*1 MAYBERRY, Appellant Elizabeth
(Defendant Below), Indiana, Appellee
STATE of Below).
(Plaintiff
No. 32S00-9411-CR-1076.
Supreme Court Indiana.
July 1996.
Rehearing Denied Dec.
Background May, Phillips, met pastor at the student North Salem United Church, singles spon- at a Methodist retreat sored the United Methodist Church. De- *3 Phillips fendant and dated for several months During after the retreat. the course their defendant, old, relationship, years then 35 Phillips encouraged claims that her to allow using tongue, engage in kiss her mutual, him, consensual, oral sex with fondle breasts, digitally penetrate kiss her vagina. had had never before physical contact Phil- intimate with a man. lips deny to would later church officials that engaged he had ever in oral defen- sex with Phillips dant. relationship Defendant’s with August took turn for the worse in of 1992. attempt salvage relationship, In an Phillips inquiring defendant wrote letters into the their In relationship. status of one letters, of these she asked Phillips to attend November, 1992, counseling with her. In Phillips defendant received letter from in relationship which he stated their deeply over. This letter hurt defendant and angry. made her December, a com- defendant filed plaint with United Methodist Church (UMC) alleged in which she engaged speak- in sexual misconduct. When relationship about her with Coleman, Harry Reverend defendant stated: “My for concern is the next with woman whom relationship. he chooses to have a damage What kind of will he do her life? says pattern. He is a his behavior I believe is one which must be After broken.” Carpenter, hearings complaint, Susan K. Public several on Defender of defendant’s Indiana, Freund, Deputy Ministry David P. Public UMC Committee Ordained Defender, determined, Indianapolis, Appellant. May, for in position to retain his pastor. as a student Carter, Attorney Pamela General of Upon learning complaint, the result of her Indiana, Paunicka, Deputy Attorney Lisa M. distraught. extremely the defendant became General, Indianapolis, Appellee. for work, Although defendant continued everyone became and cut off. withdrawn SULLIVAN, Justice. longer Defendant no believed in felt God and We affirm Mayberry’s defendant Elizabeth like the church terribly. had treated her De- spite for the sought conviction murder minister Roland the fact that defendant counsel- Phillips, June, 1993, ing, committed he concluded in having as his Sun- she started day thoughts sermon at killing the North Salem about United herself. She also be- gan writing personal computer. Methodist Church. on her book as a note that thought if down what had box of bullets as well stated: she wrote She for, her, dying might be able to make “He is not worth but the innocent happened to 2, 1993, August Approximately sense of it. On defen- is.” some woman he killed two handgun purchased gave and box of ammu- killing, dant hours after the August Bloomington. in On nition to Officer Susan Austin which spent expert and trainer a firearms relationship she described in detail with showing with at her house hours Phillips, her devastation when relation- gun. care how to use and ended, plan ldll ship Phillips. and her told Austin that she had Defendant also 18, 1993, September defendant loaded On kill gun the fifth her- saved bullet Sunday cartridges. On gun with five self, but she was subdued she could before defendant, morning September shoot herself. purse, gun concealed drove to North *4 United Methodist Church. Defendant Salem 1993, 20, September an On the State filed 11:00 in front of the church at about arrived charging with information Mur- parked and her car across the street. a.m. 1993, On October defendant filed der.1 entering sanctuary, nev- Upon the insanity pursuant to Indiana notice Code eyes Phillips, took off of who was er her (1993). jury § 35-36-2-1 Defendant’s delivering pulpit. from the Defen- a sermon jury on commenced June 1994. the down the center aisle toward dant walked mentally guilty ill2 of found defendant but approached pulpit, As the Phil- pulpit. she on 1994. The trial Murder June court and lips turned and looked at her told sixty years to a sentenced defendant term speak with her after ser- that he would the 20,1994. July on silently at vice concluded. Defendant stood pulpit and Phil- the left side of the watched Discussion Phillips finish lips his sermon. finished sermon, stand, I congregation to and asked the hymn. pulled last Defendant announced the A purse, directly at gun of her aimed
the out Phillips Phillips’s knee’s and fired twice. hearing In a outside the floor. buckled and he fell the Defendant Maretto, jury, defense witness the Jennie raped You raped ‘You me! me!” exclaimed: Phillips paralegal for a law friend of and I Phillips responded: I didn’t. No “No Indiana, Fishers, that firm in testified Phil Phillips closer to didn’t.” Defendant walked legal contacted at work to obtain lips gun fired more Two the times. regarding a letter he wrote to the advice congregation ran the al- members of the response complaint the that de UMC down, tar, pried pushed defendant that had filed. Maretto testified fendant from hand. gun Another member legally that was not able to she felt she po- congregation sat on defendant until the give Phillips legal advice would have to but Phillips’s daughter, lice came. who was attorney. with an Maretto stated consult altar, congregation, up to the walked Phillips asked her consult attor father, kissed and told leaned over and gave a ney. Maretto also testified that she Phillips loved told his him him. regarding her conversations with paramedics daughter that he loved her. The Danny Phillips to Officer When Williams. shortly Phillips and took arrived thereafter inquired defense counsel about letter due hospital where he died to loss over, look Phillips asked Maretto to neck, gunshot blood from wounds privilege attorney-client State asserted the chest, wrist, leg. any as to communica on Maretto’s behalf and the victim. The Hancock arrived at tion between Maretto
Officer John
objection
gun.
