Harrison v. State

• Citation: 269 Ind. 677,382 N.E.2d 920
• Decision Date: 01 December 1978
• Docket Number: No. 977S639,977S639
• Parties: Gerald Lynn HARRISON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 920

382 N.E.2d 920

269 Ind. 677

Gerald Lynn HARRISON, Appellant, v. STATE of Indiana, Appellee.

No. 977S639.

Supreme Court of Indiana.

Dec. 1, 1978.

Barry L. Standley, John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Harrison and one Jeffrey Jackson were indicted on charges arising out of the shooting death of Jack Kinsler in Evansville on August 8, 1976. In a separate trial Jackson was convicted of first-degree murder. Appellant Harrison was later tried to a jury in the Vanderburgh Circuit Court and on April 13, 1977, was found guilty of first-degree felony murder. Harrison was sentenced to life imprisonment.

The evidence adduced at trial showed that on the night of August 8, 1976, Jeffrey Jackson asked appellant if he wanted to make some money. When appellant asked how, Jackson told him "never mind." The two then walked to a phone booth where Jackson called for a cab. When the cab arrived, Jackson entered the front seat and appellant sat in the back behind the driver, Jack Kinsler. As they were headed toward their destination, appellant reached over the front seat, grabbed Kinsler around the chest, ordered him to put his hands on the ceiling and told Jackson to get the money. Jackson then hit Kinsler in the forehead with the butt of a revolver. Appellant released his grip on the driver and was moving toward the door when Jackson shot and killed Kinsler.

Later that night, appellant called his friend, Charles Lilly, and informed him that someone had been shot and possibly killed and that he needed to talk to him. Lilly, who had been asleep, told appellant that he would meet him the next day. The next morning, Jackson and appellant read that the cab driver, Jack Kinsler, had died. The two then went to the home of Jackson's girlfriend where Jackson handed the murder weapon to the girl's brother, James Bushrod, with instructions to destroy it. Bushrod later threw the gun in a river. Sometime later, appellant met with Charles Lilly and told Lilly that he was afraid and needed advice. Appellant did not reveal any details of the shooting at that time. At 6:30 p. m. the same day, appellant and Jackson fled, by bus, to Indianapolis.

Within a few days, appellant returned to Evansville and again met with Charles Lilly. This time appellant told Lilly about the shooting. Lilly advised appellant to turn himself in. Appellant at first declined this advice but called Lilly on several occasions to ask what would happen to him if he surrendered. Lilly then contacted a church deacon who arranged a meeting between himself, Lilly, and Detectives Bagbey and Erk, for the purpose of inquiring as to what action would be taken against appellant if appellant decided to turn himself in. Before the meeting, Detective Bagbey contacted Chief Deputy Prosecutor Kissinger and asked what he should say to Lilly and the deacon. Kissinger told Bagbey to avoid making specific statements or promises of leniency for the reason that it might taint any subsequent statement the suspect might give. He instructed Bagbey to inform the people that he, Bagbey, had no authority to make any promises of future leniency, but that if the person involved would turn himself in, it would be taken into consideration when formal charges were filed. This message was then conveyed by Bagbey to Lilly and the deacon. Lilly, in turn, informed the appellant. Appellant asked Lilly what he thought the message meant, and Lilly told him that he thought a deal had been made. On November 10, 1976, some three months after the shooting of Jack Kinsler, appellant surrendered to police.

Appellant presents eight issues for our review. These issues concern: (1) the denial of his Motion to Suppress oral statements made to police; (2) the amount of proof required to establish the corpus delicti of felony-murder; (3) the trial court's refusal to allow appellant to read from a suppressed written confession; (4) the introduction of evidence relating to certain acts of Jeffrey Jackson subsequent to the shooting; (5) the propriety of the court's reasonable doubt instruction; (6) the propriety of the court's instruction on abandonment; (7) the refusal of several of appellant's tendered instructions, and; (8) the sufficiency of the evidence.

I.

