the case. Before re-entering Carter's residence to search for evidence of a crime, the officers obtained a search warrant.

Generally, officers must obtain a search warrant to search a person's house. U.S. Const. amend. XIV; Jewell K. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001). One well recognized exception to the warrant requirement is for an entry under emergency circumstances. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951)

. It is not necessary for police to have a warrant to enter a residence when the circumstances suggest a reasonable belief that a person within the premises is in need of aid. See Stewart v. State, 688 N.E.2d 1254, 1257 (Ind. 1997). And we have previously recognized that there can be a reasonable belief that a person may be in need of aid within a premises when the occupant has been missing. Most cases upholding this exception have found that a person's absence, combined with other circumstances, have created the exigent circumstances necessary for a warrantless search. For example, in Geimer v. State, this court upheld an entry upon a "reasonable belief that a person within the premises [was] in need of aid" where "it was unlike [the victim] to leave town for a period of time without notifying anyone." 591 N.E.2d 1016, 1019 (Ind.1992). Other courts have also recognized that warrantless searches may be appropriate to seek an occupant reliably reported missing. See 3 Wayne R. LaFave, Search and Seizure § 6.6(a) (1996) at 396; United States v. Presler, 610 F.2d 1206 (4th Cir.1979) (upholding warrantless search where defendant's landlady had not seen him for some time and an unusual odor was emanating from his room); State v. Blades, 225 Conn. 609, 626 A.2d 273 (1993) (upholding warrantless search where victim's relatives worried about her whereabouts and she had been involved in a troubled marriage and her mother believed her husband had harmed her).

The circumstances of this case support Wilson's search of Defendant and Carter's home. The trial court found that "[t]he facts within the knowledge of Detective Dale Wilson ... constitute probable cause to believe that [Carter] was upon the premises ... and may have been in need of aid." Carter had reliably been reported missing. He suffered from various ailments that kept him in or near his residence, making it reasonable to think that he was at home. Furthermore, due to his disabilities, it was reasonable to think that Carter might be in imminent need of medical assistance.

Although the warrant requirement is relaxed somewhat where, as in this case, there is a legitimate missing persons claim, there is no unlimited "missing persons" exception. Even in a missing persons case, there must be exigent circumstances to justify a warrantless search. In this case, it appears that Detective Wilson was legitimately searching for a missing person that he thought might be in need of aid. When he found evidence of foul play, he left the residence and turned the case over to homicide detectives. And as previously noted, before re-entering Carter's residence to search for evidence of a crime, the officers obtained a search warrant.

II

Defendant contends that the trial court erred in allowing the State to present evidence that Defendant refused to give a videotaped statement. Appellant's Br. at 22.

The police interviewed the Defendant after reading him his Miranda rights. Defendant provided a substantial amount of information about the murder and the events afterward. At the conclusion of the interview, the police asked Defendant to make a videotaped statement and Defendant declined.

Prior to the start of the trial, the trial court granted Defendant's request to bar any reference to his refusal to give a videotaped statement. During trial, defense counsel cross-examined the State's witness, Detective Hamilton, regarding Defendant's confession. The questions involved the facts that Defendant had admitted to the police:

[Defense Counsel]: And he freely admitted to you, did he not, that he had participated in afterwards, the concealment of Mr. Carter's body?

[Detective Hamilton]: That is correct.

(R. at 508.)

During re-cross-examination, defense counsel continued to elicit information regarding Defendant's disclosure of information to the police:

[Defense Counsel]: And he freely told you about his involvement and what he had done after Bennett had shot Carter?

[Detective Hamilton]: Yes.

[Defense Counsel]: Told you he had went and rented an air hammer.

[Detective Hamilton]: True.

[Defense Counsel]: Told you he had sold the shotgun to Roger Rice.

[Detective Hamilton]: True.

[Defense Counsel]: Told you everything about what had happened that turned out to be true, right?

[Detective Hamilton]: Yes.

(R. at 514-15.)

After this cross examination, the court reconsidered Defendant's initial request to exclude from trial the fact that Defendant had refused to record his statement. The trial court decided that defense counsel's cross-examination had opened the door to the otherwise excluded evidence.

A person in custody who is questioned by the police has the right to remain silent and, in general, a criminal defendant may not be penalized at trial for invoking the right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 619-620, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)

; U.S. Const. amend. XIV. Even when an individual waives that right, the right may be invoked at any stage of the interrogation. See Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Using a defendant's post-Miranda silence to impeach a defendant at trial violates the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S. at 619 620, 96 S.Ct. 2240.³

Although evidence of a defendant's post-Miranda silence is generally not admissible, the defendant may open the door to its admission. The Doyle Court acknowledged this in its decision, stating "[i]t goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest." Doyle, 426 U.S. at 619-20, 96 S.Ct. 2240. As we explained in Willsey v. State:

[T]he

...