Brown v. State

hand, majority opinion the other On little trouble this Court has no language of the contract leaves It opposite conclusion.

doubt as to pronounce- appears judicial we have

thus the written clearly which indicate

ments clear. Under

contract is in fact not so circumstances, proper it

these testimony of parol

trial court to admit ambiguous lan- parties explain

both Evi-

guage of the contract. 18 LLE. See (1959) numerous and the

dence § therein. Indiana cases cited

I hold that the trial therefore would parol admitting did not err in

court there

testimony Harry Thomas nor was sub- Marjorie waiver when Thomas under- parol

mitted her evidence as to the the cir-

standing of the contract. Under

cumstances, I no error feel there was

the trial court as far as the submission of

evidence was concerned.

I af- believe the trial court should be

firmed.

KRAHULIK, J., concurs. BROWN, Appellant

Deborah Denise

(Defendant Below),

v. Indiana, Appellee

STATE of (Plaintiff Below).

No. 45S00-8703-CR-271.

Supreme Court Indiana.

Aug.29,1991. admitting court err

III. Did the trial confession? Brown's oral evidence admitting in err Did the court IV. videotape phase of the trial testimony? previous of Brown's rejecting court err in the trial V. Did instruction the defendant's of the trial? penalty phase

Facts jury's ver- supporting the The evidence 18, 1984, A.H., dict that on June reveals niece, nine, Tamika age and her then seven, walking Turks, back age then candy trip a to a to Tamika's house after A Gary. man dog store and a hot stand woman, a Alton Coleman and Deborah Brown, approached girls,. Coleman some they if wanted asked the children agreeable, They and Cole- clothes. seemed Cole- them to follow Brown. man asked up them he catch with man said would Merrillville, appel- for Toomey, Daniel Although Tamika commented later. lant. they should not along way AH. Gen., Pearson, Joseph N. Atty. Linley E. children gone people, these have Gen., Indianapo- Stevenson, Deputy Atty. to a se- accompanied Brown on a walk lis, appellee. ap-: cluded, The walk was area. wooded long, and was esti- proximately 1.4 miles SHEPARD, Justice. Chief 40 minutes for small mated taken to have children. trial, Denise Deborah Following jury a murder, felony, Brown and caught up with convicted Coleman Brown was murder, 35-42-1-1; attempted he he announced children. At the woods Ind.Code § 35-41-5-1(a), The adults game. going play felony, Ind.Code a class A §§ molesting, class A 35-42-1-1; and child then and Brown shirt removed Tamika's 85-42-4-8(a). After the felony, Ind.Code were used strips eut which § the shirt into trial, jury recom penalty phase hands, mouths of the up legs, and tie began The trial court penalty.1 point, mended the death Tamika children. At this raises to death. Brown her down. cry pushed sentenced and the attackers appeal: direct in this five issues nose Tamika's While held stomped on Tamika's mouth, Coleman admitting err in trial court I. Did the assailants car- The two stomach chest. by a of Brown the in-court identification away, hidden distance ried Tamika a short previously participated witness who A.H.'s view. weeds out of suggestive identification unduly in an procedure? sex perform oral forced A.H. was then Brown. Coleman re- admitting evi- court err on both II. Did the Coleman prove offenseto the vealed a gun and threat- an extrinsic denceof concealed partially comply. if did not ened to kill Annie identity the defendant? . The State ^[1] tentional ting upon of three attempting AH., previous killing sought aggravating Ind.Code conviction on two counts Tamika Turks while commit the death to commit child circumstances: § 35-50-2-9(b)(1); molesting based on the in ton Ind.Code murder in Code § same court under ous conviction County, 35-50-2-9(b)(7). § the Court 35-50-2-9(b)(7); Ohio, two counts of murder under Cause Cause No. of Common and Brown's B-842559, No. Pleas, Hamil B-843548, in that previ Ind. raped Afterwards, He then AH. independent AH. basis for the in-court identifi heard a loud coming moan from where the (1987), cation." Ind., French v. State two had taken Tamika. Brown stated that 42; (1984), Henson v. State girl yet, was not dead and went over to Ind., 467 N.E.2d 750. the area where Tamika was. To determine whether AH.'s in- returned, When Brown she and Coleman court identification permissible began choking A.H. with their AH. belts. requires Brown's trial determining whether awoke, lost consciousness. When she there was clear and convincing evidence gone. assailants were A.H. back stumbled adequate witness had an indepen out of the wooded area. She was discover- dent basis for her in-court identification. ed a woman who called A.H.'s mother See Heiman v. State and an lay ambulance. Tamika dead in the 460. This review searches woods. "the totality of the pertain circumstances court, In the trial Brown was convicted ing to the witness' opportunity to observe of the Turks, murder of Tamika perpetrator during the commission of attempted A.H., murder of and of molest- Dorsey crime...." ing A.H. 260, 267; see also Neil v. Biggers, 188, 199, 409 375, U.S. 93 S.Ct. I Could A.H. Properly Identify Brown? 382, 34 (1972). LEd.2d 401 Among the pertinent

