Caraway v. State
891 N.E.2d 122
Ind. Ct. App.
2008
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*1 B fоr Class misdemeanor ter’s convictions but insufficient evidence neglect,

animal af- support of those convictions. We four felony D firm convictions the four Class B the Class misdemeanor eight four B and reverse of the Class convictions convictions.12 misdemeanor part part. Affirmed in reversed MATHIAS, J., MAY, J., and concur. CARAWAY, Appellant- E. Thomas

Defendant, Indiana, Appellee-Plaintiff. STATE of No. 47A01-0709-CR-416. Appeals Court of Indiana. Rehearing Denied Oct. information, charging 12. Based on the and 8. 2, 6, 7, would be reversed convictions counts

OPINION

RILEY, Judge.

STATEMENT OF THE CASE Defendant-Appellant, Thomas E. Cara- way (Caraway), appeals the trial court’s denial of his Motion to Suppress and Ex- clude All Evidence of Polygrаph Examina- tion.
We reverse and remand pro- for further ceedings.

ISSUE

Caraway raises one appeal, issue on which we restate as: Whether the trial in denying erred his motion to sup- press Caraway when ‍‌​‌​​​​​‌‌​​​​‌​​‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​‌‍was not advised of to signing an Agreement Polygraph to Take Stipula- tion of Admissibility (stipulation agree- ment). AND

FACTS PROCEDURAL HISTORY April A.L. could not locate her three-year-old-son, B.B. When A.L. Caraway’s went to garage, which was lo- residence, cated next door to her she ob- served that pants B.B.’s were down and that Caraway had penis B.B.’s day, mouth. That same Captain Detective Robert City Herr of the Bedford Police (Detective Herr) Department was dis- patched investigate allegations made by A.L. initially Detective Herr inter- Caraway scene, viewed at the and Cara- way subsequently agreed to further con- versation police department. back After Detective Herr took Huron, IN, Lorinda Youngcourt, Meier station, statement Attorney Appellant. for told Detective Herr that “he has trouble Carter, Attorney Steve General of reading,” a dispatcher was summoned Indiana, Joby Jerrells, Deputy D. Attor- to witness Detective Herr read the state- General, ney IN, Indianapolis, Attorneys concluding ment back to before 70-71). Appellee. (Transcript pp. conversation. 35-42-4-3(a); and § felony, I.C. later, A Class on June

Nearly two months II, as a Class C molesting, child to Cara- Count returned Detective Herr 35-42-4-3(b). On June felony, I.C. to him. The spoke way’s residence *3 Suppress to 2007, filed a Motion Caraway Detective the rear of out to two went Polygraph Exclude All Evidence outside and and remained cruiser Herr’s the trial July On Herr went Examination. Detective while the vehicle Caraway’s hearing a on conducted with agreement stipulation through the trial court a On agree to take motion. asking him to Caraway, 3, 2007, August motion. On Caraway Because denied polygraph for to Continue Caraway filed a Motion Herr read reading, Detective difficulty had Appeal Interlocutory him, Filing Purpose “down to stipulation agreement Appeal, to File Appoint Co-Counsel аppeared,” it and to as through [] the numbers trial court. On granted by the “it an which was to him that is explained further and the trial court certified prosecu- August you agreement between interlocutory appeal. On No- for of this test order allow the results tor’s office to granted we to, ready you go to vember getting that we are (Tr. of his intеr- accept jurisdiction to take, petition in court.” to admitted [be] and 72-73). locutory appeal. agreement stipulation pp. results could polygraph that the

provided Additional facts Caraway appeals. now stipu- trial without this admitted at not be necessary. provided as will be waiver to lation, it included a and Caraway may regarding objection AND DECISION DISCUSSION at trial. It did not of the results admission im trial court Caraway argues the or include Miranda warning mention suppress. his motion properly denied Caraway counsel. of his notice the denial of motion review of Our at the stipulation agreement signed the sufficiency to other suppress is similar scene, Detective Herr the State and matters. Gonser signed it as well. subsequently The record must (Ind.Ct.App.2006). 26, 2004, probative Herr trans- evidence of Detective disclose substantial On June deci supports Po- the trial court’s Caraway to the Indiana State value that ported evidence, sion. Id. We polygraph reweigh do not Jasper where lice Post conflicting evidence Prior to the ex- will consider administered. and we ruling. trial court’s amination, Herr observed favorable to the Detective most trial Id. On (Trooper we will affirm the Trooper appeal, Dan Gress Indiana State if it his Miranda Gress) suppress Caraway ruling on a motion read to court’s theory sup form, any legal from a which included sustainable on warnings is record, if the trial court to seek the assistance even ported notice of the signed the Miranda theory. did not use counsel. Trooper form and

warning waiver decision, the trial court’s Car- Disputing polygraph. administered the Gress contends that the State away specifically tо coun- him notice of his gave filed never the State September On polygraph. to the Information, stipulated sel when charging with stip- signature counsel’s on felony, B Ind. a Class Without molesting, child as opportunity or the May agreement, ulation Code 35-42-4-3. counsel, he maintains right of Information waive his charging amended the State invalid. The State that the is molesting, child as a to include ‍‌​‌​​​​​‌‌​​​​‌​​‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​‌‍Count only is valid replies stipulation that the because show whether defendant was being though Caraway was informed of truthful at the time of the even exami- nation, and that it is for jury counsel before of that determine weight he was informed effect to be given to the actual exam- such Trooper testimony. Gress ination. See also Sanchez (Ind.1996). prerequisite The first have repeatedly courts of this state only one at issue in this case. expressed severe reservations about the reliability Willey results. parties Both focus this court’s attention *4 State, 434, (Ind.1999); 441 712 N.E.2d State, on Kochersperger v. 725 N.E.2d 918 702, v. Madison 534 704 (Ind.Ct.App.2000). Kochersperger, who (“thе (Ind.1989) polygraph exami- value of investigation was under regarding allega- ”); ... highly questionable nations is Reid molestation, tions of child met with detec- 267 Ind. 372 N.E.2d tives at the department. Id. at 921. (1978) (“in case, any given unreliable Although Kochersperger placed was not in a may produced polygraph results be arrest, under detectives did review with by test influences that cannot be controlled Kochersperger rights an advice of form a compensated competent exam- or containing warnings, Miranda including iner”); 863 N.E.2d McVey v. an advisement of his to counsel. Id. denied, reh’g (Ind.Ct.App.2007), trans. Kochersperger signed read and the advice questionable Because of relia- denied. form, meeting of culminated bility, prerequisites we have four adopted Kochersperger agreement that must be the results met before of a prosecutor undergo with the a poly- can be polygraph examination admitted examination; graph stipu- into evidence. In Owens 176 Ind. lated that the of the results examination (1978) Aрp. (citing in any subsequent admissible Valdez, Arizona v. Ariz. 371 P.2d trial, day trial. Id. On Kochersper- of (1962)), we formulated these as raised a ger suppress poly- motion to follows: results, graph examination but the motion

(1) defendant, That prosecutor, jury and denied. was Id. found him sign defense counsel all written stipu- guilty. Id.

lation providing for the defendant’s sub- appeal, Kоchersperger raised two mission to and for the examination arguments regard with to the polygraph at subsequent admission trial of the re- First, Id. at 922. Kocher- sults. sperger validity stip- contested the of the (2) notwithstanding That ulation, as his defense counsel did not the admissibility of the test results is at However, sign it. we found Id. that Ko- the trial regarding court’s discretion сhersperger advised of fully was qualifications examiner’s and the test that right. to counsel and waived Id. at conditions. Second, Kochersperger argued 922-23. (3) party That opposing shall have that his under the Sixth the right polygraph to cross-examine the poly- Amendment violated when the graphs opinion examiner if his and are post-tеsting examination graph and inter- evidence; offered in rogation were without conducted (4) that, jury That the be instructed of counsel. Id. at 923. presence defense most, testimony Specifically, urged that such examina- examiner’s tends fair trial. gate the accused’s to a are “critical from interrogations

tions and Wade, In that nec- proceeding stages” Ash, ‍‌​‌​​​​​‌‌​​​​‌​​‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​‌‍United States essarily trigger a defendant’s Sixth (1973), 37 L.Ed.2d 619 counsel. Howev- Id. background the historical Court examined er, the court stated that Kochersperger development Sixth Amendment gov- the commencement “This review concluding: I.C. which the erned 35-34-1-1 history expansion of the of the Sixth of an or indictment be- filing information guarantee demon- (cit- Amendment process. the formal criminal gins the test the Court strates that utilized Little v. has for examination of the event called (Ind.1985)). Kochersperger had Because order the accused to determine whether arrested, arraigned, or not been indicted required coping legal problems with aid in- during exаmination or adversary.” in meeting assistance terrogation, pe- court held these Court clarified in Supreme Wade riods did constitute *5 right an to has been accused’s counsel thus, proceeding, criminal Kocher- in certain extended to “critical” right yet had at- sperger’s to counsel today’s law proceedings, becаuse at Kochersperger, tached. 725 N.E.2d machinery critical enforcement involves addition, In 924. the clarified by prose- of the the confrontations accused to the occurring prior an event initiation proceedings cution the pretrial at where may only proceedings of criminal be chal- well settle the аccused’s fate might results grounds, on is lenged process due which formality. the trial to a mere reduce any to claim. independent right of Wade, 224, 227, at See 388 U.S. State, (quoting v. 684 N.E.2d Callis (Ind.Ct.App.1997), n. 8 de- trans. ). nied Constitution, the Indiana Under I, are afforded Article section citizens disagree with We the result greater protection even federal than in Kochersperger right reached the to states, counterpart. part: Section counsel cannot earlier than at the attach In prosecutions, all criminal the accused proceedings. initiation of criminal trial, right shall the to public have the Sixth Amendment to United States jury, county in which impartial the guarantees right Constitution to coun committed; shall have offense been any stage prosecution sel at critical counsel; to to be heard himself and may derogate where absence counsel’s nature demand the and cause of right from the to a fair trial. accused’s him, against accusation and to have Wade, 218, 226, 228, v. thereof; cоpy meet face the witnesses (1967); L.Ed.2d 1149 face, process and to have compulsory N.E.2d Williams obtaining witnesses in his favor. (Ind.1990); Hall 13(a). I, § Ind. Art. Const. (Ind.Ct.App.2007), trans. denied. It is Hall, clearly that, to that that in In principle central addition to we stated as with trial, Amendment, presence counsel’s at accused is the Sixth Article Section 13 guaranteed need not of the guarantees that he stand alone Indiana Constitution against any stage right prose stage State at to counsel critical cution, informal, might where court or counsel’s absence formal out, where a fair might derogate counsel’s absence dero- from the accused’s trial; however, “the afforded under nоose. There nothing that counsel can do for them at the trial. prior filings 13 also attach to the Section charges against formal the defendant.” altered). Thus, (Formatting when a de- Hall, Thus, precedents fendant finds himself a critical stage, we interpreted deny have often the Section 13 cannot him his to counsel sim- ply becausе he has not expansively. formally Malinski been in- yet. dicted (Ind.2003) (quoting Bol kovac v. 229 Ind. 98 N.E.2d 250 sum, In we conclude that Cara (Ind.1951) (recognizing an unqualified way’s right to counsel attached immediate felony to counsel in both and misde ly prior to Detective Herr’s request sign 13)). meanor cases under section the stipulation agreement. Caraway had to stand alone and make case, In application this of Kocher- may decision that damage his defense at sperger derogate from protec- trial. At that stage, the absence of guaranteed by tions the Sixth Amendment Caraway’s right an attorney derogated Here, and the Indiana Constitution. Furthermore, to a fair trial. as rеcord reflects that Detective Herr came Caraway was never informed of home and him advised to stipulating the results sign stipulation agreement. of a polygraph examination, he could not agreement provided objection that any Accordingly, waived it. we conclude results, the admission of that the trial court imprоperly denied Car answers, questions, qualifi- and examiner’s *6 away’s motion suppress. cations were waived. The did not warnings include Miranda no- CONCLUSION tice of right to counsel. We conclude that the trial improp- erly denied motion to suppress.

