Houchin v. State, 45S00-8909-CR-671

Citation581 N.E.2d 1228
Decision Date25 November 1991
Docket NumberNo. 45S00-8909-CR-671,45S00-8909-CR-671
PartiesBrian HOUCHIN, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

James R. Bielefeld, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Appellant, Brian Houchin, was convicted by jury for the murder of a bank employee during a robbery. The jury recommended against the death penalty and he was sentenced to 58 years. This appeal is before us pursuant to Indiana Appellate Rule 4(A)(7).

The record reveals that in October 1988, Houchin, then 16 years old, met with Larry Allen and Joseph Hallock and planned to rob a bank. On the morning of October 18, Hallock and Allen met Houchin at his home, and the three left in Allen's car. They drove to the Mercantile Bank in Hammond, Indiana. Donning rubber gloves and nylon stocking masks, the three entered the bank. Hallock held a sawed-off shotgun at the security guard while Houchin removed the guard's loaded revolver. Meanwhile, Allen entered the teller's area and filled a pillowcase with approximately $7,750 in cash and several checks. During the robbery, Houchin raised the guard's revolver and shot a teller once in the head, killing her. The robbery, which lasted approximately two minutes, ended as the three ran from the bank to Allen's car and drove away. They travelled to a pond near Calumet City, Illinois, and deposited some of their outer clothing, the guns, the spent shellcasing, rubber gloves, nylon stockings, and some papers from the bank into the pond. They divided the money and hid some in a wooded area nearby.

In this direct appeal, Houchin raises two issues:

(1) Whether a statement he gave to the police was obtained legally; and

(2) Whether an edited version of that statement which omitted references to his co-defendants was properly admitted.

I. Statement Was Legally Obtained.

Houchin was taken into police custody at his family's home on the evening of October 20, 1988, and was transported with his father to the police station. There he signed a written statement in which he confessed to his own involvement in the murder and robbery and implicated Allen and Hallock. Houchin moved to suppress this statement on the grounds (a) that it was obtained as the result of an illegal arrest, (b) that the statement was not voluntary, because he was under the influence of drugs at the time it was made, and (c) that the Miranda warnings he received were deficient. The trial court admitted the statement after concluding that the statement was properly obtained. Houchin asserts error in that ruling.

The evidence at the suppression hearing and at trial relevant to the confession revealed that Houchin became a suspect in the robbery during the police investigation. On October 20, around midnight, Hammond police detective Myszak received a telephone call from Houchin's girlfriend, Tina Blue. Blue told Det. Myszak that during a telephone conversation, Houchin admitted having shot the teller during the bank robbery with Larry Allen and "Joe". Houchin also reportedly told Blue that he had ingested drugs in an effort to overdose, and announced that he intended to go to her house. She was concerned because Houchin had been in her home earlier and had behaved violently. Police officers, one FBI Upon arrival at the Houchin house, officers observed a male lying on the sofa inside. They knocked and called Houchin's name, but received no response. Believing the individual on the couch was Houchin and concerned for his welfare, the officers entered the house, but discovered that the male on the sofa was not Houchin. They conducted a cursory search through the home, but were unable to locate Houchin. At this time, Houchin's brother told the officers that Houchin had admitted being involved in the bank robbery with "Joe and Larry."

agent, and an ambulance were dispatched to Houchin's house. Other officers went to Blue's house.

Houchin's family indicated that he might be at Blue's house, but police did not find him there either. The officers then returned to Houchin's home and observed him standing inside. The officers announced their presence and identified themselves. Houchin gestured for them to enter the house. The officers asked Houchin about taking the pills, and Houchin replied that he felt fine. He refused medical assistance. Houchin was then informed by the officers that they wanted to speak with him and his father at the police station. Neither officer asked any questions about the bank robbery. Houchin spontaneously asked whether he would receive the electric chair and whether the police had apprehended "Larry and Joe." Houchin was warned by the officers not to say anything until they arrived at the station.

Houchin was transported to the hospital where he was offered, but refused, medical assistance. He was then taken to the Hammond Police Station where he and his father received Miranda warnings and were allowed to confer privately. Houchin and his father signed a waiver of rights form. Houchin gave a statement admitting robbing the bank with Allen and Hallock and admitting his role in the killing.

