Mulry v. State

Decision Date21 January 1980
Docket NumberNo. 2-877A306,2-877A306
Citation399 N.E.2d 413
PartiesWilliam MULRY, Jr., Earl Trusley, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Robert F. Alden, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.


Mulry and Trusley were tried jointly by the court and convicted of Malicious Trespass upon the premises of the Woodland Twin Theater in Carmel, Indiana. 1 On appeal they contend (1) the trial court erred in admitting evidence of their involvement in a separate offense at the Nora Theater; (2) the trial court erred in admitting statements made while in police custody; and (3) the decision of the trial court was not supported by sufficient evidence. We affirm in part and reverse in part.

The evidence favorable to the trial court's decision discloses that between three and four a. m. on October 31, 1976 all the windows were shattered at the Woodland Twin Theater in Carmel, Indiana. The investigating officer discovered fresh blood on some of the glass fragments and on the sidewalk adjoining the theater.

At approximately 3:45 the same morning, special deputy Fleenor observed Mulry and Trusley stop at the Nora Theater. Trusley emerged from the parked vehicle, dropping a cloth soiled with fresh blood. While Mulry waited inside the car, Trusley approached the theater and began smashing the windows with a tire iron. Deputy Fleenor then arrested both Mulry and Trusley. While arresting Trusley the deputy noticed Trusley's left hand was cut and bleeding profusely, although he did not notice any blood in the area.

After their arrest Deputy Fleenor asked the two men if they had been to the Carmel theater location. Mulry responded they had just left there, to which Trusley reacted by bumping Mulry and telling him to "be quiet." Later Trusley's blood was analyzed and determined to be the same type as the blood found at the Woodland Theater.

I. Involvement in the Nora Offense

Trusley and Mulry urge evidence of their involvement in the incident at the Nora Theater was improperly admitted because it was a separate act having little or no probative value to the offense charged. We disagree.

Although evidence of separate and distinct offenses is generally inadmissible, this evidence may be introduced to establish a common plan or scheme when the scheme embraces a series of crimes so related that proof of one crime tends to prove the crime charged. Matter of Perrello, (1979) Ind., 386 N.E.2d 174, 178; Gears v. State, (1932) 203 Ind. 380 at 383, 180 N.E. 585 at 586; Gubitz v. State, (1977) Ind.App., 360 N.E.2d 259, 264; 1 C. Torcia, Wharton's Criminal Evidence, § 248 (13th ed. 1972). The probative value of this evidence lies with the special relationship between the crime or crimes within the series and the criminal offense charged, the offenses sharing similarities or peculiarities such as the nature of the crimes or the means by which the offenses are committed. See: Watts v. State, (1950) 229 Ind. 80, at 103-04, 95 N.E.2d 570, at 580.

In the present case, the Nora Theater offense was sufficiently similar to the charged offense to be relevant in establishing a common plan or scheme. The targets, both theaters, were vandalized within the same hour. Further, the same type of damage was inflicted upon both theaters.

II. Statements While in Police Custody

Trusley and Mulry urge the incriminating statements made after their arrest should not have been admitted into evidence because the State did not establish they understood and voluntarily waived their constitutional right against compulsory self-incrimination, as required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The State responds the statements were spontaneous and, therefore, outside the scope of Miranda, but, if the statements were the product of custodial interrogation, the evidence was sufficient to establish a voluntary waiver of their constitutional right of silence.

Contrary to the State's assertion, the statements were not spontaneous, but were in response to a direct question by Deputy Fleenor after arrest. Admissibility of the statements is, therefore, governed by Miranda. 384 U.S. at 444, 86 S.Ct. 1602.

Waiver denotes the intentional relinquishment of a known right. City of Evansville v. Follis, (1974) 161 Ind.App. 396, at 402, 315 N.E.2d 724, at 728. Therefore, when reviewing a trial court's finding of waiver under Miranda, our duty is to determine whether there is sufficient evidence to support the trial court's finding that the Miranda warnings were given and the rights involved therein waived. Richardson v. State, (1978) Ind., 373 N.E.2d 874, 875; Ortiz v. State, (1976) 265 Ind. 549, 553, 356 N.E.2d 1188, 1191.

