James Mira v. State of Indiana , 3 N.E.3d 985 ( 2013 )

FOR PUBLICATION Dec 20 2013, 6:04 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES MIRA, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1305-CR-245
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Dennis W. Lopes, Judge Pro Tempore
Cause No. 49F18-1107-FD-51687
December 20, 2013
OPINION - FOR PUBLICATION
BROWN, Judge
James Mira appeals his conviction for theft as a class D felony. Mira raises one
issue, which we revise and restate as whether the trial court committed fundamental error
in admitting certain evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 10, 2011, Robin Ludlow left her home in Indianapolis for between one
hour and one hour and forty-five minutes to pick up her children from school. When she
left her home, an air conditioning unit which her husband Brian had disconnected from
the home was at the side of the home. While Robin was away, Jennifer Sheard, the
Ludlows’ neighbor, observed Mira and another individual in front of the Ludlows’ home
loading the air conditioning unit into the bed of a pickup truck and drive away. Sheard
knew Mira because he was another neighbor’s son-in-law. Upon returning home Robin
noticed that the air conditioning unit was missing, and the police were contacted.
Detective Stephen Carroll of the Indianapolis Metropolitan Police Department was
assigned to investigate the theft, and on June 29, 2011, he presented a photo array to
Sheard, who identified Mira as one of the men she observed removing the air conditioner.
On July 1, 2011, Detective Carroll mailed a letter to Mira at his mother-in-law’s address
stating that Mira was “a suspect in a larceny” and that Mira “needed to contact” him.
Transcript at 29. Detective Carroll subsequently went on a vacation, and after returning
on July 11, 2011, while “catching up on . . . voicemails,” noted that Mira “had called and
left [] a voicemail” stating that he had received the letter and asking Detective Carroll to
call him back. Id. at 26. On July 13, 2011, Detective Carroll called and spoke with Mira
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about arranging a meeting. Mira stated that he needed to check his schedule and would
call back; however, he did not do so.
On July 22, 2011, the State charged Mira with theft as a class D felony. On
October 31, 2012, the court held a bench trial in which the State elicited without
objection Detective Carroll’s testimony regarding writing the letter, talking to Mira on
the phone, and Mira not calling him back. Mira testified and denied involvement in the
theft. During cross-examination, the prosecutor asked Mira “why did you never get back
with the Detective,” to which Mira’s counsel objected based upon attorney-client
privilege, and the court sustained the objection, noting that “why he got back to the
Detective or not could be an area where he was exercising his 5th Amendment right and I
don’t think that at that point there he should be required to answer that question.” Id. at
52-53. During closing argument, the prosecutor argued the credibility of Sheard’s
identification of Mira, disputed the defense’s theory regarding whether Mira owned a
pickup truck in June 2011, and did not mention Mira’s decision to not call Detective
Carroll back. The court found Mira guilty as charged. On April 24, 2013, the court held
a sentencing hearing and sentenced Mira to two years in the Department of Correction.
DISCUSSION
The issue is whether the trial court committed fundamental error in admitting
certain evidence. Generally, a trial court’s ruling on the admission of evidence is
reviewed for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000).
Errors in this regard are not reversible if such admission constituted harmless error. Fox
v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.
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However, as Mira recognized, here the evidence being challenged was not objected to
when it was presented at trial. Consequently, in order to avoid waiver of this issue Mira
invokes the fundamental error doctrine, which permits appellate review of otherwise
procedurally defaulted claims. See Southward v. State, 957 N.E.2d 975, 977 (Ind. Ct.
App. 2011). “The fundamental error doctrine is ‘extremely narrow,’ requiring an error
‘so prejudicial that a fair trial is impossible.’” Id. (quoting Sasser v. State, 945 N.E.2d
201, 203 (Ind. Ct. App. 2011), trans. denied). “Blatant violations of basic principles,
coupled with substantial potential or actual harm and denial of due process constitute
fundamental error.” Id.; see also Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (“To
qualify as fundamental error, an error must be so prejudicial to the rights of the defendant
as to make a fair trial impossible. To be fundamental error, an error must constitute a
blatant violation of basic principles, the harm or potential for harm must be substantial,
and the resulting error must deny the defendant fundamental due process.”).
Mira argues that although “[t]he United States Supreme Court recently held that a
defendant’s refusal to answer an investigating officer’s questions before the defendant
has been arrested or Mirandized can be used substantively and for impeachment unless
the defendant explicitly stated that he was refusing to answer the officer’s questions on
Fifth Amendment grounds” in Salinas v. Texas, 133 S. Ct. 2174, 2180 (2013), “this court
is free to interpret Article One, Section Fourteen of the Indiana Constitution so as to give
broader protection to Indiana’s citizens.” Appellant’s Brief at 5, 7 (citing Ajabu v. State,
693 N.E.2d 921, 927 (Ind. 1998)). Mira suggests that “this court hold that, under the
Indiana Constitution, an individual’s exercise of his right against self-incrimination
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cannot be used as substantive evidence in a criminal prosecution regardless of when the
exercise of the privilege occurred and regardless of whether the individual explicitly
invoked the privilege.” Id. at 8. In so arguing, Mira maintains that “[i]t defies logic to
allow the State to use an individual’s exercise of a constitutional right as evidence of guilt
simply because the right was exercised before the State’s duty to administer Miranda
warnings arose.” Id.
