Garrett v. State

• Citation: 265 Ind. 63,351 N.E.2d 30
• Decision Date: 13 July 1976
• Docket Number: No. 575S124,575S124
• Parties: Winfred Lee GARRETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 30

351 N.E.2d 30

265 Ind. 63

Winfred Lee GARRETT, Appellant, v. STATE of Indiana, Appellee.

No. 575S124.

Supreme Court of Indiana.

July 13, 1976.

Rehearing Denied Sept. 13, 1976.

C. T. Kitowski, Michigan City, for appellant.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a conviction for first degree murder following a trial by jury in the St. Joseph Superior Court. The trial took place on December 18, 1974, and was presided over by Judge E. Spencer Walton. Appellant received a sentence of life imprisonment.

Appellant's sole contention on appeal is that the trial court erred in overruling his pre-trial motion to suppress a confession obtained from appellant in violation of appellant's privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. Where as here the admissibility of a confession is so challenged, the State has the burden at the suppression hearing of proving that the defendant made a knowing and intelligent waiver of the rights to remain silent and the right to counsel. Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Mims v. State, (1970) 255 Ind. 37, 262 N.E.2d 638. When the challenged confession is that of a juvenile, in carrying this burden the State must show that the juvenile and his parents or guardian were informed of the right to remain silent and to have counsel, and that the juvenile then waived these rights after an opportunity was granted the child and his parents, guardian or attorney to consult about the rights and the advisability of waiving them. Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138. In Indiana, such a waiver must be shown to have occurred beyond a reasonable doubt. Burton v. State, (1973) 260 Ind. 94, 292 N.E.2d 790; Magley v. State, (1975) Ind., 335 N.E.2d 811.

In determining whether the State has met its burden, '(w)e will consider the evidence which supports the decision of the trier of fact in the case of contested evidence, and any uncontested evidence presented by the appellant.' Magley v. State, supra. Those facts in this case follow.

On January 19, 1974, Elizabeth Carter was found dead in her home of a .22 caliber gunshot wound.

On February 18, 1974, appellant, who lived in a house 150 feet away from that in which Elizabeth Carter lived and was found shot, was taken into custody as a juvenile parole violator and as a suspect in the theft of a .22 caliber pistol from his mother's boyfriend, who lived in the same house as appellant. Appellant was sixteen years old at the time, a mental patient of 'borderline intelligence,' taking daily doses of tranquilizer-type medication on prescription from doctors at a psychiatric hospital. He was functioning as an educable retarded person, reading and writing and communicating in thought patterns and concepts appropriate to the third grade level. According to one psychiatrist whose opinions were submitted in the motion to suppress, appellant viewed himself as worthless 'in a world inimical to his needs,' and was significantly limited in his ability to understand a charge of first degree murder and participate in the defense of that charge. Appellant took his daily dose of medication on February 18, 1974, the date he was arrested, but, thereafter, while in jail, had none of the medicine with him. During the thirty hours in custody prior to making the challenged confession, appellant ate only a hamburger and drank a coke.

On February 18, 1974, at 11:20 a.m., appellant was in the jail and was interrogated about the theft of the gun by two officers. He was read his Miranda rights and said he understood them. He was questioned and provided nothing to aid the prosecution in convicting him. No parent, friend, or relative was present during this advisement of rights and subsequent questioning. Thereafter, in the early afternoon of the same day, appellant's uncle was invited to come to the jail and aid the police in getting appellant to confess. The uncle arrived, but was also unable to extract a confession from appellant. Appellant was returned to his cell at 1:15 p.m.

On the next day, February 19, 1974, appellant was interrogated at the jail, commencing at 1:40 p.m. by two officers, one of whom had participated in the interrogation the day before. Appellant was again given his rights, said that he understood them, and, under further interrogation about the stolen pistol and an attempted armed robbery, again provided the interrogating officer with no incriminating information. During this advisement of rights and interrogation, no parent, friend or relative was present. The interrogating officer testified that he did not attempt to call the mother of appellant, because he knew she was at work. At 4:00 p.m., appellant's mother arrived at the jail and went to an office. Appellant was brought into the room, and the interrogation continued by one of the officers. An advisement of rights was read to both appellant and his mother. This was the first meeting of appellant and his mother since he had been arrested. Appellant signed a form of written waiver which was witnessed by his mother. The interrogating officer remained in the office throughout the advice of rights and the signing of the waiver. As soon as the waiver was signed by appellant and his mother, the officer left them alone together for the first time in order to get a cup of coffee for the mother. Thereafter, after two hours of continuous interrogation, appellant confessed to having shot the victim upon being discovered in the course of a burglary of her house.

On the basis of the evidence presented, the confession should not have been admitted in evidence. In 1972, prior to this interrogation in 1974, this Court handed down the opinion in Lewis v. State, supra. In that opinion we set forth in explicit and understandable terms, the procedure to be followed by the police in interrogating juvenile suspects. There, in order to add assurance that a juvenile's waiver of Fifth and Sixth Amendment rights in the interrogation context is truly voluntary, we said:

'We hold therefore that a juvenile's statement or confession cannot be used against him at a subsequent trial or hearing unless both he and his parents or guardian were informed of his rights to an attorney, and to remain silent. Furthermore, the child must be given an opportunity to consult with his parents, guardian or an attorney representing the juvenile as to whether or not he wishes to waive those rights. After such consultation the child may waive his rights if he so chooses provided of course that there are no elements of coercion, force or inducement present.' 259 Ind. at 439, 288 N.E.2d at 142.

The holding was repeated by this Court in Bridges v. State, (1973) 260 Ind. 651, 299 N.E.2d 616, during the 1973 Term. And, in 1973, Missouri, relying upon Lewis, supra, adopted the same procedure for that State. In Re K.W.B., (1973) Mo.App., 500 S.W.2d 275. Most recently this Court dealt with the requirements of Lewis in Hall v. State, (1976) Ind., 346 N.E.2d 584, 587. There we said:

'The inquiry under Lewis does not cease when the mere presence of a parent or guardian has been established. The record must affirmatively demonstrate that the juvenile and his parent or guardian were afforded a meaningful opportunity to counsel together.'

In Hall, the confession of a juvenile was deemed inadmissible because the police did not provide a meaningful opportunity for the juvenile to consult with his sister about the advisability of waiving the rights to counsel and to remain silent. So it is in the case at bar.

In this case, the inadequacy of the opportunity to consult stems from several sources. Here, the interrogator was acquainted with appellant and his circumstances. Appellant had only limited communicative skills, and the family had no money to hire a lawyer. For this reason, he and his mother needed more than a mere moment under the scrutiny of the interrogator to consider the rights and waiver. No one told appellant or his mother that they should take time to consult. Moreover, the form which was provided to them at the time of the advisement was to be signed by the mother on the line marked 'witness.' The designation of the mother as witness obfuscates the role intended by the law for her to play at the point of waiver, namely, that of advisor. Such obfuscation kept both mother and son from realizing that she was to be an active participant ...