William R. Marks, Jr. v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), Aug 15 2013, 5:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK K. LEEMAN GREGORY F. ZOELLER
White County Public Defender Attorney General of Indiana
Logansport, Indiana
KATHERINE MODISETT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM R. MARKS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 91A02-1210-CR-881
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WHITE SUPERIOR COURT
The Honorable Robert B. Mrzlack, Judge
Cause No. 91D01-1201-FA-1
August 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
William R. Marks, Jr. appeals his conviction of Class A felony child molesting.1 He
presents one issue for our review: whether his confession was knowing and voluntary. We
affirm.
FACTS AND PROCEDURAL HISTORY
Marks resided with his wife, M.M., and her two daughters, twelve-year old M.H. and
four-year old N.M. On January 2, 2012, Marks consumed approximately fourteen beers.
M.M. awoke around 3:00 a.m. and found Marks in M.H.’s bedroom. Marks was undressed
and touching his and M.H.’s genitalia. M.M. called the police, and Marks was arrested.
Detective Jason Linkenfelter was notified of the case at 3:21 a.m. He interviewed
M.M. and M.H. at their home for roughly one hour. M.M. told the detective Marks had
consumed several beers. Detective Linkenfelter went to the police station around 5:15 a.m.
to interrogate Marks. Marks was detained nearly three hours, from the time he was taken to
the police station until the interrogation concluded, and during that time, Marks confessed to
touching and licking M.H.’s genitalia.
At trial, Marks moved to suppress his videotaped confession, asserting it was not
voluntary. He claimed Detective Linkenfelter made strong inferences of leniency in
exchange for Marks’ self-incriminating statements. Marks further claimed his intoxication
made his confession involuntary. Finally, he claimed the detective implicitly threatened his
stepdaughter by suggesting that, unless Marks confessed to sexual contact with M.H., she
might be subjected to invasive testing at the hospital that would leave her “scarred for life.”
1
Ind. Code § 35-42-4-3(a)(1).
2
(Tr. at 169-70.)
The trial court denied Marks’ motion to suppress and admitted the confession into
evidence at trial over Marks’ objection. The jury found Marks guilty of Class A felony child
molesting.
DISCUSSION AND DECISION
“The admission of evidence is within the sound discretion of the trial court, and we
review the court’s decision only for an abuse of that discretion.” Rogers v. State, 897 N.E.2d
955, 959 (Ind. Ct. App. 2008). When a defendant challenges the voluntariness of his
confession under the United States Constitution,2 the State must prove by a preponderance of
the evidence that the statement was voluntarily given. Pruitt v. State, 834 N.E.2d 90, 114
(Ind. 2005). To determine whether the State carried its burden, the trial court is to consider
the totality of the circumstances, which includes police coercion; duration, continuity, and
location of the interrogation; and “defendant’s maturity, education, physical condition, and
mental health.” Id. at 115. This examination is of the entire interrogation, not just the
condition of the suspect or any single act by police. Washington v. State, 808 N.E.2d 617,
622 (Ind. 2004).
“A confession is voluntary if, in light of the totality of the circumstances, the
2
Marks does not argue his statement was involuntary under the Indiana Constitution’s heightened burden of
“beyond a reasonable doubt,” Crain v. State, 736 N.E.2d 1223, 1230 (Ind. 2000); notwithstanding this waiver,
such an argument would fail. See Scalissi v. State, 759 N.E.2d 618, 621 (Ind. 2001) (under Indiana
Constitutional analysis, defendant’s sleep deprivation, ingestion of large quantities of alcohol and drugs, and
blows to the head by the victim of the shooting a short time before the interrogation began did not render the
confession involuntary under the Indiana Constitution, given substantial evidence there was no improper police
influence or coercion in obtaining the confession), reh’g denied.
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confession is the product of a rational intellect and not the result of physical abuse,
psychological intimidation, or deceptive interrogation tactics that have overcome the
defendant’s free will.” Scalissi v. State, 759 N.E.2d 618, 621 (Ind. 2001). To determine if a
confession was voluntary, we first determine whether there was coercive police conduct. See
id. (coercive police conduct is a necessary predicate to finding a confession involuntary). If
so, we determine whether the alleged conduct overcame the defendant’s free will. See id.“[W]e do not reweigh the evidence, but instead examine the record for substantial probative
evidence of voluntariness.” Pruitt, 834 N.E.2d at 115 (citation omitted). Conflicting
evidence is viewed most favorably to the trial court’s ruling. McGhee v. State, 899 N.E.2d
35, 38 (Ind. Ct. App. 2008). “If there is substantial evidence to support the trial court’s
conclusion, it will not be set aside.” Pruitt, 834 N.E.2d at 115.
Intoxication and fatigue are factors to consider in determining whether a statement
was freely given. Scalissi, 759 N.E.2d at 621. A confession may be freely given
notwithstanding voluntary intoxication. Ellis v. State, 707 N.E.2d 797, 802 (Ind. 1999). A
defendant’s statement is “incompetent only when he is so intoxicated that he is not conscious
of what he is doing or the intoxication produces a state of mania.” Id. A confession given in
such a state would nonetheless be voluntary absent a showing of coercive police activity.
