Charles D. Boney 1-29 Chief Baker
(Judge J. Terrence Cody, Floyd Circuit Court, affd)
Defendant’s statements after request for attorney were admissible, because he reinitiated contact with the police, and signed a memorializing waiver form.
- Defendant’s accomplice liability instruction was covered by proper pattern instructions.
- Batson challenge to State’s peremptory strike of sole African American fails.
- Denial of mistrial after two state witnesses referred to the defendant’s incarceration was proper because any error was cured and harmless.
- Juror’s racist comments about defendant were harmless misconduct because he didn’t infect jury with them and didn’t deliberate (eleven out of 12 jurors said so).
FACTS: Boney appeals his conviction for the murder of Kim Camm and her two children, a son and daughter. With a habitual offender enhancement he received a 225-year sentence.
As reported in the Camm case: On September 28, 2000, David Camm an ex-trooper shot and killed his wife and their two children in the garage of their home. His alibi was that he was playing basketball with a group of officers at the time of the shootings. He came home to the murder scene in the garage, removed his son from the Bronco parked there, and unsuccessfully tried to revive him with CPR. He then called the state police post. The State’s blood splatter expert determined the t-shirt worn by Camm the night of the shootings contained high velocity impact blood spatter from his daughter. Camm’s forensic expert challenged this evidence. Camm was convicted of murdering his wife and two children, but the case was reversed because the State had presented evidence of Camm’s history of marital infidelity, improper under IRE 404(b).
DNA from the collar of a sweatshirt tucked under Camm’s dead son was from Charles D. Boney.
Unchallenged Statement #1 (February 17-18): On February 17-18, 2005, Boney met with Detectives, and after Miranda warnings gave a statement. He identified his sweatshirt, but said he dropped it in the Salvation Army drop box five years earlier. He denied ever meeting Camm. He said he never had any weapons and he did not assist Camm in killing the victims. Further, he denied being at the crime scene. He continued the denial of involvement even after a stipulated polygraph exam showed certain answers were deceptive. He was then released.
Unchallenged? Statement #2 (March 4 at 2:00 pm): The detectives again questioned Boney after Miranda warnings. Boney initially stuck with his earlier statement denying involvement, but after the detectives told him they found his palm print on the exterior of the Bronco, Boney mentioned Camm and requested an attorney. Questioning continued for another minute or so and the investigator said, “tell me what happened, I’ll get an attorney for you.” In response Boney said, “All I know is David Camm was the shooter and that’s all I’m gonna say until I get an attorney.” The detectives left the room. Boney was arrested and charged with the Camm murders.
Challenged (Written) Statement #3 (March 4 at 4:45 pm): Boney initiated additional contact by knocking on the interrogation room door. An officer summoned the detective apparently at Boney’s request. After signing a waiver form Boney made a written statement. The waiver form acknowledged he at one time requested a lawyer, but now wished to waive that right. Further, it said he initiated the interview and requested to make a statement. It said the waiver was voluntarily made without any promises or threats having been made. After writing two sentences, Boney completed a five-page statement without the presence of the detectives, who he directed out of the room. In the written statement he admitted he gave Camm a “clean” gun wrapped in the sweatshirt for $250, but said Camm did not tell him what Camm was going to do with the gun. He said he must have left his palm print on the Bronco when he delivered the gun to Camm. After the written statement, Boney was returned to jail.
Challenged “Family Friend” PLUS Statement #4 (March 7): After speaking to Boney’s mother Sgt. Trpr Wilkerson, believed Boney wanted to see him. Wilkerson was a family friend and distant relative of Boney’s. Like Boney, he was African American. After obtaining a signature on a Miranda waiver form Wilkerson talked with Boney about two and a half hours. This form also indicated that Boney had previously requested counsel, but now wanted to speak to the police. About forty minutes into the interview, Boney admitted he followed Camm to the residence but said he waited outside. He waived to Kim when she arrived and heard her and David talking. He heard Kim say, “no” which was followed by a gunshot. He then heard the boy say, “Daddy” followed by two more gunshots. He said Camm came outside, pointed the gun at him, and pulled the trigger, but the gun misfired. Boney said he ran inside the garage toward Camm, but Camm ran into the house saying, “You did this.” After Wilkerson’s interview, a detective came in with an investigator and spoke to Boney without a re-advisement of rights. He told them he saw Kim on the ground near the Bronco and he tripped over her shoes. He claimed he picked the shoes up and placed them on top of the Bronco. He observed the girl was still in her seatbelt and the boy was doubled over in the rear passenger seat. As he was leaving he saw a woman pull into Camm’s driveway. He said he didn’t report the crime because his sweatshirt was still at the scene. He also contended no one would believe Camm was the shooter because Boney was an African American.
Unchallenged Miscellaneous Statements:
In jail Boney wrote an autobiography in which he admitted he sold a gun to Camm and that he was present when the murders were committed. He also wrote over 100 letters to his fiancée. In some of the letters he explained he sold Camm at least one gun and he knew Camm was going to kill his wife. He said he was present during the shootings and said Camm was going to pay him with life insurance proceeds.
