Bean v. State, 1076S330

• Court: Supreme Court of Indiana
• Citation: 371 N.E.2d 713,267 Ind. 528
• Docket Number: No. 1076S330,1076S330
• Parties: Kenneth BEAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Decision Date: 25 January 1978

Page 713

371 N.E.2d 713 267 Ind. 528 Kenneth BEAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 1076S330. Supreme Court of Indiana. Jan. 25, 1978.

[267 Ind. 530]

Page 714

Harriette Bailey Conn, Public Defender, Bobby Jay Small, David P. Freund, Lawrence P. Giddings, Deputy Public Defenders, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Kenneth Bean, was convicted on four counts of felony murder, armed robbery, kidnapping and first-degree murder. He was sentenced to life imprisonment on Counts III and IV, and to ten years on Count II. Sentence was withheld on Count I. He now appeals and raises the following issues:

1. Whether the trial court erred in admitting into evidence the defendant's incriminating statements;

2. Whether the trial court correctly sentenced the defendant on the premeditated murder count while also entering judgment on the felony murder count;

3. Whether the trial court correctly entered judgment on the felony murder count while also entering judgment and sentencing on the armed robbery count;

4. Whether the trial court correctly admitted an autopsy report into evidence;

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5. Whether the trial court correctly refused to allow the defendant to testify to out-of-court statements made to him by an accomplice;

[267 Ind. 531] 6. Whether the trial court correctly refused defendant's motion for mistrial; and

7. Whether the element of specific intent was sufficiently proved by the state.

The events of the night of the crime can be summarized from the record.

Walter Ferrill, Jr. was employed as an attendant at the White Flash Service Station in McCordsville, Indiana. Early one evening a black man came into the service station and pointed a gun at Ferrill and Ferrill's brother-in-law, Grover Lisenby. The black man robbed them of about $60 and then forced them to walk down the highway away from the service station and into a field. Grover Lisenby was shot four times and killed. Ferrill pretended to be shot and then was able to escape and bring help. Ferrill identified the defendant as the black man who robbed, kidnapped and shot at him.

I.

The defendant first contends that he did not make an intelligent and knowing waiver of his constitutional rights because he was too intoxicated by liquor and drugs to understand what was happening when he made certain incriminating statements to the police. These statements were admitted into evidence at the trial after the trial court held a preliminary hearing to determine their voluntariness.

It is true that there was some conflicting testimony as to the degree of the defendant's intoxication. The defendant claimed he had been drinking beer and whisky and smoking marijuana. His blood alcohol count was taken about four hours after the crime and was found to be .125.

However, all three police officers who talked with the defendant that evening testified that his statements were clear and coherent. The victim indicated that the defendant's actions and statements were direct and relevant. His threats were clear and to the point. The record indicates that the [267 Ind. 532] defendant was alert and knew what was going on at the time of his arrest.

The defendant was advised of his constitutional rights and signed a formal waiver form before he made the incriminating statements. He made the statements shortly after his arrest while he was being held in the Hancock County jail. He does not contend that there was any coercion, threats or improper influence used on him by the police. He simply contends he was too intoxicated at that time to intelligently and knowingly waive his rights and make a voluntary admission.

This Court has summarized the standards to be used in determining whether statements or waivers are voluntarily given in Ortiz v. State, (1976) Ind., 356 N.E.2d 1188.

"In determining whether a statement was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was 'induced by any violence, threats, promises, or other improper influence.' Montes v. State, (1975) Ind., 332 N.E.2d 786, 792. The same test determines whether a waiver of the Miranda rights has occurred."

356 N.E.2d 1188, 1191 (emphasis added).

This state has long held that voluntary intoxication does not destroy the voluntariness of a confession. In Parsons v. State, (1975) Ind.App., 333 N.E.2d 871, the Court of Appeals said:

"(I)t is only when the accused is so intoxicated that he is unconscious as to what he is saying that his confession will be deemed to be involuntary and, therefore, inadmissible. Intoxication of a lesser degree goes only to the weight to be given to the statement and not its inadmissibility."

333 N.E.2d 871, 873.

In reviewing the trial court's decision on the voluntariness of a statement or waiver, we do not weigh the evidence, but determine whether there is sufficient evidence to support the trial court's concluding beyond a reasonable doubt that the waiver and statement were [267 Ind. 533] voluntary. In the instant

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case the police officers and the victim all testified that the defendant spoke and acted in a clear and coherent manner. The record demonstrates that there was sufficient evidence to support the trial court's finding that defendant understood the rights as read to and by him and that the waiver and statement were voluntary.

II.

The defendant next contends that the trial court erred in entering judgment and sentencing on the premeditated murder count while also entering judgment on the felony murder count. It is clearly established that a person may not be twice punished for a single offense arising from one set of operative circumstances. Thompson v. State, (1973) 259 Ind. 587, 290 N.E.2d 724.

In the case at bar, there was only one murder. The defendant cannot be punished twice for one murder. Under Thompson, supra, entry of judgment and a suspended sentence was held to be a punishment, in and of itself. In the instant case, the court entered judgment on Count I, felony murder, but withheld sentence on this count. The court also...