Brown first factors are length asserts the trial court "the of time erred in permitting the identify presence A.H. to witness was in the her of the court. Brown contends that the identifica perpetrator, the distance the witness was him, tion was tainted from previ because A.H. had the lighting conditions at the ously time, been single shown a photograph of the witness' capacity for observation, the defendant before she testified the opportunity at the and particular to observe trial of Alton Coleman in Ohio. An Ohio perpetrator." characteristics of the Dor prosecutor had shown her picture Brown's sey, 267; 490 N.E.2d at Biggers, see also asked, you identify "Can person?" 199, 409 U.S. 188 at 93 S.Ct. 375 at 382. The trial court held a hearing on Brown's suggests The evidence that A.H. was in suppress motion to identification; A.H.'s it company of Brown for at forty least denied the motion. Brown contends that minutes, the time it was estimated to take this constitutes reversible error. for a park child to walk with Brown to the long This Court has held where the that extra attack occurred. This walk and judicial single exhibition of a photograph subsequent place attack took in broad a victim is an unduly suggestive daylight, providing identifica ample opportunity for a procedure. tion (1976), Parker v. good State 265 eye look. A.H.'s doctor testified that 110; Ind. recognize the child could 358 N.E.2d anybody up to six Emerson v. (1972), State 259 Ind. 287 N.E.2d 867. or away. (testi- seven feet Record at 2819 result, As a eyewitness identifica "[dlirect mony Raymond of Carmody suppres- Dr. at tion at trial is pre-trial inadmissible if pho hearing). sion Based on the nature of the tographic procedures identification which attack, A.H. was so close to Brown that her preceded it impermissibly were so sugges nearsightedness glasses and lack of would give tive as to rise very to a substantial prevented not have perceiving from irreparable likelihood of misidentification." describing appellant. AH.'s identifica- tion of Haun v. State unequivocal, Brown at trial was 451 N.E.2d 1072, 1075; emphasized that her identification was States, Simmons v. United experience based on her in the woods on U.S. 88 S.Ct. 19 L.Ed.2d 1247 (1968). held, This Court repeatedly has day Furthermore, of the incident. A.H. however, already had tentatively identified the defen- that "an in-court identification a witness who participated has imper- an up dant in a line nearsighted- which her missibly suggestive out-of-court identifica may ness have come into play. Id. at tion is admissible if Hillard); witness has an (testimony Mary 2278-77 of id. at oper- modus a similar crimes with ted other Kenneth Lieutenant of (testimony

2296-97 808-09. at N.E.2d Penley, 506 andi. ruled out earlier Barnes). She not her who shown people suspects evidence of (testimony assailants, 2306-07 at falls 1d. at trial admitted offense extrinsic Barnes). Be exceptions. category of neither within crime uncharged cause we find breadth covering the facts, these Given ex operandi identity/modus satisfies the Dorsey, mentioned of conditions rule, need not we ception general convincing is clear 267, there N.E.2d did the State claim that address identification in-court A.H.'s evidence uncharged charged prove the inde- gained upon observations based larger preconceived part of a crimes were pre- unduly suggestive pendently plan. identifica- in-court A.H.'s procedure. trial admitted properly Brown was operandi tion evidence of modus The use show requires trial. the State identity prove the two between similarities "that method so strong and so are crimes Extrinsic Evidence IIL Offense probable highly it is unique that clearly the ad contests next Appellant the same is of both perpetrator offense, extrinsic of an of evidence mission at 809. Penley, 506 person." during Storey, Tonnie murder Ohio will crimes of similar repetition mere Evidence her trial.2 guilt phase exception to the as an qualify suffice one for which extrinsic crimes 939; Gibbs, rule. general inadmissi generally is trial is on defendant Instead, "this Malone, Malone in Indiana. ble showing that the strong requires Court Long-recognized Ind., 441 N.E.2d similarly so were actions criminal different rule, however, provide to this exceptions can of conduct method conducted activity criminal other that "[elvidence 'signa the accused's akin to considered be prove cases in certain may admissible be 1346; Malone, 441 N.E2d ture'" or knowledge, intent identity, accused's at 939. Gibbs, N.E.2d 538 plan the common motive, or to demonstrate murder the Ohio facts of The activity which from of criminal scheme sufficiently similar Gary incident were charged crime." originated the accused Sto- Tonnie signature crimes. constitute can such evidence Because at 1846. Id. Turks, awas and Tamika rey, like AH. however, ex prejudicial, unduly be often last seen Storey was female. young black cau applied are to be rule to the ceptions with walking the street down alive Ohio 538 tiously. Gibbs Alton Coleman as identified a man (1987), 506 937; Penley v. State N.E.2d than woman, complexion lighter slender N.E.2d 806. with hair braids Coleman, with (testimony of 2684-89 Record ar beads. litigation parties The Lewis). also described A.H. had Yvette Storey evidence admissibility of the gue the Gary inwith Tamika walked she and pair the extrin exceptions to recognized on two fe- skinny black and a as Alton Coleman excep One exclusionary rule. sic offense Coleman, than male, complexion lighter crimes of extrinsic in evidence allows tion Tamika braids. in French her hair with larger preconceived part of a to be shown away distance charged offense. walked and AH. were includes plan and Coleman they met where from 939; Penley, 506 Gibbs, N.E.2d 538 The the attack. for area to an isolated category allows second at 809. gutted build- in a Storey found body of was prove evidence to extrinsic admission from six blocks area in a deserted ing commit- showing the defendant identity effect at evidence's to the therefore runs guilt phase of presented at the All evidence Appellant at 83- penalty phase well. Brief incorporated into later trial objection Defendant's phase. Record Storey where was last seen. Record at outlined above was sufficient to tie Brown 2698-99 (testimony of Officer Dianne Ar- extrinsic murder.3 nold). Brown further contends that evi dence of

