388 N.E.2d 513 (Ind. 1979), 778S129, Gardner v. State

Docket Nº778S129.
Citation388 N.E.2d 513, 270 Ind. 627
Party NameJohn Thomas GARDNER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Case DateApril 30, 1979
CourtSupreme Court of Indiana

Page 513

388 N.E.2d 513 (Ind. 1979)

270 Ind. 627

John Thomas GARDNER, Appellant (Defendant below),


STATE of Indiana, Appellee (Plaintiff below).

No. 778S129.

Supreme Court of Indiana.

April 30, 1979

Page 514

[270 Ind. 628] James R. Fleming, Howard County Public Defender, Kokomo, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

John Thomas Gardner, defendant, was tried to the court, without the intervention of a jury, and was found guilty of murder. He was sentenced to a determinate term of sixty years' imprisonment. He now appeals to this Court and raises the following issues for examination:

1. Did the trial court err in denying the defendant's motion to suppress?

2. Did the trial court err in overruling the defendant's objections to the admission of evidence found during a search of the defendant's automobile?

3. Did the trial court err in sentencing the defendant?

4. Were the defendant's constitutional rights violated by the court's use of information contained in the presentence investigation report?

Carla Mason was murdered on November 6, 1977. She had last been seen alive at Woody's Steak House in Miami County, Indiana, that evening. Testimony at trial disclosed that the defendant had also been at [270 Ind. 629] Woody's and that he had been seen leaving at approximately the same time that Mason left. Mason's body was found very early on November 10, 1977. Late that afternoon, in an area known to have been frequented by the defendant, clothing belonging to the victim was discovered. Other information

Page 515

revealed that defendant's automobile had been observed on November 7, 1977, or November 8, 1977, in the general area where Mason's body was discovered.

Police questioned defendant at his mother's home on November 12, 1977. He was advised of his constitutional rights twice while at his mother's residence and he specifically waived those rights and also consented to a search of his automobile. The defendant was told repeatedly that he did not have to accompany the officers and that he was not under arrest. However, the defendant agreed to accompany the police to the Peru police station for the purpose of discussing the murder of Carla Mason. Moreover, the defendant indicated to the police that prior to their arrival he was preparing to turn himself in to the police. The defendant was again advised of his rights at the Peru police station, and he confessed to the murder. Thereafter, the defendant recounted for the police the route he had taken with the victim; he also located areas in which he had disposed of evidence of the crime. He was placed under arrest, and an information and affidavit for probable cause were filed with the Miami Circuit Court on November 14, 1977.


The defendant first argues that the trial court should have granted his motion to suppress because his confession was obtained in violation of his constitutional rights. He also asserts that he was illegally arrested. We can find no support for his position within the record.

The facts most favorable to the state show that the police questioned the defendant on November 12, 1977. Although certain circumstances and evidence had led the police to believe that the defendant was involved with the crime, they did not have probable cause to arrest him without further investigation. When the defendant was questioned, he was advised of his constitutional rights. He was told that he was not under arrest and that he did not have to accompany[270 Ind. 630] the officers to the police station. 1 The defendant indicated that he was going to turn himself in anyway. He stated that he understood his rights; he read and signed a waiver of rights form. He was not questioned during the ride to the police station. It was only after he had once again been advised of his constitutional rights that the defendant confessed to the murder. The totality of the circumstances of the case demonstrates that the defendant voluntarily accompanied the officers to the police station and that there was no illegal detention. The court heard the evidence at the motion to suppress hearing and determined that the confession was given voluntarily, intelligently, and knowingly. Franklin v. State, (1977) 266 Ind. 540, 364 N.E.2d 1019; Montes v. State, (1975) 263 Ind. 390, 332 N.E.2d 786. Our scope of review on appeal is limited to a determination of whether the evidence was sufficient to support the trial court's ruling. Martin v. State, (1978) Ind., 372 N.E.2d 181; Murphy v. State, (1977) Ind., 369 N.E.2d 411. We find that the evidence was sufficient, and there was no trial court error.

The defendant postulates that the police really did have probable cause to secure a warrant for his arrest and that the failure of the police to do so rendered the subsequent arrest illegal. It is not necessary that we determine at this juncture whether or not probable cause for a warrant did exist because we have held that a police officer may arrest a suspect without a warrant when he has probable cause to believe that a felony has been committed by the person arrested. Garr v. State, (1974) 262 Ind. 134, 312 N.E.2d 70. Exhibits which the police obtained as a result of the defendant's confession were introduced at trial over the defendant's objections. However, the objections were made upon the same bases as expressed at the motion to suppress hearing. As we have discussed, the trial court did not err in denying the

Page 516

motion to suppress. It follows that there was no error in the admission of the exhibits.


