Auten v. State

Decision Date08 August 1989
Docket NumberNo. 35A02-8807-CR-286,35A02-8807-CR-286
PartiesHarry G. AUTEN, Martha E. McFall, Barbara L. Winchester, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below). 1
CourtIndiana Appellate Court

Bruce M. Frey, Guerrero, Guerrero & Guerrero, Marion, Ind., for appellants.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Appellants-defendants Harry Auten, Martha McFall and Barbara Winchester appeal their convictions of professional gambling, a class D felony.

We affirm the convictions of Auten and McFall, and reverse that of Winchester.

After investigating the Midway Recreation Center, police arrested the owners and several of the employees, including the defendants herein. Each was charged with one count of professional gambling. Police had observed Auten selling bingo cards and McFall selling tip cards. The police could not recall Winchester's activities, but she had given a statement implicating herself in selling bankers at the Midway. Auten and McFall had also given statements to the police.

After a jury trial, the defendants were convicted of professional gambling. They appeal, raising these five issues:

I. Whether the statements of the defendants were voluntarily and knowingly given.

II. Whether the evidence was sufficient to sustain the convictions for professional gambling.

III. Whether the court erred in refusing to instruct the jury on the offense of unlawful gambling.

IV. Whether the court abused its discretion in sentencing the defendants when it failed to set out its reasons for imposing the sentence and when it imposed a fine on McFall and Winchester but not Auten.

V. Whether subsection 6 of IND.CODE 35-45-5-3 is unconstitutionally vague.

I.

Defendants contend that their statements were involuntary because they were induced by assurances that the police were only interested in the owners, not the employees. In addition, Winchester argues that her confession was not voluntary because police continued to question her after she had invoked her right to remain silent.

The issue with respect to Auten and McFall's statements is waived, because the appellate brief does not set out the argument with citation to the record with respect to McFall, and at trial, Auten's attorney indicated he had no objection to the admission of Auten's statement. R. 462. See, Ferry v. State (1983), Ind., 453 N.E.2d 207; Schweitzer v. State (1989), Ind., 531 N.E.2d 1386.

The specific issue with respect to the voluntariness of Winchester's statement is whether she had invoked her right to remain silent and, if so, whether the police "scrupulously honored" her right. The State contends that the record shows only that Winchester refused to sign the written waiver of rights form, and that her mere refusal to sign the waiver form does not alone constitute an exercise of her rights, citing Norris v. State (1986), Ind., 498 N.E.2d 1203 and Lee v. State (1988), Ind., 531 N.E.2d 1165.

The admissibility of a statement or confession is controlled by determining from the totality of circumstances whether or not a confession was given voluntarily and not through inducement, violence, threats or other improper influences so as to overcome the will of an accused. Moore v. State (1986), Ind., 498 N.E.2d 1. The burden is on the State to show beyond a reasonable doubt that police scrupulously honored the accused's right to remain silent. Id.

Our supreme court has examined the issue of a defendant's invoking his right to remain silent by refusing to sign a waiver form, and has come to seemingly contradictory conclusions. However, closer scrutiny of the cases enables us to harmonize them and consequently resolve the issue in this case. The more recent supreme court cases relied upon by the State suggest that the mere refusal to sign the waiver of rights form does not in and of itself constitute an exercise of Miranda rights. Norris, supra; Lee, supra. These cases relied on Hill v. State (1978), 267 Ind. 480, 371 N.E.2d 1303, in which the court stated that the defendant, who had earlier refused to sign a waiver but had initiated a statement later, could not contend that his right against self-incrimination was "violated simply because he refused to sign a waiver form." Id. at 1306. In Norris, the defendant refused to sign a waiver form because an attorney had told him never to sign anything without an attorney being present. He then stated "I'll be more than happy to cooperate and tell you what happened." Hence, because the defendant's volunteered narrative was in no way encouraged by police questioning, his mere refusal to sign the waiver form was not an exercise of his right to remain silent. In Lee, the defendant was not presented a waiver form to sign, but had spoken freely about the incident after receiving Miranda warnings. Lee, supra at 1167. The State's interpretation of Norris and Lee would require us to hold that the refusal to sign a waiver of rights form, by itself, is never enough to show that defendant invoked his right to remain silent. While that interpretation seems fair given the wording of the rule, we nevertheless conclude that the import of those cases is that the defendant's refusal to sign a waiver form will not overcome other evidence that defendant's decision to talk was freely self-determined. See Jackson v. State (1986), Ind., 496 N.E.2d 32. Accordingly, a defendant may invoke his right to remain silent by refusing to sign a waiver of rights form, but such refusal may not necessarily serve as an invocation.

