Lyons v. State
| Decision Date | 28 March 1985 |
| Docket Number | No. 3-884A229,3-884A229 |
| Citation | 475 N.E.2d 719 |
| Parties | David LYONS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Robert J. Beckman, Michigan City, for appellant.
Linley E. Pearson, Atty. Gen., Kenneth P. Williams, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant David Lyons was charged with the crime of attempted escape, a Class D felony, pursuant to IND.CODE Sec. 35-44-3-5. The jury returned a verdict of guilty, and Lyons was sentenced for a term of four years (two years for the felony and two years for aggravating circumstances).
The facts most favorable to the State are as follows. Lyons is an inmate of the Indiana State Prison in Michigan City, having been committed on December 28, 1979. At approximately 10:15 P.M. on June 3, 1983, a guard at the prison observed an individual, later identified as Lyons, on the roof of one of the prison's buildings, with a rope in his possession. Lyons was subsequently captured.
A ventilation shaft provided the only access to the roof, and the cover to the ventilation shaft had been propped open. The shaft led to a maintenance passage which ran immediately behind the individual jail cells. After the incident, a search of Lyons' cell revealed a twelve- by eighteen-inch opening which had been chiseled through the rear wall, allowing access to the maintenance passage. In addition, a dummy or something simulating a person had been placed under the blanket of his bed. Upon questioning, Lyons stated to a prison investigator that he had chipped the hole in the wall, had gone up the shaft to the roof, and that it was his intention to leave.
In his appeal, Lyons presents six issues for this Court's review:
(1) whether the trial court erred in admitting Lyons' unsigned waiver of rights form and subsequent confession;
(2) whether the trial court erred in admitting Lyons' commitment to the Indiana State Prison;
(3) whether the trial court erred in refusing Lyons' tendered Instruction No. 6 on reasonable doubt;
(4) whether the evidence was sufficient to support the verdict;
(5) whether the trial court erred in finding Lyons' prior conviction and attempted escape during this trial to be aggravating circumstances; and
(6) whether the proceedings in LaPorte County Court violated his constitutional right against double jeopardy as he had already been punished administratively by the Institutional Conduct Adjustment Board.
Lyons' first contention is that the trial court erred in admitting an unsigned waiver of rights form and his confession. The form which he objects to contains two sections: the first is a list of the interviewee's constitutional rights and the second is the interviewee's waiver of rights. The waiver section was not signed by Lyons, but the document bore the signature of Sergeant Penfold, the prison investigator.
Lyons argues the admission of this form put undue weight upon the testimony of Penfold that Lyons had been read his rights, and that it implies that Lyons did not waive his rights. However, when Penfold testified that Lyons had been read his rights prior to questioning and had refused to sign the waiver, there was no objection. As the waiver of rights form merely tends to prove or disprove some material fact, it is relevant. Thus, the evidence is admissible and the court acted properly.
Lyons also argues that his confession was improperly admitted as it was given during questioning which took place after he had refused to sign the waiver of rights. In order for a confession to be admissible in a criminal trial, there must be proof beyond a reasonable doubt that counsel was present at the time the confession was given, or that the right to the presence of counsel was voluntarily and knowingly relinquished prior to the commencement of the interrogation. Clark v. State (1984), Ind., 465 N.E.2d 1090.
Here, the testimony of Penfold was that Lyons was read his constitutional rights prior to questioning, that Lyons understood those rights, and that Lyons' confession was then given. This uncontradicted testimony is sufficient to establish that Lyons knowingly and voluntarily relinquished his right to have counsel present when he gave his confession. In addition, as the record does not show any objection to Penfold's statements at trial, Lyons has waived any objection to the contents of this conversation.
Lyons' second contention is that the trial court erred in admitting a record of his commitment to the Indiana State Prison. At trial, Lyons objected to the introduction of this document arguing first that although the document was certified as being true and accurate by the official keeper of prison records, it could not be introduced by someone other than the keep. Lyons also objected that the notary's jurat is insufficient in that it does not state that the keeper verbally acknowledged the truth and accuracy of the document at the time he signed.
An official record which is admissible may be evidenced by a copy which is attested by the officer having the legal custody of the record. Ind.Rules of Procedure, Trial Rule 44(A)(1). The attestation must be that the copy is a true and complete copy of the official record. IND.CODE Sec. 34-1-17-7. Here, the copy of Lyons' prison commitment was properly attested by the prison's record keeper as being a true and complete copy of the record. Therefore, the trial court did not err in admitting this evidence.
Lyons' third contention is that the trial court erred in refusing his tendered Instruction No. 6 on reasonable doubt. Instead, the trial court gave its own which Lyons alleges did not adequately state the standard of proof or the burden of proof. The trial court's instruction on reasonable doubt reads as follows:
This instruction is an accurate definition of reasonable doubt and contains the matters contained in Lyons' tendered instruction. In addition, the court properly instructed the jury on the burden of proof in a criminal case in other instructions. Thus, the trial court did not err in refusing Lyons' instruction and giving its own. See, Bivins v. State (1982), Ind., 433 N.E.2d 387.
Lyons next argues that the evidence was insufficient to support the verdict. In reviewing sufficiency of the evidence, this Court on appeal will not weigh the evidence or judge the credibility of...
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