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.