FILED Feb 28 2020, 9:19 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Wayne Moore, February 28, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1125 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge Trial Court Cause No. 49G05-1705-F6-18274
Pyle, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 1 of 15 Statement of the Case
[1] Robert Wayne Moore (“Moore”) appeals, following a bench trial, his
conviction for Level 6 felony obstruction of justice. Moore argues that: (1) the
trial court abused its discretion in admitting his confession; and (2) his
conviction should be vacated because of a detective’s false trial testimony.
Concluding that the trial court did not abuse its discretion and that his
conviction should not be vacated, we affirm Moore’s conviction.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion in admitting Moore’s confession.
2. Whether a detective’s false trial testimony is a basis for vacating Moore’s conviction.
Facts
[3] On August 12, 2015, a man walking his dog in Fort Benjamin Harrison State
Park found the body of a female a few feet from a closed walking trail. The
deceased woman was Tina Moore (“Tina”), Moore’s stepmother. Tina was
wearing a necklace, some disheveled clothing, but no pants or shoes. Detective
Theodore Lich (“Detective Lich”) from the Lawrence Police Department was
assigned to investigate. He observed that Tina “had been dead for a couple of
hours.” (Tr. 103). Detective Lich also observed signs of trauma on Tina’s
neck. While Detective Lich was investigating at the park, the Lawrence Police Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 2 of 15 Department received a missing person report for Tina, which “matched
somewhat” the description of the body in the park.
[4] The same day that Tina’s body was discovered, Moore and his father provided
recorded statements to the police. Sergeant James Vaughan (“Sergeant
Vaughan”) assisted Detective Lich with conducting Moore’s interview. Before
this August 12 interview began, the detectives read Moore his Miranda rights,
and he signed a written waiver form. During the interview, Sergeant Vaughan
made the following statements to Moore:
[A] jury’s going to understand that a son is going to help the father. He’s going to protect his father.
***
[A]ssisting a criminal is sometimes, that’s like a misdemeanor because the jury knows, that’s family. You can help your father. Okay. You can help your dad. Anyone knows that.
But maybe your end of it, you just went in there and you saw that she was dead and you helped your father. You helped [him] this far or whatever and that’s, and that’s your end of it. That’s probably what happened that’s why if anything happened you got to tell me that.
(State’s Ex. 2a). Moore denied any involvement in Tina’s disappearance during
the interview.
[5] A few days after the initial interview, Moore’s father confessed to killing Tina.
Thereafter, on August 17, 2015, Detective Lich served Moore with an arrest
warrant and brought him in for questioning. Before the interrogation began,
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 3 of 15 Detective Lich read Moore his Miranda rights, and he again signed a written
waiver. At the beginning of the interrogation, when discussing the publicly
available information regarding Tina’s death, Detective Lich stated that
Moore’s father “did confess, but he didn’t say he did it by himself.” (State’s Ex.
2a). Thereafter, Moore stated that his father admitted to him that he had
“killed [Tina][,]” and had “strangled her.” (State’s Ex. 2a). Moore explained
that after killing Tina, his father had asked for help “remov[ing] the body from
the premises that way the kids don’t see or hear anything.” (State’s Ex. 2a).
Moore observed Tina’s body in his father’s bedroom on the bed. Moore told
Detective Lich that he had helped wrap Tina in a blanket, put her in his father’s
SUV, and went with his father to dispose of Tina’s body in Fort Benjamin
Harrison State Park.
[6] Throughout the August 17 interrogation, Moore asked Detective Lich several
times what his charges were. Despite having the information, Detective Lich
was evasive with providing Moore with the information. Detective Lich did
not tell Moore the charges until after Moore made his incriminating statements
describing his efforts to assist his father, approximately fifty minutes into the
interrogation.
