Moreno v. State, No. 3--1273A181

Docket NºNo. 3--1273A181
Citation336 N.E.2d 675, 166 Ind.App. 441
Case DateNovember 05, 1975
CourtCourt of Appeals of Indiana

Page 675

336 N.E.2d 675
166 Ind.App. 441
Leopoldo MORENO, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 3--1273A181.
Court of Appeals of Indiana, Third District.
Nov. 5, 1975.

Page 678

[166 Ind.App. 444] Max Cohen, Cohen & Thiros, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

[166 Ind.App. 445] STATON, Presiding Judge.

Moreno is appealing from his conviction of involuntary manslaughter. 1 We was found guilty by a jury and sentenced to one-hundred eighty (180) days and fined Seven Hundred Dollars ($700.00). On appeal, Moreno raises the following issues:

Issue One: Did the trial court err in denying Moreno's motion to suppress his confession?

Issue Two: Did the trial court err in denying Moreno's motion for discharge?

We affirm.

I.

Motion to Suppress

Moreno contends that the trial court erred in denying his motion to suppress his confession for three reasons:

1. He was not properly advised of his Miranda rights prior to confessing to police;

2. His confession was inadmissible under Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138;;

3. His confession was the product of an illegal arrest.

(1) Prior to trial, a hearing was held on Moreno's motion to suppress his confession. The evidence presented at this hearing was conflicting as to whether Moreno was advised of his Miranda rights prior to confessing to police. Moreno testified that he arrived at the Gary police station at approximately 6:30 p.m. on May 16, 1970 accompanied by his parents. He was then separated from his parents and questioned intermittently until approximately 9:00 p.m. when he confessed. He testified that he was not advised of his rights until after he had confessed and at that time he signed a waiver of rights form. In sharp contrast to Moreno's testimony, however, interrogating officers Musik and Muniz of the Gary Police Department testified that Moreno was orally advised of his [166 Ind.App. 446] rights upon arrival at the police station in the presence of his parents. Officers Musik and Muniz also testified that Moreno was again advised of his rights when he indicated that he wanted to make a statement. At this time, after Moreno was advised of his Miranda rights a second time, Moreno was given a waiver of rights form which he read and signed prior to confessing.

Miranda v. Arizona (1966), 384 U.S. 438, 86 S.Ct. 1602, 16 L.Ed.2d 694 requires the exclusion of confessions elicited during custodial interrogation unless certain warnings are given and a knowing, voluntary and intelligent waiver of the suspect's privilege against self-incrimination is obtained. In the instant case, prior to trial, the trial court determined that Moreno's confession was voluntarily given pursuant to IC 1971, 35--5--5--1 (Burns Code Ed.).

It is true that it is error for the trial court to admit into evidence a confession

Page 679

made by a suspect to an interrogating police officer when the interrogating officer fails to warn the suspect of his constitutional rights in compliance with Miranda v. Arizona, supra; Goodloe v. State (1969), 253 Ind. 270, 252 N.E.2d 788. However, when the evidence in the record of the suppression hearing is conflicting as to whether the suspect was informed of his constitutional rights prior to giving his statement, this Court will not weigh the evidence nor judge the credibility of the witnesses. Bridges v. State (1970), 255 Ind. 201, 263 N.E.2d 368; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387; Hutts v. State (1973), Ind.App., 298 N.E.2d 487. As this Court recently stated in State v. Cooley (1974), Ind.App., 319 N.E.2d 868, 870:

'. . . the State has the burden to establish the voluntariness of the disputed confession by a preponderance of the evidence. Ramirez v. State (1972), Ind.App., 286 N.E.2d 219; Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. [166 Ind.App. 447] 619, 30 L.Ed.2d 618. On appeal, this Court will review the trial court's determination on the issue of voluntariness in the same manner that it scrutinizes any factual finding reached on a preponderance of the evidence. See Kolb v. State (1972), 258 Ind. 469, 282 N.E.2d 541.

'In reviewing the sufficiency of the evidence in support of the trial judge's voluntariness finding, this Court will not weigh the evidence nor resolve questions of credibility. We look only to that evidence which supports the trial court's determination . . ..' 2

There was sufficient evidence presented at the motion to suppress hearing to support the trial court's determination that Moreno was advised of his Miranda rights prior to confessing to the prolice.

(2) Moreno further contends that his confession should have been suppressed under the rationale of Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138. In Lewis v. State, supra, the Supreme Court of Indiana held that a juvenile's confession can not be used against him at a subsequent trial unless both he and his parents were informed of his right to an attorney and to remain silent. At the time Moreno gave his confession, he was eighteen years old. Moreno argues that even though he was not a child for purposes of juvenile court jurisdiction (IC 1971, 31--5--7--3 (Burns Code Ed.)), he was 'under many legal restrictions and he should not be compelled to stand on the same footing as an adult when asked to waive important Fifth and Sixth Amendment rights. . . .'

The per se exclusion of confessions obtained in violation of Lewis v. State, supra, 259 Ind. at 436--7, 288 N.E.2d at 141, is applicable only to confessions of persons under eighteen years of age. In discussing the reasons for the Court's holding in Lewis, Justice DeBruler, writing for the majority, stated:

[166 Ind.App. 448] '. . . Whether or not an older juvenile can be held to an adult standard is a question which the police are forced to confront and answer in the heat of an investigation. Furthermore, they are forced to proceed without indication of what alternative procedures would be constitutionally acceptable. It is harmful to the system of criminal justice to require law enforcement authorities to second guess the courts in the area of constitutional rights. Clearly defined procedures should be established in areas which lend themselves to such standards in order to assure both efficient police

Page 680

procedure and protection of the important constitutional rights of the accused. Age is one area which lends itself to clearly defined standards.

