Jason King v. State of Indiana , 2013 Ind. App. LEXIS 355 ( 2013 )

Jul 25 2013, 6:12 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN M. TRUITT GREGORY F. ZOELLER
Bertig & Associates, LLC Attorney General of Indiana
Valparaiso, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON KING, )
)
Appellant-Defendant, )
)
vs. ) No. 64A04-1209-CR-464
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Mary R. Harper, Judge
Cause No. 64D05-1102-FA-977
July 25, 2013
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Jason King appeals his conviction of and sentence for attempted
murder for shooting Woodrow McGuire in the face at a South Haven nightclub. During a
recorded interrogation regarding the crime, King uttered the words, “an attorney,” in a
sentence otherwise inaudible on the recording. The interrogating officer continued to
question King, and he eventually confessed to shooting McGuire.
At trial, King orally moved to suppress evidence regarding his confession, claiming it
was obtained in violation of his right to counsel. A hearing was held on King’s motion, at
which King testified that the inaudible sentence was, “I do need to make a call to call an
attorney.” The interrogating officer also testified, stating that King asked, “Am I going to
need an attorney?” The trial court found the latter to be more consistent with what it heard
on the recording and denied King’s motion to suppress. Accordingly, Appellee-Plaintiff the
State of Indiana presented the jury with the testimony of the interrogating officer, who stated
that King confessed to shooting McGuire during the interrogation. King did not object to the
admission of this evidence.
On appeal, King argues that the trial court clearly erred in finding that he asked, “Am
I going to need an attorney?” during the interrogation. We disagree, concluding that the trial
court’s finding is supported by the record. King also argues that the court abused its
discretion in denying his motion to suppress his confession. Because King failed to
contemporaneously object to the admission of testimony regarding his confession, we
conclude that King has waived his abuse of discretion argument for appeal. Waiver
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notwithstanding, we conclude that the question, “Am I going to need an attorney?” is not an
unambiguous and unequivocal request for counsel, and therefore, that the trial court did not
abuse its discretion in denying King’s motion. King further argues that his forty-five year
sentence is inappropriate in light of the nature of his offense and his character. We disagree
and affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On the night of February 3, 2011, McGuire visited the Jim Beam Warehouse,1 a South
Haven nightclub, with his friend Mariano Luyando. While at the bar ordering beers and
conversing with Luyando, McGuire felt someone lean against his back. McGuire turned
around and encountered King, whom he did not know. Thinking King might be drunk,
McGuire asked if he was alright. McGuire then requested that King move away and stop
leaning against him. King, however, continued to lean against McGuire. Eventually, King’s
brother approached the bar and was told that King was invading McGuire’s personal space.
King’s brother attempted to move King away, and McGuire turned back to the bar. As
McGuire turned, he was shot in the jaw. McGuire did not see who shot him, but Luyando
witnessed King pull a small gun from his waistband, shoot McGuire, and walk away.
After being shot, McGuire ran to the restroom and used his shirt to stem the bleeding
from his jaw. Warehouse security guard Corey Smith had heard the gunshot and followed
McGuire into the restroom. McGuire gave Smith a description of King as the likely shooter,
and, having received complaints about King earlier that night, Smith recognized King from
1
The nightclub has since dropped the “Jim Bean” designation, and so shall we.
3
the description. Smith exited the restroom, saw King leaving the Warehouse, and followed
him outside. Smith ordered King to stop, but King continued to walk away. Smith
eventually grabbed and tackled King, causing a gun wrapped in a black bandana to fall out of
King’s sweatshirt. Police later learned that the gun was a stolen .22 caliber revolver that
contained one spent shell casing.
Smith detained King until police arrived. Porter County Sherriff’s Officer Mike
Spicer took King into custody and transported him to the Porter County Detective Bureau.
En route, King attempted to engage Officer Spicer in conversation. Officer Spicer advised
King of his Miranda2 rights and did not ask King any questions. King, however, proceeded
to talk, telling Officer Spicer that someone had been shot and that it was in self-defense.
King also told Officer Spicer that he needed to contact the “Feds” because he was “valuable.”
Tr. II, p. 51.
At the Detective Bureau, Porter County Sherriff’s Lieutenant Gary Gear advised King
of his Miranda rights, which King waived, and then questioned King about the shooting.
During this recorded interrogation, King admitted to having been at the Warehouse with his
brother, and he again stated that he wanted to talk to the “Feds.” Tr. II, p. 128. King,
however, refused to talk about the shooting. The interview ended when King stated that he
wanted to sleep on it and talk with police in the morning.
