Attorney for Appellant
Eric J. Benner
Richards, Boje, Pickering, Benner & Becker
Noblesville, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
HERSCHEL S. CRAIN, JR.
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
)
)
)
) Supreme Court No.
) 29S00-9803-CR-180
)
)
)
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Jerry M. Barr, Judge
Cause No. 29D02-9701-CF-0001
ON DIRECT APPEAL
October 20, 2000
SULLIVAN, Justice.
Defendant Herschel Crain was convicted of beating and killing his wife
after confessing that he killed her two years earlier and then buried her
body. He appeals claiming that there was insufficient evidence to support
his murder conviction. He also challenges several rulings by the trial
court, including one that allowed the prosecutor to use the victim’s skull
as evidence, in addition to challenging the severity of his sentence.
Finding the evidence sufficient to support his convictions and the trial
court’s rulings otherwise proper, we affirm the convictions. We remand
this case to the trial court for reconsideration of the sentence in light
of the statute then in effect.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4(A)(7).
Background
The facts most favorable to the verdict show that near the end of
October 1994, Defendant Herschel Crain and his wife, Dorothea (“Dot”)
Crain, were arguing in Defendant’s room in the Carmel Motel. During this
argument, Defendant struck Dot, breaking several of her ribs and causing
her to fall down and crack her skull. Defendant left his injured wife in
this motel room, returning several days later to find her dead. He then
buried her body behind the motel, and denied any involvement in her
disappearance when questioned by police about the matter.
Over two years later on January 4, 1997, Defendant was arrested in
Kokomo, Indiana, on unrelated criminal charges. During his incarceration
at the Howard County Criminal Justice Center, Defendant admitted
responsibility for his wife’s death in a taped interview to Kokomo
Detective Douglas Mason, but he claimed “it was accidental.” (R. at 1039,
1041, 1051, 1052). Soon thereafter, Defendant was transported to Carmel
where he led Carmel Detective Charlie Harting to an area behind the Carmel
Motel; there, police officials discovered and removed Dot Crain’s body. An
autopsy and forensic tests performed on the body indicated that Dot’s death
was a homicide.
The State charged Defendant with Murder,[1] Aggravated Battery, a
class B felony,[2] and with being a habitual offender.[3] A jury found
Defendant guilty on all counts. The trial court merged the aggravated
battery conviction with the murder conviction and sentenced Defendant to 60
years for the murder and 30 years for the habitual offender adjudication
for a total sentence of 90 years. Defendant challenges the sufficiency of
the evidence supporting his conviction in addition to several procedural
and evidentiary rulings by the trial court. We review Defendant’s claims
in the order presented in his brief and will recite additional facts as
needed.
I
Defendant first contends that the trial court committed reversible
error by denying his motion to suppress his statements to Detectives Mason
and Harting. He argues these statements should have been suppressed
because he did not waive his Miranda rights and his confession was not made
voluntarily.
Several standards govern our review. First, the State bears “the
burden of proving beyond a reasonable doubt that the defendant voluntarily
and intelligently waived his rights, and that the defendant’s confession
was voluntarily given.” Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000)
(citing Berry v. State, 703 N.E.2d 154 (Ind. 1998) (citing in turn Owens v.
State, 427 N.E.2d 880 (Ind. 1981))). Second, where that standard has been
met, “[t]he decision whether to admit a confession is within the discretion
of the trial judge and will not be reversed absent an abuse of that
discretion.” Jones v. State, 655 N.E.2d 49, 56 (Ind. 1995), reh’g denied.
And third, when reviewing a challenge to the trial court’s decision to
admit a confession, we do not reweigh the evidence but instead examine the
record for substantial, probative evidence of voluntariness. Carter v.
State, 730 N.E.2d 155, 157 (Ind. 2000).
A
We first address whether Defendant waived his Miranda rights. A
waiver of one’s Miranda rights occurs when a defendant, after being advised
of those rights and acknowledging an understanding of them, proceeds to
make a statement without taking advantage of those rights. See Speed v.
State, 500 N.E.2d 186, 188 (Ind. 1986). In addition to the required
Miranda advisement, a defendant’s self-incriminating statement must also be
voluntarily given. See Gregory v. State, 540 N.E.2d 585, 592 (Ind. 1989);
see also Dickerson v. United States, 120 S. Ct. 2326, 2446 (2000) (“The
requirement that Miranda warnings be given does not, of course, dispense
with the voluntariness inquiry.”). In judging the voluntariness of a
defendant’s waiver of rights, we will look to the totality of the
circumstances, see Allen v. State, 686 N.E.2d 760, 770 (Ind. 1997), cert.
denied, 525 U.S. 1073 (1999), to ensure that a defendant’s self-
incriminating statement was not induced by violence, threats, or other
improper influences that overcame the defendant’s free will, see Wilcoxen
v. State, 619 N.E.2d 574, 577 (Ind. 1993).
Here, the evidence supports the trial court’s finding that the State
proved beyond a reasonable doubt that Defendant was fully advised of his
Miranda rights and that he voluntarily waived those rights. During
Defendant’s incarceration at the Howard County Criminal Justice Center,
Detective Mason overheard Defendant telling jail officials that he was
trying to speak to someone about a murder. Detective Mason offered to
speak with Defendant and he accepted.
At the suppression hearing, the State produced a written transcript
of Defendant’s statement. Detective Mason began the interview by reading
Defendant his Miranda rights and then asking, “Do you understand these
rights? (R. at 1039.) Defendant answered, “Yes.” (Id.) And although he
initially demanded to speak to Detective Harting of the Carmel Police
Department,[4] Defendant soon described to Detective Mason how he
accidentally killed his wife in his motel room, during the course of an
argument where “[s]he hit [him] with a lamp and [he] popped her in the nose
and she died.” (R. at 1049.) Defendant then admitted that he dug a hole
behind the motel and “threw her ass in it.” (Id.)
After giving this statement to Detective Mason at approximately 1:30
a.m. on January 4, 1997, Defendant was immediately transported to Carmel to
assist authorities in searching the grounds around the motel. When
Defendant arrived in Carmel an hour or so later, his request to speak with
Detective Harting was granted. Detective Harting entered the Kokomo squad
car where Defendant was seated.
