Ashby v. State, No. 375S54

Docket NºNo. 375S54
Citation354 N.E.2d 192, 265 Ind. 316
Case DateSeptember 17, 1976
CourtSupreme Court of Indiana

Page 192

354 N.E.2d 192
265 Ind. 316
Roger Dale ASHBY and Steven Bernard Corley, Appellants,
v.
STATE of Indiana, Appellee.
No. 375S54.
Supreme Court of Indiana.
Sept. 17, 1976.

[265 Ind. 317]

Page 193

James L. Kiely, Evansville, for appellants.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellants were convicted of inflicting injury in the course of a robbery and were sentenced to life imprisonment. In this appeal, they contend that the trial court erred in permitting the State to introduce oral statements made to the police while in custody because the statements were induced by a promise to mitigate punishment.

On March 10, 1974, a filling station in Evansville, Indiana was robbed by two men and the attendant beaten with a hammer by one and cut with a knife by the other. A third man, stationed nearby, drove the two men to and from the station, and was well aware of their criminal intentions. Almost immediately after the crime the third man called the police and identified appellants as having been the two men who had just robbed the filling station. Appellants were quickly arrested.

While appellants were in custody the officer in charge of the case took the case file to a deputy prosecutor. At this office it was decided that a charge of inflicting an injury in the commission of a felony would be brought but that the State would accept a determinate term of imprisonment of ten years flat in lieu of the life sentence provided for such offense. The charge was then filed by the officer, and warrants issued.

The officer then went to the jail and talked to both appellants. He told them that a charge of inflicting had been brought against them. In the following colloquy at the [265 Ind. 318] hearing on the motion to suppress, the officer supplied a description of that meeting:

'Q. And what did you offer them?

A. I told them that if they would be willing to give me a statement to their acts in this robbery, and would be willing to plead that they would be allowed to plead guilty to armed robbery, or robbery rather than inflicting an injury, with the stipulation that they would take an executed ten year sentence.

Q. Did you tell them how many years they could get out under that type of deal?

A. I told them that they would more than likely be eligible for parole in something like 7 1/2 or 8 years.

Q. And did you tell them what they would get if they were found guilty of the inflicting an injury?

A. It carries a life sentence.

Q. Did you tell them that?

A. Yes, sir.

Q. Then did they accept your offer?

A. Yes, sir.

Q. And did they, in fact, give you a statement?

Page 194

A. Yes, sir.'

After the written statements were completed, appellants were returned to their cells. The next morning appellants were taken before the circuit court for an initial appearance on the charge. Following that proceeding, they were returned to their cells. Shortly thereafter the officer who procured the written statements received a call from a deputy sheriff and was informed that appellants wanted to see him. He went over to the jail and the three then conferred. This conference was described by the officer as follows:

'Q. What did they say to you when you arrived there?

A. They were, as I said the other day, they were rather upset because they weren't allowed to plead guilty on their appearance earlier that day, that morning in Circuit Court for their initial appearance and they thought that I was to trick them, if you will, by not, by the fact that they couldn't plead guilty at that time that the original charges were read as they stood prior [265 Ind. 319] to their confession. I explained to them that the Judge would not allow them to plead guilty without first consulting with an attorney and in all probability they would be allowed to still plead guilty after they talked to their attorney following their subsequent appearance in Court. At this they seemed pretty well satisfied.

Q. Did they talk to you further then?

A. Then it got to me (sic) more a casual joking type conversation. Ashby said, 'Well, I was just going to tell you if that is the way it is going to be, O.K., but if you are really trying to trick us, you are a S.O.B.' So, as I said, it continued more as a casual joking thing.

Q. During that period of time did they make any statements to you about, spontaneously or not in response to any questions of them asked by you or any other Police Officer?

