Douglas v. State, 1183S407

Decision Date06 August 1985
Docket NumberNo. 1183S407,1183S407
Citation481 N.E.2d 107
PartiesMark Steven DOUGLAS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

William F. Carroll, Carroll & Donaldson, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from a conviction for attempted robbery, a class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1985 Repl.) and Ind.Code Sec. 35-41-5-1 (Burns 1985 Repl.). This case was tried before a jury. Defendant-appellant was sentenced to a thirty-year term of imprisonment.

Appellant raises four issues on appeal: (1) whether there was evidence independent of his confession which established the corpus delicti; (2) whether appellant's waiver of rights was effected in accordance with the required procedural safeguards; (3) whether appellant's waiver and confession were made voluntarily and intelligently; (4) whether imposition of a thirty-year presumptive sentence constitutes cruel and unusual punishment.

These are the facts which tend to support the determination of guilt. On November 13, 1982, appellant and an accomplice went to Lowell Fitch's home and asked to see Chris Hych, the son of Fitch's cohabitating fiancee. When Fitch responded that Chris did not live there anymore, appellant pulled out a sawed-off shotgun. Even though Fitch tried to slam the door shut, appellant managed to fire two shots. Fitch received injuries to his right hand and left shoulder.

Donna Evans, the daughter of Fitch's fiancee, Janet Hych, was at her mother's home the night of the incident. While appellant and accomplice were talking to Fitch, Evans watched through the window and saw appellant clearly. Evans ran to the bedroom where Fitch kept his gun collection and grabbed a shotgun. She then ran out of the house after the boys and fired one shot. Evans later identified appellant in a photographic array and in court.

I.

Appellant argues that the trial court erred by admitting his confession prior to the State establishing the corpus delicti of attempted robbery. He maintains that the State did not present any evidence, independent of his confession, which established the element of intent to take property from Fitch.

To establish the corpus delicti for the purpose of admitting into evidence a confession, this Court has required independent evidence of (1) the occurrence of the specific kind of injury and (2) somebody's criminal act as the cause of the injury. Cambron v. State (1975), 262 Ind. 660, 322 N.E.2d 712. The quantum of corpus delicti evidence which is required to render a confession admissible has been established previously by this Court. The State does not have to present a prima facie case as to each element of the crime charged or prove each element of the crime charged beyond a reasonable doubt before a confession is admissible. Fleener v. State (1980), 274 Ind. 473, 412 N.E.2d 778. Independent evidence from which an inference may be drawn that a crime was committed is sufficient to show corpus delicti. Jones v. State (1969), 253 Ind. 235, 252 N.E.2d 572. Moreover, the State is not required to prove the corpus delicti by independent evidence prior to the admission of a confession, provided the totality of independent evidence presented at trial establishes it. Evans v. State (1984), Ind., 460 N.E.2d 500.

The totality of independent evidence presented by the State must therefore establish that someone knowingly or intentionally took a substantial step toward taking property from Fitch, by using or threatening force, and this act resulted in serious bodily injury to Fitch. Ind.Code Sec. 35-42-5-1 and Ind.Code Sec. 35-41-5-1.

Prior to introducing appellant's confession, the State presented evidence which established the necessary quantum of proof for the elements of force, bodily injury, and identification of appellant as the perpetrator. Fitch testified that when he tried to shut his door, appellant discharged his sawed-off shotgun at Fitch. The resultant injuries sustained by Fitch to his right hand and left shoulder required hospitalization and therapy. Surgery was also necessary to implant a plastic joint in his index finger. The co-defendant's confession identified appellant as the boy who shot Fitch. In addition, Evans clearly saw appellant during the commission of the crime. She identified appellant both prior to trial from a police photographic array and in court.

The challenged element of intent was clearly established from the totality of independent evidence presented by the State. The co-defendant's confession, which was admitted prior to appellant's confession, recounted a conversation which appellant and co-defendant had when they were in Boys School. Appellant had asked co-defendant whether he knew anyone who had "a lot of guns and nice things in his house." Co-defendant responded by telling appellant about Fitch's home. After appellant's confession was admitted, the co-defendant testified that appellant's question regarding guns was made during a conversation about burglaries. The co-defendant maintains that his role was limited to showing appellant where Fitch resided. More importantly, Zak Hooper testified that he was with co-defendant on November 13, 1982, when co-defendant was walking with appellant en route to show appellant Fitch's house. Hooper testified that appellant was not only carrying a sawed-off shotgun, but expressly stated his intention to rob Fitch. The totality of independent evidence presented by the State established the corpus delicti of attempted robbery. There was no error in admitting appellant's confession.

II.

Appellant, who is a juvenile, does not challenge the substantive content of his Miranda advisements. He does argue, however, that his waiver of constitutional rights was not effected in accordance with the required Lewis procedural safeguards. Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138. Appellant contends that the following five errors rendered his waiver invalid: (1) the parental consultation occurred and the waiver was signed after appellant gave his oral statement to the police; (2) there was no evidence that appellant was afforded a private consultation beyond the influence of the police; (3) a ten-minute parental consultation is inadequate; (4) the father's advice was not in appellant's best interest; and (5) Lewis requires both parents attend the consultation.

To ensure that a juvenile's waiver of constitutional rights is voluntary, Lewis prescribed the procedural safeguards to be followed by the police. First, both the juvenile and the parent or guardian must be informed of the right to an attorney and the right to remain silent. Second, the juvenile must be given a meaningful opportunity to consult with his parent, guardian or attorney about the waiver decision. A meaningful opportunity for the parent-juvenile consultation requires timeliness: pursuant to Lewis, the consultation must occur after the advisement of rights but prior to the decision to execute a waiver and make a statement. To be meaningful, the consultation must be held in the absence of pressures which result from police presence. Hall v. State (1976), 264 Ind. 448, 346 N.E.2d 584.

Where admissibility of a juvenile confession is challenged, it is the State's burden, at the suppression hearing, to prove defendant made a knowing and intelligent waiver of his rights. To determine whether the State has met its burden, we consider evidence which supports the decision of the trial court respecting contested evidence and any uncontested evidence presented by appellant. Garrett v. State (1976), 265 Ind. 63, 351 N.E.2d 30. The same standard controls when the issue is procedural safeguards. Based upon this standard, these are the facts pertinent to this issue. On December 17, 1982, the investigating police officers called appellant's parents to inform them that appellant was arrested but only the father came to the police station. The police explained to appellant's father the possibility of adult, criminal charges being filed against his son and of the case being waived to felony court. When the father conversed with appellant he advised his son of the distinct possibility of criminal charges.

The police advised appellant of his rights in the presence of his father and prior to the private, father-son consultation....

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