Detective Harting testified during the suppression hearing that he
first Mirandized Defendant before asking him to show the police officials
“where he had buried Dorothea.” (R. at 1071.) Defendant then responded,
“[L]et’s do it.” (Id.) After walking the grounds around the motel with
Detective Harting and another police officer and identifying where he
buried his wife, Defendant was transported back to the Howard County Jail
in Kokomo. The next day, Defendant reviewed and signed the transcript of
his jailhouse statement, individually initialing each page, including the
first page that contained Detective Mason’s transcribed verbal Miranda
warning.
As noted by Judge Barr in ruling on Defendant’s motion to suppress,
the State established that Miranda rights were read to Defendant on at
least two occasions in addition to his acknowledging the initial advisement
of rights when he initialed and signed the Kokomo interview transcript.
After reviewing the testimony at the suppression hearing and all materials
presented therein, this Court finds no evidence of violence, threats,
promises, or improper influence. The trial court did not abuse its
discretion in denying Defendant’s motion to suppress, as there was
substantial and probative evidence sufficient to establish voluntariness
beyond a reasonable doubt.
B
Defendant also argues he was intoxicated when he gave his statements
in addition to being incoherent and not in control of his faculties due to
the stress and anxiety of confessing. He maintains that under this
distraught state, he was “unconscious as what he was saying,” and that
therefore, the trial court abused its discretion in finding his confession
was made voluntarily. Appellant’s Br. at 23.
Coercive police activity is a necessary prerequisite to finding a
confession is not voluntary within the meaning of the Due Process Clause of
the Fourteenth Amendment. Light v. State, 547 N.E.2d 1073, 1077 (Ind.
1989) (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)), reh’g
denied. A confession is voluntary if, in light of the totality of the
circumstances, the confession is the product of a rational intellect and
not the result of physical abuse, psychological intimidation, or deceptive
interrogation tactics that have overcome the defendant’s free will. United
States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). The critical inquiry
is whether the defendant’s statements were induced by violence, threats,
promises or other improper influence. Page v. State, 689 N.E.2d 707, 710
(Ind. 1997).
Defendant claims that “both of his confessions were induced wholly by
his voluminous alcohol intake,” rendering his confessions involuntary.
Appellant’s Br. at 23. He also argues that he was placed on suicide watch
following his confession which proves his incoherent state. Intoxication
may be a factor in determining voluntariness. Brewer v. State, 646 N.E.2d
1382, 1385 (Ind. 1995) (citing Pettiford v. State, 619 N.E.2d 925 (Ind.
1993) (citing in turn Colorado v. Connelly, 479 U.S. 157 (1986))).
However, as we discussed in Part I-A, there is no evidence of violence,
threats, promises, or improper influence in this case.
We find that the trial court did not abuse its discretion in denying
Defendant’s motion to suppress because the record contains substantial
probative evidence sufficient to establish beyond a reasonable doubt that
he was able to appreciate his Miranda rights and give the voluntary
confessions, and there is no evidence of improper police influence or
coercion in obtaining the confessions.
II
Defendant maintains that the trial court committed reversible error
by not instructing the jury “regarding the voluntariness of [his]
confessions,” that is, how much weight it should give to his confessions.
Appellant’s Br. at 24.
Defendant neither tendered an instruction on voluntariness nor did he
object to the trial court’s failure to give such an instruction. Thus, he
has waived the issue on appeal. Brown v. State, 691 N.E.2d 438, 444 (Ind.
1998); see also Ind. Crim. Rule 8(B) (“No error with respect to the giving
of instructions shall be available as a cause for new trial or on appeal,
except upon the specific objections made as above required.”).
Furthermore, factors such as intoxication and mental impairment do not
render a self-incriminating statement involuntary per se and generally go
to the weight that should be accorded the statement and not to its
admissibility. See Battles v. State, 688 N.E.2d 1230, 1233 (Ind. 1997)
(collecting cases). It is the role of the trial court – not the jury – to
determine whether a statement made by a defendant is voluntary and
therefore admissible. See id.; Coates v. State, 534 N.E.2d 1087, 1093
(Ind.1989). After a statement is admitted into evidence, it then becomes
the duty of the jury to evaluate the credibility of the statement and to
decide how much weight to give it. See Battles, 688 N.E.2d at 1233.
Here, the trial court had already considered Defendant’s intoxication
and mental state and determined his statements were admissible as
“voluntarily and intelligently waive[d].” (R. at 1079.) The issue before
the jury was therefore credibility, not voluntariness. And we find that
the trial court’s preliminary instruction regarding witness credibility
adequately addressed this issue.
III
Defendant maintains that the trial court committed reversible error by
denying Defendant’s motion for change of venue based on pretrial publicity.
A trial court’s denial of a change of venue motion will be reversed
only for an abuse of discretion. See Elsten v. State, 698 N.E.2d 292, 294
(Ind. 1998). Showing potential juror exposure to press coverage is not
enough. See id. (citing Barnes v. State, 693 N.E.2d 520, 524 (Ind. 1998)).
Instead, the defendant “must demonstrate that the jurors were unable to
disregard preconceived notions of guilt and render a verdict based on the
evidence.” Id.
During the unrecorded voir dire of the potential jurors in this case,
the trial court discovered that a potential juror had been inadvertently
exposed to an article concerning Defendant’s case while perusing a
magazine, Indianapolis Monthly, in the waiting room. See discussion infra
Part IV. The trial court then conducted and recorded a partial voir dire
outside the presence of the venire panel, during which the potential juror
testified that he did not think any other prospective juror saw the
article, and that even after seeing the article, he could still judge the
case impartially.
While we are able to review the transcript of the aforementioned
partial voir dire and find no evidence of prejudice to Defendant, the
record before us does not contain a transcript of the full individual voir
dire. Defendant acknowledges in his brief, however, that each juror
ultimately selected to serve in this case did take an “oath to be fair and
impartial” and that the juror who was exposed to the Indianapolis Monthly
article concerning Defendant’s case “was not selected as a juror.”