DISCUSSION:
- Defendant’s statements after request for attorney were admissible, because he reinitiated contact with the police, and signed a memorializing waiver form.
A defendant may waive his rights to silence and counsel after advisement, but if he invokes his rights, the questioning must cease, until counsel is present unless the accused himself initiates further communication or conversation with the police by evincing a desire or willingness for generalized discussion about the investigation.
Here the court found that Boney reinitiated contact with the police both on March 4th and March 7th. This re-initiation was memorialized in both waiver forms he signed. It was a key factor in making the statements admissible.
- Defendant’s accomplice liability instruction was covered by proper pattern instructions.
The defendant submitted an instruction that the jury had to find Boney gave the gun to Camm knowing that Camm intended to kill the victims. There was no due process violation in the denial of this instruction because the court had already covered it. The court’s final instruction stated “in order to commit murder by aiding another to commit murder, a person must have knowledge that he is aiding the commission of murder.”
The appellate court found the Taylor v. State 840 N.E.2d 324 (Ind. 2006) defense analogy misplaced. That case limited the specific intent to kill instruction to attempted murder cases. Also, it concerned the principal’s mens rea, not the accomplice’s. Here the trial court properly instructed the jury that Boney could be guilty as an accomplice if he knew he was aiding Camm to commit murder. The instructions taken as a whole, made it clear Boney had to know Camm intended to kill his family with the gun Boney sold him, or that Boney had to have committed the murders himself in order to find him guilty of the murders.
Just as an aside the court noted the jury was free to disbelieve Boney’s contention that he lacked knowledge the gun was going to be used for murder. There were multiple examples of Boney’s knowledge about the gun. One was that Boney told his fiancée he knew Camm was going to use the gun to kill the victims.
- Batson challenge to State’s peremptory strike of sole African American fails.
The state struck prospective juror 16 an African American male based on four responses to the juror questionnaire. Juror 16 believed Boney could not be guilty because Camm had set him up. The trial court found there were several African Americans remaining on the panel and sustained the State’s peremptory challenge and denied Boney’s motion for mistrial. The court accepted the state’s race neutral explanation. The defense argued pretext for the race neutral explanation is shown where others express the same opinion, but only the minority juror is struck. The appellate court deferred to the trial court sort it out, but noted the State’s explanation revealed a valid, permissible reason related to the case that was not pretextual or relevant to the juror’s race.
- Denial of mistrial after two state witnesses referred to the defendant’s incarceration was proper because any error cured and harmless.
A church administrator who met Boney while he was incarcerated testified she talked for over two hours on the telephone the day of the murders. Further, Boney visited her several days later to celebrate her birthday and that was the first time she had seen him “outside of incarceration”. The court denied Boney’s motion for mistrial and admonished the jury to ignore the statement regarding his prior incarceration.
The state also called inmate Cole who said he was watching television talking about the case “in the block.” Another motion for mistrial based on block standing for jail was denied, based on the different interpretations of that word. However; this witness later blurted out he knew Boney’s nickname because he was in prison with him. Another mistrial motion was denied and the state agreed to strike all of Cole’s testimony and remove him from the stand.
The defense argued that the admonishment to ignore the statement about prior incarceration and the striking of Cole’s testimony followed by his removal from the stand could not cure the error because it was too inflammatory. The court of appeals went through a harmless error analysis. Finding plenty of independent evidence of guilt, it found the error harmless beyond a reasonable doubt. It was apparent that Boney’s presence at the scene was not to deliver the gun or pay for the weapons. Rather, the evidence (of carpet fibers) supported the conclusion that Boney was present to aid in committing the murders.
- Juror’s racist comments about defendant were harmless misconduct because he didn’t infect jury with them and didn’t deliberate.
Boney filed a motion to correct error along with an affidavit from a concerned citizen which stated Juror 118 had said he (118) would make sure “the n*gger hangs from the highest tree.” The trial court dismissed juror 118 prior to deliberations after receiving a call on the 10th day of trial from an individual who said Juror 118 had commented that the jury would be lynching a j*g.
The state submitted affidavits from eleven jurors who said they knew juror 118 and he had never made any racist statements about Boney in their presence. Each said the decision of guilt was based on the evidence and that they were not influenced by any remarks made by juror 118. Further, since juror 118 did not deliberate, he did not influence the verdict.
Under Criminal Rule 16 in order to receive a new trial for juror misconduct the defense must show the misconduct was gross and probably harmed the defendant. The defense argument that Jury Rule 20 (8) permits discussion of the case prior to deliberations; so that Juror 118’s presence the first 10 days of trial probably harmed him, fell on deaf ears. This argument was negated by the eleven affidavits saying Juror 118 didn’t make racist comments, and if he did, they didn’t influence the verdict torpedoed the new trial. Why not twelve affidavits? How do we know juror 118 didn’t influence number twelve?