A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE

Jay A. Rigdon Gregory F. Zoeller Adam D. Turner Attorney General of Indiana Rockhill Pinnick LLP Warsaw, Indiana Arturo Rodriguez II Deputy Attorney General Indiana polis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 25S0 4

- 1004

- C R

- 219

J AMES A. C ARR , Appellant (Defendant below),

v.

S TATE O F I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Fulton Superior Court , No. 25D01

- 0611

- MR

- 277

The Honorable Wayne E. Steele , Judge

_________________________________ On Transfer from the Indiana Court of Appeals, No. 25A0 4

- 0906

- CR

- 356

_________________________________

September 29, 2010
Dickson, Justice.

Appealing his conviction for Murder
, 1 the defendant alleges four errors: (1) denial of his motion for discharge under Indiana Criminal Rule 4; (2) admission of his sta tement to a police
detective despite his repeated invocation of his right to counsel ; (3) limitations on defense que stioning of the police detective; and (4) refusal of tendered instructions regarding lesser included

o f fenses. The Court of Appeals affirme d in a memorandum decision. We granted transfer and

now rev erse and remand for new trial.

1 Ind. Code § 35

- 42

- 1

- 1.2

The defendant was convicted following a jury trial for the November 4, 2006
, murder of Roy Allen Shaffer at Kewanna, Fulton County, Indiana. The killing occurred when the defe ndant fired his shotgun directly into the victim's face during an argument between the two men

. The defenda nt then drove to a bar in Monte rey, Indiana, and admitted the killing to the barten d er, stating
, "I shot Allen [Shaffer] . . . he would n ' t tell me the truth and I just, I just shot him," Tr. at 324, and "I pulled the trigger," i d. at 326. The defendant , while in police custody, further d escribed the incident during an ensuing videotaped police i n terview the day after the crime.

1. Den ial of Motion for Discharge for Delay under Criminal Rule 4

The defendant first contends that the trial court erred in denying his February 4, 2009
, motion for discharge pursuant to Indiana Criminal Rule 4 (C). He argues that , because two of his
continua nce requests should have "been properly attributed to the State
, " he was not brought to
trial with in one year as required by the R ule. Appellant 's Br. at 13. In relevant part, the Rule provides: (C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act , or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last

- mentioned circumstance, the pros ecuting attorney shall file a timely motion for co ntinuance . . . . Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. A ny defendant so he ld shall, on motion, be discharged. * * * (F) Time periods extended. When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in this rule shall be

e x tended by the am ount of the resulting period of such delay caused thereby

. Ind. Crim. R. 4(C) and (F) (emphasis added). Neither party make s any claim of court conges tion
as a factor in this case.

We first observe that the defendant incorrectly refers to whether delay s hould be attr ibuted to the State. I t has not been uncommon for lawyers and courts to address R ule 4 claims in part by considering whether delay should be "chargeable to the State, " b ut the role of the State is3

an irrelevant consideration in the analysis. The Rule does not call for any attrib u tion of delay to
the State but only for delay attributable to t he defendant or insufficient time due to court conge stion or emergency

. To resolve a motion for discharge made under R ule 4(C), it is nece s sary to identi fy only those delays attributable to the defendant and those attributable to court conge s tion

or emergency

. For purposes of Criminal R ule 4 evaluations, the phrase "chargeable to the State"
is an unfortunate misnomer , inexact, and potentially misleading. No purpose is served by devo ting time and effort to evaluate whether a delay is "chargeable to the State." The Rule does not involve assessment or attribution of any fault or accountability on the part of the State, but ge nerally imposes upon the justice system the obligation to bring a defendant to trial within a set
time period
, which is extended by the amount of delay caused by the defendant or under the e xception for court calendar congestion or emergency

. Employing the rhetoric of " delay charge able to the State" should be avoided.

Rephrased accordingly , the essence of the defendant's claim here is that the delays caused by two of his continuance motions should not be used to extend the one

- year period wit h in which the justice system was required to bring him to trial. He asserts that his August 8, 2007 , and N ovember 7, 2007, motion s for continuance were necessitated by the State's unt imely r e sponse to the defendant's request for the autopsy report and the results of firearm testing, and any delay
attributable to such motions should not be used to extend the one

- year deadline for brin g ing him
to trial. When a trial court grants a defendant's motion for continuance because of the State's failure to comply with the defendant's discovery requests, th e resulting delay is not cha r geable to
the defendant. Isaacs v. State , 673 N.E.2d 757 , 762 (Ind. 1996)

.