Appellant’s Br. at 27-8. An abuse of discretion does not occur where voir
dire reveals that the seated panel was able to set aside preconceived
notions of guilt and render a verdict based solely on the evidence. See
Lindsey v. State, 485 N.E.2d 102, 106 (Ind. 1985).
Furthermore, Defendant has failed to direct us elsewhere in the record
to establish that the seated jurors were unable to be impartial due to the
pretrial media coverage. As we have previously held, this inability to
show prejudice is fatal to a defendant’s claim. See, e.g., Barnes, 693
N.E.2d at 524-25; White v. State, 687 N.E.2d 178, 179 (Ind. 1997); Owens v.
State, 659 N.E.2d 466, 475 (Ind. 1995). Defendant has failed to
demonstrate an abuse of the trial court’s discretion in denying his motion
for change of venue.
IV
In a related argument, Defendant maintains that the trial court should
have immediately dismissed the entire jury venire panel upon realization
that the previously mentioned magazine was found in the jury waiting room.
A trial court’s decision whether or not to dismiss a jury panel will
be reviewed for an abuse of discretion. See Thompson v. State, 492 N.E.2d
264, 272 (Ind. 1986), reh’g denied; Perry v. State, 471 N.E.2d 270, 275-76
(Ind. 1984). Only when evidence is presented which establishes the jury’s
inability to impartially try the case, will a dismissal be warranted. See
Perry, 471 N.E.2d at 275-76; cf. May v. State, 716 N.E.2d 419 (Ind. 1999)
(reversing the trial court for an abuse of discretion for not replacing a
juror who extended a personal invitation to his home to a key prosecution
witness during a lunch hour trial recess).
We first note that there is no showing in the record that Defendant
asked the trial court to dismiss the entire jury venire panel. As such,
this issue is effectively waived for appeal. Furthermore, as set forth in
Part III, supra, a transcript of the individual voir dire was not made part
of the record, so we are unable to verify, for example, whether the
remaining members of the jury panel were polled to ensure that no one else
had seen the magazine article or discussed its contents.[5] See, e.g.,
Thompson, 492 N.E.2d at 272-73; Lindsey v. State, 260 Ind. 351, 295 N.E.2d
819 (1973). Moreover, we are aware of no authority – and Defendant
provides none – establishing a rule of prejudice per se because a jury
panel had possible access to an incriminating article within a magazine.
We have not even been provided with the text of the Indianapolis Monthly
article. In any event, Defendant has failed to show that he was
prejudiced. The trial court did not abuse its discretion in not dismissing
the entire jury panel.
V
Defendant contends that he was unduly prejudiced when the trial court
permitted the State to introduce the victim’s skull into evidence as a
visual aide to supplement its expert witness testimony. During the State’s
case-in-chief, the jury members were given the opportunity to come forward
and examine the skull, which was presented in three pieces[6] on a table in
front of the jury box.
Defendant acknowledges the skull’s relevance given that “the victim
evidently died due to a fracture of the skull.” Appellant’s Br. at 30.
However, he claims that any relevance is substantially outweighed by the
prejudicial effect of the victim’s skull in violation of Indiana Evidence
Rule 403,[7] and moreover, that the trial court abused its discretion in
not directing the State to use “a model of the human skull or pictures of
the victim’s skull.” Appellant’s Br. at 32.
At first blush, we find it a bit unsettling that the trial court
would allow the prosecution to use the actual skull of the victim to
supplement its expert testimony. In our view, other conventional
alternatives – such as high resolution photographs, video, and charts –
could no doubt have been used to assist the State’s expert witnesses in
“demonstrat[ing] various healing stages of the injuries, colorations of the
bone, and staining in the skull.” Appellee’s Br. at 11 (citing R. at 883-
906, 963-69).[8]
Nevertheless, foreign jurisdictions have squarely addressed the use of
a victim’s skulls as evidence in a trial and found – under similar
circumstances – that the probative value outweighed any resultant Rule 403
prejudicial effect. See State v. Pike, 978 S.W.2d 904, 924-25 (Tenn. 1998)
(“In this case, the skull had been thoroughly cleansed and was no more
prejudicial or gruesome than a model diagram would have been.”), cert.
denied, 526 U.S. 1147 (1999); Hilbish v. State, 891 P.2d 841, 849 (Alaska
Ct. App. 1995) (The trial court did not abuse its discretion when it
admitted into evidence the victim’s skull, “which had been cleaned of all
tissue and was contained in a sealed and odorless plastic bag” and was
utilized by the State to “assist the jury in understanding the precise
location of the gunshot wounds to [the victim’s] head,” where the skull
“was not particularly gruesome – arguably less gruesome than available
photographs might have been.”). On the other hand, at least one other
appellate court found an abuse of discretion when a trial court admitted
into evidence a picture of a skull that was particularly gruesome and only
marginally relevant. See McNeal v. State, 551 So.2d 151, 159 (Miss. 1989)
(disagreeing with the “state’s position . . . that all of the photographs
were needed in order to prove the corpus delicti” and remarking that “the
state could have shown the angle and entry of the bullet wound without the
full-color, close-up view of the decomposed, maggot-infested skull”).
In this case, the skull was neither particularly gruesome nor ominous
as it lay in three separate pieces, appearing as if it was found on an
archeological dig. Furthermore, it was relevant given Defendant’s claim of
accidental death and the State’s corresponding need to show those injuries
occurring at the time of death and/or the absence of injuries. (R. at
765.) After carefully balancing the probative value against potential
prejudicial impact, the trial court ruled the evidence admissible. While
our review of the record leads us to believe that the State could have just
as easily supplemented its witness testimony with other conventional
exhibits, we are persuaded that in this case the trial court did not abuse
its discretion in admitting the skull pieces into evidence.
VI
A
Defendant contends that the trial court committed reversible error in
admitting evidence of Defendant’s prior bad acts in violation of Indiana
Evidence Rules 404(b) and 403. Prior to trial, Defendant sought a motion
in limine, which the trial judge granted in part and denied in part,
barring the State from introducing evidence that Defendant had two previous
convictions for battering his wife as well as similar charges pending
against him at the time of her murder. During trial, Defendant renewed his
objection to the admission of this evidence at a bench conference in
regards to the motion in limine. The trial judge overruled Defendant’s
objections and admitted both the evidence of prior convictions and pending
battery charges, noting that Defendant’s “intent is an issue in this case.”
