Lewis v. State

• Decision Date: 19 October 1972
• Docket Number: No. 571S131,571S131
• Citation: 259 Ind. 431,288 N.E.2d 138
• Parties: Douglas Timothy LEWIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 138

288 N.E.2d 138

259 Ind. 431

Douglas Timothy LEWIS, Appellant, v. STATE of Indiana, Appellee.

No. 571S131.

Supreme Court of Indiana.

Oct. 19, 1972.

Hugh C. Kirtland, Jr., Dutton, Kappes & Overman, Indianapolis, Barrie C. Tremper, Meyers & Tremper, Fort Wayne, for appellant.

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

DeBRULER, Justice.

This is an appeal from a conviction for first degree murder in a trial by jury in the Allen Circuit Court, the Honorable Bruce Bloom presiding. Appellant was sentenced to life imprisonment.

Appellant's allegation is that the trial court erred in admitting over appellant's objection testimony of Police Officers Minnick and Andrews concerning appellant's oral confession to them during custodial interrogation. When the interrogation took place appellant was a juvenile and he argues that, as a result of that fact, the supposed waiver of his rights was not made voluntarily and intelligently. Officers Minnick and Andrews testified concerning the events surrounding the confession as follows:

On September 9, 1969, they were assigned the investigation of a murder and apparent robbery of Orville VanBrunt that had taken place on March 23, 1969, on Brooklyn Avenue in Fort Wayne. From an informer they obtained appellant's name as having had some connection with the crime. On September 10, 1969, at 9:00 a.m. the two officers went to appellant's home in Fort Wayne. Appellant was a seventeen year old high school sophomore who lived with his mother in Fort Wayne, his father living in another city. When the officers arrived they showed their badges to appellant and an older man, and a young girl, apparently appellant's uncle and cousin. The police told appellant his name had come up 'in certain investigations' they were conducting and they would like to have appellant accompany them to the police station to talk to them. Appellant agreed to go as soon as he changed his clothes. The officers knew appellant was seventeen years old at the time. They did not tell appellant what the investigation related to and in their opinion appellant was not at that time under arrest. During the ride to the station the officers asked the appellant where his mother was and he said he did not know where she worked or how to reach her. Appellant asked what he was supposed to be involved in and they told him that they would talk to him after they got to the station. They arrived at the station at approximately 9:25 a.m. and Andrews testified 'we told him that we would like to talk to him in reference to several investigations, but before we did this, we had to, we had a formality that we had to go through as to his rights.' Andrews handed appellant a copy of the Fort Wayne Police Department standard Miranda rights and waiver form and had the appellant read it. Appellant said he could read and he understood it. Andrews then read it over again out-loud to appellant. Appellant signed beneath this statement of rights and again beneath the statement of waiver.

The officers proceeded to question the appellant for fifteen minutes concerning his alleged involvement in a car theft. Then Sergeant Andrews told appellant they had information that he was involved in a 'very serious crime' and showed him a photograph of the dead body of Orville VanBrunt. Appellant looked at the photo, paused and told them he was involved in the crime. Appellant was informed he could get life imprisonment for inflicting a bodily injury during a felony, but he was not advised that he could also receive the death penalty for first degree murder. The police asked appellant to tell them all he knew about the crime and appellant told them the following story.

Appellant and another juvenile, Earl Richards, were walking toward the Market on Brooklyn Avenue shortly after midnight on March 23, 1969. They saw the victim Orville VanBrunt staggering down the street. VanBrunt approached the youths and called them a dirty name and appellant followed him down to an open field while Richards stood on the corner. Appellant picked up a piece of board and hit VanBrunt on the back of the head. The victim fell to his knees and lunged at appellant whereupon appellant again hit him on the head. Appellant started to hit VanBrunt again but Richards stopped him. Appellant took the victim's billfold and tried to get his ring but could not get it off his finger so Richards took it off. They threw the board in a field and did the same with the victim's billfold after removing fifteen dollars it contained. As the pair walked toward the Richards' house, Steven McElvene drove by and picked up the appellant. Appellant gave McElvene the ring wrapped in a five dollar bill as repayment for a loan. Other testimony showed that VanBrunt died of two blows to the head inflicted by a blunt instrument.

Appellant's confession was completed by 10:30 a.m. Andrews asked appellant if he wanted to make a phone call and appellant said that the only person he would want to talk to would be his mother. This occurred after the appellant confessed and the police had not yet located his mother although they had been trying since appellant had arrived at the station.

At approximately 10:30 a.m. the police asked the appellant to accompany them to the scene while they looked for the board and the billfold involved in the crime. Neither was found. On the way back to the station they picked up Earl Richards and took him to the station with appellant. The two were questioned together and appellant's story was confirmed with minor discrepancies.

At 1:00 p.m. Officers Andrews and Minnick began taking a written statement from appellant. As part of the preliminary questions they asked appellant if he wanted to talk with an attorney before answering any questions and appellant said yes. The taking of the statement then ceased and the police called in a public defender who arrived at approximately 2:30 p.m. At 1:30 p.m. the appellant's mother had arrived and she was permitted to see appellant right away. Appellant then refused to answer any more questions or sign any statements. The earlier oral statement however was introduced at trial.

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. VonMoltke 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). This last factor continues to be a source of confusion for all parties involved in the important and difficult area of waiver of fundamental constitutional rights.

The authorities seeking to question a juvenile enter into an area of doubt and confusion when the child appears to waive his rights to counsel and against self-incrimination. They are faced with the possibility of taking a statement from him only to have a court later find that his age and the surrounding circumstances precluded the child from making a valid waiver. There are no concrete guidelines for the authorities to follow in order to insure that the waiver will be upheld. The police are forced to speculate as to whether the law will judge this accused juvenile on the same plane as an adult in regard to the waiver of his constitutional rights, or whether the court will take cognizance of the age of the child and apply different standards. We held in Sparks v. State (1967), 248 Ind. 429, 229 N.E.2d 642, that the parents of a seventeen year old juvenile should be informed of an interrogation being conducted with their son and that the juvenile should be informed of his rights. In a later case it was held that a fourteen year old girl cannot be said to have knowingly waived her rights, even though the police properly informed her of them, when she was questioned without her parents or counsel present. McClintock v. State (1969), 253 Ind. 333, 253 N.E.2d 233.

Apparently therefore a fourteen year old girl cannot be held to have waived her rights by the same standards as an adult. But this is not to say that this is the limit of the rule. Whether or not an older juvenile can be held to an adult standard is a question which the police are forced to confront and answer in the heat of an investigation. Furthermore, they are forced to proceed without indication of what alternative procedures would be constitutionally acceptable. It is harmful to the system of criminal justice to require law enforcement authorities to second guess the courts in the area of constitutional rights. Clearly defined procedures should be established in areas which lend themselves to such standards in order to assure both efficient police procedure and protection of the important constitutional rights of the accused. Age is one area which lends itself to clearly defined standards.

If the police are placed in a quandary when confronting a juvenile...