The defendant's August 8 , 2007, motion to continue the trial date initially requested that the resulting delay be "charged to the state," in effect a request that the delay not be charged to the defendant. At the ensuing hearing on August 8, counsel for the defendant said that, "[t]his is our continuance and therefore the delay [ should ] be charged to the defendant." Tr. at 54

. T he
trial cour t rescheduled the trial from August 20, 2007, to January 22, 2008, but expressly noted
the defen dant's request for delay "C harged to the State withdrawn." Chronological Case Su mmary (CCS) , Appellant's App'x at 5. This continuance motion resulted in a 170

- day delay in the
sch e duled trial date, but in light of the defendant's own declaration, it is properly attributed to the4

defe n dant.

On November 7, 2007, the CCS re flects that on motion of the defe n dant the jury trial was
reset f rom January 22, 2008
, to May 6, 2008. This resulted in a 105

- day delay in the trial date

. The defendant argues that this motion was made "because he had not received certain fir e arm testing evidence," Appellant 's Br. at 11, but this claim is not supported by the record as pr e sented
in the CCS and transcript. The reasons given in support of the oral motion instead were the d efense counsel's own scheduling conflict and his need for more time to employ and work with a forensic pathologist

. Tr. at 62.

The defendant's appell ate claim of error in denying his motion for discharge is predicated upon his assertion that these two continuances should not have been charged to the defendant. Rejecting this claim, we find no error in the trial court's decision to charge both delays to the d efendant a nd thus to den y the defendant's motion for discharge under C riminal R ule 4(C).

2. Admission of Custodial Statement Made After Invoking Right to Counsel

The defendant next contends that his custodial statements made during his videotaped interview by police the morning after the crime w ere improperly admitted into evidence. He a sserts that he repeatedly and unequivocally invoked his right to counsel and did not thereafter waive this right . B ut police ignored his request s a nd continued the interrogation, resulting in the
defendant providing statements that he alleges w ere a key element in the State's case. The d efendant asserts that the admission of the interview evidence violated his right to counsel. 2 The
State r e sponds that the defendant's requests for an attorney were equivocal and ambiguous and
, if
not, that any resulting error was har m less.

As established in M iranda v. Arizona
, prior to any questioning of a person taken into cu s-

2 While generally averring a violation of his right to counsel under both the federal and state co nstitutions, the defendant's citations to authority are based on federal jurisprudence. He does not present any argument contending that the right to counsel provided under the Indiana Constitution differs from that provided under the United States Constitution. We therefore consider his claim only under federal constitutional jur i sprudence.5

tody, "the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an atto r ney, either retained or appointed." 384 U.S. 436, 44 4 , 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 70 6

– 0 7 (1966)

. If the accused requests counsel, "the interrogation must cease until an attorney is present." Edwards v. Arizona , 451 U.S. 477, 48 2 , 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378, 384 (1981) ( quoting Miranda , 384 U.S. at 474, 86 S. Ct. at 1628 , 16 L. Ed. 2d at 723 )

. An accused's

r e quest for counsel, however, must be unambiguous and unequivocal. Berg huis v. Thompkins
, 560 U.S. ___, ___, 130 S. Ct. 2250, 225 9 , 176 L. Ed. 2d. 1098
, 1110 (2010). The cessation of police questioning is not required "if a suspect makes a reference to an attorney that is amb iguous or equivocal in that a reasonable officer in light of the circumstances would have under stood only that the suspect might be invo k ing the right to counsel." Davis v. United States , 512 U.S. 452, 4 59, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994). An accused may waive the right to counsel
, if done voluntarily, knowingly, and intelligently. Miranda , 384 U.S. at 444, 86
S. Ct. at 1612
, 1 6 L. Ed. 2d at 707. A waiver that comes from "the autho rities' behest, and not at the suspect's own instigation . . . [is] not the purely voluntary choice of the suspect." Mar y land
v. Shatzer , 559 U.S. ___
, ___, 130 S. Ct. 1213, 1219
, 175 L. Ed. 2d 1045, 1053 (2010) ( quoting
Arizona v. Roberson , 486 U.S. 675
, 681, 108 S. Ct. 2093
, 2097

– 98
, 100 L. Ed. 2d 704
, 713 (1988) ) . As recently expressed in Shatzer : [W]hen an accused has invoked his right to have counsel present during custodial inte rrogation, a valid waiver of that right cannot be established by showin g only that he r esponded to further police

- init i ated custodial interrogation even if he has been advised of his right s . . . . [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused h imself initiates further communic a tion, exchanges, or conversations with the police. 559 U.S. at ___ , 130 S. Ct. at 1219
, 175 L. Ed. 2d at 1053 ( quoting Edwards , 451 U.S. at 484

– 85, 101 S. Ct. at 1884

– 85 , 68 L. Ed. 2d at 386 ). Even if an accused elects t o waive his rights, such waiver may later be res c i nded at any time, and "[i]f the right to counsel or the right to r emain silent is invoked at any point during questioning, further interrogation must cease." Ber ghuis , 560 U.S. at ___, 130 S. Ct. at 226 3

– 6 4
, 176 L. Ed. 2d at 1115

.