(R. at 1137-38.)
Indiana Evidence Rule 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Id. (emphasis added).
When the State attempts to introduce evidence of a defendant’s other
crimes, wrongs, or acts, the trial court must perform a two-part inquiry:
first, the court must determine whether the prior bad act evidence “is
relevant to a matter at issue other than the defendant’s propensity to
commit the charged act.” Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997).
If the evidence is offered only to produce the “forbidden inference,” that
is, that the defendant had engaged in other, uncharged misconduct and that
the charged conduct was in conformity with the uncharged misconduct, then
the evidence is inadmissible. Id. at 219; see also Poindexter v. State, 664
N.E.2d 398, 400 (Ind. Ct. App. 1996).
The second part of the two-part inquiry involves the trial court
“balanc[ing] the probative value of the evidence against its prejudicial
effect pursuant to Rule 403.” Hicks, 690 N.E.2d at 221 & n.10. The trial
court has wide latitude, however, in weighing the probative value of the
evidence against the possible prejudice of its admission, and its ruling
will be reviewed only for an abuse of discretion. Poindexter, 664 N.E.2d
at 400.
B
In Wickizer v. State, 626 N.E.2d 795 (Ind. 1993), this Court examined
the “intent” exception to Evid. R. 404(b), finding it would
be available when a defendant goes beyond merely denying the charged
culpability and affirmatively presents a claim of particular contrary
intent. When a defendant alleges in trial a particular contrary
intent, whether in opening statement, by cross-examination of the
State’s witnesses, or by presentation of his own case-in-chief, the
State may respond by offering evidence of prior crimes, wrongs, or
acts to the extent genuinely relevant to prove the defendant’s intent
at the time of the charged offense.
Id. at 799. We ultimately reversed the defendant’s child molestation
conviction, finding that his pre-trial assertion to police that he was not
a “devious character” was insufficient to establish the requisite “claim of
particularly contrary intent.” Id. at 800.
In the present case, Defendant went beyond merely denying the charged
culpability and affirmatively presented a claim of particular contrary
intent – accidental killing. Here, the prior bad act evidence consisted of
Defendant’s 1988 and 1991 convictions for battery against his wife, (R. at
1143, 1157), in addition to evidence of four (4) charges against Defendant
for battering his wife that were pending at the time of her death,
concerning incidents allegedly occurring on May 23, 1994, and July 9, 19,
and 30, 1994. (R. at 1166, 1192, 1209, 1216.)
In light of Defendant’s claim of particular contrary intent that he
accidentally killed his wife, we find these instances of prior bad act
evidence were admissible under Rule 404(b) because each was “relevant and
probative in that it directly involved and shed light on Defendant’s
relationship with [the victim].” Evans v. State, 727 N.E.2d 1072, 1080
(Ind. 2000) (citing Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996) (“[A]
defendant’s prior bad acts are . . . usually admissible to show the
relationship between the defendant and the victim.”)). Furthermore, this
Court has previously approved the admission of similar prior bad act
evidence when a defendant claimed the victim’s death was accidental. See,
e.g., McKewen v. State, 695 N.E.2d 79, 87-88 (Ind. 1998) (Evidence of the
defendant’s previous battery against the victim was admissible under Rule
404(b)) (“Although there was ample evidence of hostility already in the
record, [the prior bad act evidence] was relevant to show a pattern of
hostility dating back before the night of the killing. This illustrated
the depth of possible motive and was also relevant to assessing [the
defendant’s] claim that [the victim] was stabbed accidentally.”).
Next, we assess whether any incident of prior bad act evidence should
nonetheless have been excluded because its probative value was
substantially outweighed by the danger of unfair prejudice. See, e.g.,
Evans, 727 N.E.2d at 1080 (“[The] evidence of [the d]efendant’s prior
misconduct was close enough in time (approximately 48 hours) to be
genuinely relevant in showing Defendant’s intent at the time of the
murder.”) (parenthetical in original); Hicks, 690 N.E.2d at 220 (A trial
court’s discretion in admitting evidence of the defendant’s prior bad acts
“includes determining the significance of the similarity or remoteness of
evidence.”) (citing Fisher v. State, 641 N.E.2d 105 (Ind. Ct. App. 1994)).
We review this balancing by the trial court under an abuse of discretion
standard. See Mayberry v. State, 670 N.E.2d 1262, 1268 (Ind. 1996).
We find that the trial court did not abuse its discretion in admitting
evidence of the four pending battery charges for conduct allegedly
occurring in May and July of 1994. These prior incidents were close
enough in time to maintain probative force in establishing a pattern of
hostility leading up to the October 1994, killing. We also find that the
trial court was within its discretion in concluding that the probative
value of the 1988 and 1991 battery incidents – reduced to actual
convictions – outweighed any resultant prejudice in this case given
Defendant’s specific claim of particular contrary intent.[9]
VII
Defendant next contends that there is insufficient evidence to support
his convictions for murder and aggravated battery.
A
To obtain a conviction for murder, the State must prove beyond a
reasonable doubt that the defendant knowingly or intentionally killed the
victim. Ind. Code § 35-42-1-1(1) (1993); Powers v. State, 696 N.E.2d 865,
869-70 (Ind. 1998). Defendant was charged with knowingly killing his wife.
Defendant claims that the evidence introduced by the State does not
support this conclusion in that he “did not engage in conduct ‘knowingly’
[on] the night of October 14, 1994[,] due to his extreme intoxication and
his past experiences involving physical contact with the victim.”
Appellant’s Br. at 36.
When examining the sufficiency of evidence, we neither reweigh the
evidence nor resolve questions of credibility. Garland v. State, 719
N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. Rather, we consider only the
evidence most favorable to the judgment together with all reasonable
inferences to be drawn from that evidence. Brown v. State, 720 N.E.2d
1157, 1158 (Ind. 1999); Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999).
We affirm if, considering that evidence and those inferences, we find
substantial evidence of probative value to support the judgment. Minter v.
