Jefferson v. State

Citation399 N.E.2d 816
Decision Date30 January 1980
Docket NumberNo. 3-679A180,3-679A180
PartiesClayton L. JEFFERSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtCourt of Appeals of Indiana

James R. Bielefeld, Crown Point, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

On the morning of January 5, 1975, Stephen Armstrong, Roland Anderson, Eddie Leon Hill, and appellant Clayton Jefferson decided to rob a grocery. After "casing" Lindy's Food Store in Hammond, Indiana, the four returned in the afternoon with Armstrong at the wheel. Their car was parked in an adjacent alley, and Armstrong waited as his three compatriots left the automobile and entered the store. During the course of the robbery, a customer, Thomas Pearson, was shot in the chest with a shotgun blast by one of the perpetrators, and his wallet was taken. Before appellant and his two friends could return to the getaway vehicle, the police arrived. Armstrong left by himself in the auto, and the other three fled on foot. All four were subsequently captured. Hill and appellant gave written statements at the Hammond Police Station admitting their participation in the holdup. Both individuals signed a waiver of rights form.

Armstrong, Hill, and appellant were jointly charged with the crimes of robbery and inflicting injury in the perpetration of a robbery or attempted robbery. The three of them were tried together by a jury. Anderson was to be tried separately. Pursuant to a plea bargain between the State and Armstrong's counsel reached in the early stages of the trial, the State agreed to amend the robbery charge against Armstrong to that of automobile banditry. In exchange for a guilty plea to that crime, the State additionally agreed to enter a nolle prosequi at the time of sentencing for the second charge of inflicting injury in the perpetration of a robbery or attempted robbery. The trial continued with the jury finding appellant guilty of robbery and Hill guilty of inflicting injury in the perpetration of a robbery or attempted robbery. The court then rendered judgments pursuant to the verdicts. Armstrong was sentenced to one to five years in the state prison. Hill was sentenced to life imprisonment, and appellant received an indeterminate prison term of ten to twenty-five years. Appellant filed a belated motion to correct errors and subsequently perfected an appeal to this court.

Appellant's first allegation of error concerns the introduction into evidence, over his objection, of a written statement or confession made by him to Officers John Baron and Mike Solan of the Hammond Police Station, Detective Bureau. He contends that there was no valid waiver of his right to counsel as guaranteed by the Sixth Amendment nor of his privilege against self incrimination as embodied in the Fifth Amendment.

The transcript of testimony discloses that appellant was taken to the Hammond Police Station after his apprehension and was brought to the Detective Bureau where Officers Baron and Solan were present. Appellant was given a written copy of his constitutional rights which Officer Baron then read as appellant followed. The waiver portion of the form was also read to him, and he was orally advised that no promises were being made in exchange for his confession. Appellant did not ask any questions nor did he indicate that he wanted to stop at any time. Appellant then signed the waiver and, without an attorney present, gave an oral statement detailing the events surrounding the robbery of Lindy's Food Store and his part in it. Officer Solan reduced the oral statement to typewritten form. Thereafter, appellant was instructed to read the statement as it appeared on paper and to make any changes or corrections he desired. After reading his confession, appellant signed his name to it. The entire procedure from the reading of rights to the signing of the confession took approximately an hour and a half. On voir dire examination of appellant, he admitted that no threats had been made against him in connection with the statement. The trial court later ruled that the confession was made voluntarily and that it could be admitted into evidence.

Our courts have held that in order for a confession to be admissible, it must appear from the totality of circumstances that it was made voluntarily and not as a result of promises, threats, violence, compulsion, or other improper inducements or influences. See, e. g., Johnson v. State (1979), Ind., 387 N.E.2d 1328; Middleton v. State (1979), Ind.App., 391 N.E.2d 657; IC 35-5-5-1 to 2 (1976). This same test is utilized in order to determine whether there has been a valid waiver of the Miranda rights prior to giving the incriminating statement. Tyson v. State (1979), Ind., 386 N.E.2d 1185; Ortiz v. State (1976), 265 Ind. 549, 356 N.E.2d 1188. A trial court's ruling on the admissibility of a confession will not be disturbed when it is based on substantial, though conflicting, probative evidence that the statements were voluntarily given. Porter v. State (1979), Ind., 391 N.E.2d 801; Riggs v. State (1976), 264 Ind. 263, 342 N.E.2d 838.

In the case at bar, appellant's sole contention is that there was no valid waiver of his constitutional rights because those rights were inadequately explained to him. Specifically, he attacks the language of the waiver form which indicates the specific rights which were communicated orally to him by Officer Baron. The form stipulates,

"1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say may or will be used against me in a court of law.

2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

4. That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation.

5. That if I cannot hire an attorney, one will be provided for me."

The essence of appellant's argument is that since he was not informed of his right to appointed counsel until item number five, it was not made clear to him that counsel could be appointed prior to any questioning. He notes that at item number two when he was told that he had a right to an attorney before and during questioning the phrase "attorney of my own choice" was used and that such phrase, at least to the legal mind, is indicative of retained counsel. Citing Williams v. State (1976), 264 Ind. 664, 348 N.E.2d 623 he urges that the advice was therefore misleading and inadequate because it led to the belief that appointed counsel could not be had prior to or during interrogation.

We disagree, but in doing so we acknowledge that the spirit of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 would be better served by utilizing a form of advice that directly and immediately explained the right to counsel as an indigent before and during interrogation.

We find Jefferson's reliance on Williams is misplaced. 1 Williams was primarily concerned with an appellant's fourth amendment rights following an illegal arrest and detention and the application of Brown v. Illinois (1975), 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. While in the context of that inquiry two of the justices found the warnings inadequate in view of a police officer's testimony that he, in fact, had no means for providing Williams with indigent counsel, 348 N.E.2d 629, no majority reached that issue. 2 Three months earlier the court had considered an identical advice form in Sotelo v. State (1976), 264 Ind. 298, 342 N.E.2d 844 and a majority found it sufficient because "A common sense reading does not lead to the Appellant's conclusions of ambiguity." 342 N.E.2d 847. See also Gutierrez v. State (1979), Ind. 388 N.E.2d 520, 525, where the court unanimously held this advice form adequate under the facts there present.

Thus, in the case before us and in the absence of any circumstances indicating that Jefferson was indeed misled, we conclude the confession was properly admitted.

The next allegation of error relates to the admission of co-defendant Eddie Leon Hill's confession which implicated appellant. Appellant cites the U. S. Supreme Court decision of Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 where the court held that at a joint trial, the introduction into evidence of a non-testifying defendant's confession which is inculpatory of a co-defendant violates the latter's Sixth Amendment right to confront witnesses against him. In Bruton, the jury was instructed that the confession was to be disregarded in determining the implicated defendant's guilt or innocence. Although this practice had been approved by prior Supreme Court precedent as curing any potential prejudicial effect that the statement might have on a joint defendant, the court in Bruton overruled that holding and concluded,

"Here the introduction of Evans confession posed a substantial threat to petitioner's right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all."

Id. at 137, 88 S.Ct. at 1628. The use of the confession was thus held to be reversible error. The Indiana courts have expressed agreement with the rule of law announced in Bruton...

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