Colvin v. State, No. 475S92

Docket NºNo. 475S92
Citation264 Ind. 514, 346 N.E.2d 737
Case DateMay 20, 1976
CourtSupreme Court of Indiana

Page 737

346 N.E.2d 737
264 Ind. 514
Richard COLVIN, Appellant,
v.
STATE of Indiana, Appellee.
No. 475S92.
Supreme Court of Indiana.
May 20, 1976.

[264 Ind. 515] James E. Burke, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.

ARTERBURN, Justice.

The Appellant, Richard Colvin, was convicted on December 5, 1974, of armed robbery. A sentence of thirty years was fixed by the jury. The Appellant filed his Motion to Correct Errors on January 14, 1975. It is from the denial of this motion on

Page 738

January 20, 1975, that the Appellant now presents this appeal.

The evidence at trial revealed that at approximately 12:30 a.m., August 2, 1974, two men entered the Kroger food store at 4526 Western Avenue in South Bend, Indiana. One of the men wore a black shirt, black trousers and a nylon stocking on his head pulled down to, but not covering, his eyes. He was armed with a rifle. The other man wore a red checkered or plaid shirt.

The man in the checkered shirt instructed the store employees to lie on the floor. One store employee, David Webb, was told to get up and get the money from the cash register. He put currency and change from one cash register into a paper sack and then put currency, change and food stamps from a second register into the same sack. The men took Webb outside the store, demanded his wallet, and took the money in it. Webb was told to lie down. The men then fled on foot.

[264 Ind. 516] South Bend Police Sergeants Hurley and Ruszowski drove toward the scene of the crime upon receiving a dispatch to the effect that an armed robbery was in progress. Subsequent dispatches informed the officers that one robber was armed with a rifle and that police arriving at the store had learned that the suspects had fled south on foot. As the officers continued driving they saw two men running south.

The officers left their car and ordered the men to stop. One of the suspects wore a plaid shirt and dropped a paper bag to the ground as he came to a halt. This bag was found to contain currency, change, food stamps, and a Kroger cash register receipt. The other suspect wore a black shirt and carried a rifle which was dropped after an apparent unsuccessful attempt to bolt the action. Both men wore nylons over their heads.

The men were taken to the sence of the crime where Kroger employees identified them as the robbers. The suspect wearing the black shirt and carrying the rifle was identified as the Appellant. Other suspects brought to the store were released when the employees informed police they were not involved.

I.

The Appellant's first contention is that the trial court erred in overruling defense objections to the admission into evidence of an oral statement by the Appellant. It is maintained that there was no showing of a knowing and voluntary waiver of rights by the Appellant prior to the statement. The evidence admitted over objection reads as follows:

'Q What did he say?

A He was asked afterward if there was a car involved. He stated something about a black and red vehicle and then he was cut off by the other suspect that was with him.

Q What do you mean cut off?

A He was told not to say anything.

Q The other fellow told Mr. Colvin?

A Yes he did.

[264 Ind. 517] Q And after he told Mr. Colvin that did Mr. Colvin have anything more to say?

A No he didn't say anything after that.'

It should be noted that no hearing out of the presence of the jury was held to determine the admissibility of this statement. Such a hearing pursuant to Ind.Code § 35--5--5--1 (Burns 1975) would have established a clear record upon which our determination of this issue could easily be based. As it stands, we must sift through the record to determine whether the Appellant's rights were knowingly and voluntarily waived.

Page 739

The testimony of police Sergeant Charles Hurley indicates the Appellant was indeed informed of his rights:

'A . . . Sergeant Ruszowski, as I kept both suspects under guard, advised them of their rights . . . and they were taken over to the squad car . . ..

A We placed them in the back seat of our squad car.

Q Were they still handcuffed when they were in the car?

A Yes.

Q And were they read the Miranda rights?

A Yes once again in the vehicle they were read their Miranda rights.

Q Did Mr. Colvin answer that he understood it or did not understand?

A I do not recall him replying affirmatively. However, I do recall him starting to make a statement.

Q Starting to make a statement rather than say yes or no?

A Yes.'

The testimony of Sergeant Ruszowski, however, goes even further. It indicates that the Appellant did, in fact, acknowledge an...

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10 practice notes
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Enero 1980
    ...jury was not entitled to review the presentence report. Feggins v. State (1977), 265 Ind. 674, 359 N.E.2d 517; Colvin v. State (1976), 264 Ind. 514, 346 N.E.2d 737, cert. denied (1977), 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765; Pulliam v. State (1976), 264 Page 823 Ind. 381, 345 N.E.2d 2......
  • Brown v. State, No. 376S75
    • United States
    • Indiana Supreme Court of Indiana
    • 16 Marzo 1977
    ...provided with a presentence report. This Court has found this procedure to be constitutionally permissible. Colvin v. State (1976), Ind., 346 N.E.2d 737; Pulliam v. State (1976), Ind., 345 N.E.2d 229. As a result, a jury must of necessity refer to evidence of the character of the crime and ......
  • Jones v. State, No. 2-1276A453
    • United States
    • 2 Abril 1979
    ...with a pre-sentence report. This Court has found this procedure to be constitutionally permissible. Colvin v. State (1976), Ind., 346 N.E.2d 737; Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d 229. As a result, a jury must of necessity refer to evidence of the character of the crime and ......
  • Town of East Longmeadow v. State Advisory Com'n
    • United States
    • Appeals Court of Massachusetts
    • 8 Diciembre 1983
    ...very nature not final, no matter what the SAC called it. See Marlborough Hospital v. Commissioner of Public Welfare, 346 Mass. 737, 738, 346 N.E.2d 737 (1964). An administrative order requiring a subordinate administrative body to reconsider its order is neither final nor appealable. See Po......
  • Request a trial to view additional results
10 cases
  • Jefferson v. State, No. 3-679A180
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Enero 1980
    ...jury was not entitled to review the presentence report. Feggins v. State (1977), 265 Ind. 674, 359 N.E.2d 517; Colvin v. State (1976), 264 Ind. 514, 346 N.E.2d 737, cert. denied (1977), 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765; Pulliam v. State (1976), 264 Page 823 Ind. 381, 345 N.E.2d 2......
  • Brown v. State, No. 376S75
    • United States
    • Indiana Supreme Court of Indiana
    • 16 Marzo 1977
    ...provided with a presentence report. This Court has found this procedure to be constitutionally permissible. Colvin v. State (1976), Ind., 346 N.E.2d 737; Pulliam v. State (1976), Ind., 345 N.E.2d 229. As a result, a jury must of necessity refer to evidence of the character of the crime and ......
  • Jones v. State, No. 2-1276A453
    • United States
    • 2 Abril 1979
    ...with a pre-sentence report. This Court has found this procedure to be constitutionally permissible. Colvin v. State (1976), Ind., 346 N.E.2d 737; Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d 229. As a result, a jury must of necessity refer to evidence of the character of the crime and ......
  • Town of East Longmeadow v. State Advisory Com'n
    • United States
    • Appeals Court of Massachusetts
    • 8 Diciembre 1983
    ...very nature not final, no matter what the SAC called it. See Marlborough Hospital v. Commissioner of Public Welfare, 346 Mass. 737, 738, 346 N.E.2d 737 (1964). An administrative order requiring a subordinate administrative body to reconsider its order is neither final nor appealable. See Po......
  • Request a trial to view additional results

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