Absent other fully effective means of informing an accused of his right of silence, Miranda requires prior to any custodial interrogation the accused be informed he has the right to remain silent, that any statement he makes may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. 384 U.S. at 444, 86 S.Ct. 1602; Lane v. State, (1977) 266 Ind. 485, 364 N.E.2d 756. Miranda further requires, before a statement made by defendant under circumstances requiring the warnings may be admitted into evidence against him, the State must establish the warnings were given and a knowing and intelligent waiver of the rights involved was made. Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Lane v. State; Ortiz v. State; Craft v. State, (1978) Ind.App., 372 N.E.2d 472. If the State fails to sustain its burden under Miranda, the confession is not admissible even though, under traditional analysis, the confession may have been considered voluntary. Miranda, 384 U.S. at 457, 86 S.Ct. 1602; Michigan v. Mosley (1975) 423 U.S. 96, at 100, 96 S.Ct. 321, 46 L.Ed.2d 313; Michigan v. Tucker, (1974) 417 U.S. 433, at 443, 94 S.Ct. 2357, 41 L.Ed.2d 182.

At trial Deputy Fleenor testified he advised Mulry and Trusley of their "Miranda rights." When specifying the warnings given, Fleenor did not state he warned them any statement made could later be used as evidence against them. The record reveals no evidence from which to infer Mulry and Trusley were informed of the potential inculpatory use of their statements. Because the evidence fails to establish that the requisite Miranda warnings were given, the trial court erred in finding the rights involved waived and, therefore, in admitting the statements into evidence against their maker. Goodloe v. State, (1969) 253 Ind. 270, 252 N.E.2d 788; Sampson v. State, (1968) 250 Ind. 625, 237 N.E.2d 254, reh. denied 238 N.E.2d 458; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d 839.

The Indiana legislature has enacted IC 35-5-5-2 (Burns Code Ed.1979 Repl.) to guide the trial court in determining the overall voluntariness of a confession. This statute enumerates factors to be considered by the trial court in determining the voluntariness of a confession and its resulting admissibility into evidence. Among the factors to be considered by the trial court are the Miranda warnings, but the statute specifically allows the presence or absence of any of the enumerated factors "need not be conclusive on the issue of voluntariness." 2 Hence the statute would appear to allow a determination that a confession was voluntary and, therefore, admissible into evidence, although the State had failed to sustain its burden under Miranda.

Miranda, however, explicitly holds before an accused may voluntarily waive his right against compulsory self-incrimination he must understand the meaning of that right, which requires an explanation of the consequences "not simply (as) a gloss on the warning of the right to remain silent . . . , but rather . . . (as) a separate and distinct requirement." United States ex rel. Magoon v. Reincke, (1968 D.C.Conn.) 304 F.Supp. 1014, affd. 416 F.2d 69 (2d Cir. 1969). The Supreme Court in Miranda emphasized the significance of informing an accused of the potential inculpatory use of his statement "in order to make him aware not only of the privilege (of silence), but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." 384 U.S. at 469, 86 S.Ct. at 1625.

Therefore, insofar as a confession may meet the voluntariness standard of IC 35-5-5-2 but fail to meet the constitutional requisites of Miranda, the confession is not admissible against that defendant making the statement. See: Michigan v. Mosley, (1975) 432 U.S. 96, at 100, 96 S.Ct. 321, 46 L.Ed.2d 313; Dawson v. State, (1975) 163 Ind.App. 493, 324 N.E.2d 839, 844. 3

The State correctly contends the procedural safeguards of Miranda are personal to the one whose rights were violated and cannot be invoked by a co-defendant. United States v. Shaffner, (7th Cir. 1975) 524 F.2d 1021, cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976). Although properly objecting to admission of his own statement on Miranda grounds, neither Mulry nor Trusley specifically objected to admission of co-defendant's statement. Therefore, any error in admission of each defendant's statement against the other as co-defendant is waived and was properly considered by the trier-of-fact. 4 Blow v. State, (1978) Ind., 372 N.E.2d 1166; Cf., Winston v. State, (1975) 165 Ind.App. 369, 332 N.E.2d 229.

Because evidence was admitted in violation of Miranda, we must determine whether error in admission of the tainted evidence was harmless beyond a reasonable doubt. Chapman v. California, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Dyer v. State, (1976) Ind.App., 342 N.E.2d 671. In cases subsequent to Chapman, the United States Supreme Court has...

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