Craig v. State
| Decision Date | 16 December 1977 |
| Docket Number | No. 1176S393,1176S393 |
| Citation | 370 N.E.2d 880,267 Ind. 359 |
| Parties | Clifton CRAIG, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Thomas L. Ryan, Deputy Public Defender, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Asst. Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of first degree murder in the commission of a burglary (felony murder), Ind.Code § 35-13-4-1(a) (Burns 1975), repealed October 1, 1977, and second degree murder, Ind.Code § 35-1-54-1 (Burns 1975), repealed October 1, 1977, and sentenced to life imprisonment for the felony murder. On appeal he raises issues under three headings:
(1) Error in the trial court's determination of the admissibility of three statements made by appellant to the police.
(2) Prosecutorial misconduct during closing argument.
(3) Admissibility of a photograph showing the body of the decedent.
On November 16, 1975, the body of Miss Rose DeWood was discovered in her house, which had been ransacked. She had been shot with a .22 caliber weapon. On November 12 appellant had purchased a .22 caliber rifle; on November 15 he was seen carrying a .22 caliber rifle down the street. On the same evening appellant had suggested to a friend that they steal copper from a vacant house. Appellant, the friend, and two others went to Miss DeWood's house. The friend left when he discovered that the house was occupied and that appellant or one of his companions was carrying a rifle. Later in the evening the witness again saw appellant, who told him, "We had to hit the old lady."
On November 19, 1975, while in custody, appellant was interrogated by Detective Russell of the Fort Wayne Police Department, and eventually admitted shooting Miss DeWood.
At trial the State called Detective Russell and sought to elicit testimony describing the confession. The detective related reading appellant a warning of rights and appellant's signing a waiver form. At this point appellant objected and requested that the trial court conduct a hearing, out of the presence of the jury, on the issue of the voluntariness of appellant's waiver of his Miranda rights. The trial court refused the request, instructing appellant to address such evidence and arguments to the jury as trier of fact. Appellant conducted an extensive preliminary examination of Detective Russell. The detective testified that he asked appellant if appellant understood the warning, and that appellant indicated that he did. Apart from having his right hand in a cast, appellant appeared to be physically normal; he did not complain of discomfort, or appear to be intoxicated. His motions and demeanor were normal, and he appeared to be somewhat nervous, but no more so than are most people being questioned about a serious crime. The detective was unaware of any threats or promises made to appellant as inducement to confess. It later appeared from other testimony that appellant subsequently claimed to have made the November 19 statement from fear of reprisals against his wife and children by the real killers.
Appellant made statements to other detectives on November 20 and January 13. These were admitted under similar circumstances. The November 20 confession was sought to be justified by the November 19 waiver. The January 13 statement was generally exculpatory, and its admission is not challenged on appeal. With regard to the November 19 statements, appellant raises three distinct challenges to its admission:
(1) Appellant first contends that on the basis of the evidence adduced in front of the jury, out-lined above, the trial court erred as a matter of law in failing to suppress appellant's confession, because that evidence fails to show a free and understanding waiver of his right to counsel and privilege against self-incrimination. We cannot agree. If Detective Russell's testimony was the sole evidence introduced at a suppression hearing, the trial court could reasonably infer the existence of a valid waiver: the testimony shows adequate warnings and an indication that appellant understood those warnings and wished to waive the rights involved; it shows the absence of inducement and of any indicators that appellant was not able to comprehend his rights or freely determine whether to relinquish them. See Ortiz v. State, (1976) Ind., 356 N.E.2d 1188.
(2) and (3) Appellant also argues that he was entitled to a hearing outside the presence of the jury at which he could present evidence bearing on voluntariness and at which the court would determine whether appellant voluntarily waived his rights. The trial court indicated the belief that the voluntariness of appellant's waiver was a question for the jury, and declined to permit an investigation into the voluntariness of appellant's waiver and confession before admitting the same into evidence. This was error. Appellant was entitled, upon motion, to a hearing outside the presence of the jury at which the trial court determines the voluntariness of his waiver and confession, before the jury is exposed to his confession. Jackson v. Denno, (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Payne v. State, (1976) Ind.App., 343 N.E.2d 325. This right has been codified in Indiana Code § 35-5-5-1 (Burns 1975):
This statute additionally allows the accused to present evidence of involuntariness to the jury after the court has found his confession admissible, a departure from Indiana common law, under which voluntariness was solely a question for the court. Hauk v. State, (1897) 148 Ind. 238, 46 N.E. 127.
The State contends that the "spirit" of the rule was complied with, in that the trial court determined that the waiver and confession were voluntary before admitting them. It does not appear from the record, however, that the trial court ever determined voluntariness; that court's statements indicate an erroneous belief that this question was for the jury:
Even if the trial court's ruling could be construed as an implicit finding of voluntariness, appellant has been deprived of the opportunity to present evidence bearing on the validity of his waiver. He was restricted to questioning the detective on preliminary examination.
In similar circumstances the Third District Court of Appeals has held that the failure to conduct a voluntariness hearing does not require a new trial, but that the case should be remanded to the trial court for an evidentiary hearing on the issue of voluntariness. Payne v. State, supra. We approve this procedure. If appellant is found beyond a reasonable doubt to have executed a valid waiver, the failure to conduct an earlier hearing is harmless error. Otherwise, appellant's conviction must be reversed because of the erroneous admission of appellant's confessions of November 19 and 20.
Appellant objects to four statements made by the deputy prosecutor in closing argument; each will be described and considered separately.
The State had called as its witness one James Dickey, allegedly one of appellant's companions at the shooting. Dickey refused to be sworn and was committed to jail for ninety days for direct contempt of court. In his summation, the prosecutor described the "frustrations of the prosecution in a criminal case," one example of which was Dickey's recalcitrance. He explained that the jury should not consider "his reasons for not testifying or what he would have testified to". Appellant characterizes this comment as an insinuation that had Dickey testified, his testimony would have incriminated appellant. We agree that argument of counsel should not invite the jury to consider matters not in evidence as a basis for their decision. However, we do not construe this remark as such an invitation; the prosecutor, whose witness Dickey was to have been, had a legitimate interest in arguing that no inference adverse to the State's case should be drawn from Dickey's silence. Moreover, the court gave appellant's tendered Final Instruction No. 8, charging the jury to disregard all circumstances connected with Dickey's refusal to testify. Accordingly we cannot find any misconduct which would place appellant in a position of grave peril. See Maldonado v. State, (1976) Ind., 355 N.E.2d 843.
In the same breath as his comment on Dickey's refusal to testify, the prosecutor referred to "the perjured testimony of some of the defense witnesses." Later he spoke of the "perjured testimony of a defense witness." Appellant produced some nine witnesses in his defense; it is unclear to which of these the prosecutor referred.
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