The police obtained no warrant before searching defendant's [270 Ind. 631] automobile. However, the record is clear that the defendant had been completely and specifically advised of his constitutional rights before he consented to the search. He was not subjected to threats, promises, or other undue influences. Taken in conjunction with the defendant's statement that he intended to turn himself over to law enforcement authorities, the defendant's consent to a search of his automobile must be deemed to be voluntary unless other circumstances are shown to exist. Viewing all the circumstances, we conclude that defendant voluntarily, intelligently, and knowingly consented to the search. Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228. Additionally, the defendant's consent eliminates any necessity for our discussing the need for or the ability to obtain a warrant. See Zap v. United States, (1946) 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477. There was no error in the overruling of the defendant's objection to the introduction of evidence obtained from the search of the defendant's automobile.


The defendant was convicted of murder, Ind. Code § 35-42-1-1(1) (Burns 1979): "A person who: (1) Knowingly or intentionally kills another human being . . . commits murder, a felony." The penalty for the crime is fixed by statute, Ind. Code § 35-50-2-3 (Burns 1979):

"(a) A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000). . . ."

The defendant was sentenced to a determinate term of sixty years' imprisonment. He now argues that the court erred in the sentence imposed.

Certain criteria for sentencing are provided the trial judge by statute, West's Ann. Ind. Code § 35-4.1-4-7 (1978):

"(a) In determining what sentence to impose for a crime, the court Shall consider the risk that the person will commit another crime, the nature and circumstances of the crime committed, and the prior criminal record, character, and condition of the person.

"(b) The court May consider these factors as mitigating circumstances[270 Ind. 632] or as favoring suspending the sentence and imposing probation:

"(1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.

"(2) The crime was the result of circumstances unlikely to recur.

"(3) The victim of the crime induced or facilitated the offense.

"(4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.

"(5) The person acted under strong provocation.

"(6) The person has no history of delinquency or criminal activity, or he has led a law-abiding life for a substantial period before commission of the crime.

"(7) The person is likely to respond affirmatively to probation or short-term imprisonment.

"(8) The character and attitudes of the person indicate that he is unlikely to commit another crime.

"(9) The person has made or will make restitution to the victim of his crime for the injury, damage, or loss sustained.

"(10) Imprisonment of the person will result in undue hardship to himself or his dependents.

"(c) The court May consider these factors as aggravating circumstances or as favoring imposing consecutive terms of imprisonment:

Page 517

"(1) The person has recently violated the conditions of any probation, parole, or pardon granted him.

(2) The person has a history of criminal activity.

"(3) The person is in need of correctional or rehabilitative treatment that can best be provided by his commitment to a penal facility.

"(4) Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.

"(5) The victim of the crime was sixty-five (65) years of age or older.

[270 Ind. 633] "(6) The victim of the crime was mentally or physically infirm.

"(d) The criteria listed in subsections (b) and (c) of this section do not limit the matters that the court may consider in...

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117 practice notes
  • 499 N.E.2d 1103 (Ind. 1986), 1084S399, Hill v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 17 Noviembre 1986
    ...1188; Pine v. State (1980), 274 Ind. 78, 408 N.E.2d 1271; Rowley v. State (1979), 271 Ind. 584, 394 N.E.2d 928; Gardner v. State (1979), 270 Ind. 627, 388 N.E.2d 513. In apparent contrast, however, are cases reviewing the imposition of the death penalty. In deciding Judy v. State (1981), 27......
  • 440 N.E.2d 1096 (Ind. 1982), 481S108, Powers v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 21 Octubre 1982
    ...disclose the factors considered by the trial court to constitute aggravating or mitigating circumstances. Gardner v. State, (1979) Ind., 388 N.E.2d 513, The trial judge, however, ordered that the sentences be served consecutively while also stating that he found no aggravating or mitigating......
  • 442 N.E.2d 1109 (Ind. 1982), 181S13, Brown v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Diciembre 1982
    ...should disclose what factors were considered by the judge to be mitigating or aggravating circumstances." Gardner v. State, (1979) 270 Ind. 627, 633, 388 N.E.2d 513, Furthermore, while Ind.Code Sec. 35-50-1-2 (Burns 1979) places the determination of whether sentences are to be served c......
  • 427 N.E.2d 1081 (Ind. 1981), 880S334, Funk v. State
    • United States
    • Indiana Supreme Court of Indiana
    • 18 Noviembre 1981
    ...N.E.2d 39; Morris v. State, (1980) Ind., 399 N.E.2d 740; Smith v. State, (1979) Ind.App., 392 N.E.2d 503; Gardner v. State, (1979) Ind., 388 N.E.2d 513. The United States Supreme Court has held warrantless arrests need not be accompanied by the presence of exigent circumstances in order to ......
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