Murphy v. State

• Decision Date: 08 November 1977
• Docket Number: No. 1275S368,1275S368
• Citation: 267 Ind. 184,369 N.E.2d 411
• Parties: Ralph MURPHY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 411

369 N.E.2d 411

267 Ind. 184

Ralph MURPHY, Appellant, v. STATE of Indiana, Appellee.

No. 1275S368.

Supreme Court of Indiana.

Nov. 8, 1977.

Oscar B. Smith, Jr., Smith & Mulligan, Knox, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Murphy was convicted on four counts on February 11, 1975, at the conclusion of a jury trial in Marshall Circuit Court: (1) the first-degree murder of Chad Fivecoate; (2) the first-degree murder of Connie Fivecoate; (3) felony murder in conjunction with robbery; (4) accessory after the fact to first-degree murder. He received sentences of death by electrocution and life imprisonment, respectively, for the first two counts, and sentences of life imprisonment for the second two counts were vacated.

The evidence shows that Connie Jo Fivecoate and her nine year old son Chad were taken from their home in Russiaville at noon on July 18, 1974, by appellant and one Charles Lockhert. Appellant and Lockhert took several items from the home and then forced Mrs. Fivecoate and her son to go to a bank in Kokomo, where Mrs. Fivecoate was forced to cash a check for $536 for them. After having trouble with the car, the four proceeded to the apartment of Marianne Larson, Lockhert's girlfriend. Mrs. Fivecoate and her son were placed in a closet while appellant left to get his wife's car. Upon his return, he and Marianne Larson proceeded to another bank in Kokomo where a $410 check was forged in Mrs. Fivecoate's name. All then drove to a wooded area in Starke County where Connie and her son were shot to death by appellant and Lockhert. That night, the bodies were buried. The bodies were exhumed in August when Lockhert led police to the scene.

There are six issues for review before us. They concern: (1) the admission of confessions by appellant into evidence; (2) the sustaining of the state's objections to certain cross-examination questions put by the defense to state's witnesses; (3) the admission of certain photographs into evidence; (4) the giving of certain jury instructions tendered by the state; (5) the refusal of certain instructions tendered by the defense; (6) the imposition of the death penalty.

Three other issues argued by appellant will not be treated in this opinion. Appellant contends that the giving of the court's instruction on the death penalty was erroneous. Because of our disposition of issue VI of this appeal, however, any question concerning this instruction is moot. Appellant also asserts that the verdicts of the jury are contrary to law, but this error is waived since it was not preserved in the motion to correct errors. Ind.R.Tr.P. 59(G); Spivey v. State, (1971) 257 Ind. 257, 274 N.E.2d 227. Finally, appellant argues that he was denied the opportunity to voir dire a detective sergeant at the time appellant's confession, which had previously been admitted, was read to the jury. After the statement was read, the prosecutor passed the witness and the appellant did not cross-examine him. Appellant cites no authority for his contention that the court committed reversible error and he has thus waived this issue at this level. Ind.R.Ap.P. 8.3(A)(7); Williams v. State, (1973) 260 Ind. 543, 297 N.E.2d 805.

I.

There are three grounds upon which appellant argues that his confessions should not have been admitted into evidence: that these statements were not freely and voluntarily given; that he was denied his right to counsel, and; that he was not taken before a magistrate within a reasonable time.

Appellant was arrested at 7:00 a. m. on Friday, August 16, 1974, and placed in the Howard County Jail in Kokomo, Indiana. He was advised of all of his Miranda rights at this time, and indicated both his understanding of them and his willingness to waive them. Appellant's wife Barbara Jean called attorney Charles Newell later that day and asked him to represent her husband. Mr. Newell came to the jail on the evening of the 16th and talked to appellant, advising Murphy that he would represent him as his attorney at least through arraignment. He further advised Murphy that he had a right to remain silent and told him to exercise that right. Mr. Newell then advised Murphy not to give any statements unless he, Newell, was present. Appellant confirmed the substance of this conversation at the suppression hearing, and stated then that he had understood his right to remain silent as explained to him by Newell.