Following his arrest on the evening of the crime
, the defendant was question ed at the p olice station by Detective Dan iel Pryor of the Fulton County Sheriff's Department

. The fo l lowing excerpts pertinent to the claimed violati on of his right to counsel are taken from the inte r view :6

[ After a quick exchange of pleasantries between the defendant and Detective Pryor , the defendant stated ]: Mr. Pryor I want to be cooperative

. . . but at the same point I'm in a situation where I f

eel like

. . . I really need an attorney to

. . . talk with, and for me

. [E mphasis added.]

[ Detec tive]: Well, and you're absolutely entitled to that sir. . . . I'm not going to violate your rights (inaudible) that way. The only reason I was in here, we know what ha p pened, that's not why I was in here, I just wanted to know w hy. It might not be as bad as it a ppears, but only you know thos e circumstances, but you're entitled to an attorney and I'm not going to

. [Defendant]: Yeah, OK. Well I mean ask me , ask me what you want to ask me

. [Emph asis added.]
[Detective]: Well I mean that's up to you. . . . I have to read you your rights because you're in custody (inaudible) . . . I want to do things by the book. . . . Like I said, things look bad but they'r e not always as the y look

. Appellant's Ap p'x at 389.
[Defendant]: Well, believe me it's bad, you know what I mean? It's bad.
[Detective]: Well,

. . . I won't lie to you Jim, it doesn't look good. But like I say, it may look worse than what it ac tually is. That's why I'm here in fairness.

* * *

Id. at 390.
[Shortly thereafter, the d etective advised the defendant of his rights to remain silent and to counsel before making any statement or answering any questions, including his right to appointed counsel, and the defendant acknowledged understanding them.]

[Detective]: Like I said Jim things looks bad I won't lie to you based on wh at it looks like it looks like m urder. Ok? It may not be that. There's different degrees of things. Ok ? Like I say only person that knows the circumstances as to why thing s ha p pened would be you r self.

Id. at 391

– 92

.
* * *
[Detective] : . . . I'm straight with you, I'm straight with anybody I talk to. What g oo d7

does bs

- ing people do, nothing. Thi s isn't a game.
[Defendant]: And I know it's not a game I mean I understand what's happened and that's why, that's why I feel as though, you now, I need to have an attorney to deal with b ecause this is a serious thing
, you know, it's a very serious thing
, I know it's a very s e rious thing. [Emphasis added.]
[Detective]: Yes sir I understand. And I won't question you.

-- I'm just throwing this out here and you've asked for an attorney and you're entitled to it.

Id. at 392

. [The defendant then asks for a cigarette, and the d etective provides one

. ]
[Detective]: Those aren't m eant to get you to talk to me. . . . I'm a smoker. My point, my point is this

-- there's a difference between murder, something that murder kind of emb odies, someone planned somethin g and then there's lesser degrees of that so

. [Defendant]: I'll just tell you straight out that there was no plan. No plan whatsoever

-- none. And I

-- The weapon that was used is a uh

-- a re we on, we're on camera? Right?

* * *
[Detective]:

. . . [Y] ou said something abou t a lawyer I don't want to . . . y ou have the right to tell me you don't want that but I don't want to

. [Defendant] : Well I want, I want to tell you that it was not a planned situation. . . . And

u h the weapon that was used is m y gun. An d uh, [Allen] had, had

-- he's been stealing thin gs from me for quite some time. . . . All I'm tell ing you is th at it was not a planned thing. . . . we were angry

-- w ell I was angry with him I don't know if he was angry with me or not I have no idea so

-- other than that I got, really I just feel like in this situation as serious as it is that I need to consult an attorney before I say anything more . [Emphasis added. ]
[Detective] : And I respect that and it's your right. Part of what you just t old me you wanted to tell me without the lawyer?
[Defendant ] : Right, exactly.

Id. at 393.

