Solomon v. State

rеcommenda- any way by the sentence harmed impose stances to remark, while This judge. November 1979.” tion of the the defendant on constitute error.” does not inappropriate, reasons, disclosing these the trial court By re- as set forth in 11-1-1-7 was complied Although with our mandate Ind.Code. § us with the effec- Spinks Page provided Acts P.L. 120 pealed by § 1, 1980, of our review. necessary purposes general authority record for tive October matters has parole parole board in pertaining review to sen- scope Our pоwer The plenary not been diminished. tencing is established and defined in Rule parole in the prisoners is still vested parole Re- Appellate of the Indiana Rules for the 11-9-1-2 Ind.Code board virtue of § 2(1) view of Rule directs that Sentences. (Burns Repl.1981), which reads: we “will not revise a sentence authorized except “(a) parole statute where such sentence is mani- board shall: of the nature of festly light unreasonable the offense the character of the offend- and revocation parole Make release 2(2) er.” Rule states that “a sentence is not decisions under IC 11-13-3 [11-13-3-1 manifestly unreasonable unless no reasona- 35-50-6-1;”. and IC -11-13-3-10] appro- ble could find such sentence quoted our above We therefore reaffirm offense and offend- priate particular to the according Mott to Ind.Code holding in imposed.” er for which such sentence was judge’s recom- 11-9-1-2. Since § very clearly speaks The record now for it- binding can have no effect mendation record, self. Hatton’s criminal not claim Hatton and since Hatton does danger-

trial cоurt’s Hatton’s perception of prejudiced that he has been harmed or instant ous character and the fact that the recommendation, we dismiss Hatton’s crimes were committed while Hatton was error as immaterial. alleged final jail all escapee County from the Marion court is af- provide judgment a most basis for these of the trial sufficient aggravated respects. sentences. This Court finds in all firmed manifestly that these sentences are not un- light J„ DeBRULER,

reasonable in of the nature of the GIVAN, HUNT- C. offenses and the charaсter of the offender. PRENTICE, JJ., ER and concur. ag- We therefore affirm each Hatton’s

gravated sentences. sentence, the trial pronouncing

judge recommended that Hatton never be

eligible parole. Hatton’s trial counsel

objected to this recommendation but argues

overruled. Hatton now this to be requests error and that his cause be re SOLOMON, Appellant, Alfred L. manded instructions to vacate rec previously ommendation. We have decided Indiana, Appellee. STATE this issue. In Mott v. 986, 989, we held: No. 581S129. “... the trial court’s recommendation of of Indiana. Supreme Court no parole merely is a recommendation. It is parole not an order. The Indiana Sept. Department board of the of Corrections 3, 1982. Dec. Rehearing Denied power parole prisoners, has exclusive statutes, under our Ind.Code 11-1-1-7 §

(Burns 1979). The appellant was sen- Department

tenced to the of Corrections showing that he has been

and there no Kammen, McClure,

Richard McClure & Kammen, Indianapolis, appellant. for Pearson, Indiana, E. Linley Atty. Gen. of Quintana, Gen., Deputy Atty. Carmen L. Indianapolis, appellee.