A. Yes, they did.

Q. What was that?

A. Ashby said that, something to the effect that, 'I don't see how he could identify me, I wasn't in there more than five minutes. I spent most of my time around front looking for a money bag and a gun.' or something to that effect. I said, 'Five minutes in quite a long time. I believe a guy could study you fairly well in that length of time.' He said, 'Well, maybe it wasn't quite that long but I spent most of my time out front.'

Q. Did Corley make any such statements or comments? Spontaneously or not in response to any questions asked by you or any other Police Officer?

A. Specifically, the only thing I can remember Corley saying was that he would like for me to see what I could do about getting him sent to Michigan City rather than one of the other correctional institutions; that he heard that they had some type of schooling there and he made the remark, 'If I could get out in seven years, I'll still be young enough to be a hippy.'

At another point in the transcript the same officer repeated his description of that same meeting:

'Q. What did they speak to you about?

A. Basically, they were rather upset because, I assume, they were under the impression that they would be allowed to plead Guilty that morning in Circuit Court and they called

Page 195

me a few choice names, thought I was tricking them. I tried to explain to them that [265 Ind. 320] Judge Miller would not permit them to plead Guilty without first appointing a counsel and allowing them to confer with him for some time and that they would be arraigned at a later date at which time they would be given this opportunity.

Q. And they were complaining to you that they weren't permitted to plead Guilty to the flat...

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53 practice notes
  • People v. Conte, Docket Nos. 66858
    • United States
    • Michigan Supreme Court
    • March 1, 1984
    ...L.Ed.2d 315 (1979); McLallen v. Wyrick, 498 F.Supp. 137 (W.D.Mo.1980); People v. Jones, supra (opinion of Kavanagh, J.); Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976); Fex v. State, 386 So.2d 58 (Fla.App.1980). [421 MICH 728] Under a strict per se approach any promise "however slight"......
  • Wright v. State, No. 61
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...denied, 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315 (1979); State v. Hoopes, 534 S.W.2d 26, 34 (Mo.1976). 11 See, e.g., Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976). 12 See, e.g., Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Rule 11(e)(6), Federal Rul......
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...to incriminate himself and to have an attorney present. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092, 1093; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. But cf., Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (federal constitution requires only ......
  • Shultz v. State, No. 2-980
    • United States
    • March 16, 1981
    ...be compelled, Ind.Const. Art. 1, § 14; U.S.Const., Amend. 5; Collins v. State (1977), 266 Ind. 430, 364 N.E.2d 750; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, nor does Shultz allege any compulsion. It is well settled that the physician-patient privilege is waived by a party's volu......
  • Request a trial to view additional results
53 cases
  • People v. Conte, Docket Nos. 66858
    • United States
    • Michigan Supreme Court
    • March 1, 1984
    ...L.Ed.2d 315 (1979); McLallen v. Wyrick, 498 F.Supp. 137 (W.D.Mo.1980); People v. Jones, supra (opinion of Kavanagh, J.); Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976); Fex v. State, 386 So.2d 58 (Fla.App.1980). [421 MICH 728] Under a strict per se approach any promise "however slight"......
  • Wright v. State, No. 61
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...denied, 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315 (1979); State v. Hoopes, 534 S.W.2d 26, 34 (Mo.1976). 11 See, e.g., Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976). 12 See, e.g., Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Rule 11(e)(6), Federal Rul......
  • Stanger v. State, No. 32A01-8903-CR-00105
    • United States
    • Indiana Court of Appeals of Indiana
    • November 6, 1989
    ...to incriminate himself and to have an attorney present. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092, 1093; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. But cf., Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (federal constitution requires only ......
  • Shultz v. State, No. 2-980
    • United States
    • March 16, 1981
    ...be compelled, Ind.Const. Art. 1, § 14; U.S.Const., Amend. 5; Collins v. State (1977), 266 Ind. 430, 364 N.E.2d 750; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, nor does Shultz allege any compulsion. It is well settled that the physician-patient privilege is waived by a party's volu......
  • Request a trial to view additional results

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