Graham v. State

• Decision Date: 12 June 1984
• Docket Number: No. 682S237,682S237
• Citation: 464 N.E.2d 1
• Parties: Ricky Ray GRAHAM, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1

464 N.E.2d 1

Ricky Ray GRAHAM, Appellant, v. STATE of Indiana, Appellee.

No. 682S237.

Supreme Court of Indiana.

June 12, 1984.

Steven C. Smith, Pauper Atty., Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Ricky Ray Graham was found guilty by a jury in the Madison Superior Court of class B felony voluntary manslaughter, class A felony robbery, and class D felony theft. The trial court subsequently sentenced Appellant to concurrent imprisonment terms of twenty years for voluntary manslaughter, twenty years for robbery and two years for theft. Appellant now directly appeals and raises the following four consolidated issues:

1. whether the trial court erred by denying Appellant's motion to suppress his confession;

2. whether the trial court erred by permitting the State to file a belated response to Appellant's alibi notice and to present evidence on that subject;

3. alleged denial of Appellant's right to a speedy trial; and

4. alleged improper sentencing.

The facts adduced at trial show that at approximately 9:30 p.m. on January 9, 1980, an Indiana State Policeman found the dead body of seventy-six year old Lois Graham in the kitchen of her home in Lapel, Indiana, following a call from a concerned neighbor. A carving fork was protruding from her sternum, she had been stabbed numerous times in her chest and abdomen, the phone wires at the home had been cut, the back door had been padlocked and Miss Graham's green 1953 Ford sedan was gone. Earlier that same day, a boy with an elderly woman passenger drove up to the drive-in window of the First Savings and Loan Bank in downtown Anderson in a car meeting the description of Miss Graham's automobile. The teenage boy told the teller that the elderly woman wanted to withdraw $5,000.00. The teller directed them to the bank's main office across the street. The teller never looked at the savings book presented and did not know Miss Graham or the young man. At the bank's main office, a young man accompanied by an older woman asked to withdraw $10,000.00 from the account of Lois Graham. The boy was not permitted to withdraw that amount but was allowed to withdraw $2,000.00 from Miss Graham's account. Between 11:00 and 11:15 a.m., a car meeting the same description and occupants meeting the same description as noted by people in the First Savings and Loan Bank stopped at a drive-in window of the Edgewood auto branch of the Anderson Banking Company. The elderly woman there withdrew $300.00 from Miss Lois Graham's savings account. The teller handling this transaction was shown a photographic lineup but did not select Appellant's picture. Another employee, however, selected Appellant's picture from the same lineup. The evidence further shows that Appellant went to the Indianapolis International Airport during the evening of January 9, 1980, where Miss Graham's car was recovered the following day. Appellant subsequently was arrested by local police in Moab, Utah.

On January 15, 1980, a probation officer visited Appellant in jail in Utah and encouraged Appellant to sign a consent form for his voluntary return to Kokomo where the welfare department had custody of him. Appellant signed the consent. Sergeant Jack Appleby went to Utah and returned Appellant to Anderson where Appellant was incarcerated in the Madison County Jail. While in the Madison County Jail and before being charged, Appellant confessed to committing the instant crimes.

I

Appellant first claims that the trial court erred by denying his motion to suppress his confession. During January 21 and 22, 1980, Indiana State Police Sergeant Jack Appleby interrogated Appellant and Appellant confessed that he perpetrated the fatal attack on Lois Graham. Appellant now claims that his confession was inadmissible in that it: (A) was given in violation of Ind.Code Sec. 31-6-7-3 (Burns 1980); (B) was involuntary; (C) was the product of an illegal arrest; (D) was the product of a prior inadmissible statement; (E) was the product of an illegal detention; (F) was the product of an illegal extradition; and (G) was admitted into evidence prior to the time when there was sufficient evidence to establish a corpus delicti.

