Drew v. State, 984S342

• Decision Date: 10 February 1987
• Docket Number: No. 984S342,984S342
• Citation: 503 N.E.2d 613
• Parties: Lee E. DREW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 613

503 N.E.2d 613

Lee E. DREW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 984S342.

Supreme Court of Indiana.

Feb. 10, 1987.

Richard E. Beers, Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Appellant-defendant Lee E. Drew appeals from a conviction for felony murder ¹ and burglary, ² both class A felonies. Defendant raises three issues on appeal:

1. effect of promises by prosecutor upon voluntariness of resulting confession;

2. denial of mistrial and admonishment following juror outburst and replacement; and,

3. sufficiency of evidence.

On October 3, 1983, the Fort Wayne Police initiated an investigation of a burglary/homicide at the home of 87 year-old Robert Smith. Smith's house was in great disarray and his body was discovered in a bedroom with two large-caliber gunshot wounds in the chest. In the course of that investigation, Detective Marshall "Mitch" Eby contacted the defendant, a prior paid informant for Eby, requesting the defendant's help in gathering information about the possible murder weapon, a .44 caliber revolver which Eby believed may have been stolen by the murderers during an unrelated burglary. A few days later, the police acquired information from a witness to a conversation among the defendant, John Phillips, and Brice Littlejohn which implicated the defendant in the burglary/homicide. On the morning of October 13, 1983, Eby and another detective brought the defendant in for questioning.

The detective explained to the defendant his Miranda rights and the defendant signed a waiver. Defendant expressly refused presence of counsel. Defendant initially denied any involvement with the crime and claimed he was at his brother's home on the night of the murder. Eby then told defendant that a witness had overheard defendant discussing details of the crime with two others. Defendant then admitted the conversation but continued to deny any direct involvement with the crime. Defendant maintained that he could not have been involved because he was at his girl friend's house the night of the murder.

Eby continually accused the defendant of lying and explained to the defendant the penalties for felony murder, including the death sentence. Eby also told the defendant that if he would cooperate with the investigation, Eby would "go to the wall" for defendant, implying that he would attempt to intervene on defendant's behalf with the prosecutor. After Eby stated to another detective, in defendant's presence, that the defendant would be charged with the crime, the defendant became upset and inquired what kind of "deal" he could make and how much help Eby could provide. Defendant indicated that he had knowledge of material facts surrounding the crime, but he did not clearly indicate the extent of his involvement. Eby explained that the prosecutor had the sole authority to make any "deal" with the defendant, whereupon defendant requested to speak with the prosecutor.

Eby contacted Allen County Prosecutor Stephen Sims. Through Eby, Sims offered defendant an opportunity to avoid imprisonment. Sims offered to withhold prosecution of the defendant on the burglary/homicide charge and to acquire for the defendant suspended sentences for other charges pending against the defendant. In exchange, defendant was required to provide a full and truthful videotaped statement of all relevant events, testify against all others involved in the crime, and pass a polygraph test. The detectives carefully explained the agreement to defendant, and defendant proceeded to relate the details of his conversation with Phillips and Littlejohn and the events which occurred on the night of the murder. Defendant gave a full confession of his involvement in the crime and then submitted to a videotaped statement which again included express waivers of his right to silence and counsel. Defendant subsequently withdrew his willingness to testify against the others, and the present prosecution resumed.

ISSUE I

Defendant contends that the trial court erred in admitting his confession, and argues that the statement was involuntary because it was coerced by the State's promise of immunity and suspended sentences on other charges.

Admissibility of a statement or confession is controlled by determining from the The record indicates that Detective Eby and the defendant appeared to have a friendly relationship, had known each other for a considerable time, and had cooperated with each other on previous occasions. Although defendant was only nineteen years old, he had numerous prior experiences with police officers and customary police procedures. It is uncontroverted that defendant understood and voluntarily waived his Miranda rights. Detective Eby interrogated the defendant for approximately one hour before defendant gave his full confession. During the course of interrogation, defendant requested, and was granted, the opportunity to converse with Eby alone. Eby testified that defendant never requested presence of counsel.

totality of the circumstances whether or not the confession was given voluntarily and not through inducement, violence, threats or other improper influences so as to overcome the free will of the accused. Massey v. State (1985), Ind., 473 N.E.2d 146; Anderson v. State (1984), Ind., 466 N.E.2d 27. We review the question on appeal as we do other sufficiency matters. We do not reweigh the evidence, but rather determine whether there was substantial evidence of probative value to support the trial court's finding. Massey v. State, supra; Long v. State (1981), Ind., 422 N.E.2d 284.

