Bailey v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

John M. Plummer, III Steve Carter
Bedford, Indiana Attorney General of Indiana

Robin Hodapp-Gillman
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

Michael D. Bailey, )
)
Appellant (Defendant Below), )
)
v. ) No. 47S00-0103-CR-167
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE LAWRENCE SUPERIOR COURT
The Honorable William G. Sleva, Judge
Cause No. 47D02-9807-CF-521

March 12, 2002

SHEPARD, Chief Justice.

A jury found Michael D. Bailey guilty of murder and aggravated
battery. He appeals, arguing that the trial court erred in admitting
several statements made at the scene of the crime and in sentencing him to
consecutive, maximum sentences.

Facts & Procedural History

On the evening of July 20, 1998, Robin Hudson was working in her home
while her roommate Carla Godsey mowed the lawn. At about 8 p.m., Bailey
arrived armed with a shotgun. Bailey had formerly been her live-in
boyfriend; he said he wanted to retrieve some of his property.

Ignoring Hudson’s requests that he wait outside, Bailey entered the
home and struck Hudson in the mouth with his fist, knocking her to the
floor face-down. Bailey then sat on Hudson’s back, told her to shut up,
and tried to bind her hands. Unable to do so, Bailey continued beating her
with his fists, a stick, and a telephone receiver. At one point he
attempted to pull a fish aquarium down on top of her. Bailey finally
stopped the beating and apologized to Hudson.

After the attack, Bailey told Hudson to clean up, then picked up the
shotgun and went outside. He returned a few minutes later and told Hudson,
“I killed Carla.” (R. at 1120.) Hudson looked outside and saw Godsey
lying on the ground beside the lawnmower. Bailey then directed Hudson to
take a shower and get cleaned up so she could help him hide Godsey’s body.
Bailey went back outside, at which point Hudson called 911.

Hudson told the 911 dispatcher that she had been beaten and someone
had been killed, then hung up when Bailey came back inside. When Bailey
was out of sight, Hudson again called 911. A short time after her second
call, the police arrived. Hudson ran out the front door towards the
officers.

Officers Lonnie Johnson, Brian Allender, and Mike Terry had been
dispatched to investigate a female requesting assistance and a possible
murder. Upon arriving on the scene, they saw Hudson running out of the
house covered with blood. The officers then ordered Bailey out of the
house. Bailey came out, and Officer Allender handcuffed him.

Based on the report of another possible victim, Officer Allender asked
Bailey if anyone else was in the house and the whereabouts of the other
victim. Bailey replied, “She’s over by the lawnmower.” (R. at 1234.)
Allender found Godsey’s body on the ground near the lawnmower. He then
read Bailey his Miranda rights and placed him in a patrol car.

Shortly thereafter, Detective Phillip Wigley arrived on the scene and
introduced himself to Bailey. Prior to any questioning, Bailey said, “I
think my hand’s broke.” (R. at 1512.) Wigley asked Bailey, “How did your
hand get broke?”, and Bailey replied, “I hit somethin’. I don’t know
what.” (Id.) Wigley then asked to see Bailey’s hand and Bailey said,
“Well, I don’t know what happened.” (Id.) After this exchange, Wigley
again informed Bailey of his Miranda rights. Bailey said that he
understood these rights and signed a written waiver.

Wigley began questioning Bailey. At one point, Bailey stated, “I may
need a what do you call it . . . a appointed . . . oh appointed attorney.”
(R. at 1528.) Wigley explained that all Bailey had to say was, “I want an
attorney,” and the questioning would cease, to which Bailey replied,
“[O]kay.” (Id.) Wigley then asked Bailey if he wanted an attorney or if
he wanted to talk. Bailey responded, “I can talk to you, but I don’t
know.” (Id.) Wigley again explained the situation and Bailey replied,
“[O]kay.” (R. at 1528-29.) Wigley resumed questioning. Bailey signed a
written statement after the conclusion of his videotaped conversation with
Wigley.

