APPEAL FROM THE HUNTINGTON CIRCUIT COURT THE HONORABLE DANE MANN, JUDGE
Hunter, J. DeBRULER, J., Concurs. Givan, C.j., Concurs IN Result With Opinion IN Which Pivarnik, J., Concurs. Prentice, J., Dissents With Opinion.
The defendant, Shawn Lynn Sills, was convicted of murder, Ind. Code § 35-42-1-1 (Burns 1979 Repl.). The defendant was sentenced to a term of forty years, with twenty years added for aggravating circumstances. The defendant raises the following eight issues in this direct appeal:
1. Whether the trial court erred in denying the defendant's motion to suppress his confession and by allowing the introduction into evidence of a tape recording of the confession;
2. Whether the trial court erred in denying the defendant's motion to withdraw his plea of not guilty and by denying defendant's motion to present evidence before the state had presented its case;
3. Whether the trial court erred in denying the defendant's motion for a change of venue;
4. Whether the trial court erred by admitting into evidence and displaying to the jury certain photographs of the victim;
5. Whether the trial court erred by admitting into evidence a "sexual assault kit";
6. Whether the trial court erred by admitting into evidence certain diagnostic reports;
7. Whether the trial court erred when it failed to read to the jury seven of the defendant's instructions; and
8. Whether the sixty-year sentence was manifestly unreasonable.
The facts most favorable to the state show that the defendant was arrested for the murder of Mary Haines, an eighty-two year old woman. The defendant, then sixteen years old, entered the victim's house, found her sitting on the floor, and beat her to death with his fists.
Shortly after his arrest on September 9, 1981, the defendant was taken to an interrogation room. Present at this time were Officer Jim Walters and Sheriff Ray Williams. The defendant's father, George Sills, arrived about fifteen minutes later. The defendant and his father were advised of their Miranda rights and both indicated they understood. The defendant then signed a written waiver of rights form and the father signed as a witness. Walters and Williams began questioning the defendant. A few minutes later, the defendant and his father conferred privately, during which time the father urged the defendant to tell the truth. After five minutes, the father summoned Walters and Williams and indicated his son was ready to talk. The defendant and his father were again advised of their constitutional rights. The defendant then began to discuss the events surrounding the murder. The officers asked the defendant to repeat those statements; this time the statements were tape-recorded. The defendant was again advised of his rights before giving the taped statements.
As noted above, the defendant was a juvenile at the time of his arrest and interrogation. Under Ind. Code § 31-6-7-3 (Burns 1980 Repl.):
"(a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:
"(1) by counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or
"(2) by the child's custodial parent, guardian, custodian, or guardian ad litem if:
"(A) that person knowingly and voluntarily waives the right;
"(B) that person has no interest adverse to the child;
"(C) meaningful consultation has occurred between that person and the child; and
"(D) the child knowingly and voluntarily joins with the waiver."
This statute is essentially a codification of our holding in Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138. The code, however, significantly changed our holding in Lewis in one way. Whereas we stated in Lewis that a child could, by himself, waive his constitutional rights, the code prohibits unilateral waiver by the child. Instead, only an attorney or a custodial parent can waive the child's rights. The defendant contends that, since he signed the waiver form and his father signed only as a witness, the requirements of Ind. Code § 31-6-7-3 were not met. In support of this argument, he cites Deckard v. State, (1981) Ind. App. , 425 N.E.2d 256.