In-
trial court sustained
State’s
church
confiscated defendant’s
testimony.
purse,
officer found a
the admission of Maretto’s
side defendant’s
(1993).
§
Ind.Code
35-36-2-3
Ind.Code
35-42-1-1
2.
prove,
any
In an offer to
the defense intro-
ther is it of
moment that no
has been
fee
Colman,
paid.”
269 Ind. at
report prepared
into
police
duced
evidence a
(citations omitted). Rather,
at 869
essen
report,
In the
Officer Williams.
Officer
privi
prerequisites
tial
to invocation of the
spoke
states that when he
Williams
lege
preponderance
are to establish
Phillips
Maretto
informed
(i)
attorney-
the evidence
existence of an
legal
her to
advice. The
contacted
obtain
(ii)
relationship and
client
that a confidential
report also states that Maretto advised the
Colman,
communication
involved. See
Phillips
officer that
stated
To
Ind. at
N.E.2d at 869.
meet
consensual,
engaged in
defendant had
mutual
attorney
showing
that an
client
burden of
oral sex.
existed,
to,
relationship
at the
State had
least,
very
Defendant contends that
the trial
establish
communication
erroneously
determined that the attor
in the
effort to
issue occurred
course of an
aid,
subject
ney-client privilege
legal
obtain
or
attached to comments
advice
liabilities,
profes
rights
the client’s
from
made to Maretto because Maretto
legal
acting
sional
her ca
adequately
advisor
his or
did
establish
con
Id.;
pacity as
v. De
such.
United States
employ
her in
tacted
an effort
(2nd Cir.1978).
mauro,
F.2d
professional
or aid.
advice
Colman
Heidenreich,
269 Ind.
B regarding to’s statements to Williams what While Maretto was on witness against pe- told were Maretto’s stand, inquired also as the defense to what cuniary proprietary interest because had told about her com Officer Williams breaching could have been fired for Maretto object Phillips. The State munications with attorney-client follows, privilege. It ar- asserting attorney-client privilege that the ed gues defendant, excep- that there is a valid Phil applied to Maretto’s communications to hearsay against to the for each level tion rule court lips. trial sustained State’s here, court, hearsay involved and the trial objection. The State then informed therefore, erroneously excluded Williams’s in court that understood that defendant testimony. testify to call Williams to con tended Officer cerning Phillips. him about what Maretto told assume, arguendo, Even if we objected any testimony from The State Maretto’s to Williams was a state on the basis that it would Officer Williams against ment Maretto’s interest and hearsay. The trial allowed constitute Phillips’s was a statement Maretto state parties opportunity to research against Phillips’s so that there ment interest subsequently sustained
brief issue hearsay exception hearsay for all objection. Defendant contends State’s issue, testimony we think Williams’s refusing allow court erred properly Phillips’s state excluded because testify there Officer Williams because subject attorney- ment Maretto exceptions against rule *6 were valid to the subject privilege. Information to the client hearsay hearsay for all evidence at issue attorney-client privilege privileged its retains here. until the client has consented to its character State, 172, 175, testimony Key that Maretto v. 235 Ind.
Williams’s
told
disclosure.5
(1956).
143,
132 N.E.2d
145
did not
certain statements
told
hearsay
hearsay.
to
to Williams.
have been
within
consent Maretto’s disclosures
would
(Ind. Therefore,
possessed by
1122
information
Davis v.
635 N.E.2d
the
such,
short, privileged
hearsay
privileged.
was
Ct.App.1994). As
each level
Williams
privileged
qualify
exception
to
hear
information does not cease to be
must
under
the
subject
merely
it is
to the statement
say rule.
Ind.Evidenee Rule 805. Defen
because
hearsay exception.6
con-
argues
Phillips’s
against
interest
We
dant
statements
privilege
regarding
attorney’s
the
client's
Williams did not serve to waive
rule information
by
attorney-client priv-
protected
privilege belongs
the
fees is not
client
because
payment
ilege
only
by
is
because the
of fees not consid-
attributable to the
can
be waived
conduct
Key,
between at-
ered confidential communication
some to the defen- II dant’s state of mind distinct from testi- mony, we fail it to see how would be cumula- During presentation of her de However, presented. of other tive evidence fense, sought copy the defendant to admit a carefully have we reviewed both the manu- of a manuscript she wrote that chronicled her testimony script defendant’s and con- relationship day they with from the manuscript provided in- clude met until before him. In the week she killed sights as just state of defendant’s mind hearing jury, outside the prior to the murder that were not revealed objected the State to the admission Moreover, during testimony. the manu- manuscript grounds that it was self-serv script replete hearsay is at- with statements ing hearsay hearsay and contained within victim, tributable UMC church offi- hearsay. by responded stating Defendant cials, manuscript and others. Because the manuscript that the was show relevant to fact pre- was in of other cumulative right state of mind before the murder and sented, namely testimony, the defendant’s being that it was not offered for the truth of hearsay, say and rife with cannot we that the the matters contained therein. The court abused its discretion determin- manuscript qualified probably stated that the probative the manuscript’s value as an exception against the rule the admis substantially outweighed danger of unfair hearsay sion of evidence under Indiana Evi prejudice. 803(3) dence Rule as a of defen existing However, dant’s then state of mind. manuscript
the trial court Ill excluded the under finding Indiana Evidence Rule 403 it Defendant was taken to the Hen testimony would be cumulative of defendant’s where, County dricks Jail about two hours prejudice admitting the hear shooting, placed after the say manuscript outweighed contained in the equipped interview room that relevancy. contends stationary ceiling. video camera While erroneously trial court the manu excluded in the interview room defendant made a con script provided unique because view of Sergeant fession Detective Susan Austin. processes prior defendant’s mental to the The entire conversation between defendant shooting, and defendant’s mind state of Sgt. taped. Austin was is video There *7 alleged insanity at the shooting time of the official, complete, transcript not an verbatim only were the contested issues in the case. of the conversation between defendant and Thus, argues manuscript trial, Sgt. Austin. Prior to a filed great outweighed had relevance was not suppress to motion her confession by any prejudice resulting hearsay from the grounds given that it was without the assis statements contained therein. requested tance counsel after she had a lawyer. Following hearing
Indiana
provides:
Rule of Evidence 403
and after the
tape,
viewed the entire video
relevant,
Although
may
evidence
be ex-
the trial court denied defendant’s motion to
probative
cluded if
substantially
its
value is
suppress. The trial court stated:
outweighed by danger
prejudice,
of unfair
issues, misleading
confusion of the
or
voluntariness,
[0]n
issue of
the court
jury,
delay,
considerations of undue
reviewing
finds after
tape
video
...
presentation
or needless
of cumulative evi-
knowingly
that the defendant did
and vol-
dence.
untarily
Rights.
waive her Miranda
The
Thus, a trial
questioning
court has broad discretion to
that continued after
first
probative
determine the
value of relevant
her
to
Right
Miranda
[sic]
evidence in
to
potential prejudi
strictly
background
contrast
routine
information
State,
impact.
cial
questions
See Wallace v.