The State charged Bailey with murder,[1] aggravated battery,[2] and
two counts of battery.[3] Prior to trial, Bailey moved to suppress his
statement “She’s over by the lawnmower” and all statements to Detective
Wigley. The trial court denied the motions and allowed this testimony over
Bailey’s timely objections.

A jury found Bailey guilty of all counts. The trial court vacated the
battery convictions and sentenced Bailey to consecutive terms of sixty-five
years for murder and twenty years for aggravated battery.

Statements Made Prior to Signed Waiver

Bailey first argues that his statement, “She’s over by the lawnmower,”
should have been suppressed because it was a result of a custodial
interrogation prior to the administration of Miranda warnings.
(Appellant’s Br. at 12.) The State responds that the questioning falls
within the “public-safety” exception to Miranda. (Appellee’s Br. at 8.)

Statements that are the product of custodial interrogation prior to
the advisement of the Fifth Amendment guarantee against self-incrimination
are generally inadmissible. Miranda v. Arizona, 384 U.S. 436, 444 (1966);
Poulton v. State, 666 N.E.2d 390, 392 (Ind. 1996). Nevertheless, in Price
v. State, 591 N.E.2d 1027, 1030 (Ind. 1992), this Court recognized that a
public-safety exception to the Miranda rule exists when officers “have an
immediate concern for the safety of the general public in that an armed
weapon remained undiscovered.”

Our ruling in Price was similar to the U.S. Supreme Court’s decision
in New York v. Quarles, 467 U.S. 649 (1984), in which a suspect in an armed
rape was found wearing an empty shoulder holster. Id. at 651-52. Police
asked the suspect where the weapon was before providing Miranda warnings.
Id. at 652. The Court held that overriding concerns for the public safety
justified the failure to first advise the suspect of his Miranda rights.
Id. at 657-58.

Though Officer Allender’s concern was not for the general public’s
safety, as it was in Price and Quarles, it was for the safety of another
possible victim. There is a fair amount of authority holding that
questioning for the limited purposes of locating or aiding a possible
victim falls within the “public safety exception” to Miranda. See United
States v. Padilla, 819 F.2d 952 (10th Cir. 1987) (shooting suspect’s
response to pre-Miranda questions about the possibility of other victims
held admissible); Smith v. State, 646 So. 2d 704 (Ala. Crim. App. 1994)
(suspect’s response when officer asked whether suspect had been shot held
admissible); State v. Ramirez, 871 P.2d 237 (Ariz. 1994), cert. denied, 513
U.S. 968 (1994) (suspect’s response to officer’s pre-Miranda questions as
to the condition of others at the scene held admissible); State v. White,
619 A.2d 92 (Me. 1993) (suspect’s response to officer’s pre-Miranda
questions about the location of a victim held admissible); State v. Orso,
789 S.W.2d 177 (Mo. Ct. App. 1990), cert. denied, 499 U.S. 951 (1991)
(suspect’s response to pre-Miranda question as to the location of a
potential victim held admissible).

Here, based upon the dispatch, the officers believed two victims were
involved in the incident. Arriving at the scene, they saw only one victim,
Hudson. Even after Bailey was apprehended, the second victim’s location
and condition were unknown.

Officer Allender testified that he questioned Bailey out of concern
for the other victim’s safety. The longer it took the officers to locate
Godsey, the longer she would go without potentially life-saving medical
attention. Attending to Godsey’s safety was more urgent than informing
Bailey of his Miranda rights. See Quarles, 467 U.S. at 657 (“[H]ad Miranda
warnings deterred [defendant] from responding to [the officer’s] question
about the whereabouts of the gun, the cost would have been something more
than merely the failure to obtain evidence useful in convicting
[defendant].”).

Moreover, Officer Allender’s questioning of Bailey, though clearly
custodial, was not the type of “interrogation” that Miranda contemplates.
“An interrogation occurs only when officers intend to elicit, by whatever
means, substantive evidence concerning criminal activity.” Nading v.
State, 377 N.E.2d 1345, 1348 (Ind. 1978). Here, Allender limited his
initial questions to the location of the potential victim and immediately
advised Bailey of his rights once the location was ascertained.

