Eliacin v. State

• Decision Date: 27 September 1978
• Docket Number: No. 1177S792,1177S792
• Citation: Eliacin v. State, 380 N.E.2d 548, 269 Ind. 305 (Ind. 1978)
• Parties: Paul E. ELIACIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 548

380 N.E.2d 548

269 Ind. 305

Paul E. ELIACIN, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 1177S792.

Supreme Court of Indiana.

Sept. 27, 1978.

Harriette Bailey Conn, Public Defender, Jewell K. Smith, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner(Appellant) is before this Court appealing the denial of his petition for post conviction relief, Post Conviction Remedy Rule 1.He was originally charged with and convicted of second degree murder, Ind. Code § 35-1-54-1(Burns 1975), in a trial by jury, and sentenced to an indeterminate term of not less than fifteen (15) nor more than twenty-five (25) years imprisonment.His conviction was affirmed by this Court on direct appeal.Eliacin v. State, (1975)263 Ind. 119, 325 N.E.2d 201.On appeal from the denial of his petition, he presents the following issues for review.

(1) Whether the waiver of rights and the subsequent confession were the products of psychological coercion, and thus involuntary and inadmissible as evidence.

(2) Whether the petitioner was deceived when he confessed to the charge of assault and battery with intent to kill, which charge was later changed to murder upon the death of the victim, thereby rendering his confession involuntary.

ISSUE I

On direct appeal to this Court, the petitioner raised the issue of whether or not his waiver of rights and confession were voluntarily given.We there held at 263 Ind. 122, 325 N.E.2d 203:

"In the case at bar, however, no threats or promises were made.The evidence of the circumstances surrounding Appellant's confession supports the trial court's determination that the confession was freely and voluntarily given.We therefore hold there was no violation of the Appellant's constitutional rights and that the trial court did not err in permitting the waiver and the statement of the Appellant in evidence."

The petitioner here argues that his confession was induced by psychological coercion, and therefore involuntary.The argument is based upon the same factors upon which his direct appeal was premised and, having already been adjudicated, is now unavailable.Post Conviction Remedy Rule 1, § 8;Prophet v. State, (1974)262 Ind. 312, 315 N.E.2d 699.

The petitioner acknowledges that the issue of "voluntariness" was litigated previously but claims entitlement to a second review, because his earlier claim did not present the issue of psychological coercion.We disagree, notwithstanding that the trial judge believed him to be so entitled.If the confession was coerced, it was not voluntary, and this is so without regard to the nature of the coercion.The issue previously litigated was whether or not the confession was voluntary, and it was incumbent upon the petitioner, in those proceedings, to support his claim with all evidence then known or reasonably ascertainable that bore upon the issue.

Further, the petitioner's charge that the psychological coercion claim was not raised on direct appeal does not appear to be tenable.The alleged coercion was the police refusal to permit the petitioner to talk to his fiance, Miss Gulley, whom they were detaining, until he gave a statement.Our opinion on the direct appeal expressly reflects that when the petitioner asked to talk to Miss Gulley, he was informed that she was not then available but that he could talk to her in a few minutes.No condition was attached to the grant of his request.

Petitioner also claims the trial judge's finding that he, the petitioner, was allowed to talk to his fiance before he signed the statement was contrary to his uncontradicted testimony.This does not appear to be correct.The testimony was that he did not talk to Miss Gulley until after he Gave the statement.The sequence of events was that he gave his statement, talked to his friend while the statement was being typewritten and then signed that statement.

ISSUE II

Under this assignment, the petitioner is, in essence, raising new grounds upon which to base the same error raised in Issue I, the admission of his confession into evidence.These grounds were available to the petitioner at the time of his first appeal.Having elected not to...