[7] The State initially charged Moore with Level 6 felony obstruction of justice and
Class A misdemeanor failure to report a body on August 17, 2015 under cause
number 49G05-1508-F6029126 (“initial cause”). However, the State dismissed
these charges in February 2016 and refiled identical charges on May 17, 2017
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 4 of 15 under this cause.1 On May 26, 2017, Moore had his initial hearing for the
current cause. In July 2018, Moore filed an amended motion to suppress the
confession that he gave to police during the August 17 interrogation.2 The trial
court held a bifurcated hearing on Moore’s amended motion to suppress in
November 2018. The State offered a video recording and transcript for each of
Moore’s August 12 and August 17 recorded statements into evidence. Moore
objected to the admission of the August 17 interrogation transcript, which the
trial court overruled. On November 29, 2018, the trial court denied the motion.
[8] The same day, the trial court conducted a bench trial. Prior to opening
statements, the parties requested that the trial court incorporate the testimony
and evidence from the suppression hearing, and the trial court agreed. Moore
asked that the court show a continuing objection to the admission of the August
17 transcript. Detective Lich was the only witness to testify at the trial. In
addition to the details of his investigation, Detective Lich testified that he had
visited Moore’s house as part of his investigation and had observed “a large
urine spot on the center of the bed[ ]” in Moore’s father’s bedroom. Based on
his training and experience, Detective Lich explained that sometimes people
1 Pursuant to Indiana Evidence Rule 201(a)(2)(c), this Court may take judicial notice of records of a court of this state. Here, we take judicial notice of the initial cause. Our review of those records reveal that Moore had an initial hearing on August 19, 2015. 2 Moore had originally filed a motion to suppress under the initial cause that was dismissed in February 2016.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 5 of 15 urinate at the time of death. On cross-examination, the following colloquy
ensued:
[Defense Counsel]: Do you know, do you know where the urine stain came from; that’s my question.
The Court: It’s just a yes or no question, sir.
[Detective Lich]: Yes, I do.
[Defense Counsel]: Okay. Where did it come from[?]
[Detective Lich]: From the victim, Tina Moore.
[Defense Counsel]: All right. And do you know, then, under what circumstances it came from the victim?
[Detective Lich]: Yes.
[Defense Counsel]: All right. And do you know when it came from the victim?
[Defense Counsel]: And you’re -- you’re saying what, it came --
[Detective Lich]: When she died, the moment she died, she defecated on herself, yes.
[Defense Counsel]: She defecated on herself.
[Detective Lich]: She urinated on herself.
[Defense Counsel]: And how -- what, the coroner, the coroner told you that?
[Detective Lich]: I was at the autopsy as well, sir, and I asked that exact question, yes, sir.
[Defense Counsel]: All right. And your testimony here under oath is that that urine on the mattress was tested?
[Detective Lich]: It was tested for DNA.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 6 of 15 [Defense Counsel]: Okay. And your testimony here also under oath is that the coroner advised that that -- that urine that was hers that was on the mattress was put there during her death?
(Tr. 131-32). The trial court found Moore guilty of Level 6 felony obstruction
of justice and not guilty of Class A misdemeanor failure to report a dead body.
[9] Prior to sentencing, defense counsel discovered, and the State confirmed, that
there had not been DNA testing on the urine spot on the mattress. Three
months after his bench trial, Moore filed a motion to vacate his conviction
based on Detective Lich’s testimony regarding the DNA testing, and the State
filed a response thereto. In its response, the State indicated that it was
“unaware of such testing [at trial], but did not know for a fact that such testing
had not been completed.” (App. 103). At the ensuing hearing on Moore’s
motion, the trial court found that Detective Lich had testified falsely but that:
[i]n the scheme of things it was not a factoid upon which I spent a lot of (Inaudible) with, I had to pay attention to other matters of evidence. And I can’t say we’ll have to cut the wrong information out, where would I be because I didn’t concentrate on the wrong evidence, plus I was more concerned with some of the statements made by the Defendant.
(Tr. 149). The trial court denied Moore’s motion. The trial court then
sentenced Moore to one and a half (1½) years in the Marion County Jail.
