Andrews v. State

• Decision Date: 03 November 1982
• Docket Number: No. 481S107,481S107
• Citation: 441 N.E.2d 194
• Parties: Joe C. ANDREWS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 194

441 N.E.2d 194

Joe C. ANDREWS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 481S107.

Supreme Court of Indiana.

Nov. 3, 1982.

Clorius L. Lay, Lay & Marshall, P.C., Gary, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Joe C. Andrews, Jr., was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns Repl. 1979), at the conclusion of a jury trial in Lake Superior Court on November 26, 1980. Defendant was sentenced to fifty (50) years imprisonment. He now appeals.

Defendant Andrews raises four errors on appeal, concerning: 1) whether the trial court erred when it denied Defendant's Motion to Suppress; 2) whether the trial court committed error when it denied Defendant's Motion for Discharge pursuant to Ind.R.Crim.P. 4(C); 3) whether the trial court committed error when it admitted into evidence, over objection, the videotape of oral statements made by Defendant; and, 4) whether there was sufficient evidence to sustain Defendant's conviction for murder.

A Portage policeman investigated a pickup truck, with its emergency flashers on, parked near a grocery store about 3:00 a.m. on March 8, 1978. Defendant and Robert Lawson were the only people in the truck. Asked to produce his driver's license, defendant Andrews fumbled in his wallet but could not produce any identification. The officer backed his car behind the truck and noticed the defendant throwing pieces of paper out of the window. These pieces of paper were three cashier's checks made out to Charles Clowers or Alberta Clowers, Alberta S. Clowers, and Alberta Coulson. Later it was determined that the checks, worth more than $12,000, were taken from the residence of Charles Coulson, who was found murdered in his home.

I

Defendant Andrews claims that the trial court erred when it failed to grant his Motion to Suppress. Defendant points to three specific errors in this one issue: that there was no probable cause for his arrest by Officer Green; that he should have been allowed to speak with his parents, not his grandmother, before giving a statement to the police; and that the location of the murder weapon was elicited from him in violation of his Miranda rights.

Police officer Green testified at the hearing on the Motion to Suppress. At 3:00 a.m., Officer Green was traveling east on U.S. 20 in Portage, Indiana. Green observed a red pickup truck leave a trailer park, pull onto U.S. 20, leave the highway and park next to a Zip Food Store and turn its emergency flashers on. Officer Green stated that he went to investigate because he observed two traffic violations: improper lane usage and failure to signal. Green talked with the two youths in the truck and one youth, Robert Lawson, asked him where the nearest restaurant was located. Green told him, then asked where Lawson lived. When Lawson stated that he lived in the trailer park, Ted's East Town, Green became suspicious because the restaurant he mentioned was only two blocks away and Green thought it was strange that Lawson did not know where the restaurant was. Green asked for some identification, but when the defendant was unable to produce any, Green backed his patrol car near the truck and began a check on the license plates. At that time he observed the defendant throwing pieces of paper out of the window. These "pieces" of paper were cashier's checks, totaling over $12,000. Green then ordered the youths out of the truck, patted them down, and advised them of their rights. Defendant claims that there was no probable cause for the investigation and arrest.

A recent case, Taylor v. State, (1980) Ind., 406 N.E.2d 247, involved a situation similar to the one here. A police officer observed a car make two U-turns, pull off on a side street, turn off the lights, and then move to a different location. Noticing that there was an isolated 7-11 Store nearby, the police officer became suspicious and pulled the car over. In Taylor we stated:

"We note that a police officer may describe a situation as being one of investigation or suspicion, or he may state that he did or did not believe that he had probable cause. However, this subjective evaluation is not determinative of the issue. The test for probable cause was set out in Brinegar v. United States, (1949) 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879, 1890, quoting Carroll v. United States, (1924) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, as follows:

Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are], sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed [by the person to be arrested.]

