Brown v. State, 270S19

• Decision Date: 22 June 1971
• Docket Number: No. 270S19,270S19
• Citation: 270 N.E.2d 751,256 Ind. 558
• Parties: Fred BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 751

270 N.E.2d 751

256 Ind. 558

Fred BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 270S19.

Supreme Court of Indiana.

June 22, 1971.

J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a conviction in a trial by jury in the Howard Circuit Court for armed robbery in violation of I.C. 1971, 35--12--1--1, being Burns § 10--4709. Appellant was sentenced to twelve years in prison.

Appellant's first contention is that the trial court erred in admitting in evidence certain items of real evidence and appellant's oral pre-trial statement to the police because the evidence was obtained in violation of appellant's privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and Art. 1, § 14 of the Indiana Constitution.

Appellant was arrested around 10:00 A.M. on August 16, 1968, in Kokomo for the robbery of a service station six hours earlier in Kokomo. Deputy Sheriff Ferguson testified that he took appellant to the jail and prior to any interrogation he read appellant an advisement of his rights from a standard form then in use in Howard County. Appellant refused to sign the waiver of rights form stating that he did not want to sign anything until he had a chance to talk to an attorney. Deputy Ferguson testified that thereupon the conversation ended and that appellant was not questioned about the robbery. Ferguson did not advise the appellant he was suspected of armed robbery. Deputy Sheriff Ferguson testified he returned to the scene of the arrest and with Deputy Hawks searched appellant's apartment and car. The results of that search are not an issue on this appeal.

Deputy Hawks testified that he arrived at the scene of arrest after appellant had been taken to jail. Ferguson returned to the scene and he and Hawks searched the appellant's car and apartment. Hawks returned to the jail and assisted Ferguson in getting a statement from the victim, the service station attendant. Hawks saw appellant but had no contact with him at that time. Hawks testified that he first contacted appellant at the jail at 6:00 P.M. on August 16. Appellant cursed Hawks and Hawks started to leave but appellant called him back. Hawks then took appellant to an interrogation room and prior to any questioning he read appellant the same rights form that Ferguson said he used. Again appellant refused to sign the waiver of rights form. Hawks' testimony is not clear whether appellant at that time stated that he would not sign anything until he talked to an attorney or whether appellant said that after confessing. In any case, Hawks continued to talk to appellant for one and one-half hours. Hawks first talked to appellant, a Negro, about racial problems in the service and other general topics. Hawks said the purpose of this general conversation was 'to open appellant up' concerning the robbery. Appellant requested permission to call his father in Iowa which Hawks permitted. Hawks thought the father advised appellant not to admit anything to Hawks. After the phone call Hawks showed appellant the victim's statement about the robbery. Hawks testified that then the appellant said the victim of the robbery had had a gun. Hawks told appellant he was not concerned about the stolen money or the gun appellant had but was concerned about the victim's gun. Finally appellant agreed to accompany Hawks to appellant's car and give Hawks the money and guns, which were hidden behind the radio speaker grill. On the way Hawks said appellant admitted the robbery. It was the oral incriminating statement to Hawks, and the fruits thereof, that appellant sought to have excluded from evidence.

Appellant had an absolute right to remain silent and to have an appointed attorney present during any interrogation by the police. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. There the United States Supreme Court said:

'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' 384 U.S. at 444, 86 S.Ct. at 1612.

For purposes of this appeal we assume that the advisement of rights was adequate and the sole issue is whether appellant voluntarily and knowingly waived those rights.

Accoridng to police testimony appellant was advised of his rights on two different occasions by two different officers and both times appellant refused to sign a waiver of his rights. Since the advisement of rights and the waiver were read to appellant at the same time we must presume that if appellant understood what his rights were he also understood the meaning of a waiver of those rights. Therefore appellant's refusal to sign the waiver of rights form was an explicit, voluntary and knowing refusal to waive his rights.

Appellee argues that although appellant at first refused to waive his rights, the fact that he later confessed was an implicit waiver of those rights. A heavy burden rested on the appellee at trial to show a voluntary and knowing waiver by appellant. Miranda, supra. There the court said:

'If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self- incrimination and his right to retained or appointed counsel.' 384 U.S. at 475, 86 S.Ct. at 1628.

We hold that the appellee did not carry this burden. After appellant's explicit refusal to waive his right to have an attorney present and to remain silent appellant should not have been questioned any further. Mims v. State (1970), Ind., 262 N.E.2d 638; Miranda, supra. In Miranda, supra, the court said:

'The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

'If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.' (Emphasis added.) 384 U.S. at 445, 474, 86 S.Ct. at 1612, 1628.

It is clear that appellant indicated his desire to talk to an attorney before waiving his rights. Deputy Ferguson testified that appellant refused to sign a waiver of rights because he did not want to sign anything until he had had a chance to talk to an attorney. Appellant also explicitly refused to sign a waiver of rights for Deputy Hawks and the evidence is compelling that Hawks knew that appellant's reason for refusing was that he wanted to consult with an attorney before he signed anything. It is true that Hawks at one place testified that it was only after he had already confessed to Hawks that...