We reach that conclusion because of the continued vitality of Benton v. State (1980), 273 Ind. 34, 401 N.E.2d 697, in which the court relied on Brown v. State (1971), 256 Ind. 558, 270 N.E.2d 751. In Benton, defendant's refusal to sign the waiver of rights form was an explicit, voluntary and knowing refusal to waive his rights. The court observed that "by refusing to sign the form, appellant was repudiating the notion that he was 'willing to make a statement and answer questions' and that he did 'not want a lawyer at this time.' " Id., 401 N.E.2d at 698. The court distinguished the circumstances in Benton from those cases in which the defendant volunteered a statement without prodding by the police.

Hence, we must examine the circumstances of the case at bar to determine whether Winchester had invoked her right to remain silent and, if so, whether the police scrupulously honored her right to cut off questioning at any time. See Moore, supra.

Police officer Farthing testified that he read Winchester her rights and the waiver statement on two occasions after she was arrested: at 11:12 p.m. the night of her arrest, and again at 2:25 a.m., over 3 hours later. Both times she refused to sign the form, which contained on one sheet both an advisement of her rights and a waiver statement. Preliminary questions asked by Winchester's attorney of the interrogating officer Farthing established what occurred after Winchester refused to sign the waiver form:

Q. Officer, what does it mean when the witness refuses to sign the waiver of rights?

A. She just refused to sign the form.

Q. Well, what is your basis for concluding that she waived her rights?

A. That she understood the form and did not want [an] attorney present at that time.

Q. Is that your conclusion or did she say that?

A. I read the form to her and it states that in the form there. She did not request not to talk with me.

Q. You, you asked her if she wanted to make a statement. Is that correct?

A. I asked her if she'd talk with me. Yes.

Q. And then you gave her this document ...

* * * * * *

A. Right.

Q. Did she say that she just refused to sign or did she refuse to waive her rights?

A. Refused to sign.

Q. But she wanted to waive her rights?

A. Yes, but she would not sign the form. She would not sign any form.

Q. And did she say why she didn't want to sign the form?

A. Nope. She did not.

Q. Did she ever indicate to you she wanted to talk with an attorney?

A. No. She did not.

Q. Did she have any questions about what it meant if she signed the form?

A. Nope. She didn't question the form.

* * * * * *

Q. What happened after you talked to her the first time?

A. Well, she was placed back with other people and then transported to the county jail.

Q. But she didn't give any statement at that time, did she?

A. No. She refused to talk to me at that time.

Q. Why?

A. I do not know why.

Q. So you went back to do it the second time? You are telling me that she refused to sign this--at 11:12 p.m., you read her her rights and she refuses to sign, refuses to talk to you. Right?

A. That is correct.

Q. Because she wanted what? A lawyer present? Wanted to exercise her right to remain silent?

A. She never admitted it. No.

Q. It indicates she did not want to talk to you. Correct?

A. At that point, yes.

Q. At that point. So the next thing, three hours later, you are back talking to her again. Right?

A. Yes.

Q. You've got another waiver form. Right?

A. Yes.

Q. Now we go through this whole process all over again?

A. That is correct.

Q. And she says what? I don't want to sign the waiver?

A. That is correct.

* * * * * *

Q. But the first one she refused to sign and three hours later, she is still refusing to sign statements? Correct?

A. That is correct.

Q. But then she gave you the taped interview?

A. That is correct.

The State continued direct examination of Farthing:

Q. Mr. Farthing, after Ms. Winchester had been twice advised in this respect, she did talk to you. Is that correct?

A. That's correct.

Q. She didn't ask to see an attorney?

A. No.

Q. She didn't say she didn't want to, at 2:25 a.m., that she didn't want to talk to you?

A. No, she didn't. She openly talked to me about it.

Winchester's testimony revealed that she refused to sign the waiver form because she assumed if she signed it, that she...

To continue reading

Request your trial
3 cases
  • Situated v. Nat'l Collegiate Athletic Ass'n
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 16, 2010
    ...statute was intended to exclude such activities as regulated investing from the definition of gambling. See, e.g., Auten v. State, 542 N.E.2d 215, 222 (Ind.Ct.App.1989) (stating that activities of a brokerage firm's purchasing stocks on margin would fall under the bona-fide-business-transac......
  • Holly v. State
    • United States
    • Indiana Appellate Court
    • June 17, 2008
    ...is insufficient to support Holly's conviction for possession of marijuana, and his conviction must be reversed. See Auten v. State, 542 N.E.2d 215, 220 (Ind.Ct.App. 1989) (reversing a conviction based upon insufficient evidence after concluding that the evidence supporting the conviction wa......
  • Brown v. State
    • United States
    • Indiana Appellate Court
    • July 3, 2012
    ...to sign the waiver form, that refusal does not necessarily constitute an invocation of his right to remain silent. Auten v. State, 542 N.E.2d 215, 218 (Ind.Ct.App.1989) (holding that a defendant may invoke his right to remain silent by refusing to sign a waiver of rights form, but such refu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT