Ferry v. State, No. 1182S429

Docket NºNo. 1182S429
Citation453 N.E.2d 207
Case DateSeptember 14, 1983
CourtSupreme Court of Indiana

Page 207

453 N.E.2d 207
Raymond Clark FERRY, Appellant,
v.
STATE of Indiana, Appellee.
No. 1182S429.
Supreme Court of Indiana.
Sept. 14, 1983.

Page 209

David W. Weigle, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant was charged with knowing or intentional murder, as defined in I.C. Sec. 35-42-1-1(1) [Burns 1979 Repl.], and felony murder, as defined in I.C. Sec. 35-42-1-1(2) [Burns 1979 Repl.]. He was found guilty by a jury on both counts. The court imposed a sentence of fifty-eight years on Count I only.

The facts are these. Appellant and two accomplices, Tom Urcan and Rocco Lupino, planned to rob a wholesale jewelry salesman, the decedent, one Giovanni Macaddino. Urcan was the owner of a jewelry store in Dyer and was expecting Macaddino to visit the store on the evening of May 9, 1980, carrying a large quantity of jewelry. On that evening and according to plan, appellant and Lupino burst into the store after Macaddino had entered it, brandishing firearms and feigning a robbery. Appellant handcuffed Macaddino and took him into a back room where he then strangled Macaddino to death with a sock. Lupino disposed of the body, but shortly thereafter he and appellant decided it needed to be moved. Appellant suggested the body be buried in some land owned by his father in Grayson County, Kentucky. Accordingly, the pair drove to Kentucky in separate cars. Lupino buried the body in a location pointed out to him by appellant. The body was discovered by a tenant farmer renting some land from appellant's father.

Appellant was eventually arrested by Illinois authorities for another crime and was incarcerated in Chicago. The record does not show when this arrest occurred, but appellant was in jail by August of 1980. By that time federal authorities had already become involved in the investigation into the murder of Macaddino, suspecting a connection between the crime and some federal violations, including interstate transportation of stolen property and some racketeering offenses. Also, it was by that time learned appellant's father was the owner of the land on which Macaddino's body was found. Additionally, an associate of appellant's had implicated him in Macaddino's murder.

Appellant claims the trial court erred in denying his Motion to Suppress his statements made to FBI agents while he was in jail in Chicago and also his testimony before a federal grand jury, and in admitting those same statements into evidence at his trial over his objection. The record shows FBI agents conducted custodial interrogations of appellant on seven occasions between August 21 and October 2, 1980. Appellant's statements were made during the first of these interviews on August 21 and the last one on October 2. These statements were reduced to writing and corrected and signed

Page 210

by appellant. These written statements were admitted into evidence at appellant's trial. In the August 21 statement appellant related the planning of the robbery and the murder of Macaddino. He named Lupino as the actual perpetrator of the homicide. In the October 2 statement, however, he verified as accurate all of the August 21 statement but admitted it was he, not Lupino, who strangled Macaddino. At the grand jury hearing, a transcript of which was admitted into evidence at his trial, appellant admitted to the same facts as he had admitted to the FBI agents in the statement of October 2.

The basic requirement for admitting the defendant's statements made to police during a custodial interrogation is that such statement must have been voluntarily made as the product of a rational intellect and a free will, without compulsion or inducement of any sort serving to overbear the will of the accused. Taylor v. State, (1980) Ind., 406 N.E.2d 247; Brewer v. State, (1979) 271 Ind. 122, 390 N.E.2d 648. All the circumstances surrounding the making of the statement are to be considered in determining the voluntariness of the statement. Bumgardner v. State, (1981) Ind., 422 N.E.2d 1244; Turner v. State, (1980) Ind., 407 N.E.2d 235; Brewer, supra.

The State bears the burden of proving the voluntariness of the statement beyond a reasonable doubt. Kern v. State, (1981) Ind., 426 N.E.2d 385. Bumgardner, supra.

Appellant first challenges the court's ruling on the grounds the evidence showed the statements were made outside the presence of the attorneys who were representing him at the time they were made and without notice to them that the interviews were being conducted. Appellant cites Kern, supra, for the proposition that custodial interrogation of the accused without notice to counsel having been given is a significant factor weighing against a determination that the statement was voluntary, even if the accused waived the right to have counsel present during the interrogation.