PIVARNIK, Justice. Defendant-appellant, Alfred L. charged Superior in the Madison Court rape, the crimes of Ind.Code 35-42- § (Burns 1979), burglary, 4-1 Ind.Code (Burns Supp.1982). 35-43-2-1 A § charges. found on both guilty The trial him to judge twenty sentenced I count, served on to be consecu- years each rais- tively. appeal, direct this trial, Appellant filed а Prior to es seven as follows: issues Motion for a Examination of J. Psychiatric judge deny- 1. trial erred by whether the the Motion apparent purpose O. ing Psychiatric Motion for a or not J. O. suf was to determine ‍‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌‌​​‌‌‌​‌​​​​​‌​​​​​‌​​‌‌​‌​‌‌​‍whether victim; Examination of the mental or emotional delu fered some reality of causing sion a distortion of suffi judge 2. whether erred admit- ting magnitude incompetent into letter incriminating evidence cient to render discretion, written the victim by Appellant to and de- a trial court as a witness. In its wife; livered Appellant’s if it deter may ordеr such an examination held, We have necessary. mines one to be erred whether the trial admit- however, trial for that a a sex defendant ting into evidence statements to subject has the victim to offense no police investigators; State, Page v. psychiatric a examination. 4. trial court lim- improperly whether the 1304; Holder v. ited cross-examination of the State, (1979) Ind., 396 N.E.2d Easter victim; State, day v. by 5. trial court erred permit- whether the Easterday, supra, 901. cites ting the remain in the victim to courtroom a trial judge wherein this found that Court subsequent testimony and an despite to her denying by had abused his a Mo discretion witnesses; order requiring separation the a tion for Examination Psychiatric 6. deny- whether the trial court erred by Easterday, In the prosecuting witness. ing Appellant’s Judg- Motion to Vacate the year-old a ten prosecuting girl witness was ment; and' men in history implicating who had a previ who whether the trial court erred in acts of sexual misconduct and sentenc- ing Appellant. ously had been known to fabricate stories of' held in sexual incidents. This Court In the morning hours of early June background, view of the witness’ by J. 0. awakened a was nude man by failing abused discretion his standing lived beside her bed. She alone in permitting have the examined before child apartment one-bedroom where these case, testify. her to In the instant no evi scream, events began occurred. As she court presented sug to the trial dence the man threatened to kill her if she not did psychiatric a gesting any reason to conduct stop. He pillow covered her face a competen examination to J. O.’s determine pinned against her hands her It chest. Also, a testify. thirty victim was cy to was dark at the time in the room and she court did not year-old woman. The trial man, could not identify although she refusing to grant its abuse discretion said his voice sounded familiar and he called Page supra; nick-name, her Motion. Jenny. her man Easterday performed supra; on her several Holder oral sex times and then supra. forced her to have sexual intercourse intercourse,

with him. Following the man fell asleep wiggled on of J. 0. free top She II enough to pistol kept reach a she her he a jail, While was in wrote bed, and then threw the man off of her. “the lascivious apologizing letter to J. 0. for He apartment fled as ran out of her she he for her and for the disregard” had had the nude help. and summoned By to which he sub- “fear and atrociousness” time it she daylight was able to morning.” her jected “Tuesday recognize her assailant. He was Appellant letter, assured J. 0. that lengthy Alfred Solomon whom she acquainted deepest respect he had the par- as his mother and her any disrespect by ents had good bеen friends for never meant to show many years. way objected treated her. He stated his conduct further to the was directed the “demonic forces” of grounds letter’s admission on the it alcohol drugs. repeatedly contained reference to a prior Solomon conviction. court, begged forgive drop initiative, J. 0. to him and to her The trial on its own or charges. He told J. 0. he knew he would that all references prior dered to Solomon’s draw long prison prior term because of his Apparently criminal record bе deleted. one convictions and impose page that this would an such reference on 6 of the letter was unbearable hardship upon inadvertently his wife and not removed. This fact was daughter small who would not brought be able to to the trial court’s attention get along without him. following day. Appellant argues Solomon admitted until the writing the letter which he addressed “Dear that since no one at that could have point Jenny” and signed record, “A1 He testi- past Solomon.” testified to his the failure to fied that he delivered it to his wife who strikе this reference constituted a serious subsequently put it into envelope ad- breach of the trial court’s which so order dressed to J. 0. Solomon’swife prejudiced mailed him that a mistrial should have letter. When the State offered the letter been granted. record shows that evidence, into Appellant objected evidence, on the to the letter’s admission into grounds that it privileged was a husband- inquired trial court whether all references wife communication and therefore inadmis- Appellant’s past activity criminal agаinst sible him. testified Solomon been deleted as instructed. The prosecutor he had delivered the letter to his wife only replied in the affirmative. It State’s him, to hold for thought with the that he contention that Appellant ample oppor might later send it. said tunity inspect Solomon that he to the letter as to submitted instructed his wife not to mail the letter. the jury bring and to to the court’s atten His wife testified that while deliv- Solomon tion the missed inadvertently statement. her, ered the give letter to he did not her We agree. opportunity Solomonhad the tо any particular instructions about it. She examine the exhibit before it was sub placed said she the letter in an envelope, mitted to the and to determine wheth it, stamped sealed, 0., addressed it to J. er all of past the references to his had been mailed it to her. The trial court found that stricken. to By failing note the statement this was privileged not a of, husband-wife com- complained misled effectively Solomon munication and therefore was admissible the trial court into believing that its order into evidence. completеly complied had been with and objections waived his to this Hav mistake. The trial court properly admitted ing opportunity object, had an to Appellant’s letter to J. 0. Communications may not wait until evidence has into gone are privileged when are between hus then, the record and finding after it to be band and wife and are intended to be confi unfavorable, that it ask be stricken or that dential reason of the marital relation State, the jury be admonished. Carman v. ship. If, however, the communication is (1979) Ind., Furthermore, 396 N.E.2d 344. intended to be trаnsmitted to per a third in view of all the other against evidence son, privilege there is no because the com Appellant, appear it does not that his one . munication is not confidential Robinson v. statement, “and my past because of rec Ind., (1981) 424 N.E.2d Resn ord,” prejudiced so him that a reversal is over v. (1978) 372 required. Estep See: N.E.2d 457. The letter here was written by Solomon to J. O. given and was to his wife only for purpose having it delivered Ill to J. O. It was neither a confidential hus band-wife communication nor was the let Appellant further contends that the ter based in any on way Solomon’smarital denying trial court erred in his Motion to relationship. incriminating certain Suppress statements

