West v. State

• Decision Date: 24 September 2001
• Docket Number: No. 49S00-0001-CR-38.,49S00-0001-CR-38.
• Parties: Michael WEST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

755 N.E.2d 173

Michael WEST, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-0001-CR-38.

Supreme Court of Indiana.

September 24, 2001.

Katherine A. Cornelius, Marion County Public Defenders Office, Indianapolis, IN, Attorney for Appellant.

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

Michael West was convicted of felony murder and robbery. He was sentenced to life imprisonment without parole for felony murder and a twenty-year consecutive sentence for robbery. In this direct appeal, West raises five issues for review: (1) whether the Fourth Amendment requires the suppression of blood evidence and a knife obtained from his vehicle, or the suppression of West's hair and blood samples; (2) whether the trial court abused its discretion in the admission of certain evidence; (3) whether the trial court abused its discretion by improperly restricting West's cross-examination of three witnesses; (4) whether the evidence was sufficient to convict West of felony murder; and (5) whether West's sentence was proper. We affirm the trial court.

Factual and Procedural Background

In the early morning hours of April 29, 1998, police were dispatched to a Clark service station in Indianapolis which customers had found unattended. In the back room, police discovered the body of Carla Hollen. She had been stabbed over fifty times. The cash register tape showed that the register had been opened at 2:14 a.m. and $274.50 was missing.

West was Hollen's co-worker. On April 28, Hollen was scheduled to work from 10:00 or 10:30 p.m. until 6:00 a.m. West had worked a shift starting at 3:30 p.m. Pizza was delivered to the station between 11:30 and 11:45 p.m. and West's fingerprint was found on a pizza box in the station. Hollen's blood was found on the horn of West's Blazer, and shoeprints matching Caterpillar boots—the type West was known to wear—were found imprinted in Hollen's blood near her body. According to Jimmy Collins, whom West owed money, earlier that day West gave him $10 and two cartons of cigarettes, saying that was all he had. Shortly after the robbery, West bought crack cocaine from Roy Rogers for $275.

West was arrested in September 1998. While incarcerated in Marion County Jail, West bragged to inmate James Warren that he and his cousin had robbed the Clark station and that he had tried to "stab [Hollen's] breasts off." A deputy sheriff assigned to transport prisoners, Brett Larkin, reported that West said, "I'm going to kill him, too," while referring to a picture of Warren among a pile of legal papers West was carrying.

A jury convicted West of murder, felony murder, and robbery as a Class A felony in September 1999. The trial court vacated the murder conviction and reduced the robbery conviction to a Class B felony.

I. Search and Seizure Issues

A. Search and Seizure of West's Blazer

West challenges the search of his Blazer that revealed Hollen's blood on the horn and a knife in the back seat. Two days after the crime, on May 1, 1998, police officers arrived at his home between 4:00 and 5:00 a.m. The Blazer was hauled away by a tow truck before West accompanied officers downtown to sign a consent form and answer questions. West was questioned by two officers in a small room with no windows and "handcuffs were within eyesight and readily available."

The State contends that West orally consented at his house to the search and processing by the crime lab of his vehicle. Later, at the police station, he signed a form entitled "Permission to Search (Not in Custody)," which also authorized seizure of items the police "deem[ed] as evidence or pertinent to their investigation." The form stated in capital letters at the bottom: "This permission is given knowingly and voluntarily upon full knowledge of my right to refuse such permission." The State also notes that West's statement was a witness statement (i.e., West was interviewed only as an employee of the Clark station), that West was not read his rights or handcuffed, and that at the conclusion of the interview he was driven home. One of the detectives testified that, if West had asked to leave, he would have been free to do so. The interview did not last longer than an hour, and West was not arrested until four months later.

West argues that he was entitled to the advice of counsel before consenting to the search. West cites Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), where this Court, citing both the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Indiana Constitution, held:

[A] person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent. This right, of course, may be waived, but the burden will be upon the State to show that such waiver was explicit....