In Deckard, the Court of Appeals dealt with the situation where the parent was present when the juvenile signed the waiver, but did not herself sign. The court held that "there is nothing from the face of the waiver to establish that [the juvenile's] mother knowingly and intelligently waived his rights." Id., Ind. App. , 425 N.E.2d at 257. The concern in Deckard was whether there was a knowing and intelligent waiver of rights by the parent. No particular form is required to establish such a waiver. Powell v. State, (1982) Ind. , 437 N.E.2d 969. There must, however, be sufficient evidence to establish that the parent and child joined in the waiver. In Deckard, the evidence was insufficient since the waiver was signed only by the child, thus preventing the Court of Appeals from determining whether the parent waived the rights. Here, the evidence does establish that the parent joined in the waiver. The father signed the waiver form, albeit on a line designated as "witness." In addition, the father testified at the hearing on the motion to suppress that he did not object to his son giving statements to the officers and, in fact, encouraged him to do so. The facts, taken as a whole, establish that the father and the defendant joined in the waiver and that the father knowingly and voluntarily waived his son's rights. As such, there was no unilateral waiver by the defendant.
The defendant also asserts that, even if the tape recording should not be suppressed pursuant to Deckard, it must be suppressed under Miranda v. Arizona, (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The defendant contends the interrogating officers continued to question him after he requested a lawyer. The record reflects a sharp discrepancy in the evidence. The defendant testified that he asked for an attorney three times and that each time the officers continued questioning. The defendant's father recalled the defendant asking for a lawyer twice. Sheriff Williams testified that the defendant asked for an attorney only once and that questioning then ceased. Williams further testified that the defendant was then allowed to talk alone with his father. After this brief conversation, the father requested that the questioning be resumed. The defendant was given his rights again, and the questioning resumed with the result being that the defendant gave the challenged incriminating statement.
The evidence on this issue is conflicting. As such, only that evidence which tends to support the trial court's ruling can be considered on appeal. Chandler v. State, (1981) Ind. , 419 N.E.2d 142. We cannot weigh the evidence nor Judge the credibility of witnesses. Chandler v. State.
The admissibility of defendant's challenged incriminating statement is governed most closely by the post-Miranda case of Edwards v. Arizona, (1981) 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378. There the United States Supreme Court stated:
"[W]e... hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."
451 U.S. at 484-85, 101 S. Ct. at 1884-85, 68 L. Ed. 2d at 386. Cf. Romine v. State, (1983) Ind. , 455 N.E.2d 911; Bryan v. State, (1982) Ind. , 438 N.E.2d 709. Here there is proof that the resumption of interrogation was not "police-initiated," but instead was initiated through a communication to interrogators by the father after consultation with the defendant. The defendant was then given a new Miranda advisement and responded without resistance to the renewed questioning. Edwards requires resumption to be initiated by the accused himself. It is certainly rational and we believe consistent with Edwards to regard the father here as the spokesman for both father and son who communicated their joint decision to the interrogators. Since there was substantial evidence of probative value to support the trial court's decision that the statements were given in compliance with Miranda, we cannot now disturb the ruling. Thus, for the reasons set forth above, the trial court did not err in denying the motion to suppress or in allowing the tape-recorded statements into evidence.
The defendant next contends that the trial court erred in denying his motion to withdraw his plea of not guilty and in denying the defendant's "Motion to Present Evidence First and Open and Close Argument." The defendant asserts that by withdrawing his plea of not guilty, he was attempting to proceed solely on theories of not guilty by reason of intoxication and not guilty by reason of insanity. The defendant argues that since he bears the burden of proof on these issues, he should have been allowed to open and close the case.
At the time of this trial, our statute on motions to withdraw stated:
"The court may allow the defendant to withdraw his plea of not guilty for good cause shown. A motion to withdraw a plea of not guilty shall be in writing and shall state facts showing the reason why such plea should be withdrawn and in what respect the substantial rights of the defendant will be prejudiced if the motion is denied. The motion shall be verified and the state may file counter-affidavits in opposition to the motion. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion."
Ind. Code § 35-4.1-1-6(a) (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298).
