Mims v. State, 469S83

• Decision Date: 07 October 1970
• Docket Number: No. 469S83,469S83
• Citation: 255 Ind. 37,262 N.E.2d 638
• Parties: Arnold MIMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 638

262 N.E.2d 638

255 Ind. 37

Arnold MIMS, Appellant, v. STATE of Indiana, Appellee.

No. 469S83.

Supreme Court of Indiana.

Oct. 7, 1970.

Bayliff, Harrigan, Cord & Maugans, Kokomo, Bolinger, Van Dorn & Andrews, Kokomo, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Mark Peden, Kenneth M. McDermott, R. Michael Bruney, Deputy Attys. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

This is an appeal from a conviction for murder during the commission of a robbery in violation of Acts 1941, ch. 148, § 1, Burns' Ind.Stat.Ann. § 10--3401. Trial was by jury in the Carroll County Circuit Court and appellant was sentenced to life imprisonment.

Appellant's first contention is that the trial court erred in overruling appellant's pre-trial motion to suppress a confession obtained from appellant in violation of appellant's privilege against self-incrimination guaranteed by the Fifth Amendment to the U.S. Constitution and Article 1 § 14 of the Indiana Constitution. The facts which tend to support the trial court decision are as follows:

On February 24, 1968, appellant was arrested and placed in the Howard County jail on a charge of aggravated assault and battery, which charge was unconnected with this case on appeal. On February 28, Officer Beatty of the Kokomo Police Department arrested appellant in his cell without a warrant on a preliminary charge of the murder of one Walter Kibler. Beatty testified that he gave appellant the Kokomo Police Department's standard warning of his constitutional rights and appellant signed the paper on which this warning was printed. Beatty further testified that appellant said he would not talk to Beatty about the Kibler murder case and that appellant stated he wanted to talk to the attorney his family was going to get him before talking about the murder charge. Beatty put this in his report to his superior officer.

Officer Harrison of the Kokomo Police Department testified that he interrogated appellant for about 45 minutes on the morning of February 29, 1968, but appellant told him that he did not want to talk to the police about the murder charge until he, appellant, had talked to a lawyer. Even though appellant repeated this numerous times Harrison continued to interrogate appellant. Finally appellant told Harrison to come back in twenty-four hours. Harrison returned on the morning of March 1, and again appellant, even more emphatically, told Harrison he did not want to talk about the murder charge until he talked to a lawyer.

Raymond Keller, Chief of the Kokomo Police Department, testified that he sent detective Sgt. Nicholas to interrogate appellant on March 1, 1968, because the other officer had failed to get a statement from appellant on this case and Nicholas had 20 years experience in police work. Keller said he knew appellant had said he wanted to talk to an attorney before talking to the police.

Sgt. Nicholas testified that on March 1, 1968, Chief Keller told him to interview appellant but that he, Nicholas, did not know that appellant had refused to talk until he had consulted an attorney. Nicholas read appellant his rights and talked to appellant about a lot of things in general. Appellant did not talk to Nicholas about the murder charge until Nicholas showed appellant a statement purporting to be the confession of one Alvin Beets which implicated appellant in the Kibler murder. Appellant then signed a waiver of rights form and a written statement concerning the murder charge, which was introduced against appellant at trial.

The above evidence is all taken from police officers and does not include the appellant's version of the events. We believe the evidence shows a blatant violation of appellant's constitutional right to remain silent and have the assistance of counsel.

Appellant had an absolute right to remain silent and have an attorney present during police interrogation. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. In the Miranda case the U.S. Supreme Court said:

'Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'

According to the police testimony appellant was advised of this right and it is obvious that he exercised that right on three separate, successive occasions when the police officers attempted to interrogate him about the Kibler murder. The police, however, persisted in returning to appellant's cell day after day for three days attempting to get appellant to give a statement on the Kibler murder. When appellant told the police he did not want to talk about the murder charge until he had talked to an attorney appellant should not have been questioned about...