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Pierce v. State

Court: Indiana Supreme Court
Date filed: 2002-01-29
Citations: 761 N.E.2d 821
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ATTORNEY FOR APPELLANT

Terrance W. Richmond
Milan, Indiana





ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

Joseph A. Samreta
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

RONALD PIERCE,                    )
                                  )
      Appellant (Defendant Below), )
                                  )
            v.                    )     Indiana Supreme Court
                                  )     Cause No. 49S00-0010-CR-575
STATE OF INDIANA,                 )
                                  )
      Appellee (Plaintiff Below).       )
__________________________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                The Honorable Diane Marger Moore, Magistrate
                       Cause No. 49G06-9907-CF-124582
__________________________________________________________________


                              ON DIRECT APPEAL

__________________________________________________________________

                              January 29, 2002

BOEHM, Justice.
      Ronald Pierce was convicted  of  criminal  deviate  conduct,  robbery,
resisting law enforcement, and being a habitual offender.  He was  sentenced
to one hundred years imprisonment.  In this direct appeal, he contends  that
(1) the trial court abused its discretion in admitting his  confession;  (2)
the trial court erred in failing to grant a  mistrial;  and  (3)  there  was
insufficient evidence to support his convictions.  We  affirm  the  judgment
of the trial court.

                      Factual and Procedural Background

      On July 15, 1999, ninety-one-year-old F.K. was in her home alone  when
an object shattered her window.  A man masked by a  bandana  entered,  threw
her to the floor, and engaged in criminal deviate  conduct.   He  then  took
money from her purse and several items from upstairs.  The  man  left  on  a
blue bicycle.
      F.K. called the  police  and  gave  a  description  of  her  attacker.
Officer Lappin heard the description over his radio and saw Pierce riding  a
blue bicycle three blocks from F.K.’s  house.   When  Lappin  activated  his
lights, Pierce attempted to flee.   Lappin  pursued  Pierce  and  eventually
apprehended him after Pierce had abandoned  his  bicycle  and  attempted  to
flee on foot.  The police found a bandana in Pierce’s pocket.   The  missing
items were later discovered in a yard a few blocks from  the  scene  of  the
crime.
      A few days later, police questioned Pierce.   Pierce  was  advised  of
his rights and executed a waiver of rights form.   He  eventually  confessed
to the crimes.  Pierce filed a motion  to  suppress  the  confession  before
trial, which was denied.  At trial, a redacted  version  of  the  confession
was admitted.  During deliberations, the jury notified the trial court  that
one of the jurors had gone to the scene of  the  crime.   After  questioning
the other jurors, the trial  court  admonished  the  jury  and  excused  the
investigating juror.  Pierce was found guilty of criminal  deviate  conduct,
robbery, confinement,  battery,  resisting  law  enforcement,  and  being  a
habitual offender.  He was sentenced to fifty  years  for  criminal  deviate
conduct enhanced by thirty  years  for  being  a  habitual  offender.   This
sentence was ordered to  be  served  consecutively  with  twenty  years  for
robbery and concurrently with three years  for  resisting  law  enforcement.
Pierce was not sentenced on the confinement and battery convictions.
                           I.  Pierce’s Confession
      Pierce first challenges the admission of  his  confession  because  it
“was involuntary and coerced, and obtained by  the  police  officers’  lies,
deception, and brainwashing and in which Pierce  asked  the  questioning  be
stopped until the DNA results  were  received.”   Pierce  filed  a  pretrial
motion to suppress the confession.  The record is incomplete but  apparently
the  motion  was  denied.   At  trial,  Detective  Vincent  Burke   of   the
Indianapolis Police Department testified that he conducted an  interrogation
of Pierce, in which Pierce “confessed and when he confessed  he,  basically,
told us what happened.”  There was no objection to  Burke’s  testimony.   In
cross-examining  Burke,  Pierce  asked  a  number  of  questions  about  the
interrogation and confession.  These included inquiries  into  the  location
of the interrogation, the number of police officers present, the  length  of
the interrogation, and the questions asked of Pierce and his  answers.   The
State claims that, under these circumstances, Pierce failed to preserve  his
objection to the admission of the confession.  Pierce  claims  that  he  did
object to the evidence.  We need not resolve the  waiver  issue  because  we
conclude that the confession was admissible.
      The trial court’s ruling as to the voluntariness of  a  confession  is
sustained  if  it  is  supported  by  substantial,  probative  evidence   of
voluntariness.  Horan v. State, 682 N.E.2d 502, 510 (Ind. 1997).  We do  not
reweigh the evidence.  Id.  After an officer read  Pierce  his  rights,  and
Pierce  signed  a  waiver  form,  Pierce  gave   a   two-and-one-half   hour
