Ball v. State

Decision Date16 April 1981
Docket NumberNo. 1277S817,1277S817
PartiesMikco Steven BALL, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, David P. Freund, Marcia L. Dumond, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Mikco Steven Ball was charged by information in Hamilton Circuit Court with three counts of first degree murder. Ind.Code § 35-13-4-1 (Burns 1975). The information alleged that Ball purposely and with premeditated malice killed Eugene Lillico, Rick Burke and Steven Nichter. After a change of venue to Jefferson County, appellant Ball pleaded not guilty to each count and was tried to a jury. The jury convicted Ball of second degree murder for each of the three killings. See Ind.Code § 35-1-54-1 (Burns 1975). The trial court subsequently sentenced him to three life terms. Ball raises four issues for our consideration on this appeal, concerning: (1) whether the trial court erred in allowing testimony from a clergyman; (2) whether the trial court erroneously admitted into evidence certain confessions given by Ball; (3) whether the trial court erred in giving final instruction number 28A to the jury; and (4) whether the evidence was sufficient to sustain the convictions.

I.

Appellant Ball first argues the trial court improperly permitted testimony from a minister, Purvis Earl Lawson. The record reveals that Ball initiated a conversation with Reverend Lawson in which Ball admitted killing three people. Over defendant's objection, the trial court permitted the prosecutor to elicit this evidence from Lawson. On the basis of Ind.Code § 34-1-14-5 (Burns 1973), appellant challenges the pastor's competency to testify as to Ball's admissions.

The statute in question provides in part:

"The following persons shall be incompetent witnesses:

Fifth. Clergymen, as to confessions or admissions made to them in course of discipline enjoined by their respective churches."

The key question in this case concerns whether Lawson engaged in this conversation in the course of "discipline enjoined by" his church. Reverend Lawson testified that he is the pastor of the Southside Baptist Church in Indianapolis. He stated that he is not a graduate of any theological seminary, and that his church is not associated in any way with the Southern Baptist Convention. Lawson also stated that his church has a written constitution, but that this constitution is not made available to non-members.

The record reveals that Ball had attended Lawson's church for four or five months prior to the conversation in question; however, he was not a member of the church, and had not attended services for approximately eight weeks before contacting Lawson. Ball telephoned Lawson on Saturday, January 3, telling him he wished to speak with him the next day following the morning worship service. Lawson agreed, and when the service was concluded, he and Ball sat in the choir loft and talked. Ball told Lawson at that time that he had killed three people. Lawson testified that initially he did not believe Ball's story, but he also encouraged Ball to turn himself in to police if what he had said was true. Ball said he would think about it. The following day, Monday, Lawson related to Indianapolis Police Officer Arnold Nelson what Ball had said, although he did not mention Ball's name. Nelson said he was unaware of any missing persons or any unsolved multiple murders. Lawson and Ball talked by telephone again that night, and Lawson testified that he again urged Ball to turn himself in. The next day, Nelson and other police officers contacted Lawson and informed him of the disappearance of three men. Lawson testified that the circumstances related by police surrounding the disappearance of the men coincided with the details Ball had given him concerning the murders. That night, Lawson contacted Ball and eventually convinced him to turn himself over to the custody of Indianapolis police officers.

We hold Lawson was not an incompetent witness. He testified that pastoral confession does not constitute one of the tenets or disciplines of his church. He also testified that his church does not recognize a confidential pastor-parishioner relationship with respect to evidence of a crime. Lawson stated that if a person were to talk to him about a legal matter, he would tell them that he would not "stand up" for him and would not keep the information confidential; instead, he said he would testify against someone if he learned from them that they had committed a crime. Lawson also stated that his status as a preacher would not affect his decision to testify against a person in that regard. Therefore, we conclude that Ball's admissions to Lawson were not made "in (the) course of discipline enjoined by" Lawson's church. s35-1-14-5, supra; Knight v. Lee, (1881) 80 Ind. 201, 203-04; Buuck v. Kruckeberg, (1950) 121 Ind.App. 262, 268, 95 N.E.2d 304, 306. The trial court did not err in admitting Lawson's testimony.

II.

Appellant Ball next argues that the trial court erroneously failed to suppress incriminating statements Ball gave to police officers. He contends these statements were not given voluntarily and, therefore, should not have been admitted.

