Middleton v. State, 3-978A241

• Decision Date: 28 June 1979
• Docket Number: No. 3-978A241,3-978A241
• Parties: Mark J. MIDDLETON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 657

391 N.E.2d 657

181 Ind.App. 232

Mark J. MIDDLETON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-978A241.

Court of Appeals of Indiana, Third District.

June 28, 1979.

Bruce S. Cowen, Deputy Public Defender, Ft. Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant Mark T. Middleton appeals his conviction following a bench trial of first-degree burglary for which he was sentenced for a period of not less than one nor more than ten years. His appeal involves these issues:

(1) whether error was committed in overruling defendant's motion for a continuance on the grounds that the State's answer to his notice of alibi was insufficient;

(2) whether error was committed in denying defendant's motion to suppress his confession;

(3) whether there was sufficient evidence regarding the character of the burglarized premises; and

(4) whether the trial court erred in denying defendant's motion to set aside the conviction.

The evidence most favorable to the judgment shows that the owner of the burglarized premises at 2971 Sandpoint Road, Mrs. Vera Shilling, had been vacationing in Florida from the latter part of November 1976 to April 21, 1977. When Mrs. Shilling returned, she noticed that the back door had been shoved inward and several drawers were partially open. She then telephoned the police and suggested that Middleton may have been the perpetrator since he had broken into her house the year before. Among the items reported missing were a telephone, several clocks, a pair of electric scissors, and a portable television set.

Middleton maintains that the trial court erred in denying his motion for a continuance on the day of trial because of an alleged lack of specificity in the State's answer to his notice of intent to offer alibi. His alibi notice stated that he was at his sister's home on April 10, 1977, the date which the information alleged the crime to have been committed. The State's answer specified that the crime occurred between November 15, 1976 and April 21, 1977. Middleton contends that a continuance was necessary to enable him to further investigate his activities during this five-month period.

The record indicates that on November 28, 1977, trial was set for March 3, 1978. Since this date was more than fourteen days ahead, IC 1971, 35-5-1-1 (Burns Code Ed.) was applicable. It provides:

"Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, Not less than ten (10) days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense. The notice shall include specific information in regard to the exact place at which the defendant claims to have been at the time stated in the indictment or information as the time of such offense. The provisions of this chapter . . . shall not apply in case the court sets the trial for a date less than fourteen (14) days ahead." (Emphasis added.)

The defense filed its notice on February 24 seven days before trial. It is obvious then that Middleton failed to file his notice in a timely fashion as prescribed by statute. Adherence to the mandates of IC 1971, 35-5-1-1 is a condition precedent to the operation of the rights and duties created by IC 1971, 35-5-1-2 which requires the prosecution to file a specific statement of the exact date of the offense:

"We recognize the State's obligations with respect to the timely filing of a 'specific statement in regard to the exact date which the prosecution proposes to present at the trial as the date when, and the exact place where' the alleged act was committed. IC 1971, 35-5-1-2. However, the appellant's obvious failure to comply with the alibi notice requirements of IC 1971, 35-5-1-1 forecloses his assertion of rights created by IC 1971, 35-5-1-2. That is to say, IC 1971, 35-5-1-1 is the mechanism which triggers the invocation of IC 1971, 35-5-1-2."

Shelton v. State (1972), 259 Ind. 559, at 562, 290 N.E.2d 47, at 49.

Thus, the trial court did not err in denying Middleton's motion for a continuance since he had not complied with the provisions of the alibi statute.

Middleton next urges that the trial court erred when it failed to suppress his confession. He argues that both the confession and his waiver of rights were involuntary due to his tender age, five hours of prolonged police interrogation, and improper inducements by the police.

The question of the admissibility of a confession is controlled by determining from the totality of circumstances whether or not it was made voluntarily. 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 inducements, and whether the accused's will was overborne. Harrison v. State (1978), Ind., 382 N.E.2d 920. A trial court's ruling on the admissibility of a confession will not be disturbed when such ruling is based on substantial, though conflicting, evidence. Riggs v. State (1976), 264 Ind. 263, 342 N.E.2d 838.

The facts and circumstances surrounding the making of Middleton's confession were as follows: Around noon on May 13, 1977, Sgt. Wolfe and Detective McNaughton of the Fort Wayne Police Department contacted Middleton at his home to inform him that he was a suspect in the Shilling burglary and wanted for questioning. Upon escorting him to the detective bureau, the officers advised him of his constitutional rights. Middleton indicated that he understood those rights by signing both the advice of rights form and the waiver of rights form.

After forty-five minutes of questioning, defendant disclosed that some of the stolen items could be found in an old shed near the Shilling residence. Middleton then accompanied the two officers to that location. From there, they drove to Middleton's home to obtain pieces of an electric clock taken from the Shillings. Arriving back at the police station around 3:00 P.M., the officers subsequently advised Middleton of his rights. Middleton again acknowledged that he understood those rights. At 4:00 P.M., Middleton confessed to the burglary. Both investigating officers denied that they promised to find him a job or not to prosecute if he confessed. This evidence was sufficient to support the finding below that Middleton's waiver and confession were voluntary.

The mere fact that Middleton was only eighteen when he admitted his complicity did not render his confession involuntary. Indeed, Middleton testified that he comprehended his rights prior to confessing. Twice he was advised of those rights yet he elected to cooperate with the police. Furthermore, Middleton had...