575 attorney any his arrest. He to have an at that time or at police made to after argues interrogating specifically and that “if he so indicated he want- time” him his Miranda officer failed to advise stop and him attorney get ed an we would rights present during to have counsel were found to one.” These advisements Arizona, interrogation. See: Miranda v. essentially convey message. the Miranda U.S. S.Ct. The instant case should follow Burton. L.Ed.2d 694. The record shows that informed that he had clearly to fol- interrogation, Solomon was read the attorney present an at all right to have lowing advisement. times, appointed would be to and that one “I, undersigned, have been in- him if he so desired. He was represent formed as my rights, constitutional immediately that he would be further told that I am entitled legal present counsel if he wished. attorney allowed to call an at all times. I have been advised also written advise- given was also Solоmon pay if I am unable to for counsel and a waiver rights ment of his Miranda appoint attorney that the court will an signed. Appellant which he admits he represent required me. I’m not to make advised of his amply properly whatsoever, any any statement being interrogated by counsel before make, written, statement I either oral or He declined to consult police. voluntarily may against used me in be court.” making before his incrimi- attorney Appellant was then read an advice properly nating statements. card оn which the above advisement Suppress. denied Motion printed, along rights with a waiver of state- signed. ment which he The interrogating officer additionally testified that he advised IV that he telephone Solomon could use the at the trial court Appellant contends time to if he attorney contact an cross-examination limiting erred in his wished to do so. stated to the The record shows that defense the victim. officer that he might telephone want to testimony to elicit attempted counsel later, parents but that he did not wish to with sеv relationships the victim as to her phone right use the then. had been eral men. J. 0. testified that ‍‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌‌​​‌‌‌​‌​​​​​‌​​​​​‌​​‌‌​‌​‌‌​‍she State, Appellant upon relies Franklin v. years ago a number of engaged to a man (1974) 261, 262 Ind. 314 N.E.2d 742. In engagement that she had broken the but Franklin, this Court advis only found her fiancée was when she discovered that ing a defendant of his to “right have an he fa seeing by another woman whom attorney present to consult with” is not a pres she was thered a child. also said She enough expression clear of that defendant’s man, but ently seeing another right presence to the during of counsel in involved. Defense coun seriously were not terrogation because the time of such en on J. O.’s questioning sel’s then focused Franklin, titlement specified. is not player with an unidentified on relationship

