Hooker v. State, 1-578A108

• Docket Nº: No. 1-578A108
• Citation: 180 Ind.App. 222, 387 N.E.2d 1354
• Case Date: April 23, 1979
• Court: Court of Appeals of Indiana

Page 1354

387 N.E.2d 1354 180 Ind.App. 222 Thomas Lee HOOKER, Appellant,
v.
STATE of Indiana, Appellee. No. 1-578A108. Court of Appeals of Indiana, First District. April 23, 1979.

[180 Ind.App. 223]

Page 1355

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Presiding Judge.

Defendant-appellant Thomas Lee Hooker was found guilty of voluntary manslaughter by a jury in the shooting death of his brother, Moses, and sentenced to be imprisoned for not less than two nor more than 21 years.

His appeal raises three issues for our review:

(1) Whether the trial court erred in overruling Hooker's motion to suppress a confession he made to police;

(2) Whether the trial court erred in rereading the confession to the jury during deliberations and upon the jury's request; and

(3) Whether the trial court erred in giving State's instruction No. 8.

We affirm.

[180 Ind.App. 224] Issue I.

Hooker argues his confession was not voluntarily given under the guidelines of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, because he is illiterate and lacks sufficient mental comprehension to understand the rights he waived and to know the consequences of his making a statement to police officers.

The record shows that Moses Hooker was shot at the residence he shared with the defendant between 12:30 and 1:00 a. m. on July 20, 1977. The defendant was taken to a police station where he signed a waiver of rights form at 2:40 a. m. At 5:15 a. m., he signed a typewritten record of a statement he made to the police. The trial court denied Hooker's motion to suppress the statement at trial.

Hooker signed the printed waiver form and made his statement without having an attorney present. As this court said in Bauer v. State (1973) 157 Ind.App. 400, 405, 300 N.E.2d 364:

"When this occurred, a heavy burden rested on the State to demonstrate that (the defendant) knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. Dickerson v. State (1972), 257 Ind. 562, 276 N.E.2d 845; Escobedo v. Illinois (1964), 378 U.S. 478, 490, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. A printed waiver form signed by (the defendant) is not conclusive. Dickerson v. State, supra.

The crucial test of the Miranda warning was set forth in Coyote v. United States, supra, 380 F.2d (305, 10th Cir.) at 308:

'. . . What Miranda does require is meaningful advice to the unlettered and

Page 1356

unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights.' (Our emphasis.)"

The evidence at the hearing on Hooker's motion to suppress showed that Hooker went to the fifth grade in school, was functionally illiterate, could not read, could not write, could print only his name, did not know [180 Ind.App. 225] his age or birthdate, had no concept of time, and did not know the current month.

Two experts who testified at the suppression hearing offered conflicting views as to whether Hooker was mentally competent to appreciate the significance of waiving his Miranda rights and giving a statement to the police. One expert examined Hooker's statement to the police and, on that basis, estimated his intelligence quotient in the range of 80 or below normal. He testified that he believed that Hooker could understand the language of State's Exhibit No. 47, the Evansville Police Department Statement of Miranda Rights and Waiver of Rights, if the contents were read aloud to him in a "slow friendly manner" without the aid of further explanation.

The second expert testified that an oral, standardized intelligence test placed Hooker's intelligence quotient at 45. He said that a person with an I.Q. in the mid-50's was "educable" and that he considered Hooker to be "educable" because he had been able to earn a living and had no prior serious problems with the law. This expert first testified that, in his opinion, Hooker could understand the forms if they were read aloud to him and "a very strong effort was made to go through it step-by-step and laboriously explain the meaning of each of the Miranda rights." He later hedged this testimony somewhat: "I don't think . . . that unless every step of this Miranda Rights was very carefully and very elaborately explained to him that he could understand it," and "If it was a very very considered effort, it might be that he could understand it, yet, I somehow don't feel that he could fully understand it." He found Hooker to be "tractable" in that he could probably be easily led into answering certain questions a certain way.

Policeman Richard Tenbarge testified that he participated, along with other officers, in securing Hooker's waiver and his statement. Tenbarge said that Exhibit No. 47 was read to Hooker twice, once by another officer and once by Tenbarge. Tenbarge also said, ". . . then the rights were ad-libbed on to a degree." When asked to explain precisely what he meant by "ad-libbed on to a degree", Tenbarge explained:

"It was stated to him that he had the right to remain silent and this meant that he didn't have to talk to us; that anything he did [180 Ind.App. 226] tell us could and would be used against him in a Court; and that he had the right to talk to a lawyer or attorney and that he had the right to have one present during the questioning and that if he couldn't afford a lawyer, that the State would hire or appoint him a lawyer and that he could stop talking to us at any time or he could ask for an attorney at any time that he wanted to."

Further testimony from Tenbarge was, in part, as follows:

"Q. After the rights were explained to Mr. Hooker, what did he do or say?

A. He, you know, agreed to talk to us and to give us a statement.

Q. When you said you have the right to remain silent, what did he say?

A. He just really didn't say anything. When I asked him if he understood his rights, he said yes.

Q. Did he say anything when you said anything you say can and will be used against you in a Court of Law?

A. He really didn't make any particular response.

Page 1357

Q. Alright. You have the right to talk to a lawyer and have him present with you while you are being questioned. What did he say about that?

A. He made no particular response.

Q. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.

A. He made no particular response.

Q. Did you explain to him that if he didn't have any money how or who would appoint a lawyer to represent him?

A. Yes.

Q. What did you tell him?

A. I told him there were several different possibilities. I said that generally in a case like this the Vanderburgh County Superior Court Misdemeanor Section would appoint him an attorney.

Q. When would they appoint that attorney?

[180 Ind.App. 227] A. That appointment would be the next day when he appeared in Court. And prior to that, if he wanted an attorney, we would contact the Prosecutor's Office.

Q. And you can decide at any time to exercise these rights and not answer any questions or make any statements. Did he make any comment with regard to that?

A. No particular comment."

Tenbarge testified that he believed that Hooker understood his rights and knew that his statement could well be used against him in court.

Justice DeBruler set forth these applicable rules for our review in Ortiz v. State (1976) 265 Ind. 549, 356 N.E.2d 1188 at 1191:

"In determining whether a statement was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was 'induced by any violence, threats, promises, or other improper influence.' Montes v. State (1975) Ind., 332 N.E.2d 786, 792. The same test determines whether a waiver of the Miranda rights has occurred. Nacoff v. State (1971) 256 Ind. 97, 267 N.E.2d 165. The burden is on the State to prove beyond a reasonable doubt the voluntariness of the...