* * *
[Detective]: You wanted to tell me that without the lawyer. I didn't . . . [ c ] oerce you in any way, I want to be fair to both

.8

[Defendant]: Other th an that, just that the weapon was provided, it was not, you know, I did not bring it with me

-- I did not think about

-- I had no thoughts of [ it ] whatsoever.
[Detective]: That's all you're comfortable with talking about [it] now?
[Defendant]: Right now, yeah. Do you have any idea how long it will be before I can see

an attorney ? [Emphasis added

. ]
[Detective]: [ T ] he jailor will be able to help you with that. I mean you're entitled to a phone call you're entitled to those things and like I said I respe ct your constitutional rights and we won't go any further as far as interviewing or asking questions.

* * *
[Detective] : That's where we're at right now if that's OK

. We'll go from there, and uh, j ust relax smoke your cigarette

-- si t here tight a nd we'll figure out what's going on

. . . . You're entitled to a phone call once you get

-- .
Id. at 394

. [Defendant]: Now, you know I've watched enough LAPD and B lue and all that kind of stuff. Now if we do talk I mean what happens? I mean I don't wa nt to 'lawyer up' as they say, you know

. I mean, I just like I say this is a serious thing, you know it's a serious thing.
[Detective]: Yes we both know t hat, we're both grown adults. .

. . There's no place to BS.

. . . I mean you're curious as to wha t would happen if you wanted to talk? But then again you have to voluntarily make that decision I don't wan t to coerce you in any way to make any decisions.
[Defendant]: Well why don't we do it this way. Go ahead an d ask me questions and if I feel comfo rtable telling you I will tell you. You know. [Emphasis added .]
[Detective]: Ok. That's fair enough. You're freely saying that you don't want a lawyer right now
, you're willing

-- [Defendant]: I'm willing to answer question s , you know, up to a point I suppose. You know

. [Emphasis added.]
[Detective]: . . . like I s aid its apparent what happened here. T he man was shot. . . . [a] t that house. Where the activity took place? [question mark in transcript] . . . If, if you're willing to share with me I guess

-- I'll put it this way, would it be easier for you, would it be easier for you if you, just tell me with what you're comfortable, what you're willing to tell me and we'll leave it at that right now. Would that, would that be easier Jim?
[Defend ant]: Well Dan I'm not sure. You know, I mean
, I want to be cooperative with9

you

-- but, you know, as I said earlie r I'm in a serious situation.
Appellant's App'x at 3 95.
[Detective]: Right. I understand. I mean what I was thinking it might be easie r because you know the things that you're willing to answer. Maybe you could just

-- if it would be easier for you and me to just tell me t hat information and then whatever you're comfort able with.

Id. at 395

– 96. At that point, the defendant provide d a detailed explanation of the crime, conclu ding
, "and so and um

-- I picked up the gun and I was holding it. At one point I cocked it and looked at it and he said 'do it, do it, do it, do it' and not the first time or the second time or the
third time one o f those times

-- finally, I did it." Id. at 396. The detective then expressed symp athy to the defendant for his stressful personal situation , and the interview co n tinued

.

* * *
[Detective]: Sounds like there's a lot there.
[Defendant] : Seriousl y . . . Go ahead and ask me questions . . . I mean I'll waive the a ttorney right and I'll just go ahead and talk with you about thi s because of (inaudible). [Emphasis added.]
[Detective]: Well listening to you I don't want to put words in your mouth and you stop me if I do that

-- I want this to be accurate

.
Id

. at 398. This was the last reference relating to the defendant's request for counsel. The inte rview continued with the defendant providing considerable additional information about the d etails o f the crime

.

Detective Pryor's interrogation style was neither threatening n or intimida t ing. Instead, he was respectful, considerate, and courteous during the interview. The dete c tive's technique may have had the effect of ingratiating himself with the defendant and putting the d e fendant at ease,
thus eliciting the defendant's willingness to provide a statement. Whether a product of the d ete ctive's natural style or a calculated technique, s uch an interrogation style is not inherently coercive
because i t does not threaten, cause injury, or evoke fear. "[T]he Fifth Amendment pr i vilege is not concerned 'with moral and psychological pressures to confess emanating from sources ot h er than official coercion. ' " Berg huis , 560 U.S. at ___, 130 S. Ct. at 2263
, 1 76 L. Ed. 2d at 111410

( quoting Colorado v. Connelly , 479 U.S. 157, 170, 107 S. Ct. 515, 523, 93 L. Ed. 2d 473, 486 (1986) ( quoting Oregon v. Elstad , 470 U.S. 298, 3 0 5, 105 S. Ct. 1285
, 129 0
, 84 L. Ed. 2d 2 2 2
, 2 29 (1985) ) )

.

