Martin v. State
| Decision Date | 26 March 1986 |
| Docket Number | No. 484S152,484S152 |
| Citation | 490 N.E.2d 309 |
| Parties | Lester MARTIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Brian May, South Bend, for appellant.
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Lester Martin was convicted after a jury trial of two counts of murder and was found to be an habitual offender. The trial court imposed concurrent sentences of sixty years for the convictions and added ten years for the habitual offender determination.
Martin raises four issues in this direct appeal:
(1) Whether the evidence is sufficient to sustain his murder convictions;
(2) Whether he effectively waived the right to counsel's assistance in deciding whether to consent to a search of his brother's car;
(3) Whether a proper foundation preceded the admission of two purses, and,
(4) Whether the identification evidence is sufficient to sustain the habitual offender determination.
We affirm.
These are the facts which tend to support the trial court's judgment. On August 3, 1983, Arnetta Townsend saw Martin, a friend of her husband, in the backseat of a car which was headed north on a The police went to Martin's house and received permission to search his apartment. This search proved fruitless. After learning from Martin that he was currently driving a car which he had borrowed from his brother and which was parked outside, the police requested and received permission to search this car. They found jewelry, car keys, and tennis shoes inside a shopping bag in the trunk.
lane near her house. This lane led toward a dumping site. There were two or three other people in the car with Martin, but Mrs. Townsend could not discern their sex. Henry Holloway was hunting on the Townsend property that same day. While driving north on the same lane, he saw appellant walking toward him. Holloway noticed what appeared to be blood on appellant's shirt. Allen Townsend and Holloway subsequently discovered a brown Ford LTD at the dumping site and the bodies of Gwendolyn Martin and Janice Griffith.
Theria Jones, appellant's brother, testified that Martin came to his house at 12:30 a.m. on August 2nd and asked to borrow his car. When questioned whether he recognized the items found in the trunk of his car, Jones responded that he did not put them in the trunk of his car and had never seen them before.
Maurice Griffith, husband of one of the murder victims, identified State's exhibits 21 (a heart ring), 24 (a chain), 26 (a gold watch), and 28 (a diamond ring) as jewelry which belonged to his wife. The chain, gold watch, and diamond ring were removed from the shopping bag which was found in the trunk of the brother's car. One item of jewelry had blood on it; it was consistent with the blood type of one of the victims. The car keys belonged to the Ford LTD which had been rented by one of the victims. The tennis shoes which were found in the trunk and footprint impressions which were made on a post of wood that was wedged underneath the Ford LTD were sent to the FBI for comparison. The impressions on the wood corresponded in size, design, and general wear characteristics to the tennis shoes. In addition, Officer Jerald Rutkowski recovered a beer can from the Ford LTD when he was at the crime scene. The FBI identified four of Martin's latent fingerprints on this beer can.
Appellant claims that the evidence is not sufficient to sustain his convictions because he and an alibi witness testified that he was at a different place when the crime was committed.
This Court does not reweigh the evidence or judge the credibility of witnesses when the sufficiency of the evidence is challenged. Rather, we consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support each element of the offense, then the finding of the trier of fact will not be disturbed. Napier v. State (1983), Ind., 445 N.E.2d 1361. The jury's verdict represents the result of their evaluation and determination of the weight to be accorded to the testimony and other evidence presented at trial and their assessment of the credibility of the witnesses. The jury was entitled to find that the evidence recited above proved Martin's guilt beyond a reasonable doubt despite Martin's presentation of alibi evidence.
Appellant argues that the trial court erred by allowing the State to introduce evidence which he alleges the police obtained in violation of his Sixth Amendment right. He maintains that he had a right to consult counsel before consenting to a search of his brother's car and that his waiver of this right of consultation was invalid. Specifically, Martin contends that "both searches required a clear explanation of his constitutional rights and not a piggyback method as applied by Officer McCallister." Appellant acknowledges that he executed consent forms which included a recitation of his right to counsel, but he maintains that the second form was thrust When Officers John McCallister and Jon Botich arrived at Martin's apartment, three South Bend police officers were already present. The police explained to appellant that they were investigating a crime and asked for his permission to search his apartment. Botich advised Martin of his Miranda rights and appellant responded that he understood these rights. Botich then read him the following form:
upon him with no opportunity to think about his decision or the consequences of a search of the car. He therefore contends that the products of this illegal search (the jewelry, Ford LTD keys, and tennis shoes) were improperly admitted into evidence at his trial.
Date
______
I, ________, having been informed of my Constitutional rights as to self incrimination (MIRANDA WARNINGS), and further having been advised of my right to refuse to consent to a search of my (premises) (motor vehicle) and further that I have an absolute right to confer and speak with my attorney before I grant permission for such a search, hereby authorize, consent and allow, ________ Police Officers of the City of South Bend to conduct a complete search of my (residence) (motor vehicle) which is (located at) (described as) ________ ________.
The above mentioned officers and any others needed to assist them are hereby authorized by me to take from (my residence) (my motor vehicle) any merchandise, personal property or chattels that may be involved in the investigation they are conducting.
This written permission is given by me voluntarily without any consultation with my attorney, threats, force, duress or coercion being exerted on me in order to make me consent against my will.
__________
__________
Martin claimed that he did not have anything to hide and then signed this form. The search of his apartment did not produce any evidence.
Officers Cully Walton and Edgar Scott conversed further with appellant and learned that he had been using his brother's car, which was parked in the lot. Martin did not identify which of the four cars parked in the lot belonged to his brother, but Scott was able to identify it by comparing the license plate number on each vehicle with the registration information available through headquarters. One officer asked for and received the car keys before appellant consented to the search of the car.
Before searching this car, McCallister reminded Martin that he had previously been given his Miranda rights and read a form consenting to a search of the apartment, that he still had a right to refuse a search of the car even though he had already consented to a search of his apartment, and that he had a right not to have the vehicle searched. Appellant orally gave McCallister permission to search his brother's car and then he signed the form.
McCallister did not ask appellant to read the form or give him an opportunity to think about this search of the vehicle before requesting his signature. Martin stated again that he had nothing to hide and signed the form. Since Martin had become restless while the police were searching his apartment the police had handcuffed him, so they removed these handcuffs so that he could sign the form. Appellant accompanied the police to the station for an interview and within an hour he was placed under arrest.
A subject who is in custody and asks for the opportunity to consult with his attorney pursuant to Miranda may not subsequently be requested to consent to a search before having the opportunity for consultation. Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. A majority of this Court has also held that a subject in custody who waives his right to consult counsel before talking further with the police has a right to be informed a second time of his right to consult counsel prior to being asked to consent to a search. Sims v. State (1980), 274 Ind. 495, 413 N.E.2d 556. (Pivarnik, J., and Givan, C.J., dissenting). The right to consult counsel before consenting to a search may be waived after full advice of all the appellant's constitutional rights. Larkin v. State (1979), 271 Ind. 469, 393 N.E.2d 180.
In this case, the police did advise Martin of his Miranda rights and read to him a consent form which included the Sims right before Martin signed the form which evidenced his consent to a search of his apartment. While the police did not read him the consent...
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