Jewell v. State, 2010 Ind. App. LEXIS 2499

Jewell was convicted on six counts of sexual misconduct and child molesting, receiving an aggregate forty-year sentence.
The offenses involved Jewell's sexual acts with his stepdaughter T.S. when she was between 13 and 16 years old, including fondling, oral sex, and intercourse.
Before trial, Jewell was charged in a separate case for tattooing a minor; he posted bond and obtained counsel in that case.
Police used the victim, T.S., to record two phone calls with Jewell in August 2008 to elicit incriminating statements about the sexual abuse; Detective Judy coached the victim during the calls.
Jewell moved to suppress the recorded statements on Sixth and state constitutional grounds; the trial court denied the motion and a jury convicted him on all counts.
On appeal, Jewell challenged both the admissibility of the statements and the aggregate sentence as inappropriate; the appellate court upheld both findings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of recorded statements	Jewell argues counsel was violated; statements obtained with police elicitation should be suppressed.	State contends right to counsel had not attached for the sex offenses at the time of recording, so admissible.	Sixth Amendment not violated; statements admissible for uncharged offenses; state claim also rejected.
State constitutional right to counsel	Section 13 right to counsel attaches pre-charge in some cases and was violated here.	No attachment pre-charge due to lack of sufficient factual relationship between tattooing and sex offenses.	No attachment of Section 13 rights to the sex offenses; statements not obtained in violation of state counsel rights.
Sentence appropriateness	Aggregate forty-year term is appropriate given the nature and victim impact.	Jewell's limited prior record and remorse warrant a downward revision.	Aggregate sentence not inappropriate; affirmed.

Massiah v. United States, 377 U.S. 201 (1964) (right to counsel bounds after adversary proceedings; statements from police-elicited interrogation excluded)
Kirby v. Illinois, 406 U.S. 682 (1972) ( Sixth Amendment right attaches only after proceedings commence; right is offense-specific)
McNeil v. Wisconsin, 501 U.S. 171 (1991) (Sixth Amendment right is offense-specific; cannot be used for unrelated charges)
Texas v. Cobb, 532 U.S. 162 (2001) (pre-charge uncharged offenses do not automatically attach Sixth Amendment right to counsel; Blockburger test applied)
Maine v. Moulton, 474 U.S. 159 (1985) (extrajudicial statements obtained in the absence of counsel may be inadmissible if government knowingly circumvented counsel)
Hall v. State, 870 N.E.2d 449 (Ind. Ct. App. 2007) (Indiana Section 13 rights considerations; not automatically attached pre-charge)