Rider v. State

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Christopher S. Rider appeals his conviction for Burglary², a Class B felony. We affirm.

ISSUES

We restate the issues on appeal as:

1. Was Rider’s right to counsel invoked effectively by his mother, thereby rendering his statements to police inadmissible at trial?

2. Did the trial court err in refusing Rider’s motion to include criminal trespass on the verdict form as a lesser included offense of burglary?

FACTS

On March 7, 1989, Carol Grimes left her home for a doctor’s appointment. When she returned home, she found holes in the wall from two shotguns which were missing, plaster splattered everywhere, and her things torn up in every room. Officer Henderson investigated the burglary. Grimes remembered seeing Rider around her home frequently before the burglary. Officer Henderson went to Rider’s residence on March 12, 1989, as part of his investigation.

Officer Henderson explained the circumstances to Rider and his mother. He informed both of them of Rider’s rights because he believed Rider was a minor. After Rider and his mother talked privately, Rider’s mother told Officer Henderson, “we need an attorney”. Record at 283-83. Rider went upstairs for some clothes. Rider’s mother informed Officer Henderson that her son admitted entering Grimes’ house. She further stated that Rider was twenty years old.

When Rider returned, Officer Henderson read Rider the waiver of rights form again. After Rider signed the form, he told Officer Henderson that he had entered Grimes’ house and taken the rifle. After Rider spoke privately with his stepfather, his stepfather retrieved the rifle and gave it to Officer Henderson. Rider was then arrested. At the Madison County Detention Center, Rider was advised again of his rights. Rider proceeded to give a written statement concerning the burglary.

At trial, Rider orally moved to suppress Rider’s oral and written statements, which motion was denied by the trial court. At the close of the evidence, Rider orally moved to amend the verdict form by adding the lesser included offense of criminal trespass. The court denied the request. The jury returned a guilty verdict for burglary. The court sentenced Rider to ten years’ imprisonment.

DISCUSSION AND DECISION

Issue One

Rider asserts the trial court erred in denying his motion to suppress evidence. Rider sought to exclude evidence of his statements made at his home to Officer Henderson and at the jail after his arrest. Rider maintains he was interrogated after he had exercised his right to counsel. However, the evidence shows Rider’s mother, not Rider, stated, “We need an attorney”. As an adult, Rider is the only one who can invoke his right to counsel.

In McClaskey v. State (1989), Ind., 540 N.E.2d 41, McClaskey claimed statements made to police should have been suppressed because she was denied access to Attorney Smith. However, our supreme court upheld the admission of the statements into evidence because McClaskey’s grandmother had called Attorney Smith and sent him to the jail for McClaskey. McClaskey was unaware of her grandmother's actions at the time the statements were made. McClaskey had not hired Attorney Smith for her defense, nor had she requested an attorney. In fact, McClaskey specifically stated she did not want an attorney after she was informed Attorney Smith was at the jail to see her. The supreme court held the trial court did not abuse its discretion in finding the statements admissible. Id. at 44-45.

Additionally, we note two federal cases which expressly support our holding that only the defendant can invoke his right to counsel. In Terry v. LeFevre (2d Cir.1988), 862 F.2d 409, 412, the court held a defendant's mother’s attempt to contact an attorney did not constitute invocation of the defendant’s right to counsel. The record in Terry failed to show the defendant exercised his right to counsel because Terry had not asked his mother to get him an attorney. The court further stated, “[Tjhere is not legal support for the argument that Mrs. Terry could invoke the right to counsel on behalf of her son.” Id.

The second federal case supporting our decision is U.S. v. Scarpa (2d Cir.1990), 897 F.2d 63, 69, aff'd, 913 F.2d 993, cert. denied, — U.S. -, 111 S.Ct. 57, 112 L.Ed.2d 32. In this case, an attorney tried to invoke the right to counsel for Scarpa although Scarpa was unaware his family had hired the attorney. The court held that the Sixth Amendment may not be invoked by an attorney unknown to the defendant and prevent the defendant from waiving his rights. Scarpa knowingly and voluntarily waived his right to counsel and made statements to the U.S. Marshal. Id.

Similarly; we hold Rider’s mother could not invoke the right to counsel for her twenty-year old son. While at his home, Rider read and signed the waiver of rights form and stated he understood his rights. Rider then waived his rights and made statements to Officer Henderson. At the jail, Rider signed another waiver form and made further statements to the police. Rider did not request an attorney at any time, nor did he refuse to speak with the police until an attorney could be present. Therefore, we find the trial court properly denied Rider’s motion to suppress his statements which were made voluntarily without counsel.

Issue Two

Rider argues the trial court erred by submitting the verdict form to the jury without including criminal trespass³ as a lesser included offense of burglary. The trial court is required to instruct on a lesser included offense only if a two-step test is met. First, an offense may be included if: all the statutory elements of the lesser offense are inherently part of the statutory definition of the greater offense, or the charging instrument reveals that the manner and means used to commit the essential elements of the charged crime include all the elements of the lesser crime. The second step requires that the evidence justify instructing the jury on the lesser crime. Owens v. State (1989), Ind., 544 N.E.2d 1375, 1377.

Rider fails to satisfy either alternative in step one. Criminal trespass is not an inherently included offense of burglary, Welch v. State (1987), Ind., 509 N.E.2d 824 (citing Goodpaster v. State (1980), 273 Ind. 170, 402 N.E.2d 1239), nor does the information charge all of the elements of criminal trespass. The information did not allege “lack of contractual interest”, one element of criminal trespass. Because the language of the information alleged only burglary, Rider could not maintain criminal trespass was an included offense in this case. See Welch, 509 N.E.2d at 824-25.

Although Rider correctly argues that burglary requires proof of intent to commit a felony and where intent to commit a particular underlying felony cannot be established, criminal trespass is the appropriate charge, see Justice v. State (1988), Ind., 530 N.E.2d 295, 296, this argument is not helpful to Rider’s case. The intent necessary for burglary may be inferred from circumstantial evidence, such as removal of property from the premises. Id. at 297. Rider’s removal of the rifle from Grimes’ home provides the intent to support the burglary conviction. Furthermore, we find the evidence supporting the charged offense is compelling and without serious conflict, and the trial court was justified in refusing the lesser included offense on the verdict form. See Owens, 544 N.E.2d at 1377.

Affirmed.

BUCHANAN, J., concurs. SULLIVAN, J., dissents with separate opinion.

2 . IND.CODE § 35-43-2-1.

3 . IND.CODE § 35-43-2-2.