Scalissi, 759 N.E.2d at 621.
If “interrogating officers reasonably should have known that a suspect was under the
influence of drugs or alcohol, a lesser quantum of coercion may be sufficient to raise doubt
about the voluntariness of the confession.” United States v. Haddon, 927 F.2d 942, 946 (7th
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Cir. 1991). However, “police are allowed to play on a suspect’s ignorance, fears and
anxieties so long as they do not magnify these emotionally charged matters to the point where
a rational decision becomes impossible.” United States v. Sablotny, 21 F.3d 747, 752 (7th
Cir. 1994).
Marks contends his mental and physical state, taken together with the alleged police
misconduct, render his confession involuntary. We disagree. The State met its burden to
show Marks’ confession was voluntary, notwithstanding Detective Linkenfelter’s knowledge
that Marks had consumed alcohol and asserted he was fatigued. Marks’ consumption of
alcohol did not make him unaware of what he was saying or place him in a state of mania,
nor was his fatigue so great as to negate his ability to act of his own free will. See, e.g., Bean
v. State, 913 N.E.2d 243, 249 (Ind. Ct. App. 2009) (holding that consumption of alcohol not
leading to mania insufficient to demonstrate a confession was involuntary; rather, “it goes
only to the weight to be given to the statement and not its admissibility”). Detective
Linkenfelter testified that Marks did not appear intoxicated. His assertion is supported by
Marks’ video recorded confession. Marks had not consumed any alcohol for at least two
hours before Detective Linkenfelter’s interrogation. The video recorded interrogation
reflects Marks did not slur his speech; he was balanced; he maintained his train of thought;
and he was oriented to time, place, and his circumstances. When Detective Linkenfelter
asked Marks if he was intoxicated, Marks stated he just felt tired. Marks rested, though
uncomfortably, for nearly one-half hour before the interrogation. The record supports the
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trial court’s finding that Marks’ confession was not involuntary based on fatigue3 or
intoxication. Nor was Marks’ interrogation so long as to render the confession involuntary.
See Light v. State, 547 N.E.2d 1073, 1079 (Ind. 1989) (holding four-hour interrogation did
not render confession involuntary; “[i]n most of the cases where the statements were held
involuntary, the interrogation lasted for a matter of days, not hours”).
Detective Linkenfelter’s statement to Marks that “I can work with you because you
have not had sex with her . . .” was too vague and indefinite to render Marks’ confession
involuntary. (Tr. at 177.) A confession obtained by a promise of immunity or mitigation of
punishment is inadmissible. Ashby v. State, 354 N.E.2d 192, 195 (Ind. 1976). However, our
Indiana Supreme Court seems to have limited Ashby to cases that involve “direct or implied
promises” of immunity or leniency. See Pamer v. State, 426 N.E.2d 1369, 1374 (Ind. Ct.
App. 1981) (“Statements by the police such as ‘seeing what they could do for him,’ ‘his
cooperation might help in assisting him,’ or it would ‘be in his best interest to tell the real
story’ are not sufficient inducements to preclude admission of a subsequent confession as
evidence.”) (citation omitted). Detective Linkfelter’s statements were not specific enough to
render Marks’ confession involuntary.
Police deception and misconduct “weigh heavily against the voluntariness of the
defendant’s confession,” Henry v. State, 738 N.E.2d 663, 665 (Ind. 2000), but do not
3
In Watson v. Detella, 122 F.3d 450, 456 (7th Cir. 1997), a defendant’s confession was held voluntary
notwithstanding, inter alia, his assertions of fatigue. He committed the criminal act at 11:30 p.m., was spotted
by police officers at 3:45 a.m., fled, was apprehended at 4:45 a.m., confessed to the commission of the crime at
7:30 a.m., and signed his written confession at 8:30 a.m. Id. at 452.
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necessarily render a confession inadmissible. Clark v. State, 808 N.E.2d 1183, 1191 (Ind.
2004). A credible threat of violence by a government agent is sufficient to support a finding
of coercion, Ariz. v. Fulminante, 499 U.S. 279, 287 (U.S. 1991), as is such a threat to a
family member of the accused. Haak v. State, 695 N.E.2d 944, 948 (Ind. 1998). “However,
there must be a showing that but for the threat or inducement, the confession might not have
occurred.” Id. (citation omitted). Detective Linkenfelter’s discussion of the “rape kit” was
not deceptive, because subjecting M.H. to a “rape kit” might have been warranted as a means
to determine the extent of Marks’ sexual contact with her. Reference to such an investigation
would not amount to sufficient “psychological pressure” to render Marks’ confession
involuntary. See United States v. Johnson, 495 F.3d 536, 542 (7th Cir. 2007) (holding that a
rightful concern for the effects of an investigation on others does not necessarily amount to
psychological pressure).
CONCLUSION
The trial court did not abuse its discretion when it admitted Marks’ confession
because Detective Linkenfelter’s statements taken together with Marks’ condition did not
render Marks’ confession involuntary. Accordingly, we affirm.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
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