Nevertheless, we find several in stances when the defendant's right to counsel was v iolated during his interrogation. These relate primarily to the d etective's usual response, when confronted with the defendant's invocation of his right to counsel, to acknowledge the r e quest but
then to keep the conversation going.

The defendant's right to counsel was first violated at the beginning of the interview when
the defendant stated
, " I'm in a situation where I feel like

. . . I really need an attorney to

. . . talk with, and for me ." Appel lant's App'x at 389. This was an unequivocal and unambiguous invoc ation of his right to counsel. The d etective understood this and acknowledged
, "you're absolutely entitled to that sir. . . . I'm not going to violate your r ights (inaudible) that way." I d

. But the d etective did not cease further interrogation but nevertheless co n tinued by inviting the defendant to talk more, adding, " The only reason I was in here, we know what happened, that's not why I was in here, I just wanted to know why. It might n ot be as bad as it appears, but only you know those circumstances, but you're entitled to an attorney

. " Id. This precipitated the defendant to r e spond
, "Yeah, OK. Well I mean ask me, ask me what you want to ask me." Id. This statement does not
constit ute a valid waiver of the defendant's right to counsel for two reasons. First, the d etective's
failure to immediately cease all questioning until the defendant's attorney was present was in v iolation of Edwards , 451 U.S. at 48 2 , 101 S. Ct. at 1883, 68 L. Ed. 2d at 384

. Once the defe n dant
stated
, " I really need an attorney , " Appellant's App'x at 389, the defendant's right to counsel should have been "scrupulously honored." Miranda , 384 U.S. at 479, 86 S. Ct. at 1630 , 16 L. Ed.
2d at 726. Instead, the d et ective's ongoing conversation initiated further custodial interrogation, and the defendant's subsequent disclosures were not a product of his own initiation of commun ication. Pursuant to Shatzer
, Roberson , and Edwards , the defendant did not voluntarily wa ive his right to counsel. Second, when this exchange occurred, the d etective had not yet informed the
defendant of his Miranda rights. "No effective waiver of the right to counsel during interrog ation can be recognized unless specifically made after the warnings we here delineate have been given." M i randa , 384 U.S. at 470, 86 S. Ct. at 1626 , 16 L. Ed. 2d at 721.11

The defendant's next invocation of his right to counsel was similarly disregarded. When he declared, " I need to have an attorney to dea l with because this is a serious thing ," Appellant's App'x at 392, the d etective immediately acknowledged that the defendant had "asked for an a ttorney and you're entitled to it," id. , but nevertheless continued the interview by telling the d efendant while a planned killing may be a murder
, there are "lesser degrees." Id . at 393

. This statement, in the nature of an open

- ended invitation encouraging further communication from the
d e fendant notwithstanding his second unambiguous and unequivocal invocation o f his right to counsel, succeeded in pe r suading the defendant to admit that "there was no plan," and he was angry at the victim, and that "the weapon that was used is my gun." Id

. Even if we consider o nly this second invocation of the right to counsel, b ecause the defendant's resulting incriminating statements were the product of communications initiated not by him but by police, no valid
waiver existed.

As soon as the defendant made these responses, he again declared
, "I just feel like, in this
si t uati on as serious as it is, that I need to consult an attorney before I say anything more." Id. Again, the d etective responded by acknowledging the defendant's right to counsel but sought to obtain a waiver of the right from the defendant, asking him, "Part of what you just told me you wanted to tell me without the lawyer?" to which the defendant replied
, "Right, exactly." Id. In the ensuing colloquy, the d etective repeatedly sought and obtained the defendant's confirm a tion
that he had " wanted to tell me th at without the lawyer
, " and that he was not coerced "in any way," and that he was "comfortable with talking about [it] now." Appellant's App'x at 394. This

a t tempt by the d etective to establish the defendant's waiver of his unambiguous invocation of the right to counsel is not permitted under Shatzer
, Roberson , and Edwards . The defendant's pu rported waiver was a result of the detective's failure to scrupulously honor the defendant's invoc ation of his right to counsel and was the result of p olice instigat ion
, not further communication voluntarily i n itiated by the defendant.