The trial court did not err in admitting Bailey’s statement, “She’s
over by the lawnmower.”

Bailey next contends that his statements regarding his injured hand
should not have been admitted into evidence because these statements were
made before the administration of Miranda warnings. (Appellant’s Br. at
23.) The record does not support Bailey’s contention. Officer Allender
informed Bailey of his Miranda rights after discovering Godsey’s body, (R.
at 1236-37), and Detective Wigley was aware that Bailey had been advised of
his rights, (R. at 929, 933).

Statements Made After Signed Waiver

Bailey next argues that the State failed to prove both that he waived
his rights knowingly and voluntarily, and that his statements were
voluntary. (Appellant’s Br. at 26-27.) Bailey claims he was unable to
consent to the waiver and that his statements were involuntary because he
ingested prescription medications and had some degree of mental illness.
(Id.)

The U.S. Supreme Court has held that “coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary’
within the meaning of the Due Process Clause of the Fourteenth Amendment.”
Colorado v. Connelly, 479 U.S. 157, 167 (1986). A defendant’s statements
are not voluntary when induced by violence, threats, promises or other
improper influences. Crain v. State, 736 N.E.2d 1223, 1231 (Ind. 2000).

Both Officer Allender and Detective Wigley advised Bailey of his
rights, and Bailey signed a written waiver. There is no evidence that
Wigley coerced, threatened, promised, or in any other way improperly
influenced Bailey. The trial court did not err in admitting the statements
into evidence.

III. Sixth Amendment Right to Counsel

Bailey also contends that his Sixth Amendment right to counsel was
violated when Detective Wigley continued questioning after Bailey said, “I
may need a what do you call it . . . a appointed . . . oh appointed
attorney.” (Appellant’s Br. at 25; R. at 1528.)

To invoke the right to counsel, “It is not enough that the defendant
might be invoking his rights; the request must be unambiguous.” Taylor v.
State, 689 N.E.2d 699, 703 (Ind. 1997) (emphasis added). An officer need
not cease questioning when an accused makes an equivocal statement
requesting counsel, nor is she required to ask clarifying questions to
determine whether the accused wants counsel. Id.; see also Jolley v.
State, 684 N.E.2d 491, 492 (Ind. 1997) (citing Davis v. United States, 512
U.S. 452, 459 (1994)).

Bailey’s statement was equivocal. See Taylor, 689 N.E.2d at 703
(defendant did not invoke right to counsel when he said, “I guess I really
want a lawyer, but, I mean, I’ve never done this before so I don’t know.”).

The transcript of Bailey’s interview indicates that some of Bailey’s
words after the statement about counsel were indiscernible. (R. at 1528.)
However, although he was under no duty to do so, Detective Wigley responded
to the statement by explaining how Bailey could invoke his right to
counsel. Wigley told Bailey that all he needed to say was, “I want an
attorney,” and questioning would cease. (R. at 1528.) Bailey said he
understood this right, yet never equivocally requested counsel.
Accordingly, the trial court did not err in admitting Bailey’s statements
to Detective Wigley.

Sixty-Five Years, Plus Twenty

Bailey challenges his sentence, saying the trial court improperly
considered aggravating and mitigating circumstances, and that the sentence
was manifestly unreasonable. (Appellant’s Br. at 33-40.)

A. Aggravating and Mitigating Factors. The trial court found three
aggravating circumstances: (1) Bailey’s prior criminal activity; (2) his
need for correctional or rehabilitative treatment best provided by a penal
facility beyond the presumptive sentence; and (3) the nature and
circumstances of the crime. The sole mitigating factor was Bailey’s long-
term emotional and psychological problems.