Onee at the wooded area in extrinsic Gary, the offense was not prove needed to identity attackers removed pink Tamika's at her trial. shirt and Nor mally, evidence which is strips merely cut it into of cloth cumulative with a grounds is not Strips knife. reversal. hands, Sharp were used to bind the v. State legs, and mouths cert. children. Record - denied ---, U.S. S.Ct. (testimony A.H.). at 2470-71 Pink cloth pieces (1990). L.Ed.2d 617 were In the by police recovered case of extrinsic offenses, however, we have held that "if body woods near the ripped Tamika. A identification of an accused proved can be blue blouse was also found near the shirt- by other evidence or if an accused's identi body less Storey. Tonnie Ripped strips ty is issue, not a material then the admis fabric, of blue knotted, some of them sion of evidence of other criminal activity is found at the strips scene. These of fabric improper to identity." Malone, establish appeared to be the same material as the 441 N.E.2d at 1346. ripped top. Record at 2731-83. Identity was a material issue in this case. Tamika asphyxia died of by strangula- the extrinsic offense tion. She strangled with an elastic should not have been admissible because strip of a bedsheet. Storey also died from the State had eyewitness A.H.'s testimony, asphyxia by strangulation. A white sheet confession, defendant's oral and some strips sheet, of that some of them circumstantial evidence prove identity. knotted, possibly were found at the vacant principal direct evidence identifying building. Record at 2734. Also found at Brown as the assailant in Gary was building was a Michael Jackson button Brown's oral confession and A.H.'s testimo- fingerprint it; Tamika's ny. The admissibility of both of these Michael Jackson medallion was found near pieces of evidence was strongly contested corpse in Gary. together, Taken all by the defendant at both the ap- trial and evidence supports pellate level. identity Because was still at Indiana and Ohio crimes are distinctive issue, it was proper to admit evidence of enough signature to constitute crimes rath- the extrinsic offense to identity. establish er than repetition the mere of similar charges Brown last probative that

crimes. value of the extrinsic offense evidence was Brown that there in was outweighed by prejudicial its nature. In presented sufficient evidence to show that support argument, however, of this appel- it was she who committed the murder of merely lant proposition restates the that as Storey. Tonnie For evidence of an extrin general a rule evidence of extrinsic of- sic offense to be admissible under the mo- fenses is prejudicial and thus not admissi- operandi dus exception, the defendant must ble unless within catego- one of the narrow have committed ries of exceptions extrinsic offense. See, discussed above. Gibbs, 538 N.E.2d at 939-40. Cireumstan- e.g., Porter v. State 272 Ind. tial evidence can suffice to show the defen 270-71, 269, 272; Ap- Brief of dant pellant at committed extrinsic already 82-84. We have offense. found Gibbs, 940; 538 N.E.2d at Foust v. State presented facts fall within an ad- (1981), Ind., 428 N.E.2d 776. The evidence exception missible general to the rule. doubt, yond viewing 3. a reasonable Furthermore, we fail to see how a the record of the trial as whole, charging a we note that the instruments trial court could commit reversible error penalty phase and of the trial established that grounds on other that the State met its previously guilty Brown had been found in Ohio showing threshold burden of the defendant Storey. the murder of Tonnie Under these Gibbs, committed the extrinsic offense. Cf. circumstances, where the defendant was else- N.E.2d at 940. guilty where uncharged found of crime be- again Brown exchange, After this Brown's Admissibility III enforce- law with conversation initiated Confession Agent She asked car. in the ment officials arrested 1984, Brown was July On to happen to going was "what Pasanelli Depart- Police Evanston to the taken and explained Pasanelli 1702. at her.'" Record p.m., 1At Evanston, Illinois. in ment custody, in federal was that she to Brown by F.B.I. rights her advised was Brown the Federal to being taken that she was p.m., 1:04 At Gretz. James Agent Special be she would Chicago, that Building understood she acknowledged that Brown that and prisoner, federal as a processed sign to not want did she that rights but her mag- appear before eventually she would to asked form, she and rights waiver if she determine would istrate who attorney. to an speak and would in the warrant named person 1702-08. at Record question set bond. continued Gretz Agent information background Brown, collecting ques- again Brown exchange, After this birth, address, name, date know wanted She as agents. such tioned Evans- 1769-75. at Record like. 1708. and at Record going." she was "where Schockweil- Charles Sergeant going Detective ton be she would her that told Pasanelli He time. that at Brown Center questioned Correction Metropolitan to the er Alton or she not her whether on bond. get out asked if she did Chicago anyone involved initi- Later, again had been Brown Coleman 1708. Record at injured, might be who area asked agents. She the Evanston dialogue with the ated Evanston, and stayed in her anybody had she where talked anyone had "if store. particular ato gone Agent Buten she had whether Record family." Id. questioning. and told mother responded Brown spoken with had family were lasted interview her mother The entire Brown 1775-78. at 1708-04. Record her. about pm. concerned Id. 1:38 until Buten or ride, Agent either in the Later that she told was appellant p.m., At 1:51 if was Brown asked Pasanelli Agent custody and in federal placed being Agent Pa- okay. Record feeling Building in Federal taken be would photographs showed then sanelli placed p.m., At 2:24 Chicago. asked Coleman Alton herself In Chicago. transported car to be in a pretty happened what Gretz, Brown Agents Special F.B.I. the car were circu- had been photographs These smile. Pasanelli Burdena Buten Denise fugitive part of F.B.I. by the lated she was testified Pasanelli Agent Brown. Coleman to locate investigation had made appellant time at this aware person she was responded attorney. At speak request to prior at 1704-08. Record photographs. Pasanelli Agent hearing, suppression on Building that occurred Federal conversations the at described car arrived Chicago. p.m. 2:50 route to approximately at Chicago Building, Federal At the at 1710. Record the ride, initiated Brown the Shortly into interview F.B.I. to an taken Brown was car, Agent asking the first conversation Following F.B.I. 1712. at Record room. charged with." was she Pasanelli "what told what then was Brown procedure, explained Pasanelli Record opportuni- with, given charged on a federal charged that she was Brown agents. a statement make ty to she was warrant witness material outstanding warrants the Reading Donna kidnapping the wanted min- forty-five approximately took Brown war- flight unlawful on an Williams by Pasanel- taken time included utes, which Brown of informed agent also rant. people charges and explain li to did Pasanelli charges in Detroit. some 1715-16. Record case. in each involved charges, meaning of explain the further if she wanted asked then Brown was Id. at like. or the penalties, possible Cole- her travels agents about tell 1700-02.

