Gutierrez v. State

• Decision Date: 01 May 1979
• Docket Number: No. 476S126,476S126
• Parties: Samuel J. GUTIERREZ et al., Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

Page 520

388 N.E.2d 520

270 Ind. 639

Samuel J. GUTIERREZ et al., Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 476S126.

Supreme Court of Indiana.

May 1, 1979.

J. Michael Katz, J. Douglas Angel, Katz & Brenman, Merrillville, Terry C. Gray, Gary, for appellants-defendants

Theo. L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

PRENTICE, Justice.

Defendants (Appellants) were convicted in a trial by jury of murder in the first degree and murder in the perpetration of a robbery. Ind.Code § 35-13-4-1 (Burns 1975). They were sentenced to life imprisonment for murder in the first degree, with sentencing withheld on the second count. They raise the following issues on appeal:

(1) Whether the trial court erred in overruling the defendants' motions to suppress their individual confessions.

(2) Whether the trial court erred by failing to effectively delete all references to the defendants in each of the confessions, or in the alternative, by failing to grant their motions for severance.

(3) Whether the trial court erred in refusing the defendants' tendered instructions on the defense of coercion and duress.

(4) Whether the trial court erred in denying the defendants' motion for mistrial.

ISSUE I

The defendants raise as their first issue, the denial of their motions to suppress and reject their individual confessions, and the overruling of their in-trial objections made to the admission of the confessions. Each defendant challenges the voluntary nature of his confession, alleging that he was denied certain of his constitutional rights at the time that the confession was made.

The facts surrounding the taking of defendant-Gutierrez's statement indicate that he was arrested sometime during the afternoon of April 14, 1975. At about 4:00 p. m. he was taken to the booking area where he was told that he was a suspect in the investigation of a double murder, and advised of his constitutional rights. Among the rights of which he was advised, was "the right to an Attorney, and if he could not afford an Attorney, that one would be appointed for him by the State at a later time. And that if he wished to talk to us (the police) he had also the right to cease at any time." The defendant agreed to take a polygraph test after stating that he knew nothing of the incident. After the test was administered At approximately 9:00 that same evening, the defendant was taken to the detective bureau, where he was readvised of his constitutional rights and was given a waiver form to sign. Prior to signing the waiver form, he asked to make a phone call. He talked to his father and then to an attorney, after which he agreed to give a statement. At the trial the defendant testified that the attorney had advised him that he could remain silent or stop talking at any time if he so chose. He also testified that he understood this advice, but that he chose to ignore it. The waiver form was subsequently signed and his statement was given. Before signing the statement, the defendant again called his father and the attorney and read portions of the statement over the phone to both. After having made the phone calls, the defendant signed the statement.

the defendant was told by the police that he had given untruthful answers. He was also told that they had obtained information from one of his co-defendants with whom he later spoke.

Several police officers testified that the waiver form was read by and to the defendant before it was signed, and that the defendant indicated that he understood it. None of the officers who were present both at the time of questioning and at the trial, recalled the defendant mentioning that his attorney had told him not to sign anything or make any statements. The attorney with whom the defendant spoke, testified that he did speak to the defendant twice on the night in question, and that on the first occasion he advised the defendant to refrain from making a statement or discussing the matter with anyone. During this same conversation, the attorney also spoke with one of the officers, but said nothing about terminating the questioning.

On appeal the defendant argues that his statement was not voluntarily made based upon the fact that he was not taken before a magistrate before questioning, that he was only informed that an attorney would be appointed at a later time, that the police continued to question him after having been informed that his attorney had advised him to say nothing, that the waiver form which he signed was never read to him nor explained, and that he was the victim of psychological coercion due to the possibility that the police attributed false qualities to the polygraph test results.

Defendant-McCall was arrested by the Indiana State Police in Terre Haute and advised of his constitutional rights at around noon on April 13, 1975. He was transported by airplane to Gary on the 14th. On the following morning at 10:30, McCall was taken to the detective bureau where he was again given his constitutional rights and questioned. Among the rights of which he was informed, was the "right to have his lawyer present with him during the time of the taking of the statement." After giving an oral statement, the defendant asked to talk to his attorney, which request was granted. Prior to giving a written statement he expressed fear for his family and himself, and requested protection. In response to his request for protection he was told by the police that all they could do was to talk to the F.B.I. The defendant was placed in contact with an F.B.I. agent, after which he proceeded to give a rather lengthy statement. Various breaks were taken, during which the defendant was permitted to see his family.

Officer Highsmith testified that the waiver form was executed prior to the giving of the written statement. He further testified that McCall's attorney never indicated that he wanted to be present during the taking of the statement, and that McCall had every opportunity to talk to his attorney during the statement.

McCall took the stand and stated that he was fully advised of his rights and that he signed the waiver form after having read it and had it read to him prior to giving his statement. On appeal, McCall questions the validity of the warrants upon which he was arrested, and argues that his confession was the product of his illegal detention and was thus tainted. He further contends that he was beaten, promised protection for his family and otherwise coerced and cajoled Any error with regard to the warrants upon which the defendant was arrested was not preserved for appeal, since the defendant failed to raise the issue either in his motion to suppress or in his motion to correct errors. Finch v. State (1975) 264 Ind. 48, 338 N.E.2d 629. Regardless of whether or not the issue was waived, however, sufficient evidence was presented to support a finding that the statement was "sufficiently an act of free will to purge the primary taint." Wong Sun v. United States (1963) 371 U.S. 471, 486, 83 S.Ct. 407, 416-417, 9 L.Ed.2d 441, 445. There was a lapse of forty-eight hours between the time of his arrest and the time that his statement was taken. In addition, he had consulted with an attorney prior to having given his statement.

into waiving his rights and making a statement.

Defendant-Hernandez was arrested sometime in the afternoon on April 14, 1975. He was questioned around 6:00 that evening, after having been fully advised of his constitutional rights, including the right to consult with an attorney prior to the questioning. He was confronted with his participation in the murders, at which time he indicated that he wanted to talk. According to the officers present at the time, he never asked to see an attorney or to make a phone call. He gave an oral statement for approximately twenty minutes, then signed a waiver form and a written statement. On appeal he contends that he was improperly advised of his rights and that his statement was induced by promises of leniency.

Defendant-Serwatka was arrested on April 14, 1975, at approximately 1:00 p. m. He was advised of his rights, booked and placed in a holding tank for the night. The next morning Serwatka was taken to the detective bureau where he was confronted with the fact that two of his co-defendants had already given statements. The defendant requested and was allowed to speak with the co- defendants, after which he agreed to tell the police everything. He was again advised of his rights and began his statement at 9:30 a. m. and ended it at 2:30 p. m. One of the officers who was present during the questioning testified that Serwatka read the waiver, said that he understood it and signed it prior to making his statement. He also testified that none of the defendants' requests were denied and that no promises or threats were made in order to induce the confession.

On appeal Serwatka contends that his confession was not voluntarily made because he had been improperly advised of his rights, and was not taken before a magistrate within six hours of his arrest as required by statute and because his statement had been induced.

Many of the grounds upon which the defendants predicate error are unavailable to them on appeal. In certain instances the grounds for objection differed at the hearing and on appeal. Jones v. State (1973) 260 Ind. 463, 296 N.E.2d 407. Other grounds which were raised at the hearing were not argued in their briefs. Appellate Rule 8.3(A)(7). For the sake of brevity, the grounds which were preserved will be consolidated wherever possible.

In determining whether a confession has voluntarily been made, this Court will look to all of the surrounding circumstances so as to determine whether there had been 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; Montes v. State (1975) ...