Kelley v. State

• Decision Date: 16 September 1985
• Docket Number: No. 1284,1284
• Citation: 482 N.E.2d 701
• Parties: Melvin KELLEY, Appellant, v. STATE of Indiana, Appellee. S 476.
• Court: Indiana Supreme Court

Page 701

482 N.E.2d 701

Melvin KELLEY, Appellant, v. STATE of Indiana, Appellee.

No. 1284 S 476.

Supreme Court of Indiana.

Sept. 16, 1985.

Paul James Newman, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On May 10, 1984, Defendant-Appellant Melvin Kelley was convicted of Robbery, a class C felony, and of being a habitual criminal. At the conclusion of a jury trial in the St. Joseph Superior Court the Honorable Robert L. Miller, Jr., sentenced Appellant to the Indiana Department of Corrections for a determinate term of five years enhanced by an additional thirty years.

Appellant's argument raises two issues for consideration:

1. whether the trial court erred in admitting out of court statements made by Appellant to the State's witness;

2. whether the jury's verdict is supported by sufficient evidence.

"Shorty" Swoveland was the desk clerk at the Southern Hotel in South Bend. There was slightly over $18.00 in the cash drawer when his shift began. Soon thereafter Appellant appeared at the Hotel seeking a room. Swoveland admitted Appellant to the lobby and Appellant grabbed him from behind announcing a stick-up. Believing Appellant had a gun, Swoveland opened the cash drawer so Appellant could take the money. Appellant tried to get Swoveland to open the safe but Swoveland did not know the combination. Appellant pushed Swoveland out of the office and Swoveland ran upstairs and called the police.

When the police arrived Swoveland unlocked the door and the police commenced searching for Appellant. A police dog located Appellant locked in a closet, but Appellant refused to come out until after the police shot a fire extinguisher into the closet. At that point Appellant withdrew from the closet saying, "All right, you got me, you got me."

Appellant was advised of his rights and searched, during which search the police found $18.25. Swoveland identified Appellant as the man who robbed him. Appellant was removed from the hotel, and upon arrival at the police station was once again advised of his rights. Appellant declined to make a statement, saying: "No man, I don't think so. You caught me. That's it." Appellant was instructed that if he changed his mind he could make a statement to one of the officers later. He responded: "No, I did it. That's it. You got me. You know, sometimes you do things without really thinking." It is these statements of Appellant to the police officer which are presently at issue.

I

Appellant alleges the trial court erred in admitting Appellant's out-of-court statements to the State's witness. Appellant does not deny that he made incriminating statements. Instead, he maintains these statements were made after he indicated his desire to remain silent, and were the result of an improper interrogation. As authority Appellant cites Lane v. State, (1977) 266 Ind. 485, 488, 364 N.E.2d 756, 758, wherein we held a police officer may not question a suspect once the suspect has exercised his right to remain silent. Appellant also cites Miranda v. Arizona, (1966) 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694, 722-23 for the proposition that if a defendant indicates he wishes to remain silent the interrogation must cease and any statement given after the privilege is invoked cannot be other than the product of compulsion.

While Lane does represent the rule of law cited by Appellant, the case actually bolsters the State's position. There, the defendant was advised of his rights at least twice, stated he did not wish to make a statement, but proceeded to make incriminating remarks and eventually gave a statement and directed the police to the murder weapon. This Court held that since the defendant's rights were orally spelled out with clarity, the defendant's privilege of silence was not transgressed. Lane, 266 Ind. at 489, 364 N.E.2d at 759.

Likewise, in the present case, Appellant was advised of his rights at least twice, stated he did not wish to make a statement, but proceeded to make incriminating remarks. Unlike Miranda, the remarks in the present case were unsolicited and not brought about due to compulsion. The Miranda confession on the other hand was a result of "incommunicado interrogation of individuals in a police dominated atmosphere ... without full warnings of constitutional rights." Miranda, 384 U.S. at 445, 86 S.Ct. at 1612.

This Court has repeatedly held incriminating remarks admissible where the defendant volunteered the remark whether or not he has been advised of his rights and where the remark is not in response to police questioning. Hill v. State, (1984) Ind., 470 N.E.2d 1332, 1335; Partlow v. State, (1983) Ind., 453 N.E.2d 259, 269, cert. denied, --- U.S. ----, 104 S.Ct. 983, 79 L.Ed.2d 219, see New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696.

Even were this Court to find Appellant exercised his right to remain silent, his comments cannot be found the result of an improper interrogation. Interrogation is the process of questioning by law enforcement officials which lends itself to obtaining incriminating statements. Partlow, Ind., 453 N.E.2d at 269, citing Escobedo v. Illinois, (1964) 378 U.S. 478, 485, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977, 986. In Johnson v. State (1978) 269 Ind. 370, 377, 380 N.E.2d 1236, 1240 we held that not every statement of a police officer punctuated by a question mark constitutes an interrogation. The mere advising a suspect of his Miranda rights alone does not amount to an interrogation. Here Appellant was merely read his rights and asked if he wished to make a statement. There was no attempt to gain incriminating evidence nor was there any compulsion on the part of the police, thus the comments were properly admitted.

Appellant's comments were of the nature of a...