however, this Court noted that to in baseball professional the Cincinnati Reds terrogation, the defendant had twice been they had intro team. J. O. testified that given paper rights. advisements of his Ac to each other once while duced themselves cordingly, this Court found that the defend as a week in Florida spending she а ant had amply been advised. In Burton v. training. Her spectator spring of the Red’s State, (1973) 790, 260 Ind. 292 N.E.2d J. tended to show that complete testimony this noted necessary Court that it is not to extensively to frequently travelled O. use the wording exact of Miranda to com specifi this man baseball. She play watch rights, municate to a defendant his includ big “a real fan testified that she was cally ing right to be represented by an attor him quite had “known ney. of his” and that she The defendant in Burton was in “at least asked if she was right formed that he had “a have a a while.” When to now”, lawyer present particular play- this ball that “he had a infatuated with er?”, J. 0. testified: “I’ve always credibility been that of a witness cross-exami- way before I ever knew him.” However, Defense party may nation. not estab- counsel was able to establish that J. 0. had by cross-examining lish his defense a wit- been in the player’s apartment many times. ness about matters within scope not State, Ringham direct examination. When defense counsel asked J. 0. wheth- 863; 308 N.E.2d Carter er she had visited the player any baseball State, (1981) Ind.App., 422 N.E.2d 742. city other during than Cincinnati the sum- scope and extent of cross-examination mer of objected State on relevan- largely are within the discretion of the trial cy grounds Appel- and the court sustained. court. Dean lant then made an offer prove support to Dean, permis- N.E.2d 1270. In we held that of allowing further testimony about J. O.’s phas- sible cross-examination extends to all relationships. Defense counsel indicated he subject es of the direct matter covered on would show that J. 0. had pursued examination and matter may any include player baseball years. over three Coun- elucidate, which modify, explain, tends sel said he would show that J. been contradict or rebut in chief testimony given rebuffed several times by this man and witness. See also: Wofford v. others with whom she had anticipated mat- (1979) Ind., Pearish v. rimony. He said that his purpose was to 339, 345, (1976) 264 Ind. prove that charges against 296, 299. The cross-examination in this were a result of revenge. J. O.’s desire for beyond any subject case went far matter The defense was that theory agreed J. 0. raised in direct examination. have sexual relations with but became angry after the intercourse when The trial court did not abuse its discre- Solomonmade insulting remarks to her con- required per- tion. A trial is not cerning past Appel- failures with men. type mit a defendant in this of case to delve lant personally later testified that J. 0. into irrelevant relationships in the victim’s very became angry because of his remarks past representation they may on the and that she get revenge determined to present jury question tend charging him rape. victim’s credibility. Appellant personally ruled that could testified to his version of the facts and pursue this line of questioning unless circumstances his encounter with J. 0. the victim admitted that alleged re- The record shows marks might have been made. In the event explore wide latitude to the general nature the victim flatly denied that the conversa- relationships of the victim’s with other men. tion ever took place, Appellant was directed presented therefore accept her answer ques- without further more than sufficient evidence which tioning impeach and to later seek to J. 0. tо judge credibility the of J. 0. and of with some contrary evidence. Appellant’s Appellant. There was also sufficient evi- counsel argued strenuously that he should presented upon dence which touched the permitted be to elicit further testimony alleged were they conversation have had. from the victim concerning the extent of her relationship ballplayer with the since V that testimony would enable jury the beginning At the of Appellant’s judge the credibility of J. O.’s statement trial, judge separation the ordered a of wit that the alleged conversation never took Appellant nesses. contends that this order place. was when permitted violated the trial court