229 man. She said she long would as as she with police and knowingly and intelli stop could gently waives the right previously in any point time. At again Brown was rights. advised of her voked." (1986), Sleek v. State 499 She was if asked she understood her 751, (citing 754 Oregon v. Brad rights, and she said she did. shaw, She was read 1089, 462 U.S. 108 2830, S.Ct. the waiver by Agent form Gretz and asked (1983), L.Ed.2d 405 and Edwards v. Ari again if she was willing to ques- zona, answer 477, 451 U.S. 1880, 101 S.Ct. tions. She acknowledged that she would (1981)); LEd.2d 378 see also Grimm v. questions. answer As she had at the Ev- (1990), Ind., State 556 N.E.2d 1327. anston Department, Police however, Brown Agent Gretz and Detective Schock- sign refused to the waiver form. Record weiler continued question Brown in Ev- at 1716-17. anston after Brown had requested an attor given Brown cigarettes, pop, soda ney without initiation the defen and a chance to use the restroom. The dant. Gretz's Brown, discussion with how agents F.B.I. did not promises make ever, did not implicate Brown's Miranda procure inducements to the statement from rights. Obtaining routine booking informa Brown. At beginning of the interview tion from a defendant does not amount to she was simply told that Coleman was in illegal custodial interrogation by police another being given interview room Nee, officer. eg., Boarman opportunity give a statement. Record at (1987), Ind., 509 177, 180-81. Detective Schockweiler apparently con- proceeded give an oral confes- tinued to ask questions substantive of the sion to agents. The entire interview defendant after she requested an attor- began at p.m. around 3 and concluded at ney. Such an exchange, without initiation p.m. 5:38 when speak Brown asked to with by the defendant, appear would to violate her attorney. At point, gave rights. Miranda Because the re- agents phone name and number of sults of this exchange were not entered her attorney for the first time. Record at evidence, into however, there is no need to (testimony Agent Gretz). suppress any improper exchange. appeals Brown now the trial court's ad- Any later statement mission into evidence of the confession is not necessarily by prior tainted inadmis made at the Federal Building. Determin- sible statements to Schockweiler. Abner v. ing the admissibility of the confession State 479 N.E.2d made in Chicago requires an examination ("a prior involuntary confession does not of each exchanges between Brown render subsequent statements inadmissible and law enforcement officials made after per se"), Johnson v. State 269 Ind. request for an attorney at 1:04 370, 378-79, 1241. In pm. July requires This stead, "the of any voluntariness custodial consideration of Brown's statements statement must be determined from an ex Gretz Schockweiler, in addition to her 3 totality amination of the of the facts sur p.m. oral confession. rounding making." Johnson, its 269 Ind. The fifth and fourteenth amendments to 380 N.E.2d at 1241. To determine the United States guarantee Constitution the admissibility of Brown's oral confession suspect right presence and ad made two after her request hours initial for vice of counsel during custodial interroga an attorney requires therefore examining police. tion the the totality of facts to determine whether Arizona, Miranda v. 436, 884 U.S. 1602, 86 S.Ct. 16 L.Ed.2d 694 (1) Brown initiated further communication (1966). "When right the to have counsel is and, with police, (2) so, the if whether she asserted, suspect the is not subject to fur knowingly and intelligently waived the ther interrogation until counsel has been rights previously she Oregon invoked. v. made available to him Bradshaw, 1039, 2830; suspect 462 U.S. unless the 103 S.Ct. himself initiates further Sleek, communication 499 N.E.2d 751.