Moore now appeals.
Decision
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 7 of 15 [10] On appeal, Moore argues that: (1) the trial court abused its discretion in
admitting his August 17 confession; and (2) his conviction should be vacated
because of Detective Lich’s false testimony regarding DNA testing. We will
address each argument in turn.
1. Admission of Moore’s Confession
[11] Moore’s abuse of discretion argument is twofold. First, Moore argues that his
confession was involuntary because Detective Lich violated his Indiana
Constitutional rights by refusing to advise him of the charges he faced. Next,
Moore argues that his confession was involuntary because “detectives lied to
[him] about the facts and misrepresented the law.” (Moore’s Br. 20). Moore
concedes that he “does not claim [that] he did not understand his rights or that
he did not validly waive his right to counsel.” (Moore’s Br. 20).
[12] The decision whether to admit a defendant’s confession is within the discretion
of the trial court, and it will not be reversed absent an abuse of discretion.
Wright v. State, 916 N.E.2d 269, 277 (Ind. Ct. App. 2009). A trial court abuses
its discretion only if its decision is clearly against the logic and effect of the facts
and circumstances before it, or if the court has misinterpreted the law. Wells v.
State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. Upon reviewing
a challenge to the trial court’s decision to admit the defendant’s confession, we
do not reweigh the evidence but instead examine the record for substantial
probative evidence of voluntariness. Wright, 916 N.E.2d at 277. When a
defendant challenges the admissibility of his confession, the State must prove
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 8 of 15 beyond a reasonable doubt that the confession was given voluntarily. Carter v.
State, 730 N.E.2d 155, 157 (Ind. 2000).
[13] The voluntariness of a confession is determined from the “totality of the
circumstances.” Berry v. State, 703 N.E.2d 154, 157 (Ind. 1998). The totality of
the circumstances may include the crucial element of police coercion, the length
of the interrogation, its location, its continuity, the defendant’s maturity,
education, physical condition, and mental health. Miller v. State, 770 N.E.2d
763, 767 (Ind. 2002). On review, our focus is whether the waiver or confession
was free and voluntary and not induced by any violence, threats, promises, or
other improper influences. Atteberry v. State, 911 N.E.2d 601, 606 (Ind. Ct. App.
2009). We will not reweigh the evidence but instead, we view the evidence
most favorable to the State, together with the reasonable inferences that can be
drawn therefrom, in order to determine if there is substantial, probative
evidence of voluntariness. Id. If there is substantial evidence to support the
trial court’s conclusion, we affirm the trial court’s decision. Id.
[14] Moore asserts that Detective Lich violated Article 1, section 13 of the Indiana
Constitution, which provides in relevant part that the accused shall have the
right to “demand the nature and cause of the accusation against him, and to
have a copy thereof[.]” When reviewing our Indiana Constitution, it is
appropriate that we to look to “the language of the text in the context of the
history surrounding its drafting and ratification, the purpose and structure of
our constitution, and case law interpreting the specific provisions.” Ajabu v.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 9 of 15 State, 693 N.E.2d 921, 929 (Ind. 1998) (quoting Boehm v. Town of St. John, 675
N.E.2d 318, 321 (Ind. 1996) (internal quotation marks omitted)).
[15] While Article 1, section 13 of the Indiana Constitution provides the accused
with the right to demand and have a copy of the charges he is facing, there is no
authority stating that an investigating officer must provide the accused with the
information, as suggested by Moore. Instead, case law interpreting this
provision requires that an accused be sufficiently informed of the crime of
which he is charged in writing so that he is able to prepare a defense. See;
Manna v. State, 440 N.E.2d 473, 475 (Ind. 1982) (recognizing that “the
accused’s constitutional right to be informed of the nature and cause of the
accusation in sufficient detail to enable him to prepare his defense, to protect
him in the event of double jeopardy, and to define the issues so that the court
will be able to determine what evidence is admissible and to pronounce
judgment.”); Hinshaw v. State, 122 N.E. 418, 420 (Ind. 1919) (explaining that
“[t]he words ‘nature and cause of the accusation’ have a well-defined meaning,
and had such a meaning at the time of the adoption of the Constitution. That
meaning is, that the gist of an offense shall be charged in direct unmistakable
terms.”); State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010) (holding
that “[t]he purpose of the charging information is to provide a defendant with
notice of the crime of which he is charged so that he is able to prepare a
defense.”), trans. denied.