The trial court did not exceed its discretionary power to deny the motion. The defendant's motion contained an admission of guilt; yet the defendant continued to allege he was not guilty by reason of intoxication. Voluntary intoxication is a defense. Ind. Code § 35-41-3-5(b) (Burns 1983 Supp.). A defendant asserting intoxication is still pleading not guilty. The trial Judge could reasonably have surmised that allowing the defendant to profess his guilt yet plead not guilty by reason of intoxication would confuse the jury. Furthermore, it has been held that it is impossible to both confess guilt and assert an insanity defense, since the mens rea element of a crime and the sanity of the defendant are considered in the same, rather than a bifurcated, trial. Mingle v. State, (1979) Ind. App. , 396 N.E.2d 399. There was no error in refusing to allow the motion to withdraw the not guilty plea.
We also hold that there was no error in refusing to grant defendant's "Motion to Present Evidence First and Open and Close Argument." Under the statute in effect at the time of this trial, the state offers its evidence first, "and the defendant shall then offer the evidence in support of his defense." Ind. Code § 35-1-35-1 (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298). Further, the statute provided that the state shall have the opening and closing of the argument. Id. These rules of trial procedure were not and are not changed by the fact that a defendant raises the insanity defense. The defendant contends that insanity proceedings are civil in nature, and therefore, since the defendant bears the burden of proof, he should be allowed to open and close and to present evidence first. It is true that the burden of proof in insanity proceedings is the civil standard rather than the criminal. But this does not talismanically transform the entire criminal proceeding into a civil one. Insanity is a defense and defenses are offered after the state has offered evidence to support the prosecution. Ind. Code § 35-1-35-1 (Burns 1979 Repl.) (repealed by 1981 Acts, P.L. 298). There is no error.
The defendant next contends the trial court erred by denying his motion for a change of venue. The basis for this motion was that the defendant believed that pretrial publicity on the murder was so intensive that it deprived the defendant of the opportunity for a fair trial.
In order for us to reverse the trial court's decision to deny the motion, the defendant is required to show that there was adverse publicity and that the jurors were unable to set aside their preconceived notions of guilt and render a verdict based on the evidence. Sage v. State, (1981) Ind. , 419 N.E.2d 1286; Pine v. State, (1980) Ind. , 408 N.E.2d 1271.A review of the examples of pretrial publicity here shows little more than the reporting of the facts surrounding the case. More importantly, however, we note that nothing in the record reflects any juror prejudice, since there was no transcript of the voir dire examination. Therefore, there is no basis for finding that the trial court erred in denying the defendant's motion. Sage v. State.
The defendant next contends that state's exhibits 4 and 6 were improperly admitted into evidence. These exhibits were black and white photographs depicting the nude body of the victim. The photographs were taken at the scene of the murder. The defendant asserts the photographs were cumulative, redundant and gruesome and, therefore, should not have been allowed into evidence.
The admission of photographic evidence is generally within the discretion of the trial court, reviewable only if the trial Judge exceeds his discretionary power. Wilson v. State, (1978) 268 Ind. 112, 374 N.E.2d 45. Photographs are not necessarily inadmissible on the ground that they are gruesome and cumulative, Chittenden v. State, (1982) Ind. , 436 N.E.2d 86; Bates v. State, (1977) 267 Ind. 8, 366 N.E.2d 659, and the fact that a photograph might arouse the jury is not itself sufficient to exclude it from the evidence if the photograph is material and relevant. Porter v. State, (1979) 271 Ind. 180, 391 N.E.2d 801.
Although the photographs is question were undoubtedly gruesome, we find that they were properly admitted. The photographs depicted the victim as she was found in her house. They were relevant to show the crime scene and the position of the victim. Drollinger v. State, (1980) Ind. , 408 N.E.2d 1228. The pictures showed the victim from different angles and were not redundant of other photographs that were admitted. They were probative of the nature and extent of the victim's wounds. Drollinger v. State. We find that the trial Judge did not exceed his discretionary power to admit these two photographs.
