Damrell v. State
| Decision Date | 17 August 1976 |
| Docket Number | No. 1--476A63,1--476A63 |
| Parties | Ronald Jay DAMRELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Ronald Jay Damrell (hereinafter Damrell) appeals from the judgment of the trial court entered on the jury's verdict of guilty of committing the crime of theft from the person. 1
We affirm.
The facts necessary for our disposition of this appeal are as follows: On February 20, 1975, at approximately 7:30 P.M., Damrell went to the Richmond police station, having heard they were looking for him concerning an alleged robbery committed on February 6, 1975.
The victim of the robbery, Gerald Sanders, testified that early in the morning of February 6, 1975, he offered to drive a man home whom he had met at Jenning's Restaurant. He further testified that the man pulled out a 'shiny object' and demanded his money. The passenger got away with approximately $180.00. Sanders Vera Damrell, ex-wife of defendant, went to the police station around 5:50 P.M. on February 20, 1975, and told them that Damrell, her ex-husband, had admitted to her that it was he who had robbed Sanders.
was unable at trial to identify Damrell as the man who had robbed him.
Following Damrell's arrival at the police station he was placed under arrest. Subsequently, he signed a 'Waiver of Rights Form' and gave a confession. Damrell's confession was challenged as involuntary during a Motion to Suppress and was objected to at trial.
1. Whether the trial court correctly overruled Damrell's objection to the testimony of his former wife.
2. Whether the trial court correctly overruled Damrell's Motion to Suppress his written confession and objection to the waiver of rights form.
3. Whether the trial court correctly refused defendant's tendered instruction on confessions.
4. Whether the jury's verdict is supported by sufficient evidence.
Damrell argues that the trial court erred in admitting over his objection of privileged communication testimony from his ex-wife Vera.
The record discloses that Damrell and Vera were divorced on January 17, 1975. The crime was perpetrated on February 6, 1975, and Vera's testimony reveals that damrell's inculpatory statements were made to her on February 6, 1975, at approximately 5:00 P.M.
IC 1971, 34--1--14--5, Ind.Ann.Stat. § 2--1714 (Burns 1946 Repl.) provides in relevant part the following:
'The following persons shall not be competent witnesses:
Sixth. Husband and wife, as to communications made to each other.' (Our emphasis.)
Damrell urges us to engraft an exception to this rule by holding that communications made between ex-spouses, who are living together with a possible eye toward reconciliation, should likewise be entitled to assert the privilege. We can see no reason in policy, or in our reading of existing Indiana cases on the husband-wife privilege, to extend the rule to that degree urged upon us by Damrell. We hold that inculpatory statements made between ex-spouses after their relationship has been terminated by divorce does not fall within the husband-wife privilege as stated in IC 1971, 34--1--14--5, supra.
Damrell argues that the trial court committed reversible error by overruling his Motion to Suppress his confession because it was involuntary, and his objection to the State's Waiver of Rights form because the State allegedly did not lay a proper foundation.
Since both parts of Damrell's Issue Two have common roots, whether the confession was knowingly and intelligently given, viewing the totality of the circumstances, we shall deal with both parts in one discussion.
The relevant circumstances surrounding Damrell's confession were as follows: Damrell, on direct examination, testified that the day he went to the Richmond police station he had been drinking heavily and had taken four speed pills at approximately 2:30 P.M. He testified that he was not given his Miranda warnings before Detective Tyra began interrogating him On cross-examination Damrell testified that he was not intoxicated, but was under the influence of drugs. He testified that he understood what Detective Tyra was saying to him. He testified that it was his signature which appeared on the Waiver of Rights, and it was possible that Detective Tyra had read it to him. He testified that he had consumed most of the liquor and all of the drugs prior to 2:30 P.M. on February 20, 1975, and he gave the statement around 8:20 P.M. of the same day. He initialled his confession four times to indicate the mistakes which had been made. Damrell further testified that Detective Tyra read his statement back to him before he signed it.
about the crime. Damrell also testified that he was not sure whether he signed a Waiver of Rights before making [170 Ind.App. 260] his statement, and Detective Tyra told him that he had a recording whereby his ex-wife, Vera, stated that he had committed the crime. Damrell further testified that Detective Tyra said he would 'burn him' unless he told how he had committed the crime.
Detective Tyra testified that Damrell was given a copy of Miranda warnings which were read to him and he signed, after indicating that he had no questions. He testified that Damrell had no problems communicating with him and his coordination was fine. He testified that he did inform Damrell about the statement his exwife Vera had made, and it was possible that this evidence would be sufficient to burn him. He further testified that Damrell's statement was read back to him in the presence of Lieutenant Goodwin and he signed it. Detective Tyra further testified that following Damrell's statement he told him he would check with the prosecutor to try and determine what the charge against him would be.
IC 1971, 35--5--5--1 (Burns Code Ed.) provides:
Some of the factors which a trial court is free to consider in resolving the issue of voluntariness are listed in IC 1971, 35--5--5--2 infra:
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