Drake v. State

• Decision Date: 29 November 1977
• Docket Number: No. 1-377A53,1-377A53
• Citation: Drake v. State, 369 N.E.2d 941, 174 Ind.App. 646 (Ind. App. 1977)
• Parties: Marilyn DRAKE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 941

369 N.E.2d 941

174 Ind.App. 646

Marilyn DRAKE, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 1-377A53.

Court of Appeals of Indiana, First District.

Nov. 29, 1977.

Richard L. Wilder, Bloomington, for appellant.

Theo.L. Sendak, Atty. Gen., Elmer Floyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Chief Judge.

Appellant-defendantMarilyn Drake(Drake) appeals from her conviction in a bench trial of aggravated assault and battery for which she was sentenced to the Indiana Women's Prison for a period of not less than one year nor more than five years and was fined in the amount of $100 plus costs.Drake's sentence was suspended and she was placed on probation for two years.We affirm.

Her arrest upon information and subsequent conviction on the charge grew out of an altercation at the Kirkwood Bar in Bloomington in which one Noble Baugh was stabbed repeatedly by Drake.Though the record does not present a clear picture of the past encounters between Baugh and Drake, it is clear, however, that the two were not on the most pleasant of terms before the incident at issue.Their problems centered about one Viola Brummett who, from all indications in the record, was the object of sexual interests of both Baugh and Drake.

The facts most favorable to the State are as follows:

Drake and Brummett, who shared a house, went to the Kirkwood one afternoon in July, 1975.The two had just ordered beers at a booth when Baugh entered the bar.Baugh nudged Brummett and sat down next to her at the booth.Contemporaneously, Drake either moved from the other side of the booth at which Viola and Baugh were sitting or came from the bar to a position behind Baugh.Thereafter, Drake pulled a knife and began stabbing Baugh.A scuffle ensued between Baugh and Drake which was eventually broken up by other bar patrons.After police arrived, Baugh was taken to the hospital, and Drake was taken to the police station and was questioned after being advised of her Miranda rights.After making a statement, Drake was taken to the hospital for treatment.

Drake raises the following issues for our review:

1.Whether the trial court erred in denying Defendant's Motion to Suppress her tape recorded statement to Bloomington police, such motion being made prior to trial, on grounds that the statement was not voluntary and was made without the presence of counsel.

2.Whether there was sufficient evidence to support conviction in light of Defendant's claim of self-defense.

As to the first assertion, Drake argues that her physical and mental condition after the altercation was such that she could not understand the legal rights read to her by a police officer or have voluntarily waived them when she signed a written waiver.

Our Supreme Court in Ortiz v. State (1976), Ind., 356 N.E.2d 1188, 1191, outlined the legal standard to be applied in determining whether a statement was voluntary:

In determining whether a statement was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was "induced by any violence, threats, promises, or other improper influence."Montes v. State (1975), Ind., 332 N.E.2d 786, 792.The same test determines whether a waiver of the Miranda rights has occurred.Nacoff v. State(1971), 256 Ind. 97, 267 N.E.2d 165.The burden is on the State to prove beyond a reasonable doubt the voluntariness of the statement or waiver.Burton v. State(1973), 260 Ind. 94, 292 N.E.2d 790.In reviewing the trial court's ruling on the voluntariness of a statement or waiver, we do not weigh the evidence, but determine whether there is sufficient evidence to support the trial court's finding.Raines v. State(1971), 256 Ind. 404, 269 N.E.2d 378.

The evidence on Drake's condition is conflicting.The record indicates that her hand was cut and did require eight stitches after the fifty-minute interrogation.She also had some scratches on her body, some hair pulled out, and her glasses broken.However, there was testimony by the interrogating police officer that in his opinion Drake's cut on her hand was not serious to the point of requiring immediate hospitalization.

In a case where the evidence on a motion to suppress in a pre-trial hearing was conflicting, our Supreme Court in Lane v. State (1977), Ind., 364 N.E.2d 756, held that as a reviewing court it might not reweigh the evidence and disturb a trial court's findings based upon conflicting evidence.We, therefore, similarly decline to disturb the trial court's finding here.

The evidence as to Drake's alleged request or efforts to contact an attorney is likewise conflicting.Drake testified that prior to questioning she had requested to make a telephone call to contact her attorney.Drake also testified that she did not know the attorney's telephone number and contacted her mother to get the number.Drake alleges that she was unable to reach her attorney.The interrogating police officer testified, however, that he did not recall Drake requesting an attorney, although he did remember Drake having made a telephone call to her mother.He did testify that the phone call by Drake "would have had to have been either before the interview or after the interview."Drake alleges, although providing no authority on point for her proposition, that once she indicated that she wished to consult with an attorney the interrogation should have ceased.We observe that her contention that upon her failure to reach her attorney, the interrogating officer suggested that they should go ahead and take a statement is wholly unsupported by any other evidence in the record.

Moreover, in Ortiz v. State, supra, the court said "(t)he absence of an attorney is but one factor tending to disprove voluntariness, but it is possible for an accused to make a valid waiver without counsel."356 N.E.2d at 1192.The court in Ortiz also said:

If, having been advised of his right to have an attorney present, a defendant chooses to proceed without legal advice to make a statement, in the mistaken belief that the content of the statement is exculpatory, he has made a voluntary statement.356 N.E.2d at 1192.

At the hearing on the motion to suppress, Drake...