[16] Furthermore, INDIANA CODE § 35-33-7-4 provides that “[a] person arrested in
accordance with the provisions of a warrant shall be taken promptly for an
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 10 of 15 initial hearing before the court issuing the warrant or before a judicial officer
having jurisdiction over the defendant.” At this initial hearing, INDIANA CODE
§ 35-33-7-5(6) requires the trial court to advise a defendant “of the nature of the
charge against the person[.]” Our review of the record reveals that Moore
asked Detective Lich several times what charges he was facing. Despite having
the information, Detective Lich was evasive with providing Moore with the
information until after Moore made his incriminating statements. However,
Moore received an initial hearing for the instant cause in May 2017 and for the
initial cause in August 2015. At these hearings, he was informed of the nature
and cause of the charges he was facing, thereby providing him with the
opportunity to present a defense. Accordingly, we cannot say that Moore’s
rights under Article 1, Section 13 of the Indiana Constitution were violated.
[17] Moore next contends that his confession was involuntary because the officers
told him that: (1) a jury would understand why he helped his father; and (2) his
father did not claim to have acted alone. Here, Moore spoke with police on
August 12 and August 17. During the August 12 interview, five days before
Moore confessed, Sergeant Vaughn stated that a jury would understand that
Moore was helping his father. According to Moore, Sergeant Vaughn’s
statements misrepresented the law by assuring Moore that he had a “definitive
legal defense[.]” (Moore’s Br. 26). We disagree and conclude that the
sergeant’s statements that a jury would be understanding do not equate to legal
advice. Turning to the August 17 interrogation, Detective Lich stated that
Moore’s father “did confess, but he didn’t say he did it by himself.” (State’s Ex.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 11 of 15 2a). Given the context in which the statement arose – during a discussion of
the unreported details of Tina’s death – we cannot agree that Detective Lich’s
statement rendered Moore’s confession involuntary.
[18] Moreover, Moore concedes that he was informed of his Miranda rights, that he
understood his rights, and that he waived his right to counsel. See Heavrin v.
State, 675 N.E.2d 1075, 1081 (Ind. 1996) (signing a waiver of rights form
provides some indication that a defendant’s confession was made voluntarily).
Law enforcement did not use violence or threaten Moore at any point during
the interrogations. Furthermore, the August 17 interrogation, when Moore
confessed, lasted less than an hour. See Light, 547 N.E.2d at 1079 (noting that
in most cases where confessions are held involuntary, the suspects are
interrogated for days, not hours).
[19] In the end, we must determine whether the police conduct overbore Moore’s
will, thus rendering his statement involuntary. Henry v. State, 738 N.E.2d 665,
665 (Ind. 2000). Although we disapprove of deceptive police interrogation
tactics, such conduct is not conclusive but rather weighs heavily against the
voluntariness of the defendant’s confession. Heavrin, 675 N.E.2d at 1080.
Indeed, our Indiana Supreme Court has upheld the trial court’s admission of a
defendant’s statement into evidence on facts more egregious than those
presented here. See Light, 547 N.E.2d at 1079 (holding that the trial court did
not err by admitting defendant’s statement despite evidence of a four-hour
interrogation punctuated by conduct of the interrogators involving cursing,
lying, and smacking the defendant on the arm). Considering the circumstances
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 12 of 15 of the interrogation, including the detectives’ advisement of Moore’s rights, the
written waiver forms, the relatively short duration, and the absence of the use of
violence or threats, we conclude that Moore’s incriminating statement was not
involuntary. Accordingly, the trial court did not abuse its discretion in
admitting the August 17 confession into evidence at trial.