230 Evanston the however, from both Supreme away Bradshaw, the v. Oregon In who officers the Department Police statement a defendant's that found Court she re- from whom to her happen questioned to going "Well, is what police, to gen- initiated attorney. Brown quested that find to now?", sufficient was me officers new police. with the the with eral conversations dialogue initiated defendant car during the 1045-46, S.Ct. 108 occasions distinct at several Bradshaw, 462 U.S. 1050, at Brown was Chicago, Id. at opinion); ride. On arrival (plurality at 2834-35 acknowl- rights. She concurring) J., her again advised of (Powell, at 103 S.Ct. cir totality of to looking rights. that, these edged she understood (agreeing that sign occurred). The to Furthermore, only refused not cumstances, waiver valid ambigu "(allthough that that form, insisted concluded Court but she the waiver this case in question ous, respondent's stop at the only talk if she could she would him right. happen she exercised p.m. going At 5:83 time. was to what for a desire willingness all whereupon attorney, her requested evinced She investiga the about discussion occasion generalized the stopped. Unlike interrogation inquiry necessary merely a tion; counsel, it was at 5:88 request first of her the custodial of incidents the arising out of phone name and the gave officers p.m. she 1045-46, 103 S.Ct. Id. at relationship." inducements attorney. No her number of instant In the opinion). (plurality 2834-35 by law enforcement made or threats were the dialogue in fresh initiated case, Brown Additional- the confession. gain officials found question the same exactly with car confession her oral give did not ly, Brown Further Bradshaw. in initiation to be separated an event p.m., after until more discus several initiated more, Brown her from matter time, subject space, ride during the lines along the same sions attorney in Evans- for an request original sepa These discussions Chicago. ton. matter subject time, space, and rated occurred questioning from the Videotape Admissibility the IV. of Brown's after Department Police Evanston of phase During the facts attorney. The for an request initial into evi trial, offered the State Brown's Brown finding that support a this case of at an testifying Brown videotape of dence a law communication further initiated contends in Ohio. trial earlier officials. enforcement videotape. admitting the erred trial court with offi discussion initiation 504, 282 Ind. (1972), 258 v. State Lamar the test part meets cers of foundation a set establishes N.E.2d statement. her oral admissibility of for a met must be requirements al however, does not dialogue, initiation into evidence. admitted recording to be tape previ a waiver to show alone suffice videotapes as apply to requirements These Doerner right. ously invoked Ind. (1979), 272 State v. well. Smith sep A asserts determine required to inquiry is arate unen unintelligible and tape issue intel knowingly and the defendant whether thus failed jury and lightening asserted previously ligently waived requirement foundational fifth satisfy the 751; Brad Sleek, Id.; right. of Lamar. at 2832 103 S.Ct. shaw, 462 U.S. opinion). (plurality part people some confusing because tape was the cireum- totality of analysis of An tape are her on questioned who court's trial supports stances comments questions identified; some intelligently knowingly and that Brown anyone de related be right. cannot asserted overheard previously waived testimony tape; some picted on p.m., attorney at 1:04 for an Brown asked depicted proceedings blurred; and until 1:38 continued questioning and some admissible tape to be For were chaotic. dialogue in the of initiation p.m. Brown's require however, not we do p.m., Lamar, 2:24 at least occur until under car did every intelligible. require that word be We fied that she willingly and independently that, whole, only tape taken as a must murdered by Marlene Walters beating her clarity be of such that it does not lead the bottle, grip, pop dish, with a vice candy jury speculate about its contents. Pat crowbar. There is also reference to the (1986), Ind., ton v. State 501 N.E.2d 486. murder of Storey. Tonnie The trial court has wide discretion deter The evidence, State offered previous- this mining whether or not requirements these ly discussed with the expert defendant's have been met. Hobson v. State witnesses, as rebuttal mitiga- Brown's Ind., 471 N.E.2d 281. only We reverse on tion evidence. The sought defense to dem- finding an abuse of that discretion. Wal general onstrate Brown's aggres- lack of lace v. State 498 N.E.2d 961. siveness, substantial by domination Cole- Having videotape, reviewed the see La man, and borderline Ind.Code retardation. mar, 510-12, 258 Ind. at 85-50-2-9(c). experts Defense § testified we find no ruling error the court's passive that Brown had a dependant per- point. this The trial rejection court of See, sonality. eg., (testi- record at 8582-838 objections Brown's was buttressed mony psychiatrist of M.D.); Kelly, Jonathan fact that an official transeript court of the (testimony id. at 8691 of psycholo- clinical proceeding depicted tape Ohio in the was Suran). gist Dr. Vernon sug- Both doctors also in evidence. When an official court gested that Brown acting was under the transcript videotape's of a contents is ad See, influence of Alton Coleman. eg., id. mitted, clarity tape of the itself is obvi (testimony at 8582-88 Kelly); of id. at 8718 ously important. less Suran). (testimony of Doctor Suran testi- complains Brown also fied that examination of Brown's tests did tape testimony prejudicial of her was be not show evidence of aggressive hostile or gaps. cause it contains several To be ad tendencies. Id. at 3689-90. Kelly Doctor missible, tape complete enough must be did not find evidence of an per- antisocial speculation to avoid in the jurors minds of sonality disorder either. Id. at 3586. Both Patton, as to its contents. 501 N.E.2d at doctors testified that Brown had a border- Here, videotape was created intelligence. line retarded Id. at 8524-25 present members of the media in the Ohio {testimony Kelly); (testimony id. at 8692 courtroom. tape The contains several Suran). cross-examination, On Kelly Dr. unexplained gaps in testimony. videotape testified that a testify- Brown showing After a tape, of the the contents ing at trial could be indicative of Brown's unexplained gaps in the video were intelligence level. Id. 8558-59. jury read to the from complete court transcript proceedings. of the Ohio Using discussing videotape After transcript the official fill in gaps in the doctors, both State offered the tape was sufficient to impermis avoid tape transcript accompanying solely speculation by jurors sible about the proffered mitigating rebut the defendant's missing contents. (trial at 8860 evidence. id. court ad See tape jury only monishes is admissible argues tape next inadmissible because it contains mate mitigating rebut evidence factors and rial not general, otherwise admissible. In aggravating as direct evidence of cir tape contains evidence of cumstances). appears argue uncharged crimes is uncharged evidence inad crimes which are inadmissible evidence of tape bad character. as evidence of bad character and missible transcript depict testifying at an thus should not have been allowed into Ohio trial of Alton Coleman. Brown testi tape evidence.4 Since we find that the Appellant complains By phase inadmissible error. the time of the uncharged trial, references to jury guilt robberies are included had heard evidence in the tape. tape's passing phase references of the brutal murder of Tamika Turks uncharged attempted robberies do not constitute reversible and the molestation and murder of