confession, which was  taped.   As  evidence  of  coercion  and  threats  by
police, Pierce points to various interrogation techniques,  including  “good
cop, bad cop,” providing a morally acceptable answer,  blaming  the  victim,
and bargaining.  The trial court made detailed findings on this issue  after
listening to argument on the day of trial.  The determination that  Pierce’s
statement should be admitted is supported by  substantial  evidence  and  is
consistent with precedent.
      Pierce claims that the police “talked about the prosecutor giving  him
a deal.”  Statements by police expressing a desire that a suspect  cooperate
and explaining the crimes and penalties that are possible  results  are  not
specific enough to constitute either promises or threats.  Massey v.  State,
473 N.E.2d 146, 148 (Ind. 1985).  As in Massey, Pierce  “was  not  subjected
to any lengthy interrogations and there  is  no  evidence  of  any  physical
abuse or coercive action by the police which  logically  would  have  misled
defendant or overborne his will  in  regard  to  his  voluntary  statement.”
Id.; accord Roell v. State, 438 N.E.2d 298, 300 (Ind. 1982) (confession  was
admissible where officers did not threaten or mislead  defendant).   Nor  is
the use of the “good cop, bad cop” interview technique  in  itself  a  basis
for exclusion of a confession.  See, e.g., Houser v. State, 678  N.E.2d  95,
102 (Ind. 1997).[1]  Pierce also argues that  “[o]ne  can  clearly  see  the
intent of the interrogation was to get a confession from Pierce.”  This  may
be true, but that objective does not  amount  to  “brainwashing”  or  render
Pierce’s confession involuntary.
      Pierce  argues  that  police  deception  contributed  to  making   his
confession involuntary.  The police told Pierce that  they  had  preliminary
DNA evidence linking him to the crime.  The State concedes that  this  claim
was false.  As this Court has noted, “police deception does  not  vitiate  a
Miranda waiver and render a  confession  inadmissible,  but  is  rather  one
consideration  that  must  be  viewed  in  determining  the   ‘totality   of
circumstances.’”  Willey v. State, 712 N.E.2d  434,  441  (Ind.  1999).   In
Carter v. State, the defendant argued that his  confession  was  involuntary
due to police deception and his intoxication.  490 N.E.2d 288, 290-91  (Ind.
1986).   This  Court  held  the  confession  properly  admitted  where   the
defendant “had been fully advised  of  his  Miranda  rights,  indicated  his
understanding of them, was a mature individual of normal  intelligence,  and
was not interrogated for any inordinate amount of time.”  Id. at 291.    The
same is true here.
      Pierce is correct that police deception, in this case the false  claim
of a DNA match, weighs against voluntariness.  Henry v.  State,  738  N.E.2d
663, 665 (Ind. 2000).  But that factor is not dispositive.  The trial  court
concluded that the totality of the circumstances did  not  vitiate  Pierce’s
waiver of rights or render his  confession  involuntary.   Pierce  signed  a
waiver of rights and indicated that he understood  his  rights,  Pierce  did
not ask for an attorney, and he was not intoxicated.  No  threats  or  force
were used.  There is  substantial  evidence  supporting  the  trial  court’s
admission of Pierce’s confession as voluntary.   Kahlenbeck  v.  State,  719
N.E.2d 1213, 1216-18 (Ind. 1999).
                                II.  Mistrial
      Pierce claims that the trial court erred in  twice  denying  a  motion
for a mistrial during the trial.  The decision to grant  or  deny  a  motion
for a mistrial lies within the discretion of the trial  court.   Heavrin  v.
State, 675 N.E.2d 1075, 1083 (Ind. 1996).  A mistrial is an  extreme  remedy
granted only when no other  method  can  rectify  the  situation.   Id.   On
appeal, in order to succeed from the denial of  a  mistrial,  the  defendant
must demonstrate that the conduct complained of was both  error  and  had  a
probable persuasive effect on the jury’s decision.  Jackson  v.  State,  728
N.E.2d 147, 151 (Ind. 2000); Kelley v. State,  555  N.E.2d  140,  141  (Ind.
1990).
      A.  Redacted Statement
      Pierce first argues that a mistrial should have been granted when  the
trial court admitted a redacted version of Pierce’s  statement  because  all
references to Pierce’s prior bad acts were not removed from  the  statement.
The State and Pierce had  agreed  to  redact  references  to  other  pending
charges.  Redactions were made and the document was presented to the  court.
 At that point Pierce was given an opportunity to suggest further  revisions
and suggested one change.  The trial court then gave the transcript  to  the
jury.  Although this was a lengthy transcript, it  was  Pierce’s  obligation
to  notify  the  trial  court  of  any  errors  before  the  jury  read  the
transcript.  Because he was given an opportunity to challenge  the  redacted
transcript and he did not do so, Pierce has waived this issue.  Cf.  Whittle
v. State, 542 N.E.2d 981, 985 (Ind. 1989) (defendant waived claim where  the
trial court presented him  with  the  opportunity  to  raise  any  potential
conflict of interest, but no objection to joint  representation  was  made),
overruled on other grounds by Scisney v. State, 701 N.E.2d 847 (Ind.  1998).

