Grey v. State

• Decision Date: 29 May 1980
• Docket Number: No. 179S19,179S19
• Citation: 273 Ind. 439,404 N.E.2d 1348
• Parties: Michael E. GREY, Sr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1348

404 N.E.2d 1348

273 Ind. 439

Michael E. GREY, Sr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 179S19.

Supreme Court of Indiana.

May 29, 1980.

Harriette Bailey Conn, Public Defender, Marcia L. Dumond, and David P. Freund, Deputy Public Defenders, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of rape of a child under the age of twelve (12) years, Ind.Code § 35-13-4-3 (Burns 1975), and sentenced to life imprisonment. His appeal presents the following issues:

(1) Whether there was sufficient evidence of the corpus delicti, independent of the defendant's extra-judicial confession.

(2) Whether the trial court erred in overruling defendant's motion to suppress one of his out-of-court statements.

(3) Whether the trial court erred in admitting into evidence testimony of defendant's past sexual conduct.

(4) Whether the trial court erred in refusing defendant's tendered final instructions regarding the weight to be given by the jury to his out-of-court confessions.

(5) Whether the evidence was sufficient to support the verdict.

ISSUE I

Defendant was living with the State's witness, and her two children, a three year old girl and a younger boy. After putting the children to bed, the mother and a woman friend went out for the evening, leaving the children of both asleep and in the care of the defendant. When she returned, about 11:00 p. m., she found her daughter bleeding from her vagina. The child was taken to the hospital, where she was attended by two physicians, who sutured a laceration one and one-half inch in length which extended from the posterior to the top of the vagina. Bleeding had been profuse.

The attending physicians testified that the laceration had been caused from the insertion of a foreign object with brute force into the child's vagina, that the object was of "fair size" and not necessarily sharp. One testified that the injury could not have been self inflicted or accidental. Both acknowledged that they did not know what object had caused the injury and that it would be difficult to cause such injury with one's penis but that with sufficient force, it could have been done.

The defendant made two extra judicial confessions. By the first, he said that he had injured the child with his fingers, but by the second, he admitted that he had raped the child. It is his argument, however, that there had been insufficient evidence of the corpus delicti, independent of his confessions, to render his confession of the rape admissible. More specifically, he contends that the State was required to establish, by evidence independent of his confession, that his penis had penetrated the child's vagina and merely establishing that some object had so penetrated was not sufficient.

Although the corpus delicti of a crime must be proved beyond a reasonable doubt in order to sustain a conviction, it need not be so proved to render a defendant's confession admissible. Hudson v. State, (1978) Ind., 375 N.E.2d 195; Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712; Dunbar v. State, (1961) 242 Ind. 161, 177 N.E.2d 452; Parker v. State, (1949) 228 Ind. 1, 88 N.E.2d 556, reh.den., with statement, 228 Ind. 11, 89 N.E.2d 442; Holding v. State, (1963) 244 Ind. 75, 190 N.E.2d 660. It may be shown by circumstantial evidence. Holding v. State, supra; Cambron v. State, supra; Hudson v. State, supra.

Except for the medical testimony, the case is not unlike Messel v. State, (1911) 176 Ind. 214, 95 N.E. 565. In that case the defendant had confessed to the rape of his eleven year old daughter, who died prior to the defendant's trial. The corpus delicti was there established by the physicians who had examined the girl and testified that in their opinion the enlarged organs and the destruction of her hymenial membrane could only have been caused by sexual connection. In neither case would the evidence independent of the confession be sufficient to sustain a verdict of guilty. Notwithstanding the apparent confidence of the Messel physicians in the correctness of their conclusion, being drawn from circumstantial evidence alone, it would be insufficient, in and of itself, to support a guilty verdict, because it could not be said to be of so conclusive a character and point so surely and unerringly to guilt (corpus delicti ), as to exclude every reasonable hypothesis of innocence. Krauss v. State, (1947) 225 Ind. 195, 73 N.E.2d 676. It, nevertheless, would give rise to a reasonable inference that the girl's condition was the result of sexual

connection. And so it is in the case at bar. Most assuredly the circumstances do not exclude the hypothesis that the child had been injured in some other manner, but they are altogether consistent with and give rise to a reasonable inference that the laceration was caused by rape. This is all that is required to establish the corpus delicti and render the confession admissible. The confession, being [273 Ind. 443] properly in evidence and being corroborated by the independent evidence of the corpus delicti, the evidence cannot be said to be insufficient to sustain the verdict.

