Ferry v. State

• Decision Date: 14 September 1983
• Docket Number: No. 1182S429,1182S429
• Parties: Raymond Clark FERRY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

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.

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 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 not want to talk to police without an attorney being present. Only if the accused initiates a second contact with police after earlier stating that he did not want to talk to them without invoking the right to counsel can the waiver of the right at the second or later interrogation be of any effect. Id.

Appellant points out the evidence in this case is undisputed that all the interrogations were police initiated. There is no evidence in the case at bar appellant ever told police he did not want to talk to them without an attorney being present. Rather, each time he was informed of the right to counsel he waived the right. Appellant gives Edwards, supra, an overly broad reading in construing it to stand for the proposition that police are limited to initiating only one contact with the accused for interrogation purposes.

Appellant challenges the ruling on voluntariness of the statements on ground he was "mentally and emotionally subnormal" at the time the statements were made, and thus the statements were not the products of a rational intellect, nor can it be said he knowingly and intelligently waived the right to counsel. See, e.g., Kern, supra; Lonson v. State, (1980) Ind., 406 N.E.2d 256. The factual basis for this claim is that the record shows appellant was found to be incompetent to stand trial in February of 1981, and that intelligence tests given to him at various times showed he had a "borderline I.Q." of between 71 and 79.

Appellant's contentions in this regard are unpersuasive. He overlooks the rule that in reviewing the trial court's ruling on admission of a statement by the accused made during custodial interrogation we consider only the evidence most favorable to the State to see if the burden of proof of voluntariness beyond a reasonable doubt was met. Kern, supra; Bumgardner, supra. Testimony from FBI agent Scigalski and also United States Deputy district attorney Gary Shapiro who talked to appellant before he appeared before the grand jury provided substantial evidence from which the trial court could have concluded appellant's statements and his waiver of the right to counsel were not due to inherent or extraneous impairment of his mental faculties. These witnesses testified generally that on each occasion they spoke with appellant he appeared coherent and rational, uninfluenced by drugs or alcohol, that he was not violent, hysterical, or mute, that he was in their opinion legally sane, and that he orally expressed his understanding of the right to counsel and his wish to waive it in addition to signing waiver forms. Appellant's contention that the fact he was found to be incompetent to stand trial as of January, 1981, compels the inference that this same mental state was operative approximately three months earlier when he gave the statements is not persuasive. The state of mind respecting the defendant's competency to stand trial is recognized as subject to change over time. See Malo v. State, (1977) 266 Ind. 157, 361 N.E.2d 1201. See also I.C. Sec. 35-5-3.1-2 [...