2. Detective Lich’s Testimony
[20] Next, Moore alleges that his conviction should be vacated because the State,
through Detective Lich, presented false testimony to obtain his conviction. It is
well-settled that the knowing use of perjured testimony is fundamentally unfair,
and a conviction obtained by the use of such testimony will not be upheld. Wallace
v. State, 474 N.E.2d 1006, 1008 (Ind. 1985) (emphasis added). A conviction
obtained through the use of false testimony must fall where the State, knowing
the testimony to be false, either solicits such testimony or allows it to go
uncorrected when it appears. Napue v. Illinois, 360 U.S. 264, 269 (1959). As our
supreme court has explained:
[i]n determining whether to vacate a conviction because of the State’s solicitation of false evidence or knowing use of it without correction, . . . the proper question is: did the State impermissibly use false testimony to obtain a conviction in violation of a defendant’s due process rights? The main thrust of the case law in this area focuses on whether the [factfinder’s] ability to assess all of the facts and the credibility of the witnesses supplying those facts has been impeded to the unfair disadvantage of the defendant.
Smith v. State, 34 N.E.3d 1211, 1220 (Ind. 2015).
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 13 of 15 [21] Below, the State sought to elicit testimony from Detective Lich that he had
observed a large urine stain on the mattress in the bedroom of Moore’s father,
and that based on his training and experience, people urinate at the time of
death. On cross-examination, Detective Lich testified that the urine stain had
been DNA tested and that the results indicated that the urine stain belonged to
the victim. Prior to sentencing, defense counsel discovered, and the State
confirmed, that there had not been DNA testing on the urine spot on the
mattress. Moore then filed a motion to vacate his conviction based on
Detective Lich’s false testimony. The deputy prosecutor represented to the trial
court that she “did not know for a fact” at the time of trial that DNA testing
had not been completed. (App. 103). When the trial court denied Moore’s
motion, it found that although the detective had testified falsely, “[it] didn’t
concentrate on the wrong evidence, plus [it] was more concerned with some of
the statements made by the Defendant.” (Tr. 149).
[22] It should be noted that considerable taxpayer dollars are spent training law
enforcement officers to protect all people within the borders of Indiana from
criminal activity. See IND. CODE § 5-2-1-9. Law enforcement officers also take
an oath to support and defend both the Federal and the Indiana Constitutions;
they also promise to obey and enforce the laws of this state. Further, law
enforcement officers, like all other witnesses, give their oath to tell the truth
under penalty of perjury. As a result, when law enforcement officers lie under
oath, they ignore their publicly funded training, betray their oath of office, and
signal to the public at large that perjury is something not to be taken seriously.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 14 of 15 This type of conduct diminishes the public trust in law enforcement and is
beneath the standard of conduct to be expected of any law enforcement officer.
[23] We reiterate that Detective Lich’s testimony was before the trial court and not a
jury. We generally presume that in a proceeding tried to the bench, a court
renders its decisions solely on the basis of relevant and probative evidence.
Hinesley v. State, 999 N.E.2d 975, 987 (Ind. Ct. App. 2013) reh’g denied, trans.
denied. The risk of prejudice is quelled when the evidence is solely before the
trial court. Id. Had this been a jury trial, where we do not make the same
assumptions and a jury does not provide a statement about what influenced its
decision, Detective Lich’s testimony would have been interpreted differently.
Whether or not the urine on the bed belonged to the victim was not an element
of the obstruction of justice crime. Because this was a bench trial, and the trial
court specifically found that Moore’s confession served as the basis for his
conviction, we conclude that Detective Lich’s false testimony regarding DNA
testing is not a basis for vacating Moore’s conviction. Accordingly, Moore’s
conviction stands.
[24] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-1125 | February 28, 2020 Page 15 of 15