Weaver v. State, 06S00-9012-CR-733

Citation583 N.E.2d 136
Case DateDecember 20, 1991
CourtSupreme Court of Indiana

Page 136

583 N.E.2d 136
Steven WEAVER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 06S00-9012-CR-733.
Supreme Court of Indiana.
Dec. 20, 1991.

Page 138

Allen F. Wharry, Martin & Wharry, Lebanon, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Steven Weaver was found guilty by a jury of murder, a felony. Ind.Code Section 35-42-1-1(1) (West Supp.1991). He was sentenced to fifty-five years in prison.

Weaver brings this direct appeal, raising four issues:

I. Whether the trial court erred in admitting statements Weaver made to the police;

II. Whether the trial court erred in admitting evidence of another of Weaver's crimes;

III. Whether the State sufficiently proved proper venue; and

IV. Whether the trial court erred in instructing the jury.

In November 1987, the body of David "Pigpen" Lakes, the victim in this case, was found in Boone County. Lakes was president of the Outlaws Motorcycle Club. He had been shot in the head at close range. The police were unsuccessful in locating his killer.

In the summer of 1989, appellant Weaver shot his wife six times. She informed the police that Weaver shot her and she also told them about Weaver's involvement in Lakes' death. After the police gleaned this information, Weaver, accompanied by counsel, surrendered to the Indianapolis police for the shooting of his wife. His counsel advised the police that Weaver would not be making a statement; counsel departed shortly thereafter.

After being informed that he also was to be arrested for the murder of Lakes, Weaver told the police he wanted to talk. He ultimately gave three incriminating statements describing in detail his murder of Lakes. Weaver also gave an interview to a television reporter while he was showing the police where he had disposed of Lakes' body. He told the reporter he killed Lakes and briefly described the murder.

Weaver believed Lakes had been stealing property and money which belonged to Weaver's brother "Wrongway." Weaver also discovered that Lakes planned to kill Wrongway, so he decided to kill Lakes first. Weaver and his sister-in-law, Christina Weaver, invited Lakes to her Indianapolis home ostensibly to remove money from a floor safe. When Lakes bent down to open the safe, Weaver shot him in the head with a .45. Weaver and Christina disposed of Lakes' body in Boone County and threw the gun into the White River.

I. Admissibility of the Statements

Weaver argues his three statements were improperly admitted at trial because they were obtained in violation of his fifth and sixth amendment rights. He contends the police questioned him about Lakes' murder after learning that he was represented by counsel and that he did not want to make a statement concerning the shooting of his wife. In the statements, Weaver described in consistent detail his murder of Lakes.

To protect the privilege against self-incrimination guaranteed by the fifth amendment, the U.S. Supreme Court has held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After an accused has requested counsel, officials may not reinitiate questioning until counsel has

Page 139

been made available to the accused. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). When an accused has invoked his fifth amendment right to counsel regarding an offense, police may not approach him concerning any other offenses unless counsel is present. McNeil v. Wisconsin, --- U.S. ----, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

The Edwards rule ensures that a statement made in subsequent police interrogations is not the result of coercive pressure. Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). The rule thus applies to an accused who requests an attorney "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id., 111 S.Ct. at 489 (emphasis added). "Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities...." Id., 111 S.Ct. at 492.

The sixth amendment right to counsel attaches " 'at or after the initiation of adversary judicial criminal proceedings.' " McNeil, 111 S.Ct. at 2207 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984)). Unlike the fifth amendment right, this right is offense specific; it is not invoked for all future prosecutions when invoked for one charge. McNeil, 111 S.Ct. 2204. A defendant can waive his sixth amendment protection by initiating the conversation or discussion with the authorities. See Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) (Edwards rule applies in post-arraignment situations).

We turn first to appellant's fifth amendment claim. Weaver gave the first statement on the evening of August 17. He arrived at the police station with his attorney to surrender for shooting his wife. His attorney indicated that Weaver would not be making a statement, and then left the station. Weaver had thus invoked his fifth amendment right, and the police were barred from approaching Weaver regarding any offense. 1

Weaver, however, initiated the statement and waived his fifth amendment protections. An officer went to get an arrest slip for Weaver. While she was gone, a second officer informed Weaver he also was going to be arrested for the murder of David Lakes. Weaver then stated to the officer that he wanted to talk. The officer obtained a request to make a statement and waiver of rights form. He read the rights form to Weaver, and Weaver signed it. In addition to informing Weaver of his rights, the form in part stated: "I hereby acknowledge that I at one time requested a lawyer, but now I wish to WAIVE that RIGHT. I further acknowledge that I have INITIATED this interview and that I have REQUESTED to make a statement." Record at 930.

Weaver never mentioned an attorney throughout the entire statement. There was no evidence of any threats or coercion against Weaver by the officers, and all Weaver's requests to the officers were granted. The officers testified that Weaver was calm, cooperative, and had no difficulty speaking to them. The statement was not taken in violation of Weaver's fifth amendment rights.

This analysis applies to Weaver's second statement as well. Later the same evening, while Captain Hudson was driving Weaver from Indianapolis to Boone County, Weaver began talking about the murder. Captain Hudson reminded Weaver of his rights and reminded him that he did not have to make a statement. Weaver indicated that he understood, and continued to

Page 140

speak. There was no error in the admission of this statement.

Weaver contends the third statement he gave to the police was erroneously admitted because it was taken in violation of his sixth amendment right to counsel. On August 18, 1989, Weaver appeared for his initial hearing on the murder of Lakes, and on August 21 he requested and received court appointed counsel. Weaver's sixth amendment right thus had attached prior to August 22, 1989, the date of the third statement. See McNeil, 111 S.Ct. 2204.

Weaver, however, initiated this videotaped statement. He indicated he wanted to make a statement, and he read and signed another advice of rights form. Weaver told the police he wanted to talk and that he did not care what his attorney told him. It is clear from the statement itself that Weaver was not coerced or threatened by the officers. When he declined to answer particular questions, the police did not pursue those further. Weaver stated that he was satisfied with his statement, and that he had no problems with the statement (although he acknowledged his attorney might). He stated he was advised of...

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