Niehaus v. State, No. 476S129

Docket NºNo. 476S129
Citation265 Ind. 655, 359 N.E.2d 513
Case DateJanuary 25, 1977
CourtSupreme Court of Indiana

Page 513

359 N.E.2d 513
265 Ind. 655
Lester E. NIEHAUS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 476S129.
Supreme Court of Indiana.
Jan. 25, 1977.
Rehearing Denied April 19, 1977.

[265 Ind. 656] Rice & Van Stone, Jack N. Van Stone, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

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:

Page 514

(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 [265 Ind. 657] of this interrogation, he made highly incriminating admissions that were later introduced into evidence over his objections.

ISSUE I

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 [265 Ind. 658] 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.

Page 515

'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

Witness: E. Reine 1454

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.

[265 Ind. 659] 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...

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45 practice notes
  • Brooks v. State, No. 98-KA-00322-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1999
    ...700, 664 N.E.2d 97 (1996); People v. Milone, 43 748 So.2d 747 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (1976); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513 (1977); State v. Peoples, 227 Kan. 127, 605 P.2d 135 (1980); State v. Vital, 505 So.2d 1006 (La.Ct.App. 1987); Commonwealth v. ......
  • State v. Swinton, (SC 16548).
    • United States
    • Supreme Court of Connecticut
    • May 11, 2004
    ...that act of comparing photographs of bite marks to molds of teeth not reliable or accepted standard of comparison); Niehaus v. State, 265 Ind. 655, 660-62, 359 N.E.2d 513 (defendant unsuccessfully argued that odontology not sufficiently recognized as area of expertise and that testifying ph......
  • State v. Armstrong, No. 17614
    • United States
    • Supreme Court of West Virginia
    • April 22, 1988
    ...43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (1976); People v. Johnson, 8 Ill.App.3d 457, 289 N.E.2d 722 (1972); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977); Commonwealth v. Cifizzari, 397 Mass. 560, 492 N.E.2d 357 (19......
  • Starks v. City of Waukegan, No. 09 C 348.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 24, 2015
    ...all three States in the Seventh Circuit. See State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136, 137–40 (Wis.App.1986) ; Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977) ; People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350, 1360 (1976) ; see also People v. Wright, 1......
  • Request a trial to view additional results
45 cases
  • Brooks v. State, No. 98-KA-00322-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1999
    ...700, 664 N.E.2d 97 (1996); People v. Milone, 43 748 So.2d 747 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (1976); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513 (1977); State v. Peoples, 227 Kan. 127, 605 P.2d 135 (1980); State v. Vital, 505 So.2d 1006 (La.Ct.App. 1987); Commonwealth v. ......
  • State v. Swinton, (SC 16548).
    • United States
    • Supreme Court of Connecticut
    • May 11, 2004
    ...that act of comparing photographs of bite marks to molds of teeth not reliable or accepted standard of comparison); Niehaus v. State, 265 Ind. 655, 660-62, 359 N.E.2d 513 (defendant unsuccessfully argued that odontology not sufficiently recognized as area of expertise and that testifying ph......
  • State v. Armstrong, No. 17614
    • United States
    • Supreme Court of West Virginia
    • April 22, 1988
    ...43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (1976); People v. Johnson, 8 Ill.App.3d 457, 289 N.E.2d 722 (1972); Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977); Commonwealth v. Cifizzari, 397 Mass. 560, 492 N.E.2d 357 (19......
  • Starks v. City of Waukegan, No. 09 C 348.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 24, 2015
    ...all three States in the Seventh Circuit. See State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136, 137–40 (Wis.App.1986) ; Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977) ; People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350, 1360 (1976) ; see also People v. Wright, 1......
  • Request a trial to view additional results

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