Although Caraway was not ar Reversed and remanded. rested, arraigned, or indicted at the time stipulated polygraph, he waived BAKER, C.J., concurs. any objection to the admission of an unreli ROBB, J., able concurs result with potentially form of incriminating evi separate opinion. nothing dence. This can be less than a Illinois, ‍‌​‌​​​​​‌‌​​​​‌​​‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​‌‍critical stage. In Escobedo v. 378 ROBB, Judge, concurring in result. 478, 487-488, U.S. 84 S.Ct. 12 respectfully I concur in result. As stat- (1964), L.Ed.2d 977 the United States Su ed the United Suрreme States Court in preme Court stated: Wisconsin, McNeil v. 501 111 sought by rule the State here [] (1991), S.Ct. 115 L.Ed.2d 158 would make the trial no more than an Sixth right to counsel “does appeal interrogation; from the not attach until a prosecution is com- right to use counsel at the formal trial menced, is, that ‘at or after the initiation of if, very would be a thing hollоw for all adversary judicial criminal proceedings— practical purposes, the conviction is al- by way whether charge, prelimi- of formal ready by pretrial assured indictment, nary hearing, information, or ” can imagine cynical One prosecutor arraignment.’ Id. at 111 S.Ct. 2204 saying: Let them have the most illustri- Illinois, (quoting Kirby v. 406 U.S. They (1972)).1 ous escapе now. can’t 32 L.Ed.2d 411 clear, 1. As the Court in McNeil made there is a difference between the Sixth Amendment Kochersperger, the defendant following Kochersperger Unlike Indiana case law sign- that acknowledge prior was not so advised continues until initiation counsel does not attach take a that he stipulation proceedings. See Cox v. of criminal that the results polygraph examination and (Ind.Ct.App.2006) N.E.2d Kochersperger, could used at trial. See (“It that the Sixth Amend is well settled was (“Kochersperger at 922-23 N.E.2d only attaches at or ment counsel fully of his to counsel advised judicial adversary pro the time after ... stipulation executing ceedings have bеen initiated right by the advice signing waived such defendant.”) Dullen v. (quoting form”) added). The tim- rights (emphasis denied, (Ind.1999), N.E.2d cett. important an ing of the advice of 118, 148 847, 121 L.Ed.2d 73 Kochersperger and this distinction between (2000)); Ackerman case. the basis that (Ind.Ct.App.2002) (noting n. 9 and did not waive his advised of “long recognized right of an accused in this before stages to have at all сritical state rather than on the basis of the Sixth arrest”); following point Badelle v. Amendment, agree I that the trial court (Ind.Ct.App. 537-38 granted Caraway’s motion should 2001) (noting although accused has suppress, and I therefore concur result. to counsel under both the Sixth Amendment and Article section 13 of the at critical

Indiana Constitution find no proceedings, support “[w]e the assertion that the to counsel can attach earlier than the initiation of crimi (quoting nal proceedings.”) Callis (Ind.Ct.App.1997)). YANKEE PARK HOMEOWNERS concurring judge Kochersperger, As *7 ASSOCIATION, INC., Appellant- I continue to believe Plaintiff, until pro- counsel does not attach ‍‌​‌​​​​​‌‌​​​​‌​​‌​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌‌​‌‌‌​‌‌​​‌‍ceedings are filing initiated information or indictment. N.E.2d at LaGRANGE COUNTY SEWER agree

923-24. I therefore cannot with the DISTRICT, Appellee- majority’s conclusion that found Defendant. stage himself at when presented polygraph stipulation prior any with the No. 44A03-0804-CV-144. being charges filed him. Nonethe- less, Caraway should have been advised Appeals Court of of Indiana. the presence that he was entitled to Fifth аdvice of counsel for the

purpose avoiding self-incrimination dur- interrogation by police. custodial Miranda, does not whether which attach until anteed which “attaches positions government “after adverse relationship' produced or not the 'adversarial solidified,” 177-78, arisen,” and defendant have id. at yet pending has id. (quotation 111 S.Ct. 2204 and citation omit- ted), guar- and the Fifth Amendment interest