Currie v. State
Currie v. State
Opinion of the Court
Darryl Bernard Currie appeals his conviction for burglary, a Class C felony. On appeal, he asserts that the trial court erred by permitting a police officer to testify as to statements made by Currie during a custodial interrogation. We reverse on this issue and therefore, do not address the other issues raised by Currie.
Currie was arrested in the early morning hours of November 20, 1985. Later that day, a probable cause hearing was held.
Later that same day at approximately 7:00 P.M., Detective Wasaluski, an investigator for the Anderson City Police, went to the jail, retrieved Currie and took him to the Anderson Police Station for questioning. Wasaluski knew that Currie had appeared in court that day but does not recall asking Currie if an attorney had been appointed for him. Wasaluski read Currie his rights, obtained a signed waiver and proceeded to question him about the burglary. Currie told Wasaluski that he did not want to make a written statement but would answer some questions. At trial and over Currie's objection, Wasaluski was permitted to testify as to the statements made by Currie during this interrogation.
The State argues that Currie never requested counsel at the time he was questioned and therefore, his waiver of rights was valid. This argument fails to acknowledge the import of Currie's request for counsel and the subsequent appointment of counsel at the probable cause hearing.
It is unquestionable that Currie was subjected to a custodial interrogation. Under the Fifth and Fourteenth Amendments to the United States Constitution, a suspect has the right to the presence and advice of counsel during custodial interrogations. Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Once the right to counsel is asserted, "the suspect is not subject to further interrogation until counsel has been made available to him unless the suspect himself initiates further communication with the police and knowingly and intelligently waives the right previously invoked." Sleek v. State (1986) Ind., 499 N.E.2d 751, 754. (Citing Oregon v. Bradshaw (1983) 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405; Edwards v. Arizona (1981) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378). "A valid waiver of the previously invoked right cannot be established by showing only that the suspect responded to further police-initiated interrogation." Sleek, supra at 755. Also, the fact that interrogation had not begun at the time the right was asserted is not significant. The law is clear that if the suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Id. at 755 (quoting Miranda, supra 348 U.S. at 444-45, 86 S.Ct. at 1612) (emphasis added by Sleek).
In the present case, Currie requested that counsel be appointed for him. Although the record does not reveal whether Currie specifically stated that he was choosing to remain silent, his request for counsel reflects a decision to consult with an attorney and deal with the authorities through that attorney.
"Violations of Miranda are subject to harmless error analysis." Sleek, supra at 755. "In determining if the erroneous admission of evidence was harmless error, the question is not whether there is sufficient evidence to support the conviction ab
Accordingly, the trial court is reversed and this case remanded for a new trial.
. In effect, the request for counsel functions as an assertion of the right to remain silent. As stated by Justice Shepard:
What good is the attorney, pray tell, if not to assure that the accused does not say something or consent to something that may not be in his best interests?
Moore v. State (1986), Ind., 498 N.E.2d 1, 11, Shepard, J., dissenting.
Dissenting Opinion
dissenting.
I agree with the majority that Currie's interrogation by Detective Wasaluski was in violation of his Miranda rights in that the interrogation proceeded after Currie had invoked his right to counsel. Wilson v. Murray (4th Cir. 1986), 806 F.2d 1232. However, I do not agree with the conclusion that such error was not harmless error.
In Sleek v. State (1986), Ind., 499 N.E.2d 751, our supreme court, citing Malott v. State (1985), Ind., 485 N.E.2d 879, said that Miranda violations are subject to harmless error analysis. The facts in this case persuade me that the Miranda violation here was harmless.
Upon arrival at the scene, the police and owner of the premises discovered a panel of an overhead door had been broken out. Inspection of the premises revealed a hole in the ceiling tile in the office as if someone had fallen through. Desk drawers had been ransacked, and a calculator had been disconnected and moved from its normal position. Upon further search of the building, Currie was found hiding behind some coveralls in a restroom. He was uncooperative, refused to place his hands on a locker as instructed, and resisted the officers.
A conviction for burglary requires proof that a person broke into and entered the building of another with intent to commit a felony therein. Indiana Code section 85-48-21-1; Hossman v. State (1985), Ind.App., 482 N.E.2d 1150, trans. denied. Conviction for burglary does not require proof of theft but only proof of an intent to commit the felony. Bush v. State (1980), Ind.App., 401 N.E.2d 796, trans, denied. In Bush, although nothing was taken from the building broken into, the office appeared ransacked. We held this evidence sufficient to support a finding of intent to commit theft, especially when coupled with evidence of flight. Bush, at 801.
Evidence of the manner in which the building was broken into and the ransack ing of the desk and moving the calculator support the conclusion that the intruder intended to commit the felony of theft. Meadows v. State (1981), Ind., 428 N.E.2d 1232. This is particularly true here when coupled with evidence of Currie's hiding behind the coveralls in the restroom and his resisting the officers. Busk.
The breaking and entering clearly were established-a panel of the overhead door was broken out and Currie was found inside the building. Intent to commit theft likewise was established sufficiently. Meadows; Bush.
In determining whether or not the evidence admitted in violation of Miranda was harmless, appellate tribunals must
For the reasons hereinbefore stated, I am compelled to conclude the Miranda violation in this case was harmless error. Therefore, I dissent.
Reference
- Full Case Name
- Darryl Bernard CURRIE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)
- Cited By
- 6 cases
- Status
- Published