Sentencing lies within the discretion of the trial court. Charlton v.
State, 702 N.E.2d 1045 (Ind. 1998). “When enhancing a sentence, a trial
court must: (1) identify significant aggravating and mitigating
circumstances; (2) state the specific reasons why each circumstance is
aggravating or mitigating; and (3) evaluate and balance the mitigating
against the aggravating circumstances to determine if the mitigating offset
the aggravating circumstances.” Id. at 1052 (citations omitted).

The State produced evidence that Bailey had a history of marijuana
use, and the trial court was entitled to find this an aggravating
circumstance under Ind. Code Ann. § 35-38-1-7.1(b)(2) (West 1998). A court
may consider evidence that a defendant committed crimes at an earlier date
as support for a finding that the defendant has a history of criminal
activity, even if those acts were not reduced to judgment. Griffin v.
State, 402 N.E.2d 981, 983 (1980).

The trial court next found Bailey’s need for correctional and
rehabilitative treatment at a penal facility for longer than the
presumptive sentence to be an aggravator. Ind. Code Ann. § 35-38-1-
7.1(b)(3) (West 1998). To support such a finding, a court needs to explain
why the defendant requires treatment beyond the presumptive sentence.
Walter v. State, 727 N.E.2d 443, 447 (Ind. 2000) (citations omitted).
Considering the mental and psychological history of Bailey, the trial court
determined that his problems had not been “cured,” and that the presumptive
sentence would not suffice. (R. at 2736.) It concluded that the events in
Bailey’s life leading up to the crime were “fairly common” and would
continue throughout his life. (R. at 2733-34.) These observations
articulated adequate grounds to support this aggravator.

The trial court also appropriately considered the nature of the crime
as an aggravating circumstance. Rascoe v. State, 736 N.E.2d 246 (Ind.
2000). Bailey brutally and repeatedly struck Hudson with his fists, a
stick, and even a phone. He attempted to bind her hands and drop an
aquarium on her. “Infliction of grave injury and pain over an extended
period of time is sufficient to support an aggravating factor.” Penick v.
State, 659 N.E.2d 484, 488 (Ind. 1995) (citation omitted).

Moreover, Bailey victimized two people. See Pyle v. State, 493 N.E.2d
452, 453 (Ind. 1986) (two victims found to be an aggravating circumstance).
In addition to beating Hudson, Bailey shot Godsey twice at close range
with a shotgun and then wrapped an extension cord around her neck in an
apparent attempt to drag and conceal her body. The brutality, length, and
scope of the attack warranted finding the nature of the crime an
aggravating circumstance.

We now turn to mitigating factors. While Bailey points to several
factors that could have affected his mental state at the moment of the
offense,[4] the trial court has discretion in evaluating mitigating factors
and must only include those it deems significant. Battles v. State, 688
N.E.2d 1230 (Ind. 1997). The trial court acted within its power in finding
only the long-term emotional and mental problems a significant mitigating
factor.

B. Manifestly Unreasonable. Bailey also argues that his eighty-five
year sentence is manifestly unreasonable. (Appellant’s Br. at 33.) This
Court has the constitutional authority to review and revise sentences when
the sentence is “manifestly unreasonable in light of the nature of the
offense and the character of the offender.” Noojin, 730 N.E.2d at 679
(quoting Ind. Appellate Rule 17(B)).[5]

In light of the brutal nature of Bailey’s attacks on Hudson and
Godsey, we cannot say that an eighty-five year sentence was manifestly
unreasonable.

Conclusion

We affirm the judgment of the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code Ann. § 35-42-1-1(1) (West 1998).
[2] Ind. Code Ann. § 35-42-2-1.5 (West 1998).
[3] Ind. Code Ann. § 35-42-2-1(3) (West 1998).
[4] Bailey points to his non-violent character, his lack of a criminal
record, his year-long battle with depression, his deteriorating mental
health, the recent death of his aunt, the breakup with Hudson, a panic
attack, a car accident, and his thoughts that Hudson and Godsey were having
an affair. (Appellant’s Br. at 38-39.)
[5] Now App. R. 7(B).