Allen v. State

• Decision Date: 23 February 1982
• Docket Number: No. 181,181
• Citation: 431 N.E.2d 478
• Parties: James Edward ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 21.
• Court: Indiana Supreme Court

Page 478

431 N.E.2d 478

James Edward ALLEN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 181 S 21.

Supreme Court of Indiana.

Feb. 23, 1982.

William A. Kowalski, East Chicago, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) after trial by jury was found guilty of Murder, Ind.Code § 35-42-1-1 (Burns 1979), and of being an Habitual Offender, Ind.Code § 35-42-1-1 (Burns 1979) and was sentenced to a total of ninety (90) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred in admitting Defendant's confession into evidence.

(2) Whether the trial court erred in allowing a witness to make an in-court identification of Defendant.

(3) Whether the trial court erred in admitting evidence of Defendant's flight from the police.

The evidence most favorable to the State reveals that on November 9, 1979 Defendant and a woman entered a drug store in Gary ostensibly to obtain a remedy for a pain in the woman's leg. After entering, both drew guns, and Defendant shot and killed the owner. Defendant took money, and both fled.

ISSUE I

Defendant presents six claims with respect to the alleged error in the admission of his confession.

A.

Defendant contends that the State did not prove that he knowingly and understandingly waived his Miranda rights.

"The burden is on the State to prove beyond a reasonable doubt that the waiver and the statement were voluntary, and in reviewing the trial court's ruling in these matters we do not weigh the evidence but simply determine whether there is sufficient evidence to support the finding." Williams v. State, (1981) Ind., 423 N.E.2d 598, 599.

The evidence upon this matter conflicts. Defendant points to his mental and physical debilitation, his lack of food and sleep, the absence of an attorney, and the duration of his detention, all of which occurred at the time just prior to his interrogation. The interrogating officer testified that he read Miranda advisements to Defendant from a card. Defendant also signed a waiver form, which appears in the record. The officer asked whether or not Defendant understood his rights after Defendant had read the form, and Defendant said that he understood. At the request of the officer, Defendant then initialed the waiver alongside each separate right advisement and signed it. From the evidence the trial court could find that Defendant knowingly and voluntarily waived his Miranda rights. Wade v. State, (1979) Ind., 387 N.E.2d 1309, 1311; Niehaus v. State, (1977) 265 Ind. 655, 658, 359 N.E.2d 513, 514-15, cert. denied, (1977) 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188; Smith v. State, (1976) 264 Ind. 587, 595-96, 348 N.E.2d 635, 639-40.

B.

Defendant contends that the trial court erred in admitting his confession because it did not make detailed findings of fact pursuant to Ind.Code § 35-5-5-2 (Burns 1979) which provides:

"The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including but not limited to (1) the time elapsing between the arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that such statement could be used against This claim of error was not assigned by Defendant's Motion to Correct Errors, and therefore, is not available for review. Guardiola v. State, (1978) 268 Ind. 404, 405, 375 N.E.2d 1105, 1107.

him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." (Repealed effective September 1, 1982).

Defendant argues that the trial court did not comment upon the statutorily enumerated factors, and that it would be a perversion of the statute to allow a trial court to remain silent about these factors. In Apple v. State, (1973) 158 Ind.App. 663, 671, 304 N.E.2d 321, 325-26, the Court referring to the predecessor of Ind.Code § 35-5-5-2, which contains the same language, stated the following:

"Apple next argues that the court erred in failing to make a detailed finding of record on each of the elements to be considered in determining the voluntariness of the confession, including also the element of delay in obtaining the confession after arrest. No authority is cited in support of this contention, nor is such action mandated by the statutes to be followed in determining voluntariness and admissibility."

We believe that this is a correct assessment of the law. Defendant does not tell us how he would have benefitted from detailed findings, which no doubt would have supported the trial court's ruling, in light of our standard of review.

C.

Defendant next contends that the evidence fails to show beyond a reasonable doubt that his confession was not the product of his illegal detention. Again, this claim of error was not assigned by the Motion to Correct Errors and, therefore, is not available for review. Guardiola v. State, supra.

Defendant argues that his confession was inadmissible because it was given more than six (6) hours after his arrest and prior to his having been taken before a magistrate. Ind.Code § 35-5-5-3 (Burns 1979). Under the statute, however, delay is just one of many factors to be considered in determining the admissibility of the confession. Gutierrez v. State, (1979) Ind., 388 N.E.2d 520, 525.

D. & E.

Defendant contends that the evidence is insufficient to sustain a finding of voluntariness, because it shows that he was mentally and physically debilitated from drug withdrawal, that he suffered pain from a severe toe infection, that he lacked food and sleep, and that he was induced to confess upon promises of food and medical attention when he returned from Illinois to Indiana, which return would occur after completion of the statement.

Defendant's testimony upon these matters contradicts the testimony of the Illinois authorities, who arrested and held Defendant, and that of the Indiana authorities, who questioned Defendant. Defendant also presented evidence with respect to his physical condition at the Lake County Jail at the time just after his confession and extradition. This evidence tends to corroborate Defendant's testimony; however, the trial court, as trier of fact, chose to credit the testimony of the police officers as it was entitled to do, and we cannot rejudge the credibility of these witnesses. The trial court ruled as follows:

"BY THE COURT: Mr. Holcomb, the fact that the defendant may have been a drug addict does not mean he can't give a voluntary statement. I don't question whether your client was addicted to drugs, but the issue before the court is what happened at the time he gave that statement, and the evidence is that he appeared to be normal, no signs of withdrawal was observed by either of the policemen. What the impression of the

defendant may have been is not controlling either. It's what the officers said and did at that time. I find nothing improper in taking of the statement, and I don't think there is any need for you to submit a brief to the court. I'm going to deny your motion to suppress."

F.

Lastly Defendant argues that he was denied his right to counsel during the interrogation. He apparently asks us to infer this denial from police testimony that, had Defendant requested an attorney, they would have been unable to obtain one for him. We will make no such inference. Rather, we assume that, had a request for counsel been made, interrogation would have been terminated or suspended until counsel was available.

The remainder of Defendant's argument under this subheading treats whether or not his waiver of the right to counsel was voluntary. He cites Hatcher v. State, (1981) Ind., 414 N.E.2d 561, 565:

"It is clear from the record that Defendant did not waive his right to counsel. Although, Officer Gillespie orally informed him that he was entitled to have an attorney present, he made no response. Gillespie did not ask whether he wanted to have an attorney present, whether he had an attorney, or whether he wished to contact an attorney. The State emphasizes that Defendant did not ask to have counsel present. However, as we noted above, 'where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' (citations omitted). Likewise, a knowing, voluntary and intelligent waiver may not be inferred from a silent record. (citations omitted). Therefore, we hold that the defendant did not waive his Sixth Amendment right to have an attorney present at the 'line-up' proceedings."

As related above, the record of Defendant's waiver of his rights, which included the right to speak to an attorney, is not silent.

We have reviewed the record and we find that the trial court faced conflicting evidence. Our standard of review requires us to resolve the conflicts in favor of the trial court's ruling. While the delay involved in obtaining the confession is one factor which must be weighed negatively, the remainder of the record shows that the trial court could properly have found that Defendant confessed knowingly and voluntarily and without having been subjected to threats, promises or other improper influences. Grey v. State, (1980) Ind., 404 N.E.2d 1348, 1351-52; Gutierrez v. State, (1979) Ind., 388 N.E.2d 520, 525-26; Franklin v. State, (1977) 266...