      B.  Juror Misconduct
      Pierce also claims that the trial court erred by  denying  a  mistrial
when, during deliberations, the jury sent a note to the trial court  stating
that one of the jurors, Maynard, had driven by the victim’s home to look  at
a street light.  The trial court brought the jury out for questioning.   The
remaining jurors told  the  trial  court  that  they  stopped  Maynard  from
telling them anything more than the fact that she had driven by the site  of
the crime.  The trial court asked the jury if this information would  affect
deliberations  and  all  denied  that  it  would.   The  trial  court   then
questioned each juror individually on whether  he  or  she  could  disregard
Maynard’s report.  All agreed they could.  The trial  court  then  dismissed
Maynard and asked Pierce  if  he  would  like  an  additional  admonishment.
Pierce declined.
      The trial court took great care to deal with a difficult situation and
there is no showing of any prejudice to Pierce.  Under these  circumstances,
the trial court  did  not  abuse  its  discretion  in  denying  his  motion.
Jackson, 728 N.E.2d at 151.
                      III.  Sufficiency of the Evidence
      Pierce finally  contends  that  there  was  insufficient  evidence  to
support his convictions.  He bases this contention  on  the  fact  that  the
majority of the evidence is circumstantial and claims  that  the  State  did
not prove he attacked F.K.  When reviewing a claim  of  sufficiency  of  the
evidence, we do not  reweigh  the  evidence  or  judge  the  credibility  of
witnesses.  Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996).  We look  to
the evidence and  the  reasonable  inferences  therefrom  that  support  the
verdict and will affirm a conviction if evidence of probative  value  exists
from which a jury could  find  the  defendant  guilty  beyond  a  reasonable
doubt.   Id.   Circumstantial  evidence  will  be   deemed   sufficient   if
inferences may reasonably be drawn that enable the trier  of  fact  to  find
the defendant guilty beyond a reasonable  doubt.   Franklin  v.  State,  715
N.E.2d 1237, 1241 (Ind. 1999).
      There is sufficient evidence  to  support  Pierce’s  convictions.   He
confessed to breaking into F.K.’s  house,  putting  his  penis  between  her
legs, and taking her property.  Although her attacker was wearing a  bandana
and F.K. could not identify him, she testified that a  man  broke  into  her
house, inserted his penis into her rectum, and stole items from  her  house.
Her testimony was  corroborated  by  physical  evidence,  including  a  torn
rectum and sperm found in her rectum.  She testified  that  the  perpetrator
rode off on a blue bicycle.  Police found Pierce three  blocks  from  F.K.’s
house shortly after the attack on a bicycle.  He attempted  to  escape  from
the police, first on the bicycle and then on foot.   Pierce  matched  F.K.’s
general description and had a bandana in his pocket.   This  was  sufficient
evidence to  convict  Pierce  of  criminal  deviate  conduct,  robbery,  and
resisting law enforcement.  Pierce presents no challenge to the  sufficiency
of the evidence with respect to his habitual offender enhancement.
                                 Conclusion
      The judgment of the trial court is affirmed.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Pierce also claims that  he  asked  the  police  officers  to  stop  the
interrogation, but they continued to question him.  He does  not  provide  a
citation to the transcript.  The closest thing we can find to a  request  to
stop the interrogation is “me and you stops right  there.”   This  statement
is immediately preceded and followed by admission of various crimes, all  in
the course of a dialog.  It does not appear to be  a  request  to  stop  the
interrogation, and certainly is not a clear request.