Buchanan v. State

• Citation: 376 N.E.2d 1131,268 Ind. 503
• Decision Date: 16 June 1978
• Docket Number: No. 277S116,277S116
• Parties: Paul T. BUCHANAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 1131

376 N.E.2d 1131

268 Ind. 503

Paul T. BUCHANAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 277S116.

Supreme Court of Indiana.

June 16, 1978.

Dolores Goldman, Merrillville, for appellant

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged by indictment with first degree murder and murder during the commission of a felony, Ind.Code § 35-13-4-1 (Burns 1975), for the death of Robert Schwartz. Following the trial by jury, he was found guilty upon both counts and was sentenced to one term of life imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred by admitting into evidence the defendant's signed confession.

(2) Whether it was error to admit into evidence certain photographs of the victim's corpse.

(3) Whether it was error to identify two examining physicians as witnesses of the court.

(4) Whether it was error to restrict the defendant's cross examination of a State's witness.

ISSUE I

The defendant, a juvenile sixteen years of age, objected to the admission of his written confession upon the ground that he did not knowingly and voluntarily waive his right to remain silent and his right to have counsel present during interrogation. He does not challenge the adequacy of the advisement of his constitutional rights given to him by the police at the time of the interrogation, nor does he allege that the police employed any threat, promise or other form of coercion during the interrogation. Rather, his claim is based upon the allegation that he and his father were not given an adequate opportunity to confer with each other concerning the waiver of rights.

The defendant was arrested at his home and was transported to police headquarters for questioning. His father followed in his own automobile, and he was with the defendant at all times during the interrogation which took place. The defendant was advised of his right to remain silent and the right to have an attorney present during interrogation. After approximately thirty minutes of interrogation, during which time the defendant denied any involvement in the crime, his father asked the police for the opportunity to talk to his son alone.

The detectives left the interrogation room and closed the door behind them. After ten or fifteen minutes, the father came from the room with tears upon his face. He indicated to the detectives that the defendant was now willing to make a statement. Both the defendant and his father then signed a written waiver of constitutional rights, and the defendant gave a statement in which he admitted his participation in the slaying of the deceased by bludgeoning. The statement was typewritten by one of the detectives and signed by both the defendant and his father.

During the ten to fifteen minutes while the defendant and his father talked in private, the defendant's father did not discuss the legal implications of confessing to the police. He did, because of his own moral convictions, attempt to influence the defendant to tell the truth. At the beginning of their private talk, the father did not believe that the defendant would be seriously involved in the crime, and he was concerned that a continuing police investigation would cast a shadow over the entire family.

Determining the admissibility of the defendant's confession requires the consideration of two separate factors. The first issue is the compliance with the required procedural safeguards which have been established to protect the Fifth and Sixth Amendment rights of juvenile suspects. The second issue, assuming that the police complied with the necessary procedures, is the more general question of the voluntariness under all of the circumstances.

In Lewis v. State (1972) 259 Ind. 431, 288 N.E.2d 138, this Court established the procedures to be followed during police interrogation of juvenile suspects. The Court stated:

"We hold therefore that a juvenile's statement or confession cannot be used against him at a subsequent trial or hearing unless both he and his parents or guardian were informed of his rights to an attorney, and to remain silent. Furthermore, the child must be given an opportunity to consult with his parents, guardian or an attorney representing the juvenile as to whether or not he wishes to waive those rights. After such consultation the child may waive his rights if he so chooses provided of course that there are no elements of coercion, force or inducement present. * * *." 259 Ind. at 439, 288 N.E.2d at 142.

This procedure was elaborated in Hall v. State (1976) Ind., 346 N.E.2d 584, where the Court stated:

" * * * The inquiry under Lewis does not cease when the mere presence of a parent or guardian has been established. The record must affirmatively demonstrate that the juvenile and his parent or guardian were afforded a meaningful opportunity to counsel together." 346 N.E.2d at 587.

Although the police failed to provide an opportunity for the defendant and his father to consult together at the inception of the interrogation, and although such consultation occurred only at the father's request, the opportunity to consult was afforded prior to the time that the incriminating statement was made. To the extent that the procedure followed was improper, it, nevertheless, produced no evidence and did no harm. Insofar as the police procedure was productive of evidence, it was in compliance with the rule established in Lewis.

Lewis required only that the defendant and his father be given a meaningful opportunity to consult together without State interference. Whether or not the opportunity was used to the defendant's advantage was beyond the police officers' control. They were in no position to dictate or even to recommend how the defendant and his father spend the consultation time. Both had been properly advised of the defendant's constitutional rights, and there is no contention that they were not understood.

Perhaps the main thrust of the defendant's argument, if it had been more artfully directed, would be to the point that the father's influence upon the defendant detracted from the voluntariness of the waiver. Since the father was not acting in concert with the police, however, his advice to the defendant to tell the truth could not render the waiver involuntary. Cf. Garrett v. State (1976), Ind., 351 N.E.2d 30. The constitutional guarantees which are embodied within the "voluntariness" test are directed against the infringement of individual liberties by the exploitation of individual weakness in the face of government action.

It affirmatively appears in the record that the defendant and his father were given a meaningful opportunity to discuss the advisability of waiving the right to remain silent and the right to counsel. The father's urging of the defendant to tell the truth, whatever the motivation, did not violate the requirements set forth in Lewis, supra, and did not render the waiver of rights involuntary.

Our constitutions provide certain rights for those restrained and suspected of criminal offenses, to protect them against unconscionable activity by the State in its quest to apprehend the guilty party. The State is required to respect those rights, to advise of them and, in the case of a juvenile suspect, to afford the juvenile and the mature person who, by nature, would have the best interest of the suspect uppermost in his thoughts, the opportunity to reflect upon the predicament before making what may be a critical decision. It does not, however, and cannot assume responsibility for the decision.

ISSUE II

The defendant objected to the admission of certain photographs depicting the decedent's corpse, upon the grounds that they were inflammatory and prejudicial. In order to prevail upon such an allegation of error on appeal, it is a fundamental prerequisite that the reviewing court be afforded the opportunity to see the photographs which are claimed to be objectionable. It is incumbent upon Appellant to present a sufficient record to present an intelligent review of the issues. Bobbitt v. State (1977), Ind., 361 N.E.2d 1193; Bledsoe v. State (1975), 263 Ind. 265, 329 N.E.2d 592; Johnson v. State (1972), 258 Ind. 648, 283 N.E.2d 532. Here there is nothing to review.

The record and briefs are deficient in respect to this issue. The motion to correct errors and the brief refer only to the erroneous admission of "three...