486
conducted on behalf of ... De-
(Ind.1985),
Sergeant
cert. denied 478
tective
Austin and there
were
rights
her
from a
during
period of
read defendant
Miranda
questions
whatsoever
It
preprinted
Sgt.
matter.
form.
Austin stated: “Are
time on the substantive
... Elizabeth
of her
very
you willing
then
to talk to me at
this
clear
time?”
will,
induce-
with no coercion or
responded:
own free
“I can’t
Defendant
afford
law-
Austin,
agreed to talk
ment whatsoever
yer,
Sgt.
but I would like one.”
Austin stat-
fact,
up
to
her
tear
volunteered
get
you
for
‘till
ed: “Can’t
done
tomor-
sign a
former
new one and
responded:
row.
O.K.?”
“Uh
suppress
so.
the motion to
on the
did
So
questioning
huh.”
that continued
The
issue of voluntariness is denied.
strictly
limited
routine administrative and
94).
(S.R.
trial,
Sgt.
background questions that
Austin
need-
At
defendant renewed
taped
pre-printed
fill
objection
ed to ask to
out the
form that
to the admission
video
The trial court overruled the
indicated defendant had been advised
confession.
them,
objection.
rights,
request-
chose
to waive
attorney.
Sgt.
ed
When
Austin offered to
her vid
Defendant contends that
defendant,
call someone
defendant re-
taped
was inadmissible because
eo
confession
Sgt.
quested
parents
be called.
interrogation after
Sgt. Austin did not cease
Austin informed defendant
that her initial
attorney.
requested an
Fifth and
day,
hearing
that an
would
the next
attor-
Fourteenth Amendments
the United
ney
appointed following the
would be
hear-
each citizen
States Constitution secure
notify
ing,
jail personnel
and that she should
right
and advice of counsel
give
rights
if
she decided waive
police.
during
interrogation by the
custodial
statement without counsel.
Arizona,
436, 86
Miranda v.
384 U.S.
S.Ct.
(1966).
1602, 16
suspect
L.Ed.2d
Once
Sgt.
After
Austin confirmed that she would
counsel,
interrogation
right to
asserts the
parents,
following
ex-
call defendant’s
must
until counsel has been made
cease
change occurred:
suspect
available or until the
initiates further
me,
Sgt.
you
If
I
Austin:
wish
talk
police
knowing
communication
glad
will
to come back.
voluntarily
ly, intelligently and
waives the
Defendant: Uh Huh.
right
previously
in
counsel which was
Sgt.
you
get
I
brought
up here
Austin:
Bradshaw,
v.
Oregon
voked.
462 U.S.
you out of that down there.
S.Ct.
L.Ed.2d 405
Defendant: Uh Huh.
Arizona,
(1983);
v.
Edwards
451 U.S.
Sgt.
very pleas-
I know that isn’t
1880, 1884,
Austin:
484, 101
Austin “O.K.” Austin then sentence. Ind.Code 35-38-1- 7.1(b) (1993). rights, permits advised defendant of her Miranda It also the trial court up aggravating and defendant tore of to use other first waiver relevant and miti- § rights signed. gating circumstances. Upon form she had indi- Ind.Code 35-38-1- 7.1(d) (1993). Although a trial court cating that she must rights, understood her defen- mitigating consider all factors signed dant rights second waiver of presents, finding that a defendant killing Phillips. confessed significant mitigating factor is exists within this From review of defendant’s video State, the trial court’s discretion. Harris v. confession, taped we believe the trial (Ind.1995). 659 N.E.2d could conclude that the state met its burden proving beyond a reasonable doubt that The Indiana Constitution confers knowing intelligently defendant waived upon power this court to review and Const, right not to incriminate herself and to VII, § revise Ind. art. sentences. during ques- have the of counsel 17(B) Appellate Indiana Rule discusses this tioning. Accordingly, we authority. conclude Application requires of this rule by First, trial court did step analysis. not abuse its discretion look to we see if admitting the tape disproportionate, video into the sentence evidence. seems i.e., “manifestly in light unreasonable of the
