Green v. State, 171S14

• Decision Date: 20 October 1971
• Docket Number: No. 171S14,171S14
• Citation: 274 N.E.2d 267,257 Ind. 244
• Court: Indiana Supreme Court
• Parties: Arthur J. GREEN, Appellant, v. STATE of Indiana, Appellee.

Page 267

274 N.E.2d 267

257 Ind. 244

Arthur J. GREEN, Appellant, v. STATE of Indiana, Appellee.

No. 171S14.

Supreme Court of Indiana.

Oct. 20, 1971.

Rehearing Denied Dec. 20, 1971.

Daniel A. Roby, Ft. Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

On August 22, 1962, appellant was arrested pursuant to a warrant and charged with the Crime of First Degree Murder. On April 28, 1963, the case was submitted to the court for trial by jury. On May 3, 1963, the jury found the appellant guilty of First Degree Murder (Murder in Attempt to Perpetrate a Robbery). On May 17, 1963, the court rendered judgment by sentencing the appellant to the Indiana State Prison for life. No direct appeal was made from appellant's conviction. On February 25, 1970, appellant filed a Petition for Post-Conviction Relief under Post-Conviction Remedy Rule 1. On August 5, 1970, hearing was held on the petition, the court made findings of fact, and denied the petition. On October 23, 1970, appellant filed a Motion to Correct Errors, which, on November 2, 1970, the court overruled. Pursuant to Post-Conviction Remedies Rule 1, sec. 7, appellant appeals from the court's final judgment in the Post-Conviction proceeding.

Appellant presents two questions for our consideration, they are:

(1) Whether certain confessions and incriminating statements made by the appellant were properly admitted into evidence;

(2) Whether a bullet removed from appellant's body and testimony concerning the removal was properly admitted into evidence.

The facts relevant to the issues presented are summarized as follows. At 11:00 p.m. on August 13, 1962, an employee of the State Line Pizza, in Hammond, Indiana, was shot in an attempted robbery. In the course of the attempted robbery the employee had fired three shots, at the robber, from a revolver kept behind the counter in the store. Shortly after the attempted robbery, another store employee who had been delivering pizza, returned to the store and found the wounded employee. The wounded employee was still alive and told the second employee what had happened and that he had wounded the man who had attempted to rob him. The second employee then made a report of the incident to the Hammond Police. The wounded employee was taken to a hospital, where he soon died. At 4:00 a.m., the morning of August 14, 1962, Calument City, Illinois, Police Officer Robert Costello, received a radio call to go to a residence in Calument City, Illinois. When he and another officer arrived they were met at the door by a little girl who said that her father was in another room injured. The officers proceeded to the other room and found the appellant lying on a bed. The officers saw that the appellant was bleeding and injured. Calument City, Illinois is a very short distance from Hammond, Indiana and the officers knew of the shooting incident at the State Line Pizza in Hammond and of the circumstances incident thereto. Officer Costello gave the following testimony concerning his action upon seeing the appellant:

'I asked Mr. Green (Appellant) what was the trouble and he said he had been shot. I then asked him if he participated in the State Line Pizza shooting and he said he did, and I asked what he did with the gun and he said he ran out of the pizza place and threw the gun away a short way away, and then he passed out.'

The appellant was then taken to a hospital. Upon arrival at the hospital, appellant was taken to an X-Ray room where he was questioned by Hammond Police Officer, Edward Herkey who gave the following testimony regarding his conversation with the appellant at that time:

'I asked Mr. Green if he was involved in a shooting during an attempted robbery at State Line Pizza. He said yes. I then asked him if there was anybody else with him. He said yes * * * I asked him if he fired a gun or shot the man at the State Line Pizza. He said yes.'