The following day, Lieutenant Gear and Porter County Sherriff’s Captain Jeff Biggs
advised King of his Miranda rights, which King again waived, and then interviewed King a
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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second time about the shooting. During this recorded interrogation, King was uncooperative
but never denied shooting McGuire. Approximately one hour and two minutes into the
interrogation (“the 1:02 mark”), King uttered the words “an attorney” in a sentence otherwise
inaudible on the recording. In response, one of the interrogating officers replied, “[Y]es, at
some point [you] are going to need an attorney.” Tr. p. 17. The officers then continued
questioning King, who eventually confessed to the shooting.
The following day, at his own request, King was taken back to the Detective Bureau
for a third interrogation. Lieutenant Gear advised King of his Miranda rights, and King
promptly requested an attorney. The interrogation was immediately ceased, and King was
returned to jail. The State charged King with: Count I, Class A felony attempted murder;
Count II, Class B felony aggravated battery; and Count III, Class D felony possession of
stolen property.
King’s jury trial commenced on May 21, 2012. At the end of the trial’s first day, after
the jury had been excused, King’s counsel informed the trial court that King had invoked his
right to counsel at the 1:02 mark of the second interrogation, yet police continued questioning
him. On the second day of trial, before the jury was seated, the court listened to the
recording of the second interrogation but could not determine what King said at the 1:02
mark because the audio was unclear. The court stated, “The only [audible] words in my mind
are [‘]an attorney[’].” Tr. II, p. 5. Based on this uncertainty, King moved to suppress any
evidence concerning statements he made to police after the 1:02 mark of the second
interrogation. These include King’s confession.
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The trial court immediately held a hearing on King’s motion. King testified that he
stated, “I do need to make a call to call an attorney” at the 1:02 mark, Tr. p. 13, while
Lieutenant Gear testified that King asked, “Am I going to need an attorney?” Tr. p 17.
Comparing this testimony to the recording of the second interrogation, the trial court
explained:
The speech before the words [“]an attorney[”] is more consistent with [“]am I
going to need an attorney[”] than a longer phrase, which is, [“]I do need to make
a call to call an attorney.[”] It was a very quick set of words that occurred
before the two words [“]an attorney.[”]
Tr. p. 23. Based on this analysis, the court found that King did not request an attorney at the
1:02 mark and denied King’s motion to suppress.
King’s trial proceeded, and the State presented the testimony of Lieutenant Gear
before the jury. Lieutenant Gear testified that, during the second interrogation, King
confessed to shooting McGuire. King did not object to the admission of this testimony at this
time. The State also presented the testimony of King’s cellmate, Anthony Cilek. Cilek
testified that King confessed to shooting a man with a .22 caliber gun at a bar in South
Haven. When Cilek asked why King shot the man, King replied, “because he was black.”
Tr. II, p. 86. Ultimately, the jury found King guilty on Counts I and II but not guilty on
Count III. Counts I and II merged, and the trial court sentenced King to forty-five years of
incarceration.
DISCUSSION AND DECISION
I. Whether the Trial Court Committed Clear Error
King argues that the trial court clearly erred in finding that he asked, “Am I going to
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need an attorney?” at the 1:02 mark of the second interrogation. We conclude that it did not.
A trial court’s finding is clearly erroneous only when the record contains no facts to support
it either directly or by inference. State v. Friedel, 714 N.E.2d 1231, 1235 (Ind. Ct. App.
1999). Here, the trial court listened to the recording of the second interrogation and found
“an attorney” to be the only audible words at the 1:02 mark. Beyond that, the court could
only determine, “It was a very quick set of words that occurred before the two words [‘]an
attorney.[’]” Tr. II, p. 23. The court compared the recording with King’s testimony that he
stated, “I do need to make a call to call an attorney,” Tr. p. 13, and Lieutenant Gear’s
testimony that King asked, “Am I going to need an attorney?” Tr. p. 17. Based on this
review, the trial court concluded: “The speech before the words [‘]an attorney[’] is more
consistent with [‘]am I going to need an attorney[’] than a longer phrase, which is, [‘]I do need
to make a call to call an attorney.[’]” Tr. p. 23. This finding is supported by the record.
