Gibson v. State

Decision Date04 August 1971
Docket NumberNo. 370S54,370S54
PartiesBobby Kermit GIBSON, Harold Donnie Gibson, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Robert E. Moore, New Whiteland, Michael T. Dugan, II, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.


Defendants (Appellants) were convicted of Second Degree Burglary under Burns' Ind.Stat. 1956 Repl. § 10--701(b) (Acts 1951, ch. 148, § 4, IC 1971, 35--13--4--4(b)). Their appeal presents three questions: (1) Sufficiency of the evidence, (2) Adequacy of Miranda warning and waiver and (3) Validity of verdict returned after a jury had separated without leave of court.

The evidence most favorable to the State discloses that the defendants were arrested at the scene of the crime within a few minutes after the arresting officers arrived in response to a signal from a burglar alarm. The furniture store premises which had been burglarized had two entrances at the back. The inside of the store was visible from the front through show windows. Upon arrival, one of the officers viewed the defendants through the showroom window, walking in a bent over position as if carrying something. One of the back doors had been forced open. A hi-fi set inside the store was found in a position other than that in which it had been at the time the store was closed for the night several hours earlier. A screw driver, which might have been used to effect the entry, and which had been seen in the hand of one of the defendants at the time he was first viewed in the premises, was found on a chair beside him when he was arrested. A tire tool was found three or four feet from the point where the other defendant was standing at the time he was arrested inside the store.

The essential elements of the crime of Second Degree Burglary is a breaking and entering with the intent to commit a felony therein. The evidence, as stated, was sufficient to establish these elements. At the trial, defendants testified that they had entered the premises in search of water for their overheated vehicle. The jury was not bound to accept this explanation for their unauthorized presence. Possession of stolen goods is not a requisite of the crime, and from all the circumstances stated, the jury could reasonably infer that appellants broke and entered the premises with the intent to commit a felony. When the sufficiency of the evidence is raised as an issue on appeal, this Court will consider only that evidence most favorable to the State together with all logical and reasonable inferences which may be drawn therefrom. Lambert v. State (1969), Ind., 249 N.E.2d 502; McGill v. State (1969), Ind., 247 N.E.2d 514; Croney v. State (1969), Ind., 247 N.E.2d 501.

The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Taylor v. State (1971), Ind., 267 N.E.2d 383; Boss v. State (1970), Ind., 263 N.E.2d 546; Brown v. State (1970), Ind., 263 N.E.2d 534.

Following the arrest, the defendants made confessing statements to police officers while in custody at the police station. The court overruled the defendants' motion to suppress these confessions predicated upon the claim that they were made only because leniency was promised as a reward and that they had not been properly warned of their constitutional right to remain silent, to have counsel or of the effects of any statements which they might make. The following facts were developed at the hearing on defendants' motion to suppress conducted during the trial on the merits.

After the defendants were arrested inside the store, the police read the Miranda warning to each defendant. Each was advised that he had the right to remain silent; that anything he said could and would be used against him in court; that he had the right to talk to an attorney and have him present during questioning; and that if he could not afford to have an attorney, one would be appointed to represent him before questioning, if he wanted one. Each defendant was asked if he understood these rights, and each replied that he did. Each defendant was then asked if he wanted to talk to the police at that time. Defendant Harold Gibson indicated that he did not want to talk to the police. Neither defendant signed the waiver at the store, and neither defendant requested an attorney.

Defendants were then taken to the police station. There one of the police officers read the following Miranda warning to the defendants:

'Before we ask you any questions, it is our duty as police officers to advise you of your rights and to warn you of the consequences of waiving your rights.

You have the absolute right to remain silent.

Anything you say to us can be used against you in court.

You have the right to talk to an attorney before answering any questions and to have an attorney present with you during questioning.

You have this same right to the advice and presence of an attorney whether you can afford to hire one or not. We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court.

If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to an attorney.'

The officer then showed the following waiver to the defendants and asked them to read it:

'I have read the above statement of my rights, and it has been read to me. I understand what may rights are. I wish to make a voluntary statement, and I do not want an attorney. No force, threats, or promises of any kind or nature have been used by anyone in any way to influence me to waive my rights. I am signing this statement after having been advised of my rights before any questions have been asked of me by the police.'

He told them that this showed that the police did read their rights to them and that no force was used against them to induce them to sign it. Both defendants read the warning and waiver. They were asked if they would like to sign them, and they proceeded to sign. Prior to such signing, however, the defendants made inquiry concerning what would happen if they did not sign. The following is the testimony given on the subject by one of the police officers:

'Q. Now Mr. Hestand did you hear one or both of the defendants ask Mr. Clark what will happen if I don't sign the waiver?

A. He asked him if he had to sign it.

Q. Right. And what was Mr. Clark's response to that?

A. He told him he would just write across the top of it 'Refused' and he would sign and I would witness it...

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