Morris v. State, No. 779S183

• Docket Nº: No. 779S183
• Citation: 272 Ind. 467, 399 N.E.2d 740
• Case Date: January 29, 1980
• Court: Supreme Court of Indiana

Page 740

399 N.E.2d 740 272 Ind. 467 J. W. MORRIS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 779S183. Supreme Court of Indiana. Jan. 29, 1980.
Rehearing Denied April 9, 1980.

[272 Ind. 468] Irma Hampton Nave, Anderson, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, J. W. Morris, was convicted by a jury of murder, Ind.Code § 35-42-1-1 (Burns 1979 Repl.), and sentenced to forty years' imprisonment. He now appeals raising several issues. However, because of our disposition of defendant's Fourth Amendment claim, we need consider only that issue.

Page 741

In the early morning, November 25, 1978, David Upton, III, was shot and killed near his home in Muncie, Indiana. Prior to the shooting, a shotgun blast was discharged in the direction of a window to a bedroom of Upton's house in which defendant's father was staying. At approximately 2:00 a. m., Muncie police picked up defendant for questioning. At that time police did not know whether defendant was the perpetrator of the crime or a witness. Deputy Chief LeRoy Hahn testified that defendant

"was one of the subjects we had reason to believe that may or may not have been in the area. And I wanted a statement from him as to where he was at, his actions and so forth."

In fairness to the state, it appears that on this occasion defendant voluntarily accompanied police to the police station for questioning. Another Muncie police officer, Steven Stanley, in response to defense counsel's questioning, testified in the following manner:

Q. "You didn't advise him of his right not to even go with you?"

A. "Who?"

Q. "My client?"

A. "Yes I did ma'am, inside the house. I advised him that he was going of his own free will and he didn't have to go if he didn't want to."

Q. "Did you tell him he didn't have to talk to you?"

[272 Ind. 469] A. "I didn't ask him any questions. I just ask (sic) the man if (he) would accompany me of his own free will to talk to Detectives."

Although defendant was at the police station for nearly three hours before being questioned and up to seven hours total, he did not give an inculpatory statement. Therefore, any Fourth Amendment violation by Muncie police associated with defendant's first trip to the police station had, in and of itself, no effect on the trial. Besides, defendant's statement indicates he voluntarily accompanied the police.

However, the very next morning police picked up defendant for questioning again. The state, in its brief, states only that "defendant was transported to the police station again." The record does not indicate that this trip was voluntary. The examination of Sergeant Shane McClellan included the following:

Q. "He was picked up by the police department and brought down there?"

A. "He was picked up by 2 investigators, yes."

There is no testimony as to what was said to defendant at the time he was picked up the second time. However, Sergeant McClellan stated:

"And when we met the next morning that's when we decided to pick J. W. and Dana up, John Jones up, (to) reinterview them about the statements that had already been made."

This statement indicates that the decision to bring defendant J. W. Morris in was made by the police and was not a voluntary decision made by defendant. Within three hours of his arrest ¹ defendant signed a rights [272 Ind. 470] waiver, made inculpatory statements and led police to physical evidence. Defendant was then placed in jail. The next day at approximately 11:00 a. m., defendant asked to talk to another police officer and modified his previous statement, placing more blame on his alleged accomplice.

At no time during the above events did police have an arrest warrant. Prior to

Page 742

defendant's second statement there is no indication that the police had probable cause to obtain an arrest warrant. Indeed the evidence reveals that police used the arrest and detention of defendant as an investigatory tool. Again we quote from the testimony of Sergeant McClellan:

Q. "Was he under arrest at that time?"

A. "He was advised he was a suspect."

Q. "But was he under arrest?"

A. "He hadn't been charged."

Q. "Did you have any grounds for charging him at that time he signed the rights waiver?"

A. "The investigation was still on and going at that time."

Q. "Okay. Did you ask him if he understood that?"

A. "Yes."

Q. "What did he say."

A. "He did. He knowed that he did by signing it."

Q. "I believe you stated . . . I guess it would be on cross-examination by Mr. Alexander, that you considered J. W. Morris a suspect. I believe those are the words you used."

A. "I think I probably said that. I wasn't happy with the investigation and the statements that had already been taken, that's the reason why and the information that I'd gained, I felt like yes he was a suspect."

Q. "At the time he was arrested did you have an arrest warrant?"

A. "No."

[272 Ind. 471] Q. "Did you attempt to get an arrest warrant?"

A. "No."

Q. "Why not?"

A. "Case was still under investigation."

A warrantless arrest not supported by probable cause is unlawful. Morgan v. State (1926) 197 Ind. 374, 151 N.E. 98.

The evidence is not in dispute regarding the proper advisement of defendant's rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, prior to all questioning in this case. However, even if a confession is voluntary under the Fifth Amendment and Miranda and its progeny, that confession must be suppressed if it is the product of an unlawful arrest or detention. Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Williams v. State (1976) 264 Ind. 664, 348 N.E.2d 623.

In Brown v. Illinois, supra, the United States Supreme Court was unanimous in the conclusion that the Illinois Supreme Court was incorrect in holding that Miranda warnings, per se, rendered the defendant's statements admissible. Rather, when an arrest is unlawful, as in the case at bar, the Supreme Court will look to whether any subsequent statement or production of evidence "was sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States (1963) 371 U.S. 471, 486, 83 S.Ct. 407, 416-7, 9 L.Ed.2d 441, 454. Justice Brennan framed the issue in Wong Sun as follows:

"the more apt question in such a case is 'Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)." 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.

Justice Blackmun, writing the opinion of the Court in Brown v. Illinois, supra, indicated that in rejecting the Illinois Court's per se rule, the Supreme Court would not adopt a per se or "but for" rule of its own.

"The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No [272 Ind. 472] single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a

Page 743

talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant." 422 U.S. at 603-4, 95 S.Ct. at 2261-2, 45 L.Ed.2d at 427. (Citations and footnotes omitted.)

The facts in the Brown case are remarkably similar to those in the case at bar. Brown gave his first statement less than two hours after the unlawful arrest and there were no intervening circumstances of significance. Furthermore, the Court noted:

"The illegality here, moreover, had a...