II. Whether the Trial Court Abused its Discretion
King argues that the trial court abused its discretion in denying his motion to suppress
evidence regarding statements King made to police after the 1:02 mark of the second
interrogation. A trial court has broad discretion in ruling on the admission or exclusion of
evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans. denied. An
abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and
circumstances presented. Id. When reviewing a trial court’s denial of a motion to suppress,
we do not reweigh the evidence, and we consider conflicting evidence most favorable to the
trial court’s ruling. Id.7
A. Waiver
As a threshold issue, the State contends that King did not preserve his abuse of
discretion argument because, at trial, he failed to properly object to the admission of
Lieutenant Gear’s testimony regarding King’s confession. It is well-established that a
motion to suppress is insufficient to preserve an error for appeal. Killebrew v. State, 976
N.E.2d 775, 779 (Ind. Ct. App. 2012). Instead, a defendant must reassert his objection at trial
contemporaneously with the introduction of the evidence to preserve the error. Id. Here, at
the commencement of the trial’s second day, King made, and the trial court denied, an oral
motion to suppress any evidence regarding statements he made to police after the 1:02 mark
of the second interrogation. Later in the trial, however, King did not object when the State
presented Lieutenant Gear’s testimony that, after the 1:02 mark, King confessed to shooting
McGuire. Because King failed to contemporaneously object to the admission of Lieutenant
Gear’s testimony, we conclude that King has waived this issue for appeal.
B. Abuse of Discretion
Notwithstanding King’s waiver, we conclude that the trial court did not abuse its
discretion in determining that King did not request an attorney at the 1:02 mark of the second
interrogation. “Invocation of the Miranda right to counsel requires, at a minimum, some
statement that can reasonably be construed to be an expression of a desire for the assistance
of an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994). “[W]hile the suspect need
not invoke any magic words,” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (citing Davis
512 U.S. at 459), “[t]he cessation of police questioning is not required ‘if a suspect makes a
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reference to an attorney that is ambiguous or equivocal….’” Carr v. State, 934 N.E.2d 1096,
1102 (Ind. 2010) (quoting Davis, 512 U.S. at 459). A statement is considered ambiguous or
equivocal when “‘a reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel.’” Id. (quoting Davis 512 U.S. at
459).
King claims that his question, “Am I going to need an attorney?” was an unambiguous
and unequivocal request for an attorney. We disagree. In Collins v. State, we held that the
nearly identical question, “Do I need an attorney?” was not a request for counsel but, rather,
“merely a question.” 873 N.E.2d 149, 156 (Ind. Ct. App. 2007); accord Bean v. State, 913
N.E.2d 243, 251 (Ind. Ct. App. 1009) (holding the questions “Do I need an attorney?” “What
about an attorney?” and “Should I have an attorney?” not to be invocations of the right to
counsel). Like the defendant’s question in Collins, we conclude that King’s question, “Am I
going to need an attorney?” does not rise to the level of clarity from which a reasonable
officer would understand that an attorney has been requested.
King’s reliance on our holding in Lewis v. State, 966 N.E.2d 1283 (Ind. Ct. App.
2012), is unavailing. There, we determined the question, “Can I get a lawyer?” to be an
unambiguous and unequivocal invocation of the right to counsel. But our conclusion was
based on the “universal understanding” of the interrogative phrase, “Can I get,” as a request
for something rather than a theoretical inquiry regarding one’s ability. Id. at 1288. This
rationale does not extend to King’s question. The trial court did not abuse its discretion in
denying King’s motion to suppress.
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III. Whether King’s Sentence Is Inappropriate
King argues that his forty-five year sentence is inappropriate in light of the nature of
his offense and his character. We “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind. Appellate Rule
7(B). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense
of the culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219,
1224 (Ind. 2008). When conducting our review, we are deferential to the trial court’s
decision; our goal is to determine whether the defendant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864,
876 (Ind. 2012). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
With regard to the nature of King’s offense, the record reveals that King shot
McGuire, a total stranger, in the face simply “because he was black” and because he asked
King to stop leaning against him. Tr. II, p. 86. The triviality of King’s motive is almost as
disturbing as the likelihood that his action could have resulted in McGuire’s death. Still,
McGuire endured multiple surgeries and had his jaw wired shut for nearly three months as a
result of his injuries. Further, bullet fragments remain in McGuire’s jaw, cannot be removed,
and cause him recurrent pain.
With regard to King’s character, we find his motive of shooting McGuire “because he
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was black” to be highly troubling. Tr. II, p. 86. We also highlight King’s criminal record as
significant. King has three felony convictions: one for Class B felony burglary and two for
Class 4 felony possession of a controlled substance (Illinois). King has also been convicted
of Class A misdemeanor domestic battery and Class A misdemeanor possession of marijuana.
Further, as of July 13, 2012, King has charges pending against him for Class D felony
residential entry and Class A misdemeanor resisting law enforcement. In light of these facts,
we cannot say that King’s forty-five year sentence is inappropriate.
The judgment of the trial court is affirmed.
RILEY, J., and BROWN, J., concur.
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