Appellant first argues that the trial court erred in denying his Motion to Suppress incriminating oral statements he made to police. The facts and circumstances surrounding the making of these statements were as follows. After deciding to surrender, appellant arrived at the police station in the company of his friend, Charles Lilly. There they were met by Detective Bagbey who took them to an interrogation room. Bagbey asked appellant whether he could read and he answered that he could. Bagbey then handed appellant a form containing the Miranda warnings and asked appellant to follow along as he read. After reading the warnings, Bagbey asked appellant if he understood his rights. Appellant answered no. The detective again read the warnings to appellant and asked if he understood them. Appellant turned to Lilly who proceeded to read the warnings to appellant a third time. This time appellant acknowledged his understanding and signed a waiver of rights form.

The detectives then conducted an oral interview with appellant in Charles Lilly's presence. During the questioning, appellant was asked whether he had been promised anything in exchange for making the statement. Appellant answered yes. The detectives said that he must not understand and told him that they could not make any promises. Bagbey then called Chief Deputy Prosecutor Kissinger and asked what he should tell appellant. Kissinger instructed Bagbey to inform appellant that he could "entertain a reasonable expectation" that his cooperation could be of benefit to him, "but not necessarily."

When the oral interview was completed, Lilly was asked to leave, a typist was found, and a written statement was taken from appellant. The police gave appellant the written statement to read and Lilly was allowed to re-enter. As appellant could not read very well, Lilly took the statement and began reading it to him. Before finishing, Lilly quit reading the statement out loud, but continued to read silently and suggested that several corrections be made. Appellant initialled the corrections and signed the statement.

Appellant, before trial, moved to suppress both the oral and written statements given to police. Following a hearing on the motion, the trial court refused to suppress the oral statements. However, the court ordered the written statement suppressed on the ground that appellant had not read the statement prior to signing it. Appellant now challenges the court's ruling as to the oral statements.

The question of the admissibility of a confession is controlled by determining, from the totality of circumstances, whether or not it was made voluntarily. The circumstances to be considered include whether the confession was freely self-determined, the product of a rational intellect and free will, without compulsion or inducement and whether the accused's will was overborne. Murphy v. State, (1977) Ind., 369 N.E.2d 411, 415. We review the question on appeal as we do other sufficiency matters. We do not weigh the evidence, but rather determine whether there was substantial probative evidence to support the trial court's finding. Works v. State, (1977) Ind., 362 N.E.2d 144. We will not disturb a trial court's ruling on the admissibility of a confession when such ruling is based on substantial, though conflicting evidence. Riggs v. State, (1976) 264 Ind. 263, 270, 342 N.E.2d 838, 843.

Appellant contends that his oral statements to police should have been suppressed because the statements were involuntary, and because appellant did not voluntarily waive his rights. He argues that both the statements and the waiver were involuntary due to the appellant's low intelligence and poor reading skill, and because they were improperly induced by the prosecutor's promises of mitigation. As to the appellant's intelligence and reading ability, the evidence at trial showed that appellant had an I.Q. of 90 and read at the fourth grade level. While these figures may be below normal, this court has held that "lack of formal education is more detrimental to the validity of a waiver in those cases in which the accused is merely given an advice of rights form to read for himself." Ortiz v. State, (1976) Ind., 356 N.E.2d 1188, 1192. Here, the appellant was given an advice of rights form to read from while the interrogating officer read and explained the rights to him. When appellant indicated that he did not understand the rights, they were further read and explained to him by his friend, Charles Lilly. Under these facts, appellant's intelligence and reading ability were not such as would render involuntary his waiver of rights and the subsequent statements.

Appellant also contends that his oral statements were inadmissible because they were induced by the prosecutor's "promises." It is true that a confession is inadmissible if it is obtained by a promise of immunity or mitigation of punishment. Ashby v. State, (1976) 265 Ind. 316, 354 N.E.2d 192. In Ashby, the defendants had confessed to a crime for which they could have received life sentences, in return for a promise of a ten year determinate sentence. These confessions were thus found to have been induced by a promise of mitigation of punishment. In contrast, a defendant in Ortiz v. State, supra, was found to have voluntarily confessed despite the fact that a police detective had stated that if the accused would confess, he would "see what he could do for Williams" and "could probably talk to the prosecutor and make a deal." These statements were distinguished from those made in Ashby on the basis that they were "vague and...