While interrogating the defendant, Detective Eby explained the penalties for felony murder and that the death penalty was possible under the facts of this case. We have previously held that an explanation of possible penalties is an insufficient "inducement" to render a confession involuntary. Mitchell v. State (1983), Ind., 454 N.E.2d 395. In the context of the interrogation in the instant case, we do not view Eby's statements as "threatening", nor do we sense that the explanation induced the confession. Further, we do not view Eby's statement about charging the defendant with the crime as a threat which would render defendant's confession involuntary. There had been no indication at that time that Detective Eby or anyone else implied that defendant's confession or cooperation would preclude his prosecution. While defendant argues that Eby's statements implied that Eby would intervene on defendant's behalf with the prosecutor, Eby made it clear that he had no authority to make any "deal." We have held that indefinite statements by police such as "seeing what they can do for him," to "help in every way he could," or it would "be in his best interest to tell the whole story" are insufficient inducements to render a subsequent confession inadmissible. Long v. State, supra; Turpin v. State (1980), 272 Ind. 629, 400 N.E.2d 1119; Ward v. State (1980), Ind.App., 408 N.E.2d 140.

Detective Eby testified that immediately following his statement that defendant would be charged with the crime, the following transpired:

Eby: And Lee got kind of shook. I thought for a minute he might even be going to cry. His eyes got a little watery. And he said, "Mitch, how much trouble am I in?" And we explained to him, you know, I explained to Lee that this is not a little house burglary situation like he'd been involved in before.

Q What happened next?

A He wanted to know if I could help him. I told him that I couldn't help him. I told him that I--that there was nobody could help him except Mr. Sims. I told him that Stephen Sims was the Prosecutor of Allen County and I think I even used the terminology that right now the only man that's God in his life was Mr. Sims. Nobody could help him, not even the Pope.

Q Had he admitted any involvement in the burglary/homicide at this point in time?

A No.

Q Well, what happened then?

A Then he said, "Well, I want to talk to Mr. Sims." And I said, "Why?" I said, "Are you ready to make a statement?" And he nodded his head that he was. I said, "Are you involved?" And he just set there going like this Q Now for the record, are you shaking your head yes or not?

(witness shakes head indicating affirmative). I said, "Lee,--"

A Yeah, he had his head kind of buried down. He was shook at this time. I mean, he was, to me, remorseful. He was scared.

Q Had he been yelled at?

A No, no.

Q Had you been threatening him, Mitch?

A No.

Q Making any promises?

A No.

Q So he's got his head down and, for the record, did he shake his head yes or no when you asked him if he was involved?

A I'm going to say it was a yes. He was like this (demonstrating) at the table. He had his elbows on the table and he done one of these numbers--one of these things here (demonstrating), so I'm going to say that he--

MR. BEERS: Excuse me, Your Honor. I'm going to object. I don't know that we want this gentleman to speculate.

COURT: Objection sustained as to his--he's already demonstrated to the jury what he--and what he's going to say is obviously subject to being stricken and the jury is instructed to disregard his interpretation. You've seen him demonstrate and you'll have place your own interpretation on it.

Q So after he made his head move and he had said, "Yes, I'm involved," to your question?

A Well, we're at an assumption again.

Q Okay. Did he make any statement to you about what he could give you or anything like that?

A I asked Lee, I said, "What can you give?" And he said, "I can give you the whole thing."

Q Did he say anything else other than, "I can give you the whole thing?"

A No, that was as far as it went. He wanted to see Mr. Sims.

The trial court overruled defendant's motion to suppress "all communications, confessions, statements and admissions" made by the...