Hutts v. State, 1--473A59

Docket NºNo. 1--473A59
Citation157 Ind.App. 83, 298 N.E.2d 487
Case DateJuly 25, 1973
CourtCourt of Appeals of Indiana

Peter J. Marietta, Newport, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.


Defendant-appellant was charged by affidavit with assault and battery on a female child under the age of twelve. Appellant filed a Motion to Suppress prior to trial, seeking to suppress an identification of him by the alleged victim and to suppress any statement given by him to police officers. A hearing was held on said motion and the court sustained the motion to suppress the identification but did not suppress the statement.

Trial was had to the court without the intervention of a jury and appellant was found guilty as charged. Judgment was duly entered thereon and appellant was sentenced to the Department of Correction for a period of not less than two (2) nor more than twenty-one (21) years.

Appellant timely filed his motion to correct errors, which was overruled by the court, and this appeal was perfected.

The first issue raised by the motion to correct errors is whether the court erred by not suppressing testimony concerning statements made by the appellant to certain police officers. Basically, it is appellant's position that the oral statements should have been suppressed for the reason that appellant did not meaningfully waive his constitutional rights, more commonly known as 'Miranda rights.' Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

After appellant signed his waiver card he declined to make a written statement, but soon thereafter he did voluntarily make an oral confession. Appellant contends that such conduct is controlled by the case of United States v. Nielson (7th Cir. 1969), 392 F.2d 849, where the court found constitutional violations. However, Nielson is distinguishable from the case at bar. The accused in Nielson absolutely refused to sign any waiver card and specifically demanded an attorney. The court held that such conduct should have put the interrogators on notice of the accused's wish to remain silent even though he subsequently answered questions. The court stated that the burden was on the interrogators to inquire into the reason for the apparent change in position to determine if the change was intelligently and understandingly made.

In the case at bar the appellant was orally informed of his rights and was read his rights from the waiver card, which he signed. Additionally, appellant had made no request for an attorney. It is our opinion that simply refusing to give a written statement is not conduct sufficient to fall within the Nielson, supra, holding.

Appellant further relies on the testimony of Deputy Sheriff Finney, who stated on cross-examination that it was his impression the appellant signed the waiver card to acknowledge his understanding of his rights. Deputy Finney also had the impression that the appellant wished an attorney. Appellant contends that this testimony shows that he did not waive his rights, but merely understood them.

On redirect examination, Deputy Finney expressed his opinion that appellant understood his rights and stated that the appellant was clearly informed that he need not make any statement unless voluntary.

Sheriff Cooper and Deputy Finney testified that the defendant's 'Miranda rights' were orally given to him at the time of his arrest. Immediately prior to questioning the sheriff read the rights waiver card aloud to the defendant. Thereafter, the defendant read the card and signed the waiver. An examination of the card shows that it is modeled closely after the Miranda decision and, in our opinion, was more than adequate to inform the defendant of his rights. The waiver is plain and unambiguous. The testimony of the sheriff and deputy discloses that the oral statement was made voluntarily by the defendant. Sheriff Cooper testified that no force, coercion, promises, or threats were made to appellant. Thus, it is our opinion that the State satisfied the heavy burden of demonstrating that appellant knowingly and intelligently waived his rights. Miranda v. Arizona, supra.

Out Supreme Court set out the requirements and tests for waiver of constitutional rights in the case of Lewis v. State (1972), ind., 288 N.E.2d 138, as follows:

'It is a long and well established principle that alleged waivers of such fundamental constitutional rights as the right to counsel and against self-incrimination will only be upheld after careful inquiry into their basis. Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Brady v. United States (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. The State bears the burden of showing that the accused was informed of his rights in clear and unambiguous language. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972). If an accused decides to waive these rights he must be sufficiently aware of the consequences of what he is doing and he must make his decision voluntarily, knowingly and intelligently. Miranda v. Arizona, supra; Nacoff v. State (1971), Ind., 267 N.E.2d 165; Mims v. State (1970), Ind., 262 N.E.2d 638. In order to insure that the accused's waiver is a knowing and intelligent one the courts have considered such factors as his educational level, the seriousness and complexity of the charge lodged against him his mental condition, and his age. Von Moltke v. Gillies (1948), 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Williams v. Peyton, 404 F.2d 528 (4th Cir. 1968); Day v. United States, 357 F.2d 907 (7th Cir. 1966).'

See, also Dickerson v. State (1972), Ind., 276 N.E.2d 845; Jones v. State (1969), 253 Ind. 235, 252 N.E.2d 572.

The evidence most favorable to the State discloses that the defendant was adequately informed of his constitutional rights. This court will not weigh conflicting testimony. Bridges v. State (1970), 255 Ind. 201, 263 N.E.2d 368. The trial court's finding on the waiver and admissibility of the statements was supported by substantial evidence. Lynn v. State (1971), 255 Ind. 631, 266 N.E.2d 8. Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493.

Since the appellant was adequately informed of his rights and made a voluntary, knowing and intelligent waiver, the statements made to the sheriff and deputy were properly admitted. Emler v. State (1972), Ind., 286 N.E.2d 408.

Appellant next contends that the in-court identification by the victim was tainted by an illegal pre-trial confrontation and should have been inadmissible. He contends that under the guidelines set out in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.E.2d 1149, he was denied a fair trial as a result of the illegal pre-trial confrontation and an allegedly tainted in-court identification.

Appellant points out that the victim identified a photograph taken of the appellant on the day of his arrest. She further gave testimony as to the appearance of her assailant which was in conflict, in some respects, to testimony given by three defense witnesses. It is well established that this court will not weigh the evidence but will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Jackson v. State (1971), Ind., 275 N.E.2d 538; Emler v. State, supra.


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6 cases
  • Moreno v. State, 3--1273A181
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Noviembre 1975
    ...v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387; Hutts v. State (1973), Ind.App., 298 N.E.2d 487. As this Court recently stated in State v. Cooley (1974), Ind.App., 319 N.E.2d 868, '. . . the State has the burden to establish the volunta......
  • Hopkins v. State, 1--574A88
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Febrero 1975
    ...question thus becomes whether any in-court identification is supported by sufficient independent facts. Hutts v. State (1973), Ind.App., 298 N.E.2d 487; Sawyer v. State (1973), Ind., 298 N.E.2d 440; Lawson v. State (1974), Ind.App., 306 N.E.2d The evidence is that Stiglitz observed Hopkins ......
  • State v. Nicholson
    • United States
    • Court of Appeals of Oregon
    • 30 Diciembre 1974
    ...State v. Jones, 35 Ohio App.2d 92, 300 N.E.2d 230 (1973); Hewitt v. State, Ind., 300 N.E.2d Page 142 94 (1973); Hutts v. State, Ind.App., 298 N.E.2d 487 In Padilla the court held that a failure to sign a waiver form was not per se a refusal to waive Miranda rights. However, the defendant in......
  • Williams v. State, 1--1273A211
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Julio 1974
    ...Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Ramirez v. State (1972), Ind.App., 286 N.E.2d 219; Hutts v. State (1973), Ind.App., 298 N.E.2d 487. ISSUE Williams next argues that the trial court erred in admitting into evidence the police blotter made on the evening of the crime. The ......
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