Id. at 29, 323 N.E.2d at 640. Pirtle emphasized "the importance of the right to counsel in protecting other constitutional rights." Id. at 28, 323 N.E.2d at 640. In Pirtle, the defendant consented to a search of his apartment after having been Mirandized and after his request for an attorney. Pirtle noted that the defendant had consented to a search at a time police no longer possessed any authority to speak with him. Id. at 24-25, 323 N.E.2d at 638.

The State contends that West was not "in custody" for purposes of the Fourth Amendment or Article I, Section 13 such that the right to the advice of counsel had attached. Whether a defendant is in custody for purposes of the Fourth Amendment and Article I, Section 13 is governed by an objective test. Ultimately, the question is whether a reasonable person under the same circumstances would have believed that he was under arrest or not free to resist the entreaties of the police. Joyner v. State, 736 N.E.2d 232, 241 (Ind.2000); Jones v. State, 655 N.E.2d 49, 55 (Ind.1995) (citing Florida v. Bostick, 501 U.S. 429, 433-34, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). Several circumstances have been held relevant to this issue: whether the defendant is read his Miranda rights or handcuffed or restrained in any way, and the manner in which the defendant is interrogated, Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996), whether a person freely and voluntarily accompanies police officers, Williams v. State, 611 N.E.2d 649, 651-52 (Ind.Ct.App.1993)trans. denied, at what point the defendant is arrested for the crime under investigation, id. at 652, the length of the detention, Cooley v. State, 682 N.E.2d 1277, 1279 (Ind.1997), and the police officer's perception as to the defendant's freedom to leave at any time, Joyner, 736 N.E.2d at 241.

We have no findings from the trial court on this issue. Although no single circumstance is dispositive, we agree with the State that the record supports the trial court's admission of the evidence on the ground that West was not in custody when he consented to the search. Detective Timothy Knight testified at trial that West agreed to speak with the police on May 1. However, according to Knight, West had been difficult to reach. When he learned West was at home in the early morning hours of May 1, the decision was made to call on him. Unlike the defendant in Torres, West was never handcuffed or otherwise restrained. Although the police went to West's home at a very early hour, there is nothing in the record controverting the State's evidence that West consented initially at his home and then voluntarily accompanied police to the station to sign the consent form. Thus, West had already orally consented to the search of his vehicle when the vehicle was impounded, and West followed up by giving his written consent on a form reciting that he was not "in custody." At police headquarters, West was questioned for about an hour and was either transported back to his home by police or picked up by his girlfriend. His arrest did not come until four months later.

West urges that, even if he was not in custody, his consent was involuntary, a product of mere acquiescence to the authority of the police. In Darnell v. State, this Court held that consent to a warrantless search is valid unless "procured by fraud, duress, fear, intimidation, or where it is a mere submission to the supremacy of the law." 435 N.E.2d 250, 254 (Ind.1982). "Voluntariness is a question of fact to be determined from all of the circumstances." Id. As discussed above, there is nothing in the record to indicate that West's consent to the search was involuntary. After orally consenting to the search of the vehicle, West agreed to accompany officers to the police station where he signed a written waiver and made a witness statement. Thus, West's claim of involuntariness of his consent also fails.¹

B. Blood and Hair Samples

West also objects to the admission of blood and hair samples. West gave his consent to the taking of the samples during a second interview on June 25, 1998, over a month before he was arrested. West argues that he should have been given Miranda warnings prior to giving his consent and advised of his right to an attorney. The State counters that West again signed a "Permission to Search (Not in Custody)" form, which stated that West was aware of his right to refuse permission for the search. West alleges nothing that would indicate that he was in custody or otherwise entitled to be given the advice of counsel before consenting.² The admission of the blood and hair samples was proper.

II. Evidentiary Challenges

A. The Pizza Box

West first challenges the admission into evidence of his fingerprint from the pizza box found at the scene. Pizza was delivered to the Clark station at 11:30 p.m. the evening of the murder. West concedes the relevancy of the pizza box, but argues that "the fingerprint does not prove he was present at the time of the...