The initial stop of this car was lawful. The officer who stopped the vehicle had observed traffic violations committed in his presence and also had observed behavior that, in his experience, was suspicious conduct. The officer was discharging a legitimate investigative function when he decided to approach the occupants of the car. The governmental interest in effective crime prevention and detection underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889."

There was probable cause for Officer Green to arrest the Defendant. Officer Green stated at the suppression hearing that Ted's East Town, the trailer park which Defendant had just left, had been the scene of recent burglaries. When Defendant committed two traffic violations, Green decided to stop and see if anything was wrong. Under questioning by defense counsel, Green stated he stopped to investigate because of the recent burglaries and the traffic violations. When Defendant failed to produce identification, Green made a license plate check and then noticed Defendant throwing the cashier's checks out of the window. As Officer Green said, "Normally, people do not throw such items away." Suspicious that the youths were involved in some crime, Green ordered them out of the truck and arrested them. As in Taylor, Green was justified in stopping and making an investigation. The ensuing events confirmed his suspicion that wrong-doing was at hand, and he acted properly in making the arrests.

When the defendant was being booked at the police station, the officers discovered that he was sixteen years old. Officer Miller informed Defendant that he had the right to confer with a parent or guardian before the police could begin questioning him. Defendant told Miller he wanted to speak with his grandmother and that he definitely did not want to speak with his father or mother. Complying with Defendant's request, the police contacted his grandmother and Defendant was taken to juvenile court where his grandmother joined him. Defendant was furnished a lawyer at the juvenile detention hearing and the court was advised that the police intended to interrogate Defendant.

After the juvenile detention hearing, Defendant and his grandmother, Leora Wilson, were taken to the Crown Point Police Department. Defendant's mother, Dorothy Andrews, was also at the Crown Point Police Department but Defendant refused to see her or speak with her. Mrs. Andrews testified that she and her husband adopted Defendant in May of 1975; Leora Wilson was Defendant's natural grandmother. Defendant and Mrs. Wilson were advised of his constitutional rights, both signed the waiver form, and Defendant then gave a statement to the police. Now Defendant claims that his statement cannot be used against him because he was not allowed to confer first with his parents.

Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138, is the leading case in this State concerning a voluntary statement given by a juvenile defendant. In Lewis this Court stated:

"We hold therefore that a juvenile's statement or confession cannot be used against him at a subsequent trial or hearing unless both he and his parents or guardian were informed of his rights to an attorney, and to remain silent. Furthermore, the child must be given an opportunity to consult with his parents, guardian or an attorney representing the juvenile as to whether or not he wishes to waive those rights. After such consultation the child may waive his rights if he so chooses provided of course that there are no elements of coercion, force or inducement present."

Id. at 439, 288 N.E.2d at 142.

The holding in Lewis was twofold. First, we recognized that the juvenile should be afforded the special status in the criminal procedure that he enjoyed in other areas of the law. Second, we required that the juvenile be afforded a meaningful opportunity to consult with his parents or guardian without any coercion on the part of the police, before a statement may be taken. Shepard v. State, (1980) Ind., 404 N.E.2d 1, 5; Burnett v. State, (1978) 268 Ind. 618, 622, 377 N.E.2d 1340, 1342; Buchanan v. State, (1978) 268 Ind. 503, 506, 376 N.E.2d 1131, 1134. We have also held that it is not necessary that the parent or guardian be present at the giving of the confession or statement, Shepard, supra, and that a sister may be a guardian since she acted in loco parentis. Burnett, supra; Hall v. State, (1976) 264 Ind. 448, 450, 346 N.E.2d 584, 586.

The record revealed that Defendant was adopted in May of 1975 but ran away from the Andrews' home in February of 1976. The Andrews did not see Defendant again until he was arrested in March of 1978. Mrs. Andrews said she knew Defendant was at his natural grandmother's home during the two years he was gone but was told by Defendant's probation officer not to do anything about it. Mrs. Andrews also said that during the year Defendant lived in...