As we have stated many times, the admissibility of a confession is to be determined from an examination of the totality of the circumstances. On appeal, this Court will review the question of such admissibility as we do other sufficiency matters. We will determine only whether there was substantial probative evidence to support the trial court's findings. In making this determination, we will not reweigh the evidence nor judge the credibility of witnesses. E. g., Lonson v. State, (1980) Ind., 406 N.E.2d 256, 259; Porter v. State, (1979) Ind., 391 N.E.2d 801, 806; Ray v. State, (1979) Ind., 396 N.E.2d 373, 375; Murphy v. State, (1977) 267 Ind. 184, 191, 369 N.E.2d 411, 414.

In the case before us, the record reveals that Indianapolis Police Sergeant Jack Ohrberg met with Ball at around 11:00 p. m. on January 6, 1976, in the presence of Officer Nelson and Reverend Lawson after Lawson had persuaded Ball to turn himself in. Ohrberg testified at the hearing on Ball's motion to suppress that he orally advised Ball of his rights, but told Ball that he did not have any printed waiver forms on hand. Ball told Ohrberg that he understood his rights. He then attempted to direct Ohrberg, Nelson, Lawson, and Officer Philip Gerdt to the location of the bodies. During the search, Ball made several incriminating statements in response to Ohrberg's questions regarding the location of the bodies. Nelson and Lawson substantially corroborated Ohrberg's testimony regarding this sequence of events.

After approximately three hours of fruitless searching, Ball was returned to the Indianapolis Police station. There, Ohrberg again advised Ball of his rights, and Ball signed a written waiver of rights form. Ball then gave a tape-recorded oral confession. When this statement was transcribed a few days later, Ball read and signed the transcription. The tape recording of the confession was admitted at trial and played for the jury. Ohrberg testified that Ball appeared nervous, but not under the influence of alcohol or other drugs. Ohrberg further stated that he did not coerce Ball into giving these statements, nor did he make any specific promises to Ball concerning treatment he might need or leniency.

Ball also made an oral confession during the search for the bodies. Indianapolis Police Officer Philip Gerdt testified that he and Ball talked about the killings while they were alone briefly in the car. Before the crimes were discussed, however, Gerdt orally advised Ball of his rights. Gerdt testified that Ball said he understood his rights and specifically stated that he did not want an attorney.

The evidence clearly reveals that Ball's confessions were given voluntarily. Ball was advised of his rights on each occasion before discussing or being questioned about the killings, and in either oral or written form, waived his rights each time. When given the opportunity to do so, Ball signed a waiver form, in which he acknowledged that he did not have to speak and further acknowledged that he had not been pressured or coerced into giving the statement. In light of all the testimony heard on this question, we believe there was sufficient evidence of probative value to support a finding that the statements were not given involuntarily, and to justify the admission of these statements into evidence. Cf. Brewer v. Williams, (1976) 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424. There was conflicting testimony presented concerning alleged promises made to Ball, or other alleged inducements which prompted him to confess. Such conflicts were, of course, for the trial court to resolve. Love v. State, (1980) Ind., 400 N.E.2d 1371, 1372-73. See Lonson v. State, supra; Ray v. State, supra; Richardson v. State, (1978) 268 Ind. 61, 63, 373 N.E.2d 874, 875. See also Gutierrez v. State, (1979) Ind., 395 N.E.2d 218, 223-24; Johnson v. State, (1978) 269 Ind. 370, 378, ...

To continue reading

Request your trial
13 cases
  • Boyd v. State
    • United States
    • Indiana Supreme Court
    • 24 Junio 1986
    ...in doing so, this Court looks to the totality of the circumstances existing at the time the statement was taken. Ball v. State (1981), 275 Ind. 617, 620, 419 N.E.2d 137, 140, reh. denied (1981). In determining whether the statement was voluntary, we look to the circumstances surrounding its......
  • Pamer v. State
    • United States
    • Indiana Appellate Court
    • 29 Octubre 1981
    ...were actually made before the accused gave a confession, the reviewing court will not disturb the trial court's ruling. Ball v. State (1981), Ind., 419 N.E.2d 137, 141; Turner, supra, 407 N.E.2d at Pamer also challenges the admissibility of his written confession on the ground that it was a......
  • Eubank v. State
    • United States
    • Indiana Supreme Court
    • 16 Diciembre 1983
  • Bonham v. State
    • United States
    • Indiana Supreme Court
    • 15 Diciembre 1994
    ...correct in overruling the motion to suppress and in overruling counsel's objection to the testimony of Rev. Cuneio. See Ball v. State (1981), 275 Ind. 617, 419 N.E.2d 137. Appellant also claims his counsel was ineffective in that he failed to object to the testimony of former Detective Serg......
  • Request a trial to view additional results

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