State, 653 N.E.2d 1382, 1383 (Ind. 1995).
Whether the defendant was so intoxicated that he could not form the
mens rea required for the crime is a question for the trier of fact. See
Owens v. State, 659 N.E.2d 466, 472 (Ind. 1995). The conviction will be
affirmed if there was substantial evidence of probative value that would
have allowed the fact finder to conclude beyond a reasonable doubt that the
defendant formed the required mental element. See id. Evidence of
capacity to form criminal mens rea includes the ability to “devise a plan,
operate equipment, instruct the behavior of others or carry out acts
requiring physical skill.” Terry v. State, 465 N.E.2d 1085, 1088 (Ind.
1984). Moreover, if the defendant “was able to form the required mental
element of the crime, the degree of intoxication is immaterial.” Barnes v.
State, 693 N.E.2d 520, 522 (Ind. 1998).
The State contends that sufficient evidence was presented to show
that Defendant knowingly killed his wife. We agree. Although Defendant
testified at trial that he was intoxicated at the time of the killing,[10]
he also testified to performing acts that were rationale and required
physical skill such as checking his wife’s breathing and straightening out
her body to begin “doing CPR.” And after her death, instead of maintaining
that he accidentally struck and killed his wife, Defendant told another
motel resident that “he had killed his old lady and buried her and they
would never find her.” (R. at 1501.)
Additionally, the forensic evidence introduced at trial was
inconsistent with Defendant’s claim that he instinctively struck his wife
in the face with a “palm and fist” technique that he learned in the
military in order to fend off her imminent attack of him with a lamp. To
the contrary, the evidence indicated that Dot Crain died over a course of
hours from a skull fracture, likely resulting from a blow to the top of the
head, and also that she suffered three broken ribs. After considering all
the evidence most favorable to the verdict as well as drawing all
reasonable inferences therefrom, we find the jury could have reasonably
concluded that Defendant knowingly killed his wife and did not just intend
to batter her.
B
Defendant also contends that the State failed in its burden of
negating beyond a reasonable doubt his claim that he was acting under
sudden heat when he killed his wife, thereby entitling him to a reversal of
his murder conviction.
Voluntary manslaughter is a lesser included offense of murder,
distinguishable by the factor of a defendant having killed, while acting
under sudden heat. Ind. Code § 35-42-1-3 (1993). To establish sudden
heat, the defendant must show “sufficient provocation to engender . . .
passion.” Johnson v. State, 518 N.E.2d 1073, 1077 (Ind. 1988). Sufficient
provocation is demonstrated by “such emotions as anger, rage, sudden
resentment, or terror [that are] sufficient to obscure the reason of an
ordinary person, prevent deliberation and premeditation, and render the
defendant incapable of cool reflection.” Id.
To obtain a conviction for murder, the State is not required to
negate the presence of sudden heat because “[t]here is no implied element
of the absence of sudden heat in the crime of murder.” Earl v. State, 715
N.E.2d 1265, 1267 (Ind. 1999). However, once a defendant places sudden
heat into issue, the State then bears the burden of negating the presence
of sudden heat beyond a reasonable doubt. See Evans, 727 N.E.2d at 1077.
It may meet this burden by rebutting the defendant’s evidence or
affirmatively showing in its case-in-chief that the defendant was not
acting in sudden heat when the killing occurred. See id.
Defendant claims that his longstanding, confrontational relationship
with his wife in combination with his alcoholism caused him to snap “for
only a short moment” and suddenly strike her when she came at him with the
lamp. Appellant’s Br. at 42. Although we are inclined to agree that this
evidence adequately introduced the element of sudden heat, we find that the
totality of the evidence presented in this case is sufficient to support
the jury’s conclusion that Defendant did not act in sudden heat. [11]
To begin with, the jury may well have concluded that 5’4” 130-pound
Dot Crain, did not sufficiently provoke the 6’4” 210-pound Defendant by
just yelling and swinging a lamp at him.[12] After all, the possibility of
physical confrontation during one of their arguments was nothing new for
either Crain. Also, as set forth, supra, in Part VII-A, the forensic
evidence tended to show that Dot Crain did not immediately die when struck
by Defendant, and Defendant acknowledged spending time drinking tequila and
reflecting thereafter in the hotel room where she lay.
We find the evidence sufficient to conclude that the State negated
Defendant’s claim of “sudden heat” beyond a reasonable doubt. There is
ample evidence to support the jury’s verdict of murder, rather than
voluntary manslaughter.
VIII
Defendant also contends that he received ineffective assistance of
counsel “due to several prejudicial errors committed by his trial counsel.”
Appellant’s Br. at 42.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that (i) defense counsel’s representation fell below an
objective standard of reasonableness and (ii) there is a reasonable
probability that the result of the proceeding would have been different but
for defense counsel’s inadequate representation. See Troutman v. State,
730 N.E.2d 149, 154 (Ind. 2000); see also Strickland v. Washington, 466
U.S. 668 (1984). We presume that counsel’s performance was adequate. See
Troutman, 730 N.E.2d at 154; Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996).
Among the errors claimed by Defendant are that trial counsel failed
to: (A) request a pretrial suppression hearing on his confession or call
certain witnesses during it; (B) tender a jury instruction regarding the
voluntariness of his confession; (C) communicate adequately with him and
with his private investigator; (D) call and recall certain witnesses who he
believes were romantically involved with the victim and could have been
responsible for the damage to her skull; and (E) strike the entire jury
panel that had access to the magazine article. We will review each claimed
error in turn.
A
Defendant’s first ineffective assistance of counsel claim is that
“trial counsel failed to ensure [that he] would receive a fair hearing to
determine the voluntariness of his confessions and waiver of rights.”
Appellant’s Br. at 43. Defendant specifically points out that trial
counsel failed to file a pre-trial written motion to suppress his
confessions and that neither he nor any other defense witness was called to
testify during the suppression hearing, which was during the early stages
of the trial.
A defense counsel’s poor trial strategy or bad tactics do not
necessarily amount to ineffective assistance of counsel. See Whitener v.
State, 696 N.E.2d 40, 42 (Ind. 1998) (citing Davis v. State, 675 N.E.2d
1097, 1100 (Ind. 1996)). Moreover, “[a] decision regarding what witnesses
to call is a matter of trial strategy which an appellate court will not
second-guess.” Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998).
Our review of the record establishes that trial counsel adequately
represented Defendant during the suppression hearing, such that a tactical
decision not to file a formal written motion to suppress did not rise to
the level of ineffective assistance of counsel.[13] See, e.g., Monegan v.
State, 721 N.E.2d 243, 251 (Ind. 1999) (“In light of other steps taken in
this action, we cannot agree with Defendant’s contention that defense
counsel’s strategic decision not to file a motion in limine rises to the
level of ineffective assistance of counsel.”); Wickliffe v. State, 523
N.E.2d 1385, 1387 (Ind. 1988) (considering all other steps taken to
effectively represent the defendant and finding defense counsel’s tactical
decision not to file motions in limine or motions to suppress did not
constitute ineffective assistance of counsel).
As for the second half of Defendant’s claim, we find that it was not
unreasonable for trial counsel to not call witnesses,[14] including
Defendant, to testify during the suppression hearing; the trial judge had
sufficient information – including Defendant’s Intoxilyzer test result of
.12 BAC and the full text of his Kokomo statement – upon which to base his
ruling. We find little merit in Defendant’s claim that his after-the-fact
assertions as to his intoxication level would have ultimately affected the
trial court’s ruling that his statements were voluntarily given. Defendant
has not demonstrated that counsel’s performance was unreasonable in this
regard.
B
Defendant next argues that he received ineffective assistance of
counsel because “trial counsel failed to tender a jury instruction
regarding the voluntariness of [his] confessions.” Appellant’s Br. at 44.
We disagree.
As we explained in Part II, supra, it is the role of the trial court –
not the jury – to determine whether a statement made by a defendant is
voluntary and therefore admissible. See id.; Coates v. State, 534 N.E.2d
1087, 1093 (Ind.1989). Trial counsel was under no obligation to tender an
instruction regarding the voluntariness of Defendant’s statements, and the
trial court would not have been obligated to present such an instruction to
the jury. See Abbott v. State, 535 N.E.2d 1169, 1173 (Ind. 1989)
(upholding the trial court’s refusal to give an instruction on the
voluntariness of a defendant’s confession which specifically instructed the
jury to consider the defendant’s intoxication at the time an alleged
admission was made); Gibson v. State, 694 N.E.2d 748, 756 (Ind. Ct. App.
1998) (holding that the trial court did not err in refusing to give the
defendant’s tendered instruction regarding the voluntariness of his
confession), overruled on other grounds, 702 N.E.2d 707 (Ind. 1998).
C
Defendant also broadly contends that he received ineffective
assistance of counsel because “trial counsel failed to communicate
adequately with both [him] and [his] private investigator.” Appellant’s Br.
at 45.
Defendant cites to no evidence in the record establishing trial
counsel’s failure to communicate with him nor does he show in any way how
was prejudiced by a lack of communication. Defendant’s unsupported general
assertion in this regard is inadequate to establish ineffective assistance
of counsel.
D
Defendant contends that he received ineffective assistance of counsel
because “trial counsel failed to call and recall certain witnesses.”
Appellant’s Br. at 46.
We give deference to strategy decisions by trial counsel. Whitener v.
State, 696 N.E.2d 40, 42 (Ind. 1998). We look to the totality of the
circumstances when evaluating claims of ineffective assistance of trial
counsel, and isolated strategy decisions do not necessarily amount to
ineffectiveness. Lawrence v. State, 464 N.E.2d 1291, 1294-95 (Ind. 1984).
We cannot say that trial counsel was ineffective in not presenting the
testimony of two male witnesses, “Mike W. and Rick F.,” who Defendant now
claims on appeal may have been “romantically involved with the victim” and
may have “battered the victim during her lifetime . . . caus[ing] damage to
the victim’s skull.” Appellant’s Br. at 46. There is simply no
evidentiary basis to support this claim of ineffective assistance of
counsel: nowhere in the record is there any indication that the victim was
romantically involved with either of these men or that they may have
battered the victim.[15]
Likewise, Defendant’s claim that he was prejudiced by counsel’s
failure “in not recalling the victim’s sister, Bonnie Lee” must also fail.
Lee testified that Defendant called her collect in late August or early
September 1994 and threatened to kill Dot. Defendant now claims that
recalling Lee to the witness stand would have revealed that Defendant was
incarcerated during this time frame for violating a no contact order filed
by the victim, and as such, could not have made the collect call from jail.
Appellant’s Br. at 47.
Once again, there is simply no evidentiary basis to support
Defendant’s claim of ineffective assistance of counsel. Nowhere in the
record is there any indication that Defendant was unable to place a collect
call during this period of incarceration. Moreover, we frequently see
cases where the record indicates that inmates are sometimes allowed to make
collect phone calls while incarcerated. In fact, there was evidence
presented at the suppression hearing that Defendant had amassed
“astronomical” phone bills talking with a women during his pre-trial
incarceration for this matter. (R. at 2295; Defense Counsel: “[She] has
been talking with [Defendant] on a regular basis when he was in the
Hamilton County Jail early on and . . . their phone bills were astronomical
according to my client . . . .”)
E
Defendant’s final ineffective assistance of counsel claim is that
“trial counsel failed to move to strike the entire jury venire panel upon
realization that such panel was tainted.” Appellant’s Br. at 47.
We are inclined to agree with Defendant that under prevailing
professional norms most defense attorneys would have probably moved to
strike the entire jury panel after learning that an incriminating article
concerning their client’s case had been found in the jury room.
Nevertheless, to prevail on an ineffective assistance of counsel claim,
Defendant must also demonstrate a reasonable probability that a motion to
strike the entire venire would have succeeded. See Troutman, 730 N.E.2d at
153. And our review of the partial voir dire transcript satisfies us that
the trial judge would not have granted this motion given the potential
juror’s testimony that he did not think any other prospective juror saw the
article and that in any event he could still judge the case impartially.
See supra Parts III and IV. As such, Defendant’s final ineffective
assistance of counsel claim also fails.
IX
Defendant’s final claim is that his enhanced sentence of 60 years for
murder, to be served consecutively with his 30-year habitual offender
sentence, was “manifestly unreasonable in that the Trial Court failed to
give appropriate mitigating value to both [his] surrender and subsequent
confession as well as his disease of alcoholism.” Appellant’s Br. at 48.
A
We first observe that the trial court made the following statement
while sentencing Defendant:
This Court would further note in regards to the charge of murder, the
presumptive sentence is a fifty year sentence. To which the Court can
add ten years or subtract ten years. . . . Certainly the aggravating
circumstances do far outweigh any mitigating circumstances and this
Court finds that this Court should impose not only the fifty years but
add to it the additional ten years for aggravating circumstances and
which this Court will then impose the full term of sixty years in
regards to this murder charge.
(R. at 2303, 2305) (emphases added).[16]
This murder, however, was committed in October of 1994,[17] during
which there were two versions of the sentencing statute for murder on the
books. And in Smith v. State, 675 N.E.2d 693 (Ind. 1996), we concluded
that P.L. 158-1994, which provides a presumptive 40-year sentence for
murder subject to a 20-year enhancement, rather than P.L. 164-1994, which
provides a presumptive 50-year sentence for murder subject to a 10-year
enhancement, governs murders committed between July 1, 1994 and May 5,
1995. See Ellis v. State, 707 N.E.2d 797, 805 (Ind. 1999) (observing
same); Jones v. State, 675 N.E.2d 1084, 1086-87 (Ind. 1996) (same).
Here, the record establishes that the trial court used P.L. 164-1994
when it sentenced Defendant to a presumptive 50-year sentence and thus was
operating under a mistaken understanding of the applicable sentencing law.
Because we “can only speculate as to what sentence the trial court would
have imposed if it had been operating under a correct understanding of the
presumptive sentence for murder,” we remand this case for resentencing on
the record. Bufkin v. State, 700 N.E.2d 1147, 1152 (Ind. 1998) (remanding
for resentencing when the trial court applied the incorrect murder
sentencing statute) (citing Alvarado v. State, 686 N.E.2d 819, 824 (Ind.
1997) (remanding for resentencing when it was not clear which sentencing
statute the trial court applied)).
B-1
We also briefly address Defendant’s other contentions of sentencing
error, because they may arise at resentencing.
First, we consider Defendant’s claim that the trial court “failed to
give appropriate mitigating value to [his] voluntary surrender and
subsequent confession to the crime.” Appellant’s Br. at 49. We begin by
noting that Defendant did not “surrender” before confessing to killing his
wife: he was already incarcerated at the Howard County Criminal Justice
Center on unrelated felony charges that presumably – if resulting in
convictions – would have led to a habitual offender adjudication.[18]
Moreover, “[w]hat constitutes a ‘significant’ mitigating factor is
generally within the discretion of the trial court,” Jones v. State, 698
N.E.2d 289, 291 (Ind. 1998), and in certain situations, the “proper” weight
to be given to a proffered mitigating factor may be to give it “no weight .
. . at all,” Ross v. State, 676 N.E.2d 339, 347 (Ind. 1996).
Here, the trial court first considered Defendant’s confession as a
“mitigating factor,” noting that “we would not be here if you had not come
forward,” (R. at 2298), but then it listed as one of several aggravating
factors that “Defendant waited approximately two years before notifying the
authorities of the victim’s death,” (R. at 434). While we acknowledge
Defendant’s contention that this is an arguably inconsistent analysis –
needing clarification on resentencing – it does appear to us that the trial
court considered the mitigating effect of Defendant’s confession in its
sentencing decision.[19] See, e.g., Widener v. State, 659 N.E.2d 529, 534
(Ind. 1995) (noting that a “sentencing judge may not ignore facts in the
record that would mitigate an offense”). Therefore, we decline to find
that the trial court failed to give appropriate mitigating value to
Defendant’s confession.
B-2
Finally, we consider Defendant’s claim that the trial court “failed to
give appropriate mitigating value to [his] mental and physical disease of
alcoholism.” Appellant’s Br. at 52.
Again, it is within the sound discretion of the trial court to
determine what constitutes a significant mitigating factor worthy of
decreasing a presumptive sentence. See Jones, 698 N.E.2d at 291; Sims v.
State, 585 N.E.2d 271, 272 (Ind. 1992). During the sentencing hearing, the
trial court did in fact consider Defendant’s underlying defense theory that
his “capacity to appreciate the criminality of [his] conduct or conform
that conduct to requirements of law was substantially impaired as a result
of mental disease or defect or of intoxication.” (R. at 2297-98.)
Ultimately, the trial court decided not to list this as a significant
mitigator in its sentencing order.
Here, the record does not support Defendant’s claim that mental defect
or alcoholism caused his actions. To the contrary, there was sufficient
evidence to support the jury’s verdict that Defendant knowingly and
intentionally killed his wife. See supra Part VII. Furthermore, we have
recently observed that “‘[f]inding [intoxication] to be mitigating may
involve the consideration and evaluation of various factors, among them the
degree of intoxication and the defendant’s culpability in the knowing and
voluntary consumption of alcohol,’” Huffman v. State, 717 N.E.2d 571, 574-
75 (Ind. 1999) (quoting Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997)),
such that “‘[t]hese matters are best left to the sound discretion of the
trial court,’” id. The trial court in this case did not fail in assigning
an appropriate mitigating value to Defendant’s claim of alcoholism.
Conclusion
We affirm the trial court in all respects but remand for resentencing
consistent with this opinion.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1993).
[2] Id. § 35-42-2-1.5.
[3] Id. § 35-50-2-8 (Supp. 1994).
[4] Defendant: “[T]ake me to the Hamilton County Jail . . . and I’ll
tell Charlie and them. I’ll cop out to Hank or Charlie, or somebody, you
know, but you gotta get me the fuck up out of this [Howard County] jail.”
(R. at 1041.)
[5] Defendant does not make this specific argument on appeal.
