Miller v. State, 1--374A42

• Decision Date: 25 September 1974
• Docket Number: No. 1--374A42,1--374A42
• Citation: 161 Ind.App. 563,316 N.E.2d 589
• Parties: Jerry MILLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 589

316 N.E.2d 589

161 Ind.App. 563

Jerry MILLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--374A42.

Court of Appeals of Indiana, First District.

Sept. 25, 1974.

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant, Jerry Miller, was charged by affidavit with entering a dwelling house to commit a felony. Trial was had with the jury finding Miller guilty as charged. Sentence was passed pursuant to the verdict, after which Miller timely filed his motion to correct errors which was by the court overruled.

The facts of the case, basically, are that Miller resided in a basement apartment with a private entrance which was located in a house occupied by Mrs. Busby. On July 25, 1973, Mrs. Busby returned to her home from work and discovered that her house had been forcibly entered and various articles stolen. Miller was subsequently arrested and charged.

An attorney was appointed for Miller in Kentucky to handle the extradition proceedings, after which Miller waived extradition to Indiana. Miller was taken into custody by detectives of the Evansville Police Department in Kentucky. Before any questions were asked of Miller by the detectives he was advised of his constitutional rights, pursuant to the decision in Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Miller talked freely and thereupon told the officers that some of the missing property could be located at the home of his mother in Tennessee. The officers and Miller then went to said home and certain articles taken from Mrs. Busby's house were recovered.

The State sought to introduce certain of the articles recovered from the home in Tennessee, to which Miller objected on the grounds that the exhibits were admissions and were obtained illegally, due to the fact that Miller had not made a voluntary and knowing waiver of his constitutional rights under Miranda, supra. The trial court heard evidence outside of the presence of the jury on this issue and found that Miller had made a voluntary and knowing waiver and thereupon admitted said exhibits into evidence.

The only issue raised in the motion to correct errors and argued on appeal is whether the trial court erred in finding that Miller had waived his constitutional rights.

It is unquestioned that Indiana has recognized that certain rights must be given to a person accused of crime before any interrogation takes place, pursuant to the holding of the United States Supreme Court in Miranda, supra. Robbins v. State (1968), 251 Ind. 313, 241 N.E.2d 148, 242 N.E.2d 925. However, our Supreme Court, in Robbins, supra, also held that a defendant can waive his constitutional rights under Miranda, supra, if such a waiver is knowingly, intelligently, and voluntarily made. It is within the province of the trial court to view the evidence relating to any alleged waiver and decide whether said waiver was knowingly and intelligently given.

In the case at bar there is conflicting evidence as to whether Miller did in fact waive his constitutional rights. However, when the evidence is conflicting as to whether a waiver was properly made, the court on appeal cannot disturb the ruling of the trial court based upon conflicting evidence. Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493. This court may consider only the evidence most favorable to the decision of the trial court and we must decide only whether the decision of the trial court is supported by sufficient evidence. Hutts v. State (1973), Ind.App., 298 N.E.2d 487.

The major contention by Miller is that the State has not borne its heavy burden to show that he voluntarily and intelligently waived his rights under Miranda, supra. Miller has argued that the State did not introduce any evidence of a written waiver by Miller and that no attorney was contacted for him. The evidence most favorable to the State discloses that the Evansville detectives read Miller his rights from a card which contained all of the rights required under Miranda, supra. An examination of the record discloses that Miller was clearly and fully advised of all of the rights prior to any questioning. At no time did Miller request that an attorney be present. Further, Miller did not refuse to answer any questions and did not indicate at any time that he did not want to continue with any questioning.

Miller has inferred in his argument that his waiver was not intelligent due to the fact that he only had an eighth grade education. A similar argument was presented to our Supreme Court in the case of Cooper v. State (1974),...