Immediately after this exchange, the defendant again invoked his right to counsel

— now for a fourth time

— stating, "Do you have any idea how long it will be before I can see an atto rney ?" Id. The d etective again acknowledged the defendant's right and stated
, "we won't go any12

further as far as interviewing or asking questions

. " I d. T he detective then engage d in fu rther communication, but it does not appear intended to be evocative. R ather, it informed the defe ndant of the standard procedures that would be followed for the defendant to be able to tel e phone an attorney. When the defendant volunteered
, "Now if we do talk I mean what happens? I mean I don't want to 'lawyer up' as they s ay, . . . like I say this is a serious thing," the d ete c tive replied
, "I mean you're curious as to what would happen if you wanted to talk? But then again you have to voluntarily make that d e cision I don't want to coerce you in any way to make any decisio ns."
Id. at 395. The defendant's subsequent statements including
, " Go ahead and ask me questions and if I feel comfortable telling you I will tell you," " I'm willing to answer question s , you know, up to a point I suppose," and "Well Dan I'm not sure. Yo u know, I mean
, I want to be cooper ative with you

-- but, you know, as I said earlier I'm in a serious situation
, " id

. , together suggest either a voluntary waiver or at least an equivocation that would serve to undermine his invoc ation of the right to coun sel . But such purported waiver or equivocation would not have occurred
had the d etective scrupulously honored the defendant's unequivocal and unambiguous invoc ations of the right to counsel by immediately ceasing further communications with him u n til an

a ttorney was present. Instead, however, the detective prolonged the conversation and thus inst igated the subsequent dialogue. This pattern occurred three times. This vi olates the principle that

[ O]nce a suspect indicates that " he is not capable of under going [custodial] questio ning without advice of counsel," " any subsequent waiver that has come at the authorities' be hest, and not at the suspect's own instigation, is itself the product of the 'inherently compe l ling pressures' and not the purely volun tar y choice of the suspect."

Shatzer , 559 U.S. at ___, 130 S. Ct. at 1219
, 175 L. Ed. 2d at 1053 ( quoting Roberson , 486 U.S. at 681, 108 S. Ct. at 2097

– 98
, 100 L. Ed. 2d at 713 )

. In addition, the d etective's persistent r esumptions of communications after th e defendant's invocation of rights runs afoul of Michigan v. Mosley , which warned, "To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of que stioning to undermine the will of the person being questioned." 423 U.S. 96, 102, 96 S. Ct. 321,
326 , 46 L. Ed. 2d 313, 320 (1975). Because of the detective's failure to immediately cease fu rther communications following the defendant's unambiguous and unequivoc al invocations of his right to counsel
, we cannot give credence to the defendant's subsequent apparent waiver or equ ivocation as to his right to counsel. As a result, the videotape and transcript of the police inte r-13

view of the defendant w ere erroneously a dmitted in evidence. See Massiah v. U nited S tates , 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); Spano v. New York , 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959).

Not every error in the admission of evidence , however, requires a rever sal. Milton v. Wainwright
, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972). And "before a federal const itutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reaso n able doubt." Chapman v. Calif ornia , 386 U.S. 18, 24, 87 S. C t . 824, 828, 17 L. Ed. 2d 705, 710

– 1 1 (1967). 3 The defendant's statements during the police interview contained considerable details regarding his state of mind during the killing

— details not provided by other
evidence.

Th e S tate's first witness, Jan French, drove the defendant to his home from the bar he v isited after the shooting. She had noticed blood on the defendant's pants. During the trip home,
the defendant told her that he " was gonna go to jail
, " Tr

. at 324 , and that "I shot Allen . . . he
wouldn't tell me the truth and I just, I just shot him," id. , and "I pulled the trigger," id. at 326. After dropping off the d efendant , French drove to the victim's residence to determine his cond ition and whether to call for m edical assistance but found his lifeless body with an apparent gu nshot wound to the face

. Testimony of forensic p a thologists showed that the fatal shot was fired from close range, possibly up against the victim's face. The blood on the defendant's trou s e rs was found to contain DNA consistent with that of the victim. The defense's single witness test ified that the victim's blood alcohol level was three times the legal limit. The thrust of the d efense's final argument was that both he and the victim were intox icated and that the ev i dence was consistent with an accidental shooting possibly precipitated by the victim's falling forw ard into the gun, and thus there was insufficient evidence to establish a knowing or intentional kil l ing.