232 discretion. of of abuse only on for rebuttal scope of the within properly at 400. N.E.2d Berkley, 501 Brown's address not need State, we the not ad tape was the that claim may be additional crimes past of Evidence Brown charge that regarding testimony the rebut expert to missible refute to used criminal prior history of and behavior significant condition mental no had an accused's 97-98. at Appellant of State, Brief N.E.2d 552 conduct. Storey v. al deficiencies. 240-41, 403 at Bond, Ind. 480-82; 273 commis defendant's of a Evidence not did court The trial at 818. N.E.2d inad generally is crimes of unrelated sion admitting evidence in its discretion abuse Storey v. State guilt. prove missible the to rebut crimes to extrinsic referring 477; v. State Bond Ind., N.E.2d 552 (1990), experts. testimony of At 233, N.E.2d 408 Ind. 273 (1980), if the even argues that last Brown however, trial, the of phase penalty the value, its probative have does videotape already been has the defendant of guilt ex defendant the prejudice potential penalty fact, the death In established. error it was and thus value this ceeds crimes of extrinsic evidence permits statute (1983), citing Hyde v. State tape, the admit stage. at this aggravators as proven to be Martin Ind., N.E.2d 451 Here, the State 35-50-2-9(b). Ind.Code § Admitting Ind., N.E.2d (1983), 453 the of evidence introduced already is at a trial crimes uncharged of evidence aggra Storey as of Walters murders Gibbs, prejudicial. generally recognized penalty the in earlier vating cireumstances however, Here, the 938-39. N.E.2d 538 35-50-2-9(b)(7). The Ind.Code phase. § un testifying a witness of value probative of heard details previously had also jury her own about in a courtroom der oath phase guilt during the murder Storey the also is committed offenses towards attitude trial. of Brown's the say that cannot high. We extremely that striking the balance in erred trial court admonitions by the indicated As tape. admitting the in did it on evidence court, though, the trial of the miti only to rebut admitted tape was the Rejection V. Defendant's of When Brown. by offered gating evidence 1 Instruction own of evidence offers the accused the court that last Brown subject door character, opens the 1 Instruction refusing Defendant's erred placed the trait her character of This instruc trial. of phase in the Ind., 501 (1986), Berkley v. State issue. stated: tion 240-41, Bond, Ind. at 400; N.E.2d ag- alleged the has Indiana of The State can then State The at 818. following: circumstances gravating misconduct specific evidence introduce in the June about 240-41, 1. On Bond, Ind. at its rebuttal. Indiana, Lake, and State County of evi seope of rebuttal The (gic) Denise Debra court. trial of the Alton Coleman in the discretion is dence kill Tamika intentionally did reversed bewill decision court's The trial trial made claim transcript. The description of the jury also heard AH. in the guilt imputed phase. guilt Storey somehow in the State of Tonnie murder other where in states place trying in detail by videotape tape describes at issue And the hearing support all reversible not After Walters. would of Marlene occurred murder murders evidence, unlikely have jury jury is admonished court trial error. attorneys mention demeanor the mere influenced questions been discus- even tape without "robbery" on Record term evidence. admissible tape were uncharged the circumstances sion of passing refer- explicit if an Even at 3875-76. State v. crime. Kuchel made were murder additional to an ence 910, 916. reversi- constitute would tape, its inclusion suggest references Appellant seems lengthy dis- such when Kuchel under error ble tape should uncharged on murder to a third defendant murders other cussions points to never admitted. not have been jury. already before tape or the murder to this a reference Turks, committing while or attempting to whether the trial court erred in refusing to A.H., commit molesting child a female give instruction, we consider whether child. the tendered correctly instruction states law, the whether 27, the supports record 2. On June 1985 and on June 1985, respectively, giving Alton Coleman and of the instruction, and whether the Brown, substance of the tendered instruction is Deborah Denise were convicted (2) by covered of two counts of Murder in the Court given. instructions Richey Pleas, County, Common Hamilton 426 N.E.2d 389. Ohio under cause B-843548. number Defendant's Instruction 1 misstated the May 3. May On 1985 and on aggravators nature of the charged by the 1985, respectively, Alton Coleman and State. The instruction would have in- Brown, Deborah Denise were convicted jury formed the aggravators that the to be (2) in two counts of Murder the Court proven were that Brown and Coleman in- Pleas, County, Common Hamilton tentionally killed Tamika and killed two Ohio under cause number B-842559. fact, others. In aggravators in any you Before consider of these cir- Brown's trial only related to Brown. Addi- aggravating cumstances as an circum- tionally, proposed instruction misstated stance, you must find that the cireum- respect law with to aggravating cir- established, stance has been beyond a cumstances. Minnick v. State doubt, by reasonable the evidence. You 482. The trial court thus are not allowed take into account properly refused defendant's Instruction 1. circumstances, other except those of the above proved which have beyond been a VI The Sentence doubt, reasonable as a basis for deciding that the death ap- would be an This defendant guilty was found by a propriate punishment in this case. jury of the murder of a year girl, seven old Turks, Tamika and of child molesting and Record at 4065. attempted murder year of a nine old The given by instructions the trial court girl, A.H. The State offered aggra- three charged aggravators listed the one to vating circumstances under the pen- death (final three. Record at 1). instruction alty statute: that Brown had been convict The court's final instructions also told the ed of Ohio, two different murders jury that the State prove beyond must that Brown committed the murder of Tami- reasonable doubt the existence of at least ka committing Turks while attempting one of the aggravating circumstances al- molesting to commit child on A.H. The leged. (final Record at 7). instruction trial court found each of these cireum- given Instruction 7 also stated that: proven beyond stances were a reasonable jury The may recommend the pen- death They certainly proven. doubt. were so alty only if it finds: Evidence of the Storey murders of Tonnie proved that the State beyond has and Marlene Walters Ohio was admitted (1) reasonable doubt that at least one not only by the Ohio convictions entered at aggravating exists; circumstances the penalty phase, through but sub- stantive guilt evidence in (Storey) both any mitigating circumstances (Walters) and penalty phase of Brown's outweighed that exist are by the aggra- Indiana trial. vating circumstance or cireumstances. Record at 4086. The trial court relied on the three only argument statutory aggravators conceivable by appellant, then, here aggravators is outweighed that the court the mitigating cir by erred not expressly limiting possible leading imposition cumstances aggravating circumstances considered death penalty. judge, The trial Richard W. jury Maroc, those enumerated the State capably carefully considered charging instrument. In reviewing possible each of the mitigating factors in mental or being under qualify aspects noted judge [did] findings. detailed extreme such an Re- disturbance emotional circumstances. mitigating