Appellant ignores, however, the overwhelming evidence in the record that not only did he repeatedly waive the right to have counsel present at the commencement of each interrogation session, and also at the commencement of the grand jury hearing, but also that he repeatedly asked that his attorneys not be notified that he was going to be making statements to the FBI and the grand jury. Appellant's wishes in this regard were premised on a belief his attorneys had connections with organized crime, and that if it was known by the organized crime syndicate that he was talking to the FBI, he would be killed to keep him from revealing what he knew about organized criminal activity in northern Illinois and Indiana. Moreover, there was evidence adduced in the suppression hearing that both the FBI agents and the federal deputy district attorney who spoke with appellant before the grand jury hearing offered to have different attorneys consult with him before any interviews would be conducted and also to be present during the interviews, and that he specifically declined this offer as well. There is substantial evidence of probative value to support the trial court's ruling that appellant's statements were voluntarily made.

Appellant's citation to Edwards v. Arizona, (1980) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, is unpersuasive. In that case the Supreme Court held that after an accused has been taken into custody, been advised of his right to counsel and stated he does not wish to be interrogated without counsel present, and then police initiate a second interrogation during which the accused makes an incriminating statement, the statement is inadmissible. The Court held this was so even if prior to the second interrogation the accused manifested a willingness to talk to police without counsel present, contrary to his earlier assertion that he did not want to be interrogated without counsel present. The evil the Court identified was in approaching the accused a second time when after the prior approach he stated he did...

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29 practice notes
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Noviembre 1989
    ...A ruling of the court excusing a juror and elevating an alternate is reviewable for an abuse of discretion. Ferry v. State (1983), Ind., 453 N.E.2d 207. Appellant contends that the failure of the court to place evidence in the record to show that the juror was physically unable to continue ......
  • People v. Cipriano, Docket Nos. 77682
    • United States
    • Supreme Court of Michigan
    • 1 Junio 1987
    ...evaluating the overall voluntariness of the confession. 11 See, for example, State v. Newnam, 409 N.W.2d 79 (ND, 1987); Ferry v. State, 453 N.E.2d 207 (Ind, 1983); People v. Goree, 115 Ill.App.3d 157, 70 Ill.Dec. 869, 450 N.E.2d 342 (1983); People v. Harris, 28 Cal.3d 935; 171 Cal.Rptr. 679......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Marzo 1989
    ...into evidence unless its tendency to inflame the passions of the jury clearly outweighs its relevancy. Ferry v. State (1983), Ind., 453 N.E.2d 207; Askew v. State (1982), Ind., 439 N.E.2d 1350. Although the photo may depict gory, revolting or inflammatory details of the crime, this is not, ......
  • Lowery v. State, No. 483S116
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Junio 1985
    ...v. State, (1982) Ind., 441 N.E.2d 438. The admissibility of a photograph is dependent upon its relevancy. Ferry v. State, (1983) Ind., 453 N.E.2d 207. Admittedly, many of these photographs are gruesome. They are photographs of the scene of the murders, including the bodies of the victims. S......
  • Request a trial to view additional results
29 cases
  • Woods v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Noviembre 1989
    ...A ruling of the court excusing a juror and elevating an alternate is reviewable for an abuse of discretion. Ferry v. State (1983), Ind., 453 N.E.2d 207. Appellant contends that the failure of the court to place evidence in the record to show that the juror was physically unable to continue ......
  • People v. Cipriano, Docket Nos. 77682
    • United States
    • Supreme Court of Michigan
    • 1 Junio 1987
    ...evaluating the overall voluntariness of the confession. 11 See, for example, State v. Newnam, 409 N.W.2d 79 (ND, 1987); Ferry v. State, 453 N.E.2d 207 (Ind, 1983); People v. Goree, 115 Ill.App.3d 157, 70 Ill.Dec. 869, 450 N.E.2d 342 (1983); People v. Harris, 28 Cal.3d 935; 171 Cal.Rptr. 679......
  • Games v. State, No. 185
    • United States
    • Indiana Supreme Court of Indiana
    • 14 Marzo 1989
    ...into evidence unless its tendency to inflame the passions of the jury clearly outweighs its relevancy. Ferry v. State (1983), Ind., 453 N.E.2d 207; Askew v. State (1982), Ind., 439 N.E.2d 1350. Although the photo may depict gory, revolting or inflammatory details of the crime, this is not, ......
  • Lowery v. State, No. 483S116
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Junio 1985
    ...v. State, (1982) Ind., 441 N.E.2d 438. The admissibility of a photograph is dependent upon its relevancy. Ferry v. State, (1983) Ind., 453 N.E.2d 207. Admittedly, many of these photographs are gruesome. They are photographs of the scene of the murders, including the bodies of the victims. S......
  • Request a trial to view additional results

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