(A)

Appellant claims that his confession was given in violation of Ind.Code Sec. 31-6-7-3 in that neither he nor his father knowingly or voluntarily waived his rights since he was not afforded an opportunity for meaningful consultation with his father prior to waiver. Appellant also claims that his father, Paul Graham, Sr., was not his custodial parent or guardian and bore an adverse interest. The record shows that Officer Appleby requested Mr. Graham to be present during the interrogation since Appellant was a juvenile. Although Appellant was a legal ward of the Howard County Welfare Department at the time of the incident, he actually resided with his grandmother and father. His father therefore was a custodial parent and Appellant's contention to the contrary is without merit. Although there was evidence that Appellant's relationship with his father was often strained if not hostile, the evidence was not sufficient to show that Appellant's father had an interest adverse to Appellant. Witnesses who testified at trial about the relationship had counseled Appellant and formed their opinion by speaking only with him. Some of them had never met Mr. Graham while others had met him only casually. Officer Appleby, however, testified that he observed the conduct of both Appellant and his father prior to and during Appellant's interrogation and did not witness any hostility between them. Furthermore, Appellant never indicated to Appleby that his father was hostile to him or that he wished for someone else to accompany him.

Appellant alternatively contends that he was not afforded an opportunity for meaningful consultation with his father prior to waiving his rights under the above statute. The meaningful consultation requirement of Ind.Code Sec. 31-6-7-3(a)(2)(C) is a safeguard for juveniles in addition to the requirement that waivers be knowingly, voluntarily and intelligently made. The State, of course, bears the burden of proving that the consultation requirement has been satisfied. Williams v. State, (1982) Ind., 433 N.E.2d 769. The record here shows that on January 22, 1980, Appellant and his father met with Officer Appleby at the Madison County Jail. Before any questioning commenced, Appellant and his father read the rights waiver form and signed it. Appellant indicated that he understood the waiver document. Officer Appleby subsequently advised Appellant and Mr. Graham that he would give them the opportunity to privately discuss the matter before interrogation. After Appellant conferred with his father for a few minutes, he informed Appleby that he was ready to give a statement. An additional waiver of rights form was signed by both Appellant and Mr. Graham. Appellant requested that his statement be given outside the presence of his father and his father accordingly left the room. Appellant then gave a statement in which he fully confessed to the murder, robbery and theft. There is, therefore, sufficient evidence to indicate that Appellant was afforded the opportunity for meaningful consultation with his father as required by the above statute. Bluitt v. State, (1978) 269 Ind. 438, 381 N.E.2d 458.

(B)

Appellant next claims that neither he nor his father knowingly or voluntarily waived his rights. In determining whether Appellant's waiver of rights was made knowingly and voluntarily, this Court must consider the totality of the circumstances as presented by the facts. Evidence was presented that after Officer Appleby read the Miranda rights to Appellant and to Mr. Graham, both signed a waiver form. See Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Moreover, Appellant indicated that he understood the waiver document. Also at the suppression hearing, Mr. O'Brien, a behavior clinician who once examined Appellant, testified that Appellant understood the English language and was capable of engaging in intelligent conversation. Appellant's father attended school through the seventh grade and was able to read. There was, therefore, no evidence of coercion, force or inducement on the part of the police officers. Both Appellant and his father indicated that they fully understood the rights explained to them and the waivers they signed. We now find from the totality of the circumstances that the trial court properly determined that both Appellant and his father knowingly and voluntarily waived Appellant's rights.

(C)

Appellant next contends that his confession should have been excluded since it allegedly was the product of an unlawful arrest. Appellant properly contends that the allegation of a crime must be supported by sufficient facts and circumstances to allow a neutral judicial officer to make an independent determination as to probable cause. Rowan v. State, (1982) Ind., 431 N.E.2d 805, reh. denied. In the present case, a probable cause hearing was held as the result of an investigation into the murder of Lois Graham. Officer Appleby testified that he received a call from a concerned citizen who informed him that Miss Graham had not been seen for a length of time. Officer Thomas Jarvis went to the Graham residence and saw Miss Graham lying beaten and stabbed on the kitchen floor. Officer Appleby then discovered that a young man driving Miss Graham's 1953 Ford had gone to the Anderson Bank with Miss Graham on the morning of January 9, 1980, to withdraw $300.00. Tellers at the Anderson Bank described the youth as approximately 19 or 20 years old wearing a striped toboggan hat. A teller at the bank specifically identified Appellant as the youth who accompanied Miss Graham to the bank. It subsequently was determined that Appellant possessed a striped toboggan hat....