3 Notwithstanding the Unite d States Supreme Court's holdings in Chapman and Milton , recogni zing that a reversal is not required for constitutional errors if harmless beyond a reasonable doubt, at least one Indiana decision interpreting federal jurisprudence appears to suggest otherw ise. Propes v. State , 550 N.E.2d 755, 758 (Ind. 1990) ("violation of the right to counsel is . . . reversible per se despite other, ind ependent evidence sufficient to support a conviction"). To the extent that it is inconsistent with Chapman
, this statem ent is incorrect.14

The jury 's final instr uctions covered two offenses, Murder and Voluntary Ma n slaughter. 4 The
contested issue was whether the State provided sufficient evidence of the defendant's state of
mind to prove Murder, a knowing or intentional killing; Voluntary Manslaughter, a knowing or intentional killing done under sudden heat; or ne i ther.

The defendant's statements during his police interview asserted that he had b e friended Roy Allen Sha f

fer for several months prior to the crime, arrang ed for Sha f fer to rent a home owned by the de fendant's mother, pa id Sha f fer's rent, f

ound him jobs, and provid ed him with use
of a truck. But Shaf

f er then took and sold various items of the defendant's personal property.
The defendant was angr y at Sha f fer as "an individual who does not respect peopl e or property or anything. No gratitude." Appellant's App'x at 410

– 11. The defendant 's statement s appeared to stress that the killing was not premeditated , stating that he did not have an advance plan, id

. a t 393, 397, 410; that it "was nothing I though t about doing," id. at 397; that it " was not an i n tended thing
, " id. at 399; that there was "no malice aforethought, nothing planned," id. at 406; and that it was "j ust a spur of the moment thing
, " Appellant's App'x at 407

. The defendant also a s serted that
he asked Sha f

fer about various missing pe r sonal belongings and that both men were intoxicated
at the time

. T he defendant described the fatal incident as fo l lows:

I have no idea how much money [he] has taken in

-- I have no idea what he sold things for

- - and so and um

-- I picked up the gun and I was holding it. At one point I cocked it and looked at it and he said " do it, do it, do it, do it " and not the first time or the second time or the third time one of those times

-- finally, I did it.

Id. at 39 6. Later in the interview, he said, " Well and you know like I said I had the gun and he kept saying 'do it, do it, do it, do it, do it, do it, do it, do it, do it,' and I did it." Id. at 405.

As to the key contested element, the defendant's state of mi nd at the time he fired the shotgun, the defendant's statements during the police interview did not merely supplement the

4 Voluntary Manslaughter is defined by Indiana Code § 35

- 42

- 1

- 3, which states in pert i nent part: (a) A person who knowingly or intentionally . . . kills another human being . . . while acting under sudden heat commits voluntary ma nslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon. (b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chap ter to voluntary manslaughter.15

earlier u n disputed testimony of Jan French, to whom the defendant had admitted only pulling the trigger and shooting the victim. The video tape d police interview shown to the jury (and pr ovided as a written transcript) provided the jury with significant additional evidence of the defe ndant's state of mind . At the time the defendant pulled the trigger, he was angry because the vi ctim had engaged in a series of property thefts f rom the defendant and because the victim lack ed grat i tude despite the defendant's numerous acts of kindness and generosity toward the victim.
And the defendant repeatedly and vividly admitted during the police inte rvie w that "I did it" in

r e sponse to a series of taunts from the victim to "do it." Such evidence significantly amplified the proof that the defendant's killing of the victim was at least done knowingly, if not intentiona lly. We are unable to conclude th at the erroneous admission of the defendant's police interview

was harmless beyond a reason a ble doubt and thus requires reversal of his conviction.

The State is not, however, precluded from retr ying the defendant for this offense. A r eversal for i nsufficient evidence bars retrial under the Double Jeopardy Clause
, 5 but an analysis
for such sufficiency includes consideration of the erroneously admitted evidence. Lockhart v.
Nelson , 488 U.S. 33, 40, 109 S. Ct. 285, 290, 102 L. Ed. 2d 265, 273 (1988)

. Here, although r eversal is required because of trial error in the admission of evidence, "clearly with that ev i dence, there was enough to support" the jury's verdict of guilty and the r e sulting conviction. Id

. at 40,
109 S. Ct. at 291, 102 L. Ed. 2d at 273 (emphasis in original). See also Lambert v. State , 534 N.E.2d 235, 237 n.2 (Ind. 1989). The defen dant therefore may be subject to r e trial.

3. Li mitation of Defense Examination of Detective

The defendant contends that the trial court erred when it prohibited the defense from

cross

- examining the d etective about the defendant's level of intoxication. The defendant argues that such questioning was relevant to the issue of the voluntariness of his police interview stat ements

. Notwithstanding our dete rmination that the conviction must be reversed and the case r emanded for retrial, we address this issue because of the possibility that it may arise on retrial.