Prior to this conversation appellant had been administered a small dose of sedative. Thereafter, the bullet was removed from the appellant by a doctor who treated him. Officer Herkey was present when the bullet was removed and was handed the bullet after its removal. At approximately 10:30 a.m. On August 14, 1962, Police Officer Richard Dearing spoke with the appellant. Appellant told Officer Dearing that he had used a car and a gun. Later on the same day the appellant told the same officer that it was one James Shaffer who was with him at the shooting scene. James Shaffer was originally a co-defendant in this case. Officer Dearing further testified that he again saw the appellant on August 15, 1962, at approximately 11:00 a.m. shortly after appellant had been given a sedative. During this conversation appellant gave another statement implicating himself. Another officer talked with the appellant later on August 15, 1962, when appellant made another incriminating statement. At no time prior to any of these conversations, in which the appellant confessed his guilt or made otherwise incriminating statements, was the appellant advised of his constitutional rights.

Appellant was first arrested on August 14, 1962, by Officer William Blaemire, while appellant was still in the X-Ray room, and was at that time placed in custody by placing a guard outside his hospital room. The record shows that at some time his arms were strapped down, however, it is not shown whether this measure was done to prevent his escape or for his own protection. Appellant was detained in the hospital because of the seriousness of his injuries until September 12, 1962, when he was taken to the Hammond Police Station and subsequently taken before a magistrate for arraignment.

At the trial, the revolver used by the State Line Pizza employee who was killed, was admitted into evidence. Also, over appellant's objections, the bullet removed from his body was admitted into evidence. An expert witness testified that in his opinion the bullet was fired from the revolver used by the victim. Also, testimony regarding the six statements, conversation by the appellant to the various officers incriminating himself, were admitted in evidence over appellant's objections.

We shall first consider appellant's contention that certain incriminating statements and confessions, made by him, were improperly admitted into evidence by the trial court when several police officers testified thereto. Appellant urges that these statements were involuntary and therefore inadmissible because:

(a) The statements were extracted during a period of illegal detention;

(b) The statements were extracted before the appellant had been advised as to any of his constitutional rights;

(c) The statements were extracted from the appellant while he was without the assistance of counsel;

(d) The statements were extracted while the appellant was in great physical pain;

(e) The statements were extracted while the appellant was under the influence of narcotic drugs.

We must first point out that this case arose in 1962, prior to the decision Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, wherein the Supreme Court of the United States held in part that absent an intelligent waiver of the constitutional rights involved statements, merely incriminating or in the nature of a confession, obtained from a person during custodial interrogation, are inadmissible as evidence as is the fruit of such statements, unless, procedural safeguards were used to eliminate any complusive atmosphere inherent in such interrogations. The requirements set out in Miranda relating to the custodial interrogation of the criminally accused, to provide the necessary procedural safeguards are:

(1) The person must be warned that he has a right to remain silent;

(2) The person must be warned that any statements he does make may be used as evidence against him;

(3) The person must be informed that he has a right to the presence of an attorney, either retained or appointed;

(4) If the person indicates at any stage of the process he wishes to consult with an attorney before speaking there can be no questioning until the request is granted.

(5) If the person indicates at any stage of the process that he wishes not to be further interrogated, the interrogation must stop.

Although, we do not necessarily agree with the idea that something determined to be unconstitutional today was not equally unconstitutional yesterday, the Supreme Court of the United States has nevertheless held that the decision in both Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, supra, have a prospective application only. In Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Supreme Court of the United States said:

'* * * we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.' (384 U.S. 733, 86 S.Ct. 1781)

These dates are 1964 and 1966 respectively, thus, the appellant does not have the benefit of these decisions since his case occurred prior thereto. We are therefore compelled to consider the law as it existed before the United States Supreme Court changed it in Escobedo and Miranda.

The Supreme Court of the United States in Haynes v. Washington (1963), 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, the Court stated:

"In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort." (Emphasis added, 373 U.S. at 513, 83 S.Ct. at 1343)

In Nacoff v. State (1971), Ind., 267 N.E.2d 165, 167, we made the following statement of the constitutional standard governing the admissibility of confessions prior to Miranda. 'The question is whether, looking at all the circumstances, the confession was free and voluntary, and not induced by any violence, threats, promises, or other improper influence. Brady v. United States ...