Jackson v. State

• Decision Date: 15 October 1981
• Docket Number: No. 1280S459,1280S459
• Citation: 426 N.E.2d 685
• Parties: Marshall JACKSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 685

426 N.E.2d 685

Marshall JACKSON, Appellant, v. STATE of Indiana, Appellee.

No. 1280S459.

Supreme Court of Indiana.

Oct. 15, 1981.

Rodney H. Bayless, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On June 4, 1980, appellant Jackson was found guilty after a trial by jury, of Attempted Murder and Robbery. On June 5, 1980, appellant was found to be an Habitual Offender. A sentencing hearing was held and appellant was sentenced to forty (40) years imprisonment on Count I, Attempted Murder, and thirty (30) years on Count II, Robbery. These sentences are to be served concurrently. Appellant was also sentenced on Count III, Habitual Criminal, to thirty (30) years imprisonment, which sentence is to be served consecutively to those imposed in Count I and Count II. He appeals.

On May 9, 1980, appellant, Marshall Jackson, and Albert Chambers went to Mr. Neal's Motor Sales. Albert Chambers bought a car. Later that day appellant returned, inquired about purchasing a used car and asked if he could take a ride in one. A partner in the automobile dealership, Gary McGinty, went with appellant Jackson for a test drive. After Jackson had driven a few blocks he pulled into an alley, produced a .38 caliber gun and demanded McGinty's money. McGinty gave Jackson his money, check book and credit cards. He then attempted to open the door and leave the car. Jackson said, "No, I can't let you go. You can identify me. I have to shoot you." Jackson shot McGinty and they struggled for control of the gun. A second shot was fired through the roof of the car. McGinty tried to reach and fire his own gun which he had on his foot. The gun did not fire and he threw it on the floor of the car. McGinty gained control of appellant's gun, but it was out of ammunition. Jackson got out of the car and ran. McGinty threw the gun at him. Jackson picked up the gun and continued running. McGinty chased him. McGinty had picked up his own gun and realized it had not fired because the safety was on. However, by then other people were on the street and McGinty did not fire his gun at Jackson. McGinty collapsed on the street from loss of blood. Police called an ambulance and took McGinty's gun. McGinty was taken to the hospital and surgery was performed.

Appellant raises four issues for our consideration. They involve claims of error regarding the admission of statements and exhibits during trial, the sufficiency of the evidence and testimony admitted at the sentencing hearing.

I.

Appellant contends that the trial court erred in admitting State's Exhibit 1, a photographic aerial view of the area where the victim was robbed and shot. Appellant objected that there was no way of knowing the accuracy of the photograph or whether it had been altered.

The admission of photographic evidence rests largely within the trial court's discretion. Thornton v. Pender, (1978) Ind., 377 N.E.2d 613, 618. A photograph may be offered as demonstrative evidence if identified and verified as accurate by someone with knowledge of the scene depicted and if it will be relevant and of assistance to the fact finder. McPherson v. State, (1978) Ind.App., 383 N.E.2d 403, 412. The photographer need not be called to authenticate it. Anyone familiar with the material in the picture may testify as to its accuracy. Boone v. State, (1978) Ind., 371 N.E.2d 708. Here, the victim described the area and stated that he was familiar with it. He testified that the photograph was an accurate representation of the area where he had been robbed and shot. There is no error in the admission of this photograph.

Appellant also challenges the admission of State's Exhibit 5 (a card holder) and State's Exhibit 6 (a checkbook). Appellant claims there was an insufficient foundation laid for the admission of these exhibits and that there were doubts as to their chain of custody. Each of the exhibits was identified by the victim as having been taken by the appellant during the robbery. In addition, the police officer who seized the items testified as to where they were found and that they were photographed and tagged as evidence. His testimony was corroborated by a form attached to the exhibits. These exhibits were capable of eyewitness identification and it was a sufficient foundation for their introduction that a witness identified them and that they had relevancy to the issues. Walker v. State, (1980) Ind., 409 N.E.2d 626, 629; Gee v. State, (1979) Ind., 389 N.E.2d 303, 309.

II.

Appellant next claims that the court erred in admitting two written statements into evidence. Appellant claims that these statements were not given of his free will and were the result of improper promises and inducements by the interrogating police officers.

At a suppression hearing, Jackson testified that at the time he made the statements he was undergoing withdrawal from the effects of heroin and that he requested a doctor and methadone in return for giving a statement. He claims he made the statements after police promised to obtain medical assistance for him and assured him that the prosecutor would be more lenient if he cooperated. Although there was other testimony that Jackson was a known user and seller of narcotics, the evidence in support of his claim that he was undergoing withdrawal after his arrest was his own testimony and that of his sister. His sister saw him in jail over 24 hours after his arrest and testified that he was a "heavy user" of narcotics. She testified that he seemed to be irritable, nervous, upset and that he had watery eyes when she saw him. However, two police officers testified that during the interrogation appellant denied using hard drugs, did not request medical attention and did not appear to be going through withdrawal. They also testified that no promises of any kind were made in exchange for the statements.

Appellant also alleges that the State failed to establish that he was informed of his rights prior to making his second statement. Appellant made two statements. The first statement was completed at 2:45 p. m. Prior to his first statement interrogating officers testified that Miranda rights were read to the appellant and that he was also given the opportunity to read the rights form. Appellant then signed the waiver of rights form and made an oral statement which was reduced to writing which he then read, initialed and signed. Approximately forty-five minutes later the appellant called out from his cell that he wanted to talk again. The officers were not asked to detail the advisement of rights procedure at this time, but another waiver form was executed and one of them testified that the waiver form was executed in the same fashion as it was for the previous statement. This second form also enumerated the appellant's rights. Appellant acknowledges that he initiated the second statement.

On appeal in examining the sufficiency of the evidence concerning the voluntariness of a confession, this Court will not reweigh the evidence. Rather, we will determine only if there is substantial probative evidence to support the trial court's ruling. We will not ordinarily disturb the trial court's finding when that finding is based on conflicting evidence. Pardue v. State, (1980) Ind., 403 N.E.2d 1072, 1073. Love v. State, (1980) Ind., 400 N.E.2d 1371; Harrison v. State, (1978) Ind., 382 N.E.2d 920, 923-24; Richardson v. State, (1978) Ind., 373 N.E.2d 874, 875. In view of all of the evidence recited above, the court did not err in finding that appellant's confession was voluntarily given and not the product of promises or inducements. Pardue, supra, Love v. State, supra. See Works v. State, (1977) 266 Ind. 250, 362 N.E.2d 144. See also Johnson v. State, (1978) Ind., 380 N.E.2d 1236; Richardson v. State, (1978) Ind., 373 N.E.2d 874.

In addition, the second statement focused on the appellant's admission of involvement in an unrelated crime and added little to his first statement in which he confessed to the crimes in question. This...