On Saturday, August 17, the police suggested to appellant Murphy that he take a lie detector test. Detective Sergeant Eckert indicated that if a lie detector test cleared Murphy, he would be set free. The police and the prosecuting attorney called attorney Newell, who ordered appellant not to submit himself to the lie detector test.

Appellant requested to talk to Detective Sergeant Eckert on Sunday, August 18. He was again advised of all his Miranda rights. He signed waiver forms of those rights and indicated that he understood them. However, there was no significant discussion between appellant and the police at this time.

Detective Eckert and Officer Burns talked to appellant on Monday, August 19, at the instance of appellant. Appellant stated that he wished to talk to them about the crime in question, but that he first wanted to have his wife present and talk to her for a short while. Barbara Jean Murphy was called, and she came to the police station and talked to appellant briefly. Following this, appellant in the presence of his wife was again given the Miranda warnings and waived them orally and in writing. He told the police that he did not wish to have an attorney present, and wished to discuss the matter with them without his attorney being there. A cassette tape recorder was turned on at 3:58 p. m. and appellant stated that he was aware of his being taped, that he was aware he had a right to have his attorney present but did not wish to have him there, and that he was willingly giving this statement. Murphy then proceeded to give a statement that took sixty pages to transcribe, giving the details of the kidnapping and subsequent killing of Connie Jo and Chad Fivecoate. Appellant talked in his own words and manner, the police interrupting only intermittently to ask him a question or clarify a point. There were times when appellant referred to his wife to establish times and events, such as when he returned home to get her car and then went back to Marianne Larson's apartment. She helped him to confirm such incidents and when they occurred. After the statement was later transcribed, appellant signed each page of it.

On September 3, appellant was taken to court for the first time, in Howard Circuit Court.

On September 4, appellant gave an additional statement to police, one page in length, telling them where they might find a gun that had been used in conjunction with the crime in question. Appellant was read his Miranda rights and waived them before giving this statement. During the subsequent suppression hearing, appellant admitted that he gave this statement willingly and understandingly. There was therefore no error committed by the trial court in admitting it into evidence.

As to the August 19th confession, appellant claimed at the suppression hearing that it was given involuntarily. Murphy testified that he was deprived of sleep, food, and water for three days, that he was continually harassed and interrogated by police day and night during the entire period up to the time of his confession, and that he was coached to make the confession. He stated that the heat was kept high in his cell all during this time, even though it was the month of August. Other than this testimony of appellant, however, there was no other evidence that any of these events occurred. There was evidence that the boilers in the entire building were shut down, so it would have been impossible to apply any heat to appellant's cell. There was testimony that appellant received three regular meals a day, was allowed calls and visitation with his wife and attorney if he wished, and that he was not harassed or threatened by police in any manner. Both attorney Newell and Barbara Jean Murphy testified that when they saw appellant, before and after the time of his confession, he did not appear to be in any emotional or mental distress, nor did he indicate that his will had been broken in any way. He appeared to be rational and properly oriented. Murphy and his wife both testified that when he talked to her privately before giving the statement, he told her that he was going to tell the police a story that was not true and that he later would be able to prove it was not true, and that she was not to be concerned with the nature of the facts he gave. Whatever credibility one might give to this testimony, it does give credence to the state's position that the statement was given at Murphy's own free will and at his own instance.

The question of the admissibility of a confession is to be controlled by determining, from the totality of the circumstances, whether or not it was made voluntarily. Works v. State, (1977) Ind., 362 N.E.2d 144; Ortiz v. State, (1976) Ind., 356 N.E.2d 1188. The circumstances to be considered include whether the confession was freely self-determined, the product of a rational intellect and free will, without compulsion or inducement of any sort, and whether the accused's will was overborne. Johnson v. State, (1968) 250 Ind. 283, 235 N.E.2d 688. Although the state at trial was required to prove the voluntariness of appellant's statement beyond a reasonable doubt, we review the question on appeal as we do other sufficiency matters. We do not weigh the evidence, but rather determine whether there was substantial probative evidence to support the trial court's finding. Works v. State, supra. There was substantial probative evidence here to support the trial court's finding that...