ISSUE II

On September 30, 1976, at approximately 3:30 a. m., Elkhart Police Officer Ghrist informed the defendant of the charges against him and orally advised him of his constitutional rights. ¹ Officer Ghrist then gave defendant a form advising him of his rights; defendant indicated that he understood the same and signed the form. However, he made no statement except to deny the charge.

Detective Bowlby testified that approximately five (5) hours later he gave the defendant a rights advisement and waiver and asked him to read it. When asked if he understood it, defendant expressly replied that he did. He signed the form and proceeded to make an oral confession. Detective Bowlby then gave the defendant a form on which he intended to transcribe defendant's statement. That form also enumerated the defendant's rights, and he acknowledged that they had been explained to him by writing "yes" in a blank provided for that purpose. After the oral statement had been reduced to writing, the defendant read, initialed, and signed it. He also agreed to submit to a polygraph examination.

At approximately 10:45 a. m. on October 1, 1976, the defendant met with polygraph examiner Larry Staub. After the polygraph examination was conducted, Staub informed him that he had detected "reactions" to some of the questions. Apparently, although it is not entirely clear, Defendant asked Staub to pray with him and then began to make an oral confession. At the suppression hearing, Staub testified that he then orally advised the defendant of his rights. When specifying the warnings given, Staub did not testify that he had warned the defendant that anything he said could be used as evidence against him. Staub stated that he then gave the defendant another advisement and waiver form, identical to that used by Detective Bowlby, which the defendant again signed and indicated that he understood his constitutional rights. Defendant then agreed to give a written statement. He signed and initialed it and again wrote "yes" in response to the inquiry on the form which questioned whether his rights had been fully explained.

On appeal, Defendant contends that the trial court erred when it denied his motion to suppress and admitted the October 1st confession into evidence. He argues that the statement was not voluntary and that the State had failed to show that he knowingly and intelligently waived his rights.

In determining whether a confession was voluntarily made, we look to the surrounding circumstances in order to determine whether there was any inducement in the form of violence, threats, promises, or other improper influence. Nacoff v. State, (1971) 256 Ind. 97, 267 N.E.2d 165. The same test is used to determine whether there was a voluntary waiver of Miranda rights. Ortiz v. State, (1976) 265 Ind. 549, 356 N.E.2d 1188. The burden of proof rests on the State to show beyond a reasonable doubt the voluntariness of the waiver or statement. Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811. When reviewing the trial court's ruling on the issue of voluntariness, we will consider only that evidence which supports the trial court's determination when the evidence is in conflict, together with any uncontested evidence presented by the defendant. We will not disturb the trial court's ruling if, from that standpoint, there was sufficient evidence to Defendant contends that Staub's incomplete oral advisement was insufficient where he had previously only been handed forms. He correctly asserts that a signed waiver form does not conclusively show a valid waiver, and that merely handing an accused a form, without more, is insufficient. Dickerson v. State, (1972) 257 Ind. 562, 276 N.E.2d 845. However, Officer Ghrist had orally advised him of his rights, and defendant had several times acknowledged that he understood them. Despite Staub's incomplete warnings, the evidence supports the trial court's conclusion that the defendant had been adequately advised of the potential inculpatory use of his statements.

support it beyond a reasonable doubt. Magley, supra.

Staub's failure to warn the defendant until after the oral statement is not dispositive as the defendant contends. While it is the better practice to advise an accused at the beginning of each interview, Miranda warnings do not necessarily need to be repeated on each separate occasion. United States v. Springer, (7th Cir.) 460 F.2d 1344; Jackson v. State, (1978) Ind., 375 N.E.2d 223; People v. Hill, (1968) 39 Ill.2d 125, 233 N.E.2d 367, cert. den. 392 U.S. 936, 88 S.Ct. 2305, 20 L.Ed.2d 1394. Here there was no error, inasmuch as the defendant had been adequately advised of his rights prior to meeting with...