IV nature of the offense and the character of the State, imposed The trial court the maximum sen- offender.” Fointno v. 487 N.E.2d (Ind.1986). available, Second, sixty years.7 tence if The trial court we conclude that may manifestly the sentence mitigating found one unreason factor—-“the defendant able, we per decide whether “no life, reasonable abiding has led a law life for her entire could appropriate son find such sentence until this crime was committed. And there particular If, offense and offender.” Id. prior any was no evidence of crimes commit- standard, using this inap we find a sentence (R. 1190). by ted Mayberry.” Miss Howev- propriate, we will revise it to make it reason er, mitigating the trial court found that this State, Barany able. v. 658 N.E.2d significantly factor outweighed (Ind.1995). (1) following aggravating factors: defendant (2) carefully murder; planned the find two aggravating We killed congre- front his church inap circumstances cited the trial court (3) gation; imposition of a reduced sentence propriate First, here. use the trial court depreciate would seriousness statutory found the aggravating circumstance (4) crime; inwas need of correc- imposition “that of a reduced sentence would tional and rehabilitative treatment that could depreciate the seriousness crime.” (5) provided penal facility; best be in a de- 35-38-l-7.1(b)(4) Ind.Code This fendant killed Phillips daugh- in front of his aggravating only is support factor used ter. refusal to presumptive reduce the sentence. State, (Ind. v. Ector 639 N.E.2d Defendant contends that the im 1994), State, citing v. Evans 497 N.E.2d position sixty year aof sentence was mani (Ind.1996). nothing There is in the rec festly unreasonable because the trial court indicating ord trial court was consid improper aggravating utilized circumstances ering Therefore, a reduced sentence. in failing abused discretion find aggravating use this circumstance was im significant of a existence mitigating circum proper. Making sentencing stance. determinations is discretion, within a trial court’s Second, Sims the trial court found the (Ind.1992), 585 N.E.2d and is statutory aggravating circumstance that “de *9 by regulated § Indiana Code 35-38-1-7.1 in fendant was need of correctional and reha (1993). This aggra statute includes a list of bilitative that provid treatment could best be vating justify factors that increasing pre- penal facility.” was, a a course, ed in There of presumptive 7. forty The years. sentence for is murder Ind.Code 35-50-2-3 substantial- aggravating be circumstances so question defendant would but no facility; outweigh mitigating issue penal ly a circumstances in incarcerated be presumptive defendant should here whether sentence is enhancement of presumptive than the justified. for more incarcerated murder is Thus, aggravating circum for this term. sen justify part in an enhanced stance Conclusion
tence, to mean it must be understood Accordingly, is af- defendant’s conviction is need of correctional the defendant trial remand this case firmed we pro best treatment can rehabilitative imposition presumptive sen- period penal court for of by a of incarceration vided years. forty of facility presumptive sentence tence for murder excess gave specific term. why of the reason
individualized statement JJ., DICKSON, concur. DeBRULER in need of correctional this that could best treatment and rehabilitative SELBY, J., in result without concurs in a provided period of incarceration by a separate opinion. facility presumptive of penal in excess C.J., SHEPARD, except concurs as Robey v. term. sentence Cf. sentence, (Ind.1990) believing some 145, 150-51 enhancement (discussing re sentence is warranted. quirement specific individualized supporting an en the reasons sentence). aggravating The other hanced by are found the trial court
circumstances justify enhanced sentence.
sufficient
However, we not think that the trial court do aggravating
adequately weighed circum against significant mitigating circum
stances
stances. VOIGT, Appellant
Here, de the record shows that Ronald (Petitioner Below), fendant the trial court to consider invited mentally ill fact that she at the time mitigating factor. committed crime as declined, expressly finding The trial court VOIGT, Appellee Sharon J. not a
that defendant’s mental illness was Below). (Respondent mitigating all circumstances factor under No. 79S02-9505-CV-501. disagree. The case. We record of this psychiatrists who of the four shows Supreme Court Indiana. testified, appointed, one of whom was court mentally ill at that defendant was testified Aug. crime. the time she committed the More over, thought jury also as
mentally ill the time of her crime by returning guilty
evidenced verdict mentally face this ill.
but illness, mental we think
of defendant’s refusing discretion
trial court abused its significant mitigat illness
to find mental as consider defendant’s factor. When we mitigator recognized and the
mental illness had led a the trial court —that defendant abiding up of this
law life to her commission evidence that she and there was no
crime do think prior crimes —we committed