Lewis v. State, No. 571S131

Docket NºNo. 571S131
Citation259 Ind. 431, 288 N.E.2d 138
Case DateOctober 19, 1972
CourtSupreme Court of Indiana

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.

[259 Ind. 432]

Page 139

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 [259 Ind. 433] 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 [259 Ind. 434] 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.

Page 140

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 [259 Ind. 435] 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...

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129 practice notes
  • State v. Turcio
    • United States
    • Supreme Court of Connecticut
    • June 26, 1979
    ...State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). 8 Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977), and Lewis v. State, 259 Ind. 431, 288 N.E.2d 138...
  • State in Interest of Dino, No. 61283
    • United States
    • Supreme Court of Louisiana
    • May 8, 1978
    ...will relieve the police from having to make a subjective judgment in each case. As noted by the Indiana Supreme Court in Lewis v. State, 259 Ind. 431, 288 N.E.2d 138, 141 "The authorities seeking to question a juvenile enter into an area of doubt and confusion when the child appears to waiv......
  • D.M. v. State , No. 49S02–1101–JV–11.
    • United States
    • June 22, 2011
    ...U.S. 436, 445–67, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when a juvenile is subjected to custodial interrogation. Lewis v. State, 259 Ind. 431, 439–40, 288 N.E.2d 138, 142 (1972). In an opinion written by Justice DeBruler, we held that, as a precondition to using a juvenile's stateme......
  • Moore v. State Of Md.., No. 1737, Sept. Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • September 3, 2010
    ...child's rights, have an opportunity to consult privately with the child, and be present during any interrogation. E.g., Lewis v. State, 259 Ind. 431, 288 N.E.2d 138, 142 (1972); State in Interest of Dino, 359 So.2d 586, 594 (La.1978); Com. v. A Juvenile (No. 1), 389 Mass. 128, 449 N.E.2d 65......
  • Request a trial to view additional results
128 cases
  • State v. Turcio
    • United States
    • Supreme Court of Connecticut
    • June 26, 1979
    ...State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). 8 Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977), and Lewis v. State, 259 Ind. 431, 288 N.E.2d 138...
  • State in Interest of Dino, No. 61283
    • United States
    • Supreme Court of Louisiana
    • May 8, 1978
    ...will relieve the police from having to make a subjective judgment in each case. As noted by the Indiana Supreme Court in Lewis v. State, 259 Ind. 431, 288 N.E.2d 138, 141 "The authorities seeking to question a juvenile enter into an area of doubt and confusion when the child appears to waiv......
  • D.M. v. State , No. 49S02–1101–JV–11.
    • United States
    • June 22, 2011
    ...U.S. 436, 445–67, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when a juvenile is subjected to custodial interrogation. Lewis v. State, 259 Ind. 431, 439–40, 288 N.E.2d 138, 142 (1972). In an opinion written by Justice DeBruler, we held that, as a precondition to using a juvenile's stateme......
  • Moore v. State Of Md.., No. 1737, Sept. Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • September 3, 2010
    ...child's rights, have an opportunity to consult privately with the child, and be present during any interrogation. E.g., Lewis v. State, 259 Ind. 431, 288 N.E.2d 138, 142 (1972); State in Interest of Dino, 359 So.2d 586, 594 (La.1978); Com. v. A Juvenile (No. 1), 389 Mass. 128, 449 N.E.2d 65......
  • Request a trial to view additional results
1 books & journal articles
  • Parents' Attitudes Toward Juveniles' Rights in Interrogation
    • United States
    • Criminal Justice and Behavior Nbr. 6-3, September 1979
    • September 1, 1979
    ...(Ga. App. 1969) 167 S.E.2d 163In re GAULT (1967) 387 U.S. IIn re K.W.B. (Mo. Ct. App. 1973) 500 S.W.2d 275 LEWIS v. STATE (Ind. 1972) 288 N.E.2d 138McBRIDE v. JACOBS (D.C. Cir. 1957) 247 F.2d 595MIRANDA v. ARIZONA (1966) 384 U.S. 436PEOPLE v. JOHNSON (Cal. 1969) 450 P.2d 265Matters of S.H.S......

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