Lofton v. State

• Citation: 269 Ind. 60,378 N.E.2d 834
• Decision Date: 25 July 1978
• Docket Number: No. 577S355,577S355
• Parties: James A. LOFTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 834

378 N.E.2d 834

269 Ind. 60

James A. LOFTON, Appellant, v. STATE of Indiana, Appellee.

No. 577S355.

Supreme Court of Indiana.

July 25, 1978.

Richard G. Striegel, New Albany, for appellant.

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On October 1, 1976, appellant Lofton was convicted on four counts at the conclusion of a jury trial in Floyd Circuit Court: second degree murder, first degree arson, commission of a felony while armed, and assault and battery with intent to kill. He was sentenced to life imprisonment, five to twenty years imprisonment, twenty-one years imprisonment and two to fourteen years imprisonment, respectively, for the four crimes.

Three issues are presented for our review in this appeal. These issues concern: (1) the trial court's denial of a motion to suppress appellant's statement; (2) the admission into evidence of four notes and a hollowed-out Bible which the appellant had sent to a fellow inmate, and; (3) the sufficiency of the evidence supporting appellant's conviction.

I.

Appellant's first allegation of error is that the trial court improperly denied his Motion to Suppress an incriminating statement he made to police. Lofton claims that the statement was taken after he had requested the assistance of counsel and that once he had asserted his Sixth Amendment right to counsel, no further questioning could take place without an attorney being present.

The question of the admissibility of a confession is to be controlled by determining, from the totality of the circumstances, whether or not it was made voluntarily. Works v. State, (1977) Ind., 362 N.E.2d 144; Ortiz v. State, (1976) Ind., 356 N.E.2d 1188. The circumstances to be considered include whether the confession was freely self-determined, the product of a rational intellect and free will, without compulsion or inducement of any sort, and whether the accused's will was overborne. Johnson v. State, (1968) 250 Ind. 283, 235 N.E.2d 688. Although the state at trial is required to prove the voluntariness of appellant's statement beyond a reasonable doubt, we review the question on appeal as we do other sufficiency matters. We do not weigh the evidence, but rather determine whether there was substantial probative evidence to support the trial court's findings. Works v. State, supra.

The evidence and testimony brought out at the hearing on appellant's Motion to Suppress reveal the following. At approximately 5:30 p. m. on March 23, 1976, Joe Lewis, a detective with the New Albany Police Department, and Randy Hubbard, Chief of Police of New Albany, went to the appellant's trailer to serve an arrest warrant issued by the City of Louisville for appellant. After an exchange of gunfire, appellant was taken into custody at the New Albany police station. Appellant waived extradition and was transported to the Louisville Police Department.

While in the custody of the Louisville Police, appellant claims to have been poorly treated. He testified that the local police refused to allow him to sleep and had described how appellant would be put to death in the electric chair. He also testified that he requested to speak to an attorney. Appellant was allowed to call an attorney but was unable to reach one. He then called his father and asked him to hire a lawyer for him. Appellant's father was also unable to contact an attorney. A Louisville police officer then showed appellant a statement made by his confederate, Willie Appleby, in which Appleby blamed Lofton for all of the activities which led to their arrest. Upon reading Appleby's statement, the appellant asked to speak with Captain Parsons of the New Albany Police Department.

Captain Parsons arrived in Louisville at approximately midnight on the evening of March 23 in response to appellant's request to see him. Parsons immediately advised appellant of his Miranda rights and Lofton read and signed an "Advice of Rights and Waiver" form. At the suppression hearing, Captain Parsons testified that the appellant told him that "he did understand his rights" and further, that "Mr. Lofton was calm, talked with a low voice, stated to me he wanted to get everything straightened out." When asked on the witness stand whether Lofton had informed him of his attempt to call an attorney, Parsons responded, "No. He didn't." When questioned about the discussion with Captain Parsons, appellant gave the following answers:

"Q. And one of those things was that you have a right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning?

A. Yes.

Q. Now, did you understand that?

A. I understood it.

Q. Did you ask Captain Parsons for an attorney?

A. No. I don't think I did.

Q. Did Captain Parsons at any time threaten you in any way?

A. No. Mr. Parsons was nice to me."

It is clear that where a request for counsel has been made, an accused may, at a later time, waive his right to counsel. Rouse v. State, (1971) 255 Ind. 670, 266 N.E.2d 209, 211. However, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel where interrogation continues without the presence of an attorney. Miranda v. Arizona, (1966) 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694; Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634, 638. In the present case, we find that the testimony by appellant and Captain Parsons along with the advice and waiver of rights form signed by the appellant, constituted sufficient evidence to support the trial court's finding of a voluntary waiver by Lofton of his right to counsel. We further find that under the totality of the circumstances, the appellant's statement was freely and voluntarily given. There was no error in the trial court's denial of the appellant's Motion to Suppress.

II.

The appellant next argues that the trial court erred in admitting certain exhibits into evidence. These exhibits consisted of several notes written by appellant to one of the Floyd County Jail "trustys," soliciting aid in Lofton's escape plan, as well as a hollowed-out Bible which appellant gave to the "trusty" for the purpose of obtaining a knife. Appellant contends that these exhibits were inadmissible because they did not constitute an attempt to escape from jail.

A review of the record in this case shows the appellant's argument to be somewhat misleading. In addition to the objectionable exhibits, the state also introduced into evidence a hacksaw blade found in Lofton's cell, one-half of a bar of soap used to lubricate such blades, a note to the "trusty" from appellant requesting a gun and a sketch showing appellant's intended escape route. There was also testimony from the jail's supervisor who, after searching appellant's cell, stated, "We found one bar that was cut practically all the way through and wouldn't have taken much more to knock it out of place."

This evidence, when taken together, sufficiently established an attempted escape. Evidence of attempted escape is always competent evidence of consciousness of guilt. Thomas v. State, (1970) 254 Ind. 561, 261 N.E.2d 224; Layton v. State, (1968) 251 Ind. 205, 240 N.E.2d 489, 492. Thus, the evidence in question was properly admitted.

III.

In his final argument, appellant asserts that the verdict of the jury was not supported by sufficient evidence and was contrary to law. In this regard he contends that the evidence showed that appellant could only have committed the crimes in question because he was placed in fear for his life by a codefendant, Willie Appleby, or because he was insane when the acts were committed.

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