Nevertheless, we did find Defendant’s Motion Regarding Voir Dire in the
record in which he requested “that the jury venire be polled as a group as
to whether or not they know about [ ] the facts or allegations surrounding
this case.” (R. at 144.) Our review of the record, however, leaves us
uncertain as to whether the trial court granted or denied the Defendant’s
motion or sua sponte polled the jury due to publicity surrounding the case.
[6] As best as we can tell, the skull was in pieces due to decay
and/or procedures performed during autopsy.
[7] Rule 403 provides in part that “relevant[] evidence may be
excluded if its probative value is substantially outweighed by the danger
of unfair prejudice.”
[8] Not surprisingly, the only relevant Indiana case law we found
analyzes claims arising from the prejudicial impact associated with
photographs of skulls. See, e.g., Coy v. State, 720 N.E.2d 370, 375-76
(Ind. 1999) (Ind. Evid. Rule 403 claim); Willey v. State, 712 N.E.2d 434,
(Ind. 1999) (fundamental error claim).
[9] We note that we find these convictions to be in the lower range of
probative value given their remoteness in time and the fact that “the State
had ample evidence of hostility, including the other [four] more recent
incidents.” Hicks, 690 N.E.2d at 222 (finding that the trial court erred
in admitting prior bad act testimony about the defendant that “was
“graphic” and “prejudicial” in addition to being remote in time and
cumulative). And we make no statement concerning the admissibility of a
defendant’s previous convictions, which are remote in time, in the absence
of a claim of particular contrary intent. See id. (“[A]t some point
testimony about every incident of violence between the [defendant and the
victim] becomes more prejudicial than probative.”).
[10] In response to defense counsel’s question during trial as to how
drunk he was when he struck his wife, Defendant responded, “I don’t know.
I was drunk, I guess.” (R. at 1786.)
[11] The jury rejected the trial court’s instructions as to both
sudden heat and involuntary manslaughter. (R. at 207-08.)
[12] In Defendant’s own words:
[Defense Counsel]
Q: Okay. You’re out of the shower, pick it up from there.
[Defendant]
A: I get out of the shower and we made love. I don’t know if I
just fell asleep or passed out. And I just remember waking up
and she was yelling. I don’t know, I couldn’t understand, I
don’t remember what she was saying. And that’s when I got up
out of bed and I was going to put my pants on. And I stepped,
go to step around the bed and I looked up and she swung a lamp
at me. And that’s when I kind of ducked and I ducked down and
when I came back up, I had hit her in the face with my hand.
And she fell. And I looked at her and she didn’t get up.
(R. at 1785-86.)
[13] Moreover, oral motions in limine suffice for purposes of evidentiary
rulings at both the trial and appellate level. See Vehorn v. State, 717
N.E.2d 869, 872 n.4 (Ind. 1999) (citing Davis v. State, 598 N.E.2d 1041,
1047 (Ind. 1992), cert. denied, 510 U.S. 948 (1993)).
[14] Besides himself, Defendant identifies no other witnesses whose
testimony would have supported his argument to suppress his statements.
[15] As sole support for his contention, Defendant cites to the
testimony of Dot Crain’s sister, Bonnie Lee, where she recalled Defendant
mentioning the names of two men during a phone call with her:
[Deputy Prosecutor]
Q: [D]id you ever call the Defendant in an effort to locate Dot?
[Witness Lee]
A: Yes, I did.
* * *
Q: And what did you, what was the nature of the conversation between the
two of you?
A: I asked him if he had heard from Dot. This was after she had
been reported missing. And he said no. And I asked him if she
[sic] knew where she was. And he said that she had left with
Rick and Mike, which were friends. And I said you, he said it
was like 4:30 in the morning when she had left. And I said, you
saw her leave with them? “No, he said, I was asleep.”
(R. at 1545-46.)
[16] Ultimately, the trial court listed no “significant” mitigating
factors in its sentencing order; however, it did list the following
significant aggravating factors: (1) Defendant has a lengthy criminal
history; (2) any reduction in the sentence would depreciate the seriousness
of the offense committed; (3) the offense occurred while the Defendant was
out on bond; (4) Defendant knew that the victim would be testifying against
him at any retrial or hearing; (5) Defendant failed to alert authorities or
get medical assistance for the victim; (6) and Defendant waited
approximately two years before notifying the authorities of the victim’s
death.
[17] Although it is impossible to know the exact date of Dot Crain’s
death, all parties to this appeal are in agreement that the murder took
place in October of 1994. Appellant’s Br. at 11; Appellee’s Br. at 2. The
information charging Defendant with this murder identified a time frame of
“on or between the 14th day of October, 1994 and the 2nd day of November,
1994.” (R. at 30.) For purposes of this discussion, it matters not
whether the murder took place in October or November of 1994.
[18] Defendant had been arrested and incarcerated in Kokomo for
Battery on a Police Officer, a class D felony, and Intimidation, a class D
felony, in addition to Domestic Battery, a class A misdemeanor. No charges
were filed due to charges being filed in this case.
Defendant’s two prior unrelated felony charges – used in the habitual
offender phase during this trial – were the 1988 conviction for battering
his wife and a 1990 felony drunk driving conviction.
[19] In this regard, we note that the trial judge did hear Defendant
acknowledge under cross-examination that he told other inmates that the
only reason he confessed was because the Carmel Motel had changed ownership
and he feared that his wife's body would be found because excavation would
soon begin. Furthermore, we view this case – where the defendant (1) was a
primary suspect in the victim’s death; (2) had four charges for battering
the victim pending against him when she disappeared; and (3) was already
incarcerated on unrelated felony charges and facing a possible habitual
offender adjudication – to be more in line with those facts in Battles v.
State, 688 N.E.2d 1230, 1237 (Ind.1997) (“[D]efendant's eventual capture
and arrest were nigh unavoidable, and we cannot say that the trial court
abused its discretion in failing to find that his voluntary statement to
police was a mitigating factor entitled to any significant weight.”)
(emphasis added), than with those facts underlying our decision in Brewer
v. State, 646 N.E.2d 1382 (Ind.1995) (remanding for a lesser sentence in
light of defendant’s confession), where the defendant literally walked in
off the street as a suspicionless free man (he had never been suspected in
the murder) to both surrender and confess to a murder “that he had
committed nearly fifteen years before,” id. at 1386.