The State begins by arguing that “[t]he transcript does not reveal a blatant error,
nor does it reveal any prejudice to Mira from the trial court’s consideration of the now-
challenged evidence,” and, moreover, he “[h]as not shown a lack of fundamental
fairness.” Appellee’s Brief at 8. In so arguing, the State highlights that Mira was tried to
the bench, and this court generally presumes that “a court renders its decisions solely on
the basis of relevant and probative evidence.” Id. at 9. The State also argues that
“[c]ontrary to Mira’s argument, this case does not involve a defendant’s exercise of
constitutional rights being used as substantive or impeachment evidence” and was instead
“better characterized as evidence about the course of a police investigation,” and
contends that the United States Supreme Court’s opinion in Salinas is not implicated. Id.
at 10. The State maintains that even if we accept Mira’s framing of the issue, he “merely
requests a different result under the Indiana Constitution but does not advance a specific
reason based on constitutional text, history, or structure.” Id. at 15. Finally, the State
notes that the court at Mira’s trial “refused to allow any evidence about why Mira did not
contact Detective Carroll,” that “[i]t is therefore specious to suggest that Mira’s silence
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was a factor in the trial court’s finding Mira guilty,” and that accordingly there can be no
finding of fundamental error. Id. 18.
This court’s opinion in Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010),
reh’g denied, trans. denied, is instructive. In Owens, Owens’s step-daughter C.R.
disclosed to school officials and police that she had been molested by Owens, and during
the investigation Detective Scott McKinney “tried to contact Owens on his cell phone
more than once.” 937 N.E.2d at 883-884. Detective McKinney also “went to Owen’s
Hamilton County residence with a DCS caseworker,” found him not to be home, “left his
business card with a message requesting that Owens contact him,” and repeated the
procedure two days later,” but Detective McKinney never did hear from Owens. Id. at
884. At Owens’s jury trial, Detective McKinney testified about his investigation and
specifically testified “that he tried to call Owens more than once but failed to reach him,”
that “he went to Owens’s home and left his business card asking Owens to call him,” and
that he never received contact from Owens. Id. at 884-885.
On appeal, this court first noted that Owens failed to preserve the error for review
because he did not object and that we could only reverse if he demonstrated the existence
of fundamental error. Id. at 885. We found that Owens could not “avoid procedural
default because he fail[ed] to demonstrate that the admission of Detective McKinney’s
testimony constitutes error, let alone fundamental error.” Id. After discussing pre-
Salinas federal case law demonstrating that there was a “split as to whether the
Constitution permits the prosecution to use a defendant’s pre-arrest, pre-Miranda silence
as substantive evidence in its case-in-chief,” id. at 886, we stated that in Owens’s case,
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“even under the cases holding that a defendant’s pre-arrest, pre-Miranda silence is
protected by the Fifth Amendment, Owens’s lack of response to Detective McKinney is
outside the ambit of the Fifth Amendment.” Id. at 891. Specifically, we held:
Recall that in the majority of those cases, the court specifically considered
whether the defendant invoked the right to remain silent and concluded that
the defendant’s statement or action was an invocation of the right. See
Combs[ v. Coyle, 205 F.3d 269, 286 (6th Cir. 2000), reh’g denied, cert.
denied, 531 U.S. 1035, 121 S. Ct. 623 (2000)]; [United States v. Burson,
952 F.2d 1196, 1200 (10th Cir. 1991), cert. denied, 503 U.S. 997, 112 S.
Ct. 1702 (1992)]; Coppola[ v. Powell, 878 F.2d 1562, 1567 (1st Cir. 1989),
cert. denied, 493 U.S. 969, 110 S. Ct. 418 (1989)]; see also Berghuis v.
Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010)
(holding that during police interrogation right to remain silent must be
invoked unambiguously)[, reh’g denied]. Based on these cases and the
particular circumstances present here, Owens’s mere lack of response does
not support a finding that he invoked the right to remain silent. Perhaps
Owens did not respond because the wind blew Detective McKinney’s cards
away, or perhaps Owens was very ill or too busy, or perhaps he just did not
like the police. Also, since Detective McKinney never told Owens why he
wanted to talk to him, there is no basis to conclude that Owens even would
have known that he was the subject of an investigation. Based on the
foregoing, we conclude that the State did not infringe upon Owens’s Fifth
Amendment privilege against self-incrimination by introducing evidence
that Detective McKinney did not hear from Owens. It follows that no error,
let alone fundamental error, occurred in the admission of the testimony.
Id. at 891-892.
We find this reasoning applicable in this case. As noted, evidence was presented
at trial that Mira did not call Detective Carroll back in order to schedule a meeting to
discuss the theft of the air conditioner. However, during the bench trial, when the
prosecutor attempted to delve into the reason Mira did not follow up with Detective
Carroll, Mira’s counsel objected, and the objection was sustained. As Owens notes, the
failure on Mira’s part to follow up with Detective Carroll does not support a finding that
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he invoked his right to remain silent. To the extent that Mira requests that we overturn
the reasoning of Owens and find that this evidence was erroneously admitted pursuant to
Article 1, Section 14 of the Indiana Constitution, we agree with the State that Mira does
not offer a specific reason and merely requests a different result. We can find no basis to
disagree with the reasoning of Owens based upon Article 1, Section 14 of the Indiana
Constitution.1
CONCLUSION
For the foregoing reasons, we affirm Mira’s conviction for theft as a class D
felony.
Affirmed.
ROBB, C.J., and BARNES, J., concur.
1
We observe that one distinction between the defendant in Owens and Mira is that Mira was told
by Detective Carroll in the initial letter that he was the subject of a larceny investigation, while the
defendant in Owens was apparently never specifically told by officers the nature of the investigation.
Even so, however, we do not believe that the circumstances here, including that Mira initially phoned
Detective Carroll upon receiving the letter, told Detective Carroll during their phone conversation that he
would check his schedule and call the detective back but subsequently failed to do so, was tantamount to
invoking one’s right to remain silent.
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