                                                                            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?

        [Detective Lich]: Yes.

        [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?

              [Detective Lich]: Yes.

      (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