The trial correctly court ruled J. 0. to remain in the courtroom after her that Appellant’s hoped for testimony went testimony. The record indicates that J. 0. beyond scope the of J. O.’s direct examina was never recalled the to further State tion and was therefore prop irrelevant and testify after she had heard other witnesses erly excluded. A is party permitted to test principal sepa- The reason for testify. the Solomon, step-mother, Mrs. Doris testified keep ration of is to later witness- witnesses testi- hearing questioning Rayford es from the and that her work foreman had been Dixon mony of earlier witnesses. up until years, for about one and a half ten 348 N.E.2d 401. In the 264 Ind. prior months trial. She said Appellant’s connivancy, absence or it procurement of with disagreement that she once had a Mr. of the within the discretion trial court Rayford job performance over her and al- testimony of whether allow the a witness matter, resolved the though Ray- had who has the order. trial violated he would “get ford stated at the time that ruling court’s will not dis- discretionary be him even that made mad.” somebody turbed a manifest of unless there is abuse defense counsel Mrs. Solomon informed State, (1976) Ind. discretion. Rinard trial. Mr. Ray- these facts subsequent 20; State, (1970) Dudley v. Mrs. testified that he had been ford Solo- McCoy had supervisor mon’s and that he heated 104, 170 (1960) 241 Ind. N.E.2d 43. her job Mrs. over discussions with Solomon purpose separation the was not order relationship performance, but that violated here so we find no manifest abuse than Mrs. Solomon was no different of discretion. He employees. ones he had stat- with other alternatively that Appellant argues however, ed, knowledge that he had no at and in the presence victim’s demeanor the time of that Mrs. the trial Solomon throughout courtroom the trial a psy had he Appellant’s and that did not step-mother chological prejudicial effect relationship until know about their trial, jury. called At counsel he morning of to which hearing his wife who testified that she observed the He said he bore no testify. ‍‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌‌​​‌‌‌​‌​​​​​‌​​​​​‌​​‌‌​‌​‌‌​‍been called to victim her “dabbing eyes blowing her particular animosity towards Mrs. Solomon. nose,” giving impression her the that the addition, as argues improper In victim crying. Appellant argues that the fact stated on his Rayford that Mr. jury this conduct caused the to sympathize he had juror application form that never victim, unduly with the them prejudicing truth, suit. he been involved in a law however, against judge, him. The trial in child sup- involved previously had been stated in the record that had been testified at the port prоceedings. Rayford watching throughout pro the victim hearing support not know he did ceedings neither and that he had seen her a lawsuit since no proceedings constituted cry nor It was his wipe eyes. observa was not a there trial- present tion preju was not unduly before us procedure. The evidence type diced presence J. O.’s courtroom. claim clearly indicates We find not the trial did abuse his Rayford Mr. misconduct is basis. without making this discretion determination. harboring any ill will only denied emphatically but against Mrs. VI know of her not even stated he did Following to sen until after the relationship tencing, Appellant filed Motion to Vacate Moreover, that his erro- trial. it is evident alia, Judgment alleging, inter certain mis questionnaire juror’s neous answer on the involving conduct three members admitted misunder- form was due to his jury. permitted Appellant “lawsuit”, and not as a standing of the term hearing support to offer evidence in of his misstatement. result of deliberate any allegation Motion. of The first misconduct evidence There was than sufficient more juror Rayford Willie was ac court could deter- the trial here which quainted step-mother and Appellant’s with had oc- misconduct juror mine that no dispute that there existed between them a State, (1981) Grassmyer curred. See: juror incapable reaching of a rendering 248, 254. fair 429 N.E.2d impartial Appellant’s and verdict.

