Niehaus v. State
| Decision Date | 25 January 1977 |
| Docket Number | No. 476S129,476S129 |
| Citation | 265 Ind. 655,359 N.E.2d 513 |
| Parties | Lester E. NIEHAUS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Rice & Van Stone, Jack N. Van Stone, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged with murder in the first degree and convicted of murder in the second degree in connection with the death of Lilly Scudmore, which occurred in Posey County on December 24, 1973. He was sentenced to life imprisonment. His direct appeal to this Court presents three issues concerning the admissibility of evidence:
(1) Admissibility of statements made by the defendant during police interrogation, in view of police advice that he could have legal counsel at a later time.
(2) Admissibility of results of a polygraph test given to the defendant by the police conducting the investigation.
(3) Admissibility of testimony from a forensic odontist connecting the defendant to teeth marks found upon the decedent's breast.
Four ro five days following the homicide, the defendant appeared voluntarily at the office of the sheriff of Posey County, where he was advised of his rights, interrogated and released. He subsequently moved to Lake County, where he was contacted by the police and voluntarily submitted to a polygraph test on May 13, 1974. It is not clear from the briefs, but we assume, for the purposes of this opinion, that the results of the test were exculpatory.
On December 12, 1974, the indictment against the defendant was filed in Posey County, and at 11:00 p.m. on December 13th he was arrested in Lake County. He was taken immediately to the police station in Gary and was given what is generally referred to as 'Miranda warnings.' He then signed a waiver, hereinafter set forth, and was interrogated. In the course of this interrogation, he made highly incriminating admissions that were later introduced into evidence over his objections.
The defendant filed a pre-trial motion to suppress the aforementioned statements, which was overruled. At the trial, the statement was admitted into evidence over his objection. The basis for the motion and objection was that the statement had been taken without the defendant having first been properly advised. It is not denied that the officer taking the statement had told the defendant, prior to the interrogation, that he had a right to have a lawyer of his choice and that if he could not employ one, one would be appointed for him when they returned to Posey County. It is the defendant's contention that he was misled into believing that he was not entitled to counsel, as a matter of right, at the time of the interrogation and that, but for such misconception, he would not have submitted to it.
The defendant relied upon Goodloe v. State, (1969) 253 Ind. 270, 252 N.E.2d 788, wherein we ordered a new trial because of the admission of statements made following an inadequate warning. In that case, the appellant had been advised that '* * * if she didn't have any money for an attorney the state would furnish her an attorney.' We held that to be insufficient under the requirements of Miranda v. Arizona, (1966) 384 U.S. 436, 478, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694, because it did not inform her that she had the right to the presence of an attorney during the interrogation. Defendant's case, however, is more akin to Emler v. State, (1972) 259 Ind. 241, 286 N.E.2d 408 and Thompson v. State, (1971) 256 Ind. 48, 267 N.E.2d 49.
In Emler v. State, supra, we held that informing the defendant of his right to appointed counsel, with the qualification that such counsel could be available only at a later time, did not imply the absence of a right to have counsel present during the interrogation, in view of a clear explanation of the defendant's right to consult with an attorney at any time before or during interrogation.
In the case at bar, Defendant had signed a waiver form, as follows:
'INTERROGATION; ADVICE OF RIGHTS
YOUR RIGHTS
INDIANA STATE POLICE POST
Place Danville
Date 12--29--73
Time 12:03 A.M.
'Before we ask you any questions, you must understand your rights.
'You have the right to remain silent.
'Anything you say can be used against you in court.
'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
'If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
'If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
'WAIVER OF RIGHTS
'I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
'Signed Lester Niehaus
Witness: Tpr. Joseph R. Rhodes 1927
Time: 1206 A.M.'
The testimony disclosed that the interrogating officers fully advised the defendant of his rights, as contained in the foregoing excerpt and that he stated that he understood them.
There was no contention that the giving of such waiver was involuntary but only that the warnings given to him were misleading. Additionally, the evidence disclosed that the defendant had been interrogated on two prior occasions and had been advised on those two occasions that he was entitled to counsel during interrogation.
The question to be determined by the trial judge upon the issue of the admissibility of the statements was whether or not they had been made voluntarily and with the knowledge that he was not required to make them. Clearly, the evidence was sufficient to warrant the conclusion that they were.
The trial court sustained the State's motion in limine, proscribing reference during the trial to the defendant's having taken a lie detector test, without first obtaining leave of court outside the presence of the jury. It is the defendant's position that had the results been unfavorable to him, the State would have been permitted to introduce evidence concerning it and that it is manifestly unfair to deny the defendant the reciprocal right, citing Reid v. State, (1972) 259 Ind. 166, 285 N.E.2d 279.
The admissibility of polygraph evidence was not sufficiently litigated in the court below, and the issue attempted to be presented for review, consequently, has not been briefed sufficiently to warrant an in depth treatment here. Reid v. State, supra, does not support the defendant's position. The 'waiver's referred to in that case was, in fact, a waiver and stipulation that the results could be used as evidence. The waiver referred to in the case at bar was merely a waiver of his rights against self-incrimination. There was no waiver of the right to object to the introduction of the evidence upon other grounds, i.e. unreliability, hearsay, invasion of the province of the jury to determine credibility.
Additionally, we do not regard the court's ruling sustaining the motion in limine as a ruling eliminating the necessity of an in-trial offer. We have no way of knowing precisely what evidence was excluded. In this respect, the case differs from Lockridge v. State, (1975) Ind., 338 N.E.2d 275 and Lamb v. State, (1976) Ind., 348 N.E.2d 1, where we held that in-trial action was not necessary to preserve the issue. The defendant was not categorically precluded from offering the evidence concerning the test. Rather, he was only precluded from offering it without prior leave of court. It does not appear that such leave was requested, and we hold that under such an order, an in-trial offer to prove would be essential.
The following cases and articles deal with the problems presented by polygraph evidence when properly presented. Zupp v. State, (1972) 258 Ind. 625, 283 N.E.2d 540; Austin v. State, (1974) 262 Ind. 529, 319 N.E.2d 130; Carpenter v. State, (1968) 251 Ind. 428, 241 N.E.2d 347; Levitt, Scientific Evaluation of the 'Lie Detector,' 40 Iowa Law Review 440 (1955); Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Yale Law Journal 694 (1961); Annotations: 23 A.L.R.2d 1292 (1952); 53 A.L.R.3d 1005 (1973).
A substantial part of the State's case was predicated upon the testimony of Dr. Miles Standish, testifying as a forensic odontist, expert in relating bite marks or tooth impressions to the teeth that made them. Over objections that the witness did not qualify as an expert in the area and the further objection that the reliability of the area of claimed expertise was not sufficiently established to permit the expression of an opinion, the witness was permitted to give his opinion that bite marks found upon the victim had been inflicted by the defendant.
Among other injuries sustained by the decedent was a bite or bites upon her left breast. The breast was excised and preserved. Thereafter, models...
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