'If the police are placed in a quandary when confronting a juvenile accused, the juvenile is perhaps in the most serious predicament of his short life. In most cases he is aware that he is in trouble. If not under formal arrest he is usually being questioned in a police-dominated atmosphere and finds himself in some instances cut off from anything familiar or comforting to him. Many times he faces his accusers alone and without benefit of either parent or counsel. It is in these circumstances that children under eighteen are required to decide whether they wish to give up the intricate, important and long established fifth and sixth amendment rights. It indeed seems questionable whether any child falling under the legally defined age of a juvenile and confronted in such a setting can be said to be able to voluntarily, and willingly waive those most important rights.' (our emphasis)

It is apparent from a reading of Lewis, supra, that the Court intended to dispel confusion regarding the valid waiver of rights by juveniles by limiting its opinion to children under 18. This is not to say that the trial court, when considering the voluntariness of a confession, should not take into consideration the educational level, mental condition and age of the accused. Lewis v. State, supra.

In this case, both interrogating police officers testified that Moreno was advised of his right to counsel and his right to remain silent in the presence of his parents. Although Moreno's mother testified at the suppression hearing that she was not advised of her son's rights, [166 Ind.App. 449] Moreno is again asking this Court to judge the credibility of the witnesses. This we may not do. State v. Cooley, supra. There was sufficient evidence presented at the motion to suppress hearing to support the trial court's determination that Moreno voluntarily, knowingly and intelligently waived his privilege against self-incrimination.

(3) Moreno also contends that his confession should have been suppressed because it is the product of an illegal arrest. He argues (1) that the arresting officer did not have sufficient probable cause to make the arrest and (2) that the arresting officer was required to obtain an arrest warrant under the circumstances of this case. 3 We need not consider whether Moreno's arrest was illegal and whether his confession should have been excluded under the Fourth Amendment exclusionary rule (Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441). 4 Koonce v. State (1975), Ind., 323 N.E.2d 219. It is clear under the facts of this case that even if the admission of Moreno's confession at trial were erroneous, it would have been harmless error.

Assuming that Moreno's arrest was illegal, we are dealing with a violation of Moreno's federal constitutional right to be free from an unreasonable seizure of his person, and we must apply the federal harmless error standard to determine if the admission of the assumedly tainted confession was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158; Larimer v. State (1975), Ind.App., 326 N.E.2d 277. In discussing the federal harmless error [166 Ind.App. 450] standard, this Court

Page 681

in Larimer v. State, supra, 326 N.E.2d at 278--79 recently stated:

'Some harmless error guidance can...

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25 practice notes
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...Anew, i. e., commencing on the last day of the delay. State v. Moss, (1976) Ind.App., 343 N.E.2d 827; Moreno v. State, (1975) Ind.App., 336 N.E.2d 675; Holt v. State, (1974) 262 Ind. 334, 316 N.E.2d 362. In the case at bar, the record reveals that Kapp filed a motion for change of venue fro......
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1976
    ...395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158; Moreno v. State (1975), Ind.App., 336 N.E.2d 675; Moss v. State (1975), Ind.App., 333 N.E.2d 141; Larimer v. State (1975), Ind.App., 326 N.E.2d 277. Aside from Payne's confession, only informer ......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...State, (1979) Ind., 389 N.E.2d 286, 289; Easton v. State, (1972) 258 Ind. Note 204, 206, 280 N.E.2d 307, 308; Moreno v. State, (1975) 166 Ind.App. 441, Note 336 N.E.2d 675, 683. See Coffey v. State, (1973) 156 Ind.App. 363, 296 N.E.2d Note 663 (three year delay held against defendant's clai......
  • Sharpe v. State, No. 3-675A129
    • United States
    • November 29, 1977
    ...amendment which became effective in February 1974. Shack v. State (1972), 259 Ind. 450, 288 N.E.2d 155; Moreno v. State (1975), Ind.App., 336 N.E.2d 675. Under that version of the rule Sharpe was entitled to discharge if he was held in jail for more than six months without trial unless the ......
  • Request a trial to view additional results
25 cases
  • Fox v. State, No. 2-376A109
    • United States
    • January 30, 1979
    ...Anew, i. e., commencing on the last day of the delay. State v. Moss, (1976) Ind.App., 343 N.E.2d 827; Moreno v. State, (1975) Ind.App., 336 N.E.2d 675; Holt v. State, (1974) 262 Ind. 334, 316 N.E.2d 362. In the case at bar, the record reveals that Kapp filed a motion for change of venue fro......
  • Payne v. State, No. 3--674A98
    • United States
    • Indiana Court of Appeals of Indiana
    • March 11, 1976
    ...395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158; Moreno v. State (1975), Ind.App., 336 N.E.2d 675; Moss v. State (1975), Ind.App., 333 N.E.2d 141; Larimer v. State (1975), Ind.App., 326 N.E.2d 277. Aside from Payne's confession, only informer ......
  • Minneman v. State, No. 481S103
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...State, (1979) Ind., 389 N.E.2d 286, 289; Easton v. State, (1972) 258 Ind. Note 204, 206, 280 N.E.2d 307, 308; Moreno v. State, (1975) 166 Ind.App. 441, Note 336 N.E.2d 675, 683. See Coffey v. State, (1973) 156 Ind.App. 363, 296 N.E.2d Note 663 (three year delay held against defendant's clai......
  • Sharpe v. State, No. 3-675A129
    • United States
    • November 29, 1977
    ...amendment which became effective in February 1974. Shack v. State (1972), 259 Ind. 450, 288 N.E.2d 155; Moreno v. State (1975), Ind.App., 336 N.E.2d 675. Under that version of the rule Sharpe was entitled to discharge if he was held in jail for more than six months without trial unless the ......
  • Request a trial to view additional results

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