Layton v. State, 672S81

• Decision Date: 05 October 1973
• Docket Number: No. 672S81,672S81
• Citation: 261 Ind. 251,301 N.E.2d 633
• Parties: Michael W. LAYTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 633

301 N.E.2d 633

261 Ind. 251

Michael W. LAYTON, Appellant, v. STATE of Indiana, Appellee.

No. 672S81.

Supreme Court of Indiana.

Oct. 5, 1973.

Donald E. Transki, Michigan City, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

On December 15, 1971, a jury found the Appellant guilty of first degree murder, and after a pre-sentence investigation the Court, on January 14, 1972, ordered that Appellant be imprisoned in the Indiana State Prison for life. The Appellant filed a timely Motion to Correct Errors, and it is from the overruling of that motion that Appellant now appeals to this Court.

Briefly, the circumstances appear to have been that Appellant, an inmate at the Indiana State Prison, already under life sentence for murder and participating in robbery, threw gasoline on and ignited another inmate while the other inmate was locked in a cell. Appellant testified that he did the act because it was the only way to prevent the decedent, a physically more powerful man, from imposing his sexual will upon the Appellant.

Appellant presents five allegations of error. First, Appellant maintains that he should have been discharged prior to trial pursuant to C.R. 4, which requires such a discharge if a defendant is not brought to trial within six months of the date of his arrest on such charge or the date the charge is filed, whichever is later. However, the undisputed facts are that one of the delays which caused the trial to be set beyond the six-month period was pursuant to a request for a change in trial date 'either prior to or after the original date for trial' by Appellant's attorney. When the Court changed the trial date to a day beyond the six-month period, Appellant's attorney acquiesced. Under these circumstances, Appellant is estopped to assert C.R. 4, which exempts from its coverage situations wherein a continuance was had on the motion of the defendant or the delay was caused by an act of the defendant. Bryant v. State, Ind., 301 N.E.2d 179 (1973).

Appellant's second specification of error revolves around the admission into evidence of a pre-trial confession. Appellant suggests that since a written transcription of the confession and the tape-recording itself were not totally consistent, both having been presented to the jury, it is necessary that the customary waiver of Miranda rights be on the tape-recording as well as in written form as it is in the instant situation. The authority for this proposition is purportedly Lamar v. State (1972), Ind., 282 N.E.2d 795. However, that case simply set forth as one of five criteria for establishing a foundation for the admission of a sound-recording 'that all required warnings were given and all necessary acknowledgments and waivers were knowingly and intelligently given.' The precise medium through which a waiver is obtained is not delimited by this rule. Appellant does not, at this portion of his argument, maintain that the waiver was in fact involuntary. We do not see in what ways defendant's rights will be better protected by requiring that a waiver be preserved in the same medium as the confession.

Appellant also contends that the confession itself was involuntary because he was under the influence of drugs at the time he gave the confession. Appellant testified that on the date of the alleged crime, which was also the day Appellant gave the confession, he had taken eleven (11) 'Amesels,' 'phenobarbital,' and that two 'shots' had been administered to him after the alleged crime had occurred and before he gave the confession. Yet Appellant adduced no testimony as to the medical nature of these drugs. That is to say, there is in the record no evidence from which one could conclude that if the drugs were taken or administered they were of the kind or amount that would possibly produce an involuntary confession. The testimony as to the administration of the drugs came only from the defendant's mouth. Appellant does not even allege that the drugs contained 'properties which may trigger statements in a legal sense involuntary.' Townsend v. Sain (1962), 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Since under IC 1971, 35--5--5--1, 35--5--5--2 (Burns' Ind.Stat.Ann. §§ 9--1634, 1635 (1972 Supp.)) the determination of the voluntariness of a confession is a matter of fact for the trial court, we think that there has been no showing by Appellant that the Trial Court was clearly erroneous in its determination that the confession was voluntary.

Appellant also offers the theory that the confession was inadmissible because appellant had not been advised prior to confessing that the victim had in fact died of the act to which Appellant confessed. In the first place, the following testimony from Officer Garmin appears in the record:

A. I believe he asked me before we started the tape. He asked me--I can't remember--he asked me if he was dead, or he said, 'He's dead, isn't he?' And I did answer him in the affirmative. It is not on the tape,...