Eliacin v. State, 474S87
Decision Date | 01 April 1975 |
Docket Number | No. 474S87,474S87 |
Citation | 263 Ind. 119,325 N.E.2d 201 |
Parties | Paul Emanuel ELIACIN, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by indictment with the offense of second degree murder. A trial by jury resulted in a verdict of guilty as charged. Appellant was sentenced to imprisonment for fifteen (15) to twenty-five (25) years.
The record discloses the following facts: At about 6:00 P.M. on July 16, 1973, Calvin Anderson, Ronald Porter and Leonard Frye were standing in front of 402 Lincoln Avenue in Evansville, Indiana. Appellant approached the 3 men with a pistol in his hand and asked Anderson about some money which he claimed was owed to him. At this point, Appellant fired the pistol into the ground. Appellant continued to ask for the money, stepped back a few feet, raised the pistol and fired again. This shot hit Anderson above the right eye and he collapsed. Anderson was taken to a hospital where he died of the injuries about 10:00 P.M.
The Appellant voluntarily submitted to the custody of the Evansville City Police Department during the evening of July 16, 1973. After being informed of his constitutional rights, Appellant gave and signed a written statement confessing to having shot Anderson. The confession was admitted at trial over Appellant's objection.
During the deputy prosecuting attorney's final argument, Appellant's counsel moved for a mistrial based upon the deputy prosecutor's statemetns. The court admonished the jury and overruled the motion for mistrial.
Appellant first claims the trial court erred in admitting into evidence State's Exhibits Nos. 8 and 9, which were a waiver of his constitutional rights and a written confession signed by the Appellant. It is Appellant's position that the trial judge should consider circumstances surrounding the giving of the confession to determine whether it was voluntarily given. Appellant urges that he was only eighteen (18) years old at the time; that he did not understand English adequately; that he did not have the assistance of counsel and that the police were holding his finance for the same offense.
The record indicates that about 10:00 p.m., Appellant walked into the police station. He was taken to Detective Baggerly, who placed him under arrest for assault and battery with intent to kill and advised him of his constitutional rights. At that time Appellant stated that he understood his rights and asked to talk to his fiance , Miss Gulley, who was being questioned at that time. Appellant was informed that she was unavailable at the moment, but that he could talk to her in a few minutes. While Miss Gulley's statement was being notarized, Detective Baggerly again advised Appellant of his constitutional rights. Appellant signed a waiver and gave his statement. Before signing the statement, he was allowed to see Miss Gulley.
Detective Baggerly testified that Appellant answered questions intelligently and gave no indication that he could not understand the questions. He further testified that no threats or promises had been made to encourage Appellant to confess. It is apparent from the record that the trial court did consider the circumstances surrounding the confession in determining that the confession was voluntarily given.
This Court has repeatedly stated that on appeal we may not weigh the evidence, but must determine its sufficiency as a matter of law. Hash v. State (1973), 259 Ind. 683, 291 N.E.2d 367, 34 Ind.Dec. 635.
Appellant's reliance on Hall v. State (1971), 255 Ind. 606, 266 N.E.2d 16, 24 Ind.Dec. 439, for the proposition that the questioning and detention of Miss Gulley made his confession involuntary as a matter of law is not well founded. In Hall the police threatened to charge Hall's wife with the same crime with which he had been charged. There the Court stated:
'(W)hen the threat to so charge and attempt to convict is made by police officers to 'encourage' the appellant to make a full confession, we cannot say as a matter of law that the confession is given freely and voluntarily by the appellant.'
255 Ind. at 611, 266 N.E.2d at 19.
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.
Appellant next claims the trial court erred in not declaring a mistrial because of statements made by the deputy prosecuting attorney. During his summation to the jury, the deputy prosecuting attorney stated: 'This crime is probably one of...
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...references to his personal experience ("I have never been involved . . . (with) as much outright perjury. . . ."). Eliacin v. State, (1975) 263 Ind. 119, 325 N.E.2d 201. But given the context of this remark the likelihood that the jury would have understood it as a personal expression of op......
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