A. Illegal Arrest.

Houchin asserts that his statement is the product of an illegal arrest because the officers did not have probable cause to perform a warrantless search of his home for him on their first visit to the house. Although a confession obtained through a custodial interrogation after an illegal arrest is generally inadmissible, Brown v. State (1987), Ind., 503 N.E.2d 405, 407, Houchin expressly advised the trial court at the hearing on the motion to suppress that the first police visit to the house was irrelevant, and this issue was not raised by Houchin when the statement was offered into evidence at trial. Accordingly, this argument has been waived. Thomas v. State (1983), Ind., 443 N.E.2d 1197, 1200.

Houchin argues that the second entry of the police into his home was also illegal because it was a continuation of the initial entry. At the suppression hearing, trial counsel specifically waived this argument. Moreover, the trial court concluded that the entry was consensual because Houchin invited the officers in. A valid consent obviates the warrant requirement. Morgan v. State (1989), Ind., 544 N.E.2d 143, 147. Houchin also argues that the entry was illegal because the officers did not have probable cause to enter. In view of Houchin's consent, this argument is of no moment. We find no error in the trial court's determination that the second entry into the Houchin home was legal. Therefore, this confession was not inadmissible because it was obtained as a result of an unlawful search or seizure. Implied consent to enter may be given by word or deed. Harper v. State (1985), Ind., 474 N.E.2d 508.

B. Miranda Warnings.

Houchin argues that the Miranda warnings given him were not sufficient to apprise him clearly that he had the right to request an attorney to be furnished to him at no cost prior to any questioning. 1 Specifically Even if Houchin had not waived this argument, however, his assertion would be unavailing. An advisement of Miranda rights identical to the one here, was approved by this Court in Sotelo v. State (1976), 264 Ind. 298, 342 N.E.2d 844, where we held that the advisement was not ambiguous or misleading concerning the right to confer with private or pauper counsel before interrogation. Here, where Houchin initialed each of the five paragraphs of the Miranda advisement, where the detective read each of the advisements to Houchin and his father, allowed Houchin to read them, and allowed Houchin and his father time to confer privately before Houchin signed the form, we hold that Houchin was adequately advised of his right to counsel.

Houchin claims that warning no. 5 is equivocal, taken in conjunction with the other advisements, because it refers to an attorney which will be furnished, rather than an attorney of the defendant's own choice. Houchin has waived his argument relating to the sufficiency of the Miranda warnings because he did not raise any objection on these grounds at the pre-trial suppression hearing or when the statement was offered into evidence at trial. Brown, 503 N.E.2d at 409; Thomas, 443 N.E.2d at 1200.

C. Voluntariness of Statement.

Houchin next claims that the confession was not made voluntarily, intelligently and knowingly because he was under the influence of drugs at the time the statement was given.

It is well-established that the State has the burden of proving beyond a reasonable doubt that a defendant voluntarily and intelligently waived his right to remain silent. In reviewing the trial court's ruling in favor of the State on this issue, where the evidence is conflicting, we consider only the evidence which supports the ruling along with any unrefuted evidence in the defendant's favor. Thomas, 443 N.E.2d at 1199. A signed waiver is not conclusive evidence of a knowing, intelligent and voluntary waiver, Dickerson v. State (1972), 257 Ind. 562, 570, 276 N.E.2d 845, 849; we also consider the surrounding circumstances. Grey v. State (1980), 273 Ind. 439, 444, 404 N.E.2d 1348, 1351. "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 of any sort." Gibson v. State (1987), Ind., 515 N.E.2d 492, 494.

When a defendant claims he was under the influence of drugs at the time he made a statement, the degree of his mental impairment is of critical importance. Gregory v. State (1989), Ind., 540 N.E.2d 585, 592. This Court has long held that voluntary intoxication does not necessarily establish that a confession was not given knowingly, intelligently or voluntarily, whether the intoxication was a result of alcohol, Williams v. State (1986), Ind., 489 N.E.2d 53, 56, some other drug, Gregory v. State (1989), Ind., 540...

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