5 "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V, cl. 2.16

The specific trial court ruling here challenged by the defendant occurred during the test imon y of Detective Pryor, who was recalled as a witness by the State to facilitate its proffer of the videotaped i nterview in to evidence. Preliminarily, the State asked the detective whether he had

ut i lized a statement of rights form and read it to the defend ant. The d etective confirmed this and
identified an exhibit as that document. When the State then offered the exhibit in to evidence, the defense sought and received permission to voir dire the witness. During the voir dire questio ning, the defense began to ask the d etective about whether he "had information before you came into that room to speak with Mr. Carr about his consumption of alcohol had you not?" Tr. at 678. The State objected, stating
, "this goes way beyond the admission of this Exhibit." I d. The
defense r e sponded that "our client was in no position to give a voluntary waiver of rights under
his circumstan ces and I was just exploring that issue." Id

. The trial court sustained the State's objection but told defense counsel
, "you'll be give n that opportunity but [not] for this particular
E x hibit at this particular time." Id. When the State subsequently offered into evidence the actual
vide o tape and its transcription, the defense again requested "to voir dire the witness on . . . the
volunt ariness of wha t ever statement our client may have made due to his state of intoxication."
Id . at 680. At this point the jury was excused and the defense and the State each explored the
issue with the d etective without restrain t , after which the defense o bjected to the admission of the videotape evidence "based up on the state of intoxication of our client" and sought to "renew the motion to suppress . . . based primarily upon our client's Miranda rights." Id. at 684

– 85. After extensive further argument o f counsel, the defendant's objection was overruled , the jury was seated, and the videotape was presented to the jury . At no time thereafter did the defense seek to

cross

- examine the d etective about the defendant's state of intoxication during the custodia l inte rview. The defens e did not conduct further cross

- examination of the detective nor did they r e call
him as a defense wi t ness.

We agree that questioning the detective about the defendant's state of intoxication during the interview generally would ha ve been proper and permissible. The defendant's challenge
, however, is to the trial court's refusal to permit voir dire examination of the d etective on the issue of the admissibility of the statement of rights form. This exhibit merely identified the loc ation of
the interview , date, time, and officer's name; stated the defendant's basic Miranda rights; and
contained the defendant's sign a ture acknowledging "the reading and understanding of my rights17

as they are stated above." Appellant's App'x at 413. Th e e x hibit did not purport to constitute any waiver of the defendant's rights nor contain any other statement of the defendant. The existence
and extent of the defendant's intoxication at the time the d etective read him the statement of rights form is irrel evant to the admissibility of the form itself. The trial court did not err in su staining the State's objection.

4. Refusal to Give Tendered Instructions on Lesser Included Offenses

The defendant contends that the trial court erroneously refused his tendered instructions that would have permitted the jury to find the defendant guilty of Involuntary Manslaughter
, Criminal Recklessness, and/ or Battery, as an alternative to Murder. 6 Denying the i n structions,
the trial court found that "there is not a se rious evide n tiary dispute over the element or elements that distinguish the crime charged from those less e r included." Tr. at 732. Challenging this evaluation, the defendant points to testimony that he had been drinking and to the defendant's videotape d statement to police, admitted into evidence, that the shooting was simply an u nplanned impulse occu rr ing after drinking and argument and without premeditation. Appe l lant 's
Br. at 20. To support the existence of a serious evidentiary dispute that would wa rrant the giving
of his tendered lesser included offense instructions, 7 the defendant largely relies on evidence
from his custodial police interview . Because we have determined that it should have been e xcluded by the trial court , this issue is not likely to reappear upon retrial and thus does not merit
further discu s sion in this appeal.

Conclusion

While c oncluding that the defendant was not entitled to discharge under Criminal Rule 4,
we hold that his custodial statements
, taken by police in disregard of his invocation of his right to counsel, were erroneously admitted and that such error was not harmless beyond a reaso n able

6 As required by Indiana Appellate Rule 46(A)(8)(e), the appellant's brief purports to set out the d e fendant's tendered instructions defining the lesser included offenses, but does not identify their location in the record. Our review is somewhat impeded because we do not find the actual tendered instructions in the A p pellant's Appendix or in the transcript of evidence.

7 Wright v. State , 658 N.E.2d 563, 567 (Ind. 1995).18

doubt, thus requiring a reversal of the conviction and remand for retrial.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ. , concur.