Carpenter v. State

Decision Date20 December 1978
Docket NumberNo. 1277S825,1277S825
Citation383 N.E.2d 815,270 Ind. 96
PartiesHarry E. CARPENTER, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Michael J. McDaniel, New Albany, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

In a trial by jury, the defendant (appellant) was convicted and sentenced accordingly on the following charges: life imprisonment for kidnapping, Ind.Code § 35-1-55-1 (Burns 1975); thirty (30) years imprisonment for commission of a felony while armed, to-wit: rape, Ind.Code § 35-12-1-1 (Burns 1975); and not less than two (2) years nor more than fourteen (14) for assault and battery with intent to kill, Ind.Code § 35-13-2-1 (Burns 1975). On appeal he presents the following issues for our review:

(1) Whether the trial court erred in overruling the defendant's motion to suppress and his objection later made at trial to the admission of his pre-trial statement.

(2) Whether the trial court erred in admitting a knife into evidence over the defendant's objection that it was a product of the aforementioned statement.

(3) Whether the trial court erred in refusing to give, in its entirety, the defendant's tendered instruction No. 3 on the defense of insanity.

(4) Whether the trial court erred in refusing to give the defendant's tendered instruction No. 4 concerning the State's burden of proof with regard to a defense of insanity.

(5) Whether the trial court erred in refusing to give the defendant's tendered instructions Nos. 7 and 8 on the definitions of "disease" and "defect."

(6) Whether the cumulative impact of the court's failure to give the above instructions was such that the defendant was denied due process of law.

(7) Whether the trial court erred in failing to instruct the jury as to the possible consequences of a verdict of not guilty by reason of insanity.

During the early evening hours of Friday, March 14, 1975, Lori Hibbs was approached by the defendant and another man as she got into her car. The defendant drew a knife, held it to her stomach, and told her to start driving. After a short time had elapsed, the defendant told her to stop the car, at which time he hit her, tied her hands behind her back and drove the car into a field. The defendant took her out of the car and proceeded to rape her repeatedly over a period of approximately forty-five minutes. He then told her to roll over onto her stomach and stabbed her twice. She was able to make her way to the car where she locked herself inside and sounded the horn and flashed the lights, in an effort to draw attention. The two men became frightened and ran. The defendant was picked up by the police later that evening in a bar. On the Monday morning following his arrest, the defendant gave a taped statement to the police in which he related in considerable detail his part in the kidnapping and rape.

ISSUE I

Prior to the start of the trial, the defendant filed a motion to suppress the taped statement, which he had made to the police, upon the grounds that it was not knowingly, voluntarily and freely given. His allegations were based in part upon the fact that there was a detention of approximately seventy-two hours between the time of his arrest and his arraignment, during which time his statement was made. In addition he contends that he was not informed of the charges then pending against him and that he was coerced into giving the statement by police threats and promises.

Ind.Code § 35-5-5-2 (Burns 1975) sets out the factors to be considered by a trial judge in determining the voluntariness of a confession. It provides that he take into consideration all of the circumstances involved, including, but not limited to:

"(1) the time elapsing between the arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment,

"(2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession,

"(3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him,

"(4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and

"(5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession."

This section further provides that none of the above factors are conclusive upon the issue.

At the hearing on the motion to suppress, the defendant testified that, although he refused to sign a written waiver form, he was orally advised of his rights. He stated that not only was he aware that he had the right to talk to an attorney, but also, that if he could not afford one, one would be appointed for him prior to any questioning. He also stated that he had a general understanding of his rights, since they were not only read to him but were also explained to him in simpler words, as was the fact that he was waiving them. The taped statement was played before the court and disclosed that the defendant had been fully advised of his rights. The tape also revealed that the defendant had been informed sometime during the time he was giving the statement, that there was a preliminary charge of assault and battery with intent to kill filed against him and that there was a strong possibility that he would also be charged with kidnapping and rape. Several police officers who had been involved in the investigation also testified that they were not aware of any threats or promises made to coerce the defendant into giving his statement.

The last factor left to be considered in determining the admissibility of the defendant's confession is the delay involved between his arrest and arraignment. The delay apparently occurred because it was a weekend and the regular judge could not be reached by the prosecutor, who did not want to take the defendant before the judge pro tempore. Such a delay does not make a confession inadmissible as a matter of law, but, rather, is one of many factors to be considered in determining its admissibility. Ind.Code § 35-5-5-3 (Burns 1975); Murphy v. State, (1977) Ind., 369 N.E.2d 411. Thus, although the seventy-two hour period is a negative factor to be considered in this case, it must be balanced with all of the other circumstances involved. Such circumstances include the defendant's admission that he had been fully informed of his rights which he understood at the time, that he had talked to both his father and brother on Saturday and his general willingness to talk to the interrogating officer.

When reviewing a sufficiency issue, we will consider only that evidence which supports the trial court's determination where the evidence is in conflict, along with any uncontested evidence presented by the defendant. We will not disturb the trial court's ruling on the issue of voluntariness, if, from that standpoint, there is sufficient evidence to support it beyond a reasonable doubt. Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811. All factors taken together indicate that the confession was voluntarily made.

ISSUE II

Inasmuch as we have determined that defendant's extrajudicial confession was voluntarily given following an informed waiver, this issue is without basis.

ISSUE III

The defendant raises several issues with regard to the trial court's refusal to give certain of his tendered instructions. The first concerns his tendered instruction No. 3 which was given in part by the court. The omitted portion, which the defendant contends should also have been given stated:

"Furthermore, you are instructed under the law of this state a person may have sufficient mental capacity to know right from wrong and to be able to comprehend the nature and consequences of the act or acts, and yet not be criminally responsible for his actions; for an irresistible impulse of a person accused is a lawful excuse for the commission of an act, otherwise a crime, where the person committing it, though he is capable of knowing right from wrong, lacks in consequence of a diseased mind or defect, the will power to resist an impulse to commit crime."

The foregoing verbiage is from an instruction which we approved, over appellant's contention of error, in McFarland v. State, (1975) 263 Ind. 657, 336 N.E.2d 824. We there said: "It is difficult to find error in such thoroughness." This, however, does not imply that the refusal of such instruction is error, if the subject matter is otherwise adequately covered. In this case, the following instruction was given:

"A person is not responsible for criminal conduct if at the time of such conduct, as a result of a mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. The terms 'mental disease...

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