of several her conduct defen- excuse factor, "the nature as to garding Id. offenses." of these prior commission of history significant has no dant pri- that found conduct," court the criminal court the trial that Appellant argues issue, at crimes the of the commission or to so to be her disturbance requiring in erred history of significant no defendant the in participation excuse extreme as to record Supplemental conduct. criminal previously court had The trial the crime. prior that noted, though, The court 85. testimony however, psychiatric found, that accompa- Turk, Brown murdering Tamika capac have substantial Brown did indicated was he knowing that Coleman Alton nied con criminality of her the ity appreciate fourteen-year- of a rape the charged with to the her conduct duct and to conform the regarding wanted was child old This is Id. at of law. requirements The girl. young of another disappearance mitigating dispel the second sufficient in crimes the after noted also court 498 Spranger factor. Cole- accompany continued Gary, Brown 1033, 107 931, 481 U.S. cert. denied serious in other participated man and (1987). 1965, L.Ed.2d 536 S.Ct. de- enumerated previously crimes factor con mitigating fifth Judge Maroc findings. As scribed the de was whether by the court 20, sidered July 1, noted, June between domi the substantial under "by this fendant acted with charged was Judge Maroc person. estimate, A of another a Class nation best Court's [trial] young "a woman that Brown was noted case, two in this Molesting, that's Child functioning intellectual of borderline eight counts with of total Kidnappings, disorder." personality dependent separate inci- stemming from five Robbery relation noted the He also Attempted 90-91. Id. at charges dents, separate two personali dependent Brown's Burglary, ship one of between Murder, counts four dominant, manipulative ty six Coleman's no less than Burglary, and Attempted deter The court Id. personality. record at Supplemental murders." not so however, Brown was mined, weighing that when Appellant could not "she substantially dominated in consid- erred factor, court the trial partic own as to her choice rational make a murder alliance, prior ering Brown's acts and criminal repeated violent ipation she knew Turk, person awith Tamika to deceive efforts by repeated accompanied In as- behavior. in criminal engaged was prose to evade others lack of crim- intended victims of Brown's weight sessing the cution." Id. rendered she record, assistance inal consideration. legitimate awas Coleman used the standard challenges murders string of Moreover, given constitutes what regarding court the trial convicted, it is rea- has been which Overall, the court substantial domination. mitigating weight to little give sonable was by Coleman that the domination found signifi- had no showing that evidence criminal excuse not sufficient to conduct. prior criminal history of cant a declaration We take this conduct. to little entitled mitigating factor was next considered court The trial evidence, this facts weight. Under the factor mitigating potential second Spranger, justified. was Cf. influ under the defendant whether at 947-48. distur mental or emotional extreme ence of court mitigator, possible a last As the murder. the time bance head trau- possible effect considered some that, although there was found court child, and aas by Brown un ma suffered acting defendant evidence All of mitigating circumstance. no found when disturbance emotional der "mental factors mitigating possible the other committed," id. herein were crimes court. trial by the rejected statute defendant "the opinion in the court's Appellant argues that responded trial by requesting speak to a law- yer. court should Schockweiler was then present. No age have considered her as a possible mitigating factor. At the time of one attempted to aid or assist her in con- incident, Gary nearly Brown was twen necting with Instead, counsel. Gretz con- ty years old. A relatively young age can question tinued to Brown as did Schock- possible be a mitigating factor. Van weiler in presence of Gretz. Gretz was Cleave v. State present later in the car as Brown was 356, 374, denied, cert. 488 U.S. 109 transported to Chicago in federal custody. S.Ct. (1989). 102 LEd.2d 808 The Arriving Chicago, gave Gretz Brown her level of brutality of against these crimes rights Miranda the second time before com- children, however, combined with Brown's mencing interrogation his there which re- testimony at the Ohio trial indicating her sulted in Brown's decision to submit to lack actions, of conscience over her interrogation without counsel. serve to suggest age that is not a substantial miti- The conduct of Schockweiler at p.m. 1:04 gator in this case. Evanston, back in after requested The record thus shows that the trial the opportunity speak lawyer to a in court properly considered both aggravating response to her receipt first of advice of mitigating and properly cireumstances and right to counsel Gretz, from and after imposed the death in accordance Gretz then finished collecting background with the Indiana Code. Brown, information from is described in judgment testimony of the trial Gretz. court is af- Gretz was able to firmed. describe the conduct of Schockweiler be- cause he had made notes describing

GIVAN, KRAHULIK, DICKSON and Schockweiler's conduct and refreshed his JJ., concur. recollection from these notes. Gretz testi- fied as follows: DeBRULER, J., opinion. dissents with Q you Were present when Detective DeBRULER, Justice, dissenting. Sergeant Schockweiler questions asked The admission of a suspect's criminal of Deborah Brown? given during confession police custodial in A I was. terrogation, proper over objection, trial is Q questions And what did he ask? federal constitutional error where the inter A Sergeant Detective rogation Schockweiler, preceded was not be- by knowing a magnitude case, cause of the and of the voluntary by waiver suspect point that right to concerned as to then confer whether lawyer. with a Mi or not there had any been other victim Arizona, randa v. 384 U.S. 86 S.Ct. (1966). 16 L.Ed.2d the Evanston keys point, The two area. At that we did not know evaluating where Mr. Coleman p.m. the 3:10 or decision of Brown, a decision Ms. she made in Chicago Brown had staying been and we trying interested in identify giving before confession, her oral to refuse sign a waiver go form but to that as well as ahead and to determine whether or anybody there was out there that interrogator's answer her questions long so harmed, they may particular as she have stop could answering time, (1) anybody whether or not previous injured are p.m. 1:04 conduct in might that need some Evanston medical assist- of Illinois Detective Schockweiler ance at that time. minutes after Brown said she wanted to speak consistent to a presence lawyer role of F.B.I. (2) previous agent ^{[*] [*]} L ^[*] a a Q What was it that Officer Schockweil- during Gretz early period entire of de er asked Deborah Brown and what tention p.m. before 8:10 responses? were her Gretz gave first Brown her Miranda rights in Evanston at 1:04 p.m. and she ^{[*] [*]} % ^{[*] [*] [*]} Chicago were decision ceding Sergeant Schock- Okay, Detective