Appellant further claims improprie There was no evidence jury of misconduct ty juror based on part any jurors. Daniel on the of of these Hayden’s state three properly juror ment on his denied questionnaire form that Judgment. Motion to Vacаte he had never juror before served as a in a less, it was is, therefore, no basis for finding any mis conduct on the part questioning in voir dire that Hayden had complete a second questionnaire. Regard served on a criminal case. The misunderstanding here arose his statement was correct. Subsequently, became a prospective juror. At that time Hayden criminal and filed his form in because served as an alternate trial. revealed Hayden Hayden a criminal trial. There of this June, 1980, was never asked to completed, signеd, juror. prosecutor’s juror when he in a circumstances.” than ten fixed term ten (Burns 1979): class case. According to Ind.Code scriptions. Appellant statement of its reasons for sentences beyond the criminal code’s pre burglary, B felony court Finally, ^[10] failed years both class B felonies in his “a shall be Solomon contends Solomon received ^[10] to make an VII added for was convicted of years, imprisoned who commits aggravating § aggravating 35-50-2-5 adequate that the twenty for a more rape his years for each of his convictions. The third and last allegation of sentencing, the trial court found that juror juror misconduct is that Ag Patricia there were aggravating circumstances in agreed new to find Appellant guilty as a Specifically, case. the court result of coercion and undue influence. found that Solomon had an adult criminal The basis for this claim is that because record presently being and was sentenced Agnew was reluctant to answer during the for these two additional crimes. trial court’s poll of the jury after had previously been convictеd of the crimes verdict, rendered their her vote must have burglary assault and battery been forced. We find no merit in this con intent felony, to commit a rape. wit: A Besides, tention. it is well settled that a history defendant’s of criminal activity defendant may not interrogate the jury for one of the factors that a may trial court purpose of impeaching their verdict. consider as an aggravating circumstance. Stinson v. 35^.1-4-7(a), (c)(2) Ind.Code 35-50- § [§ Stinson, N.E.2d 699. In 262 Ind. at 313 1A-7(a), (c)(2) (Burns 1979)]; Rowley v. N.E.2d at we stated: State, (1979)Ind., 394 N.E.2d 928. In Row “If this Court were to permit individual ley, this Court held although the trial jurors to make affidavits or give testimo- court could have made a more cohesive ny disclosing the manner of deliberation statement of the factors it considered to be in the jury room and their version of the circumstances, aggravating it had nonethe reasons for rendering particular verdict, less an adequate statement of its there would be no reasonable end to liti- reasons. We so found because the court gation. Jurors would be harassed made reference in its record to the nature both litigation sides of find them- defеndant’s crime and to selves in a criminal activity. contest of The same affidavits ‍‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌‌​​‌‌‌​‌​​​​​‌​​​​​‌​​‌‌​‌​‌‌​‍and was true in coun- Gary Ind.App., ter-affidavits and arguments and re-ar- 215. In guments Gary, imposition trial court’s why as to and how a certain an enhanced sentence “due to the rather verdict was reached. Such an unsettled extensive criminal record of this defendant” state of affairs would be a disservice to appeal by affirmed on our Court of parties litigant and an unconscionable Appeals. Spinks See also: upon burden citizens juries. who sеrve on (Ind.1982). N.E.2d 963 The trial court did not err refusing set aside the verdict reason of the As in Rowley, Gary Spinks, the trial affidavits of the jurors.” judge here could have made a better state-

579 aggravating Appel- being questioned. ment of his reasons for Cf. Franklin v. lant’s as to in Ind. sentences so aid this Court 262 314 N.E.2d 742. These our regard. review of the sentences. We do not fail in this I vote advisements find, however, the are given reasons reverse this conviction and remand for a inadequate. challenged We hold that the at which sentences new trial state imposed manifestly were not unreasonable ments are excluded.

and, therefore, be Ind.R. must affirmed.

App.Rev.Sen. 2(1).

The trial respects court is all affirmed.

GIVAN, J.,C. and HUNTER and PREN-

TICE, JJ., concur.

DeBRULER, J., separate dissents with opinion. ERICKSON, Appellant, T. David

DeBRULER, Justice, dissenting. The aggregate rights, of the advice of Indiana, Appellee. STATE consisting both written and verbal ad- No. 1081S306. visements, does not conform to the constitu- Arizona, tional requirements of Miranda v. Supreme Indiana. Court of U.S. S.Ct. Sept. L.Ed.2d 694. In that case United States Supreme Court said:

“Accordingly we hold that an individual

held interrogation clearly must be

informed that has the right to consult

with a lawyer lawyer and to have the

with him during interrogation under

system for we protecting privilege

delineate This is an today.... warning

absolute prerequisite interrogation.

No amount of circumstantial evidence

that the may have been aware of

this right will suffice to stand its

stead.” (Emphasis added.) 384 at U.S.

471^472, 86 at 1626. S.Ct.

Appellant was written advise-

ment that he was “entitled legal counsel

present at all times.” He was told in addi-

tion that he telephone could use the at

time to contact an if attorney he wished

do so. This advisement clearly informed

appellant present right that he had the

consult with lawyer, and to do so over

telephone, but did inform him one during

of those times which he is entitled to presence proc- counsel the ongoing interrogation.

ess of initial This the Miran- case requires.

da expressly The advisement clearly

must a suspect inform that he has ‍‌‌​‌‌​‌‌​​​​‌‌‌‌‌‌‌​​‌‌‌​‌​​​​​‌​​​​​‌​​‌‌​‌​‌‌​‍lawyer have a while present

Case Details

Case Name: Solomon v. State

Court Name: Indiana Supreme Court

Date Published: Sep 1, 1982

Citation: 439 N.E.2d 570

Docket Number: 581S129

Court Abbreviation: Ind.