The defendant next contends the trial court erred in admitting into evidence state's exhibit 12, a "sexual assault kit." This exhibit was offered during the testimony of Thomas Malone, a field technician for the Indiana State Police. Malone was present during the victim's autopsy and placed samples of the victim's blood in the sexual assault kit. Both the blood and the kit were admitted into evidence.
At trial, the defendant objected to the introduction of the sexual assault kit. The objection at this time was that the kit was inflammatory; no further grounds were given for the objection. On appeal, however, the defendant contends the kit was inadmissible on the ground that it could only be considered by the jury of evidence of another crime, such as sexual assault or rape. Objections to the admission of evidence must be based on specific, rather than general, grounds. Brown v. State, (1981) Ind. , 417 N.E.2d 333. The defendant cannot change or add to his objections in the reviewing court. Lucas v. State, (1980) Ind. , 413 N.E.2d 578; Cooper v. State, (1972) 259 Ind. 107, 284 N.E.2d 799. The error is therefore normally waived. We also note that any error on the nebulous ground that the kit was inflammatory was rendered harmless by the subsequent admission without objection of an autopsy report containing a reference to the rape of the victim. As we stated in Badelle v. State, (1982) Ind. , 434 N.E.2d 872, "[a]ny error in the admission of evidence is harmless when other evidence having the same probative value is admitted without objection and is not refuted." Id., Ind. , 434 N.E.2d at 875. There is no reversible error.
The defendant next contends the trial court erred in admitting state's exhibits numbered 20, 21, and 22.These exhibits were introduced over the defendant's objections during the testimony of Dr. Norman Duly, a psychiatrist, who testified during the state's rebuttal on the insanity defense. Exhibit 20 was an electroencephalograph evaluation prepared by Dr. Webb. Exhibit 21 was a diagnostic evaluation of the defendant prepared before he entered the Indiana Boys' School in 1980.Exhibit 22 was a copy of psychological and intelligence tests administered to the defendant as part of his evaluation before admission to the Boys' School. None of the individuals who prepared the reports testified at trial. The defendant objected to the introduction of these exhibits on the ground that they were hearsay.
Hearsay is defined in our state as an extrajudicial declaration of another offered to prove the truth of the facts asserted therein, and thus resting on the credibility of declarant who is not in court and available for cross-examination. Roberts v. State, (1978) 268 Ind. 348, 375 N.E.2d 215. A review of the record in this case shows that the three exhibits were not being offered for the truth of the matters contained in them. Rather, they were being offered to establish the foundation of Dr. Duly's diagnosis. Before each exhibit was offered into evidence, Dr. Duly was asked if it constituted material that he considered or relied upon in his evaluation of the defendant. No attempt was made to assert that the facts contained in the exhibits were true. While it might have been better not to have admitted these documents directly into evidence, see Smith v. State, (1972) 259 Ind. 187, 285 N.E.2d 275, it was not necessarily an error to do so. The portrayal of the defendant in exhibits 21 and 22 is almost identical in substance to that produced before the jury by the defendant's own psychiatric witnesses, who regarded the defendant as being legally insane. The exhibits described the defendant as having an angry and hateful attitude, and to a large extent they undermined Dr. Duly's opinion that the defendant was sane at the time of the killing. In short, the trial Judge has wide discretion in the admission of evidence. Under the circumstances of this case, we cannot say that the trial Judge exceeded his discretion in allowing the state to admit these exhibits.
The defendant next contends that the trial court erred when it refused defendant's tendered instructions numbered 1, 5, 6, 7, 8, 9, and 11.
Defendant's tendered instruction number 1 dealt with the defense of insanity. The defendant asserts that by refusing this instruction the trial court confused the jury since they were purportedly left without a standard to determine whether the defendant was insane. An examination of the record, however, shows that the jury was provided with the proper standard. Preliminary instruction number 11, reread to the jury at the Conclusion of the case stated:
"The Defendant has imposed a defense of Insanity.
"Insanity may be a defense to the crime charged. The legal defense of insanity ...