A of Gretz. testimony provided ef- something to the asked weiler "you says, here that part Mr. Cole- Q or one she There's whether fect lawyer for anybody to talk to right have involved had been man any ques- you ask could be we that before area advice Evanston in the else you lawyer with responded to have tions Ms. injured and you ask Did questioning." during Mr. that she "cool," and saying, previous question? precise stayed (sic) had un- Jackie, name last evening with Yes, six, I did. A floor known, in refer- else resided anything who Q you say Did Evans- east side question? apartment ence to long had well, how then said He ton. if she understood I asked A re- there, she staying she been sentence; yes. said she had been by saying sponded response else say anything Q Did she and that (8) days (2) to three two there question. particular to that (2) children. two has Jackie did not. A She your Schockweiler Detective Q Did remem- you question, next Q And the questions? further any ask recollection afford said, cannot you "If you ber Yes, sir, did. he A you for appoint will be lawyer, one those? Q What were you if wish?" any questioning before gone had if she Brown Ms. He asked just A Ias precisely advise her you Did this store Army thrift to a Salvation right? her mentioned had walked she she said and date sir, Yes, I did. A where store thrift from Jackie's to that? anything you add Q did And and shirt a blue purchased had she under- if she sir, her Yes, I asked A jeans. blue some if meant, meaning that what stood of interrogation custodial this That attorney one an afford she could ex- just she after by Schockweiler her, and she appointed be would lawyer speak with to her desire pressed yes. said the constitu- of egregious violation is * # L G * P of interrogation governing rule tional her her of advise else Q anyone Did clearer. not be police could by suspects rights? 477, 101 451 U.S. v. Arizona Edwards they not. No did A (1981). Her 68 LEd.2d S.Ct. waiver reading her Q After right to and respected, request was have that we form rights part of simply overridden point was at that counsel happened? to, referring what been under- presence and in the by Schockweiler the waiver sign to again declined A She standing of Gretz. she said she again portion, but form did not police conduct this unlawful That ques- our answer willing to be would guilt produce evidence directly itself understood long as it was tions exploit is to might seek the State which it was and any time stop at she could impor- Its case. in this point beside to. agreed in the events played it role that is the tance during which commenced interrogation The included which hours next two wherein trip to an oral confession during the gave in the car conversation murder in the involvement described fully de- of Gretz company in the Chicago at- molestation Turks and Tamika the reit- opinion, majority scribed in- Hillard. Annie by tempted murder to rights the Miranda eration when p.m. 5:83 ceased terrogation and, finally, Chicago arriving upon Gretz additional to answer Brown refused the waiv- sign refuse to decision to her speak again asked questions questions answer form but of counsel er name a with provided Gretz attorney. She immediately pre- events her own. telephone respect years With number. nineteen old at the time. There was voluntary intelligent event, no by waiver Gretz testified as follows: Q right Brown of her to counsel finally-finally, it is it correct that before she -Is gave her during

Deborah Brown was not afforded an oral confession custodial interrogation. It was therefore constitu- opportunity speak attorney to an by tional error to admit her oral confession at until after her statement was taken you? clearly trial. The error was not harmless doubt, A opportunity beyond She was not afforded the a reasonable and no such speak attorney with an from the assertion is made the State. time she was arrested until the time placed phone

that I call after obtain-

ing phone name Mr. Hauser's

number, that's correct.

Q gave That was after she a statement you? Yes,

A it was. overriding express The initial of Brown's PRIDEMORE, Wayne Appellant, speak a-lawyer by wish to with Schockweil Defendant, Gretz, presence coupled er in the v. sign the refusal of Brown to the written rights waiver of counsel when read her Indiana, Appellee-Plaintiff. STATE of second time Gretz constitute two events No. 47A04-9009-CV-447. and circumstances within all the events and occurring cireumstances between Brown's Indiana, Appeals Court of p.m. expression 1:04 speak of her desire to Fourth District. lawyer p.m. agreement with a and her 8:00 Aug. speak alone lawyer and without a so long stop answering questions as she could Rehearing Sept. Denied time, distinguish serve to Oregon case from v. Bradshaw 462 U.S. (1983). 108 S.Ct. 77 L.Ed.2d 405 Bradshaw, suspect's

In expres initial attorney

sion of his desire to have an

serupulously honored as the officer imme

diately terminated the conversation when request was made. contrast, here, By Schockweiler com- interrogation

menced an after Brown ex-

pressed Further, this same desire.

Bradshaw, suspect signed a written

waiver of counsel before the later interro-

gation that resulted in the confession was contrast, here, By

initiated. Brown re- sign the

fused to written waiver of counsel

deciding to counsel herself. experience promise

Bradshaw's police right to counsel had positive. experience by

been con-

trast was that it was hollow. In her recent

experience, expression of the desire to

speak lawyer with a would be met more

interrogation expect po- and she could not help lawyer.

lice to her reach a She was

Case Details

Case Name: Brown v. State

Court Name: Indiana Supreme Court

Date Published: Aug 29, 1991

Citation: 577 N.E.2d 221

Docket Number: 45S00-8703-CR-271

Court Abbreviation: Ind.