Ortiz v. State

Decision Date16 November 1976
Docket NumberNo. 576S147,576S147
Citation265 Ind. 549,356 N.E.2d 1188
PartiesHector ORTIZ and Bruce Tyrone Williams, Appellants, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Terrence L. Smith, East Chicago, for appellants.

Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellants, Hector Ortiz and Bruce Tyrone Williams, were convicted of first degree murder, Ind.Code § 35--13--4--1(a) (Burns 1975), and sentenced to life imprisonment. On appeal, we consider the following contentions of appellants:

(1) that a statement by Williams should have been suppressed;

(2) that Ortiz was entitled to have his trial severed from Williams' trial;

(3) that the trial court erred in re-reading Williams' statement to the jury during deliberation;

(4) that a remark made by the prosecutor in closing argument was improper and entitled appellants to a mistrial;

(5) that the trial court erred in instructing the jury that they must deliberate until reaching a verdict;

(6) that the verdicts are not supported by sufficient evidence.

On August 6, 1975, the body of Gregory Hill was found in an alley in the neighborhood of Buffington Park in Gary, with a massive wound to the back of the head. An autopsy revealed that his death resulted from being shot in the back of the head with a shotgun. Appellants were charged by indictment with first degree murder, and were tried by jury in the Criminal Division of the Lake Superior Court.


Appellants first contend that a statement given by Williams should have been suppressed.

Williams surrendered himself to the Gary Police at approximately 4:00 or 5:00 p.m., on August 26th (the earlier estimate is Williams', the later the detective's). Detective Shannon testified that he orally advised Williams of his Miranda rights from a printed form, which he also allowed Williams to read. Shannon testified that he 'explained' each right in turn. The adequacy of the substance of the warnings is not in question.

Williams submitted to a polygraph examination, signed a rights waiver, and, at 10:07 p.m., August 26th, gave Detective Shannon a statement.

An in-trial suppression hearing was conducted outside the presence of the jury. Williams testified that he was twenty years old and had completed the junior year of high school; he 'didn't read too well.' Although he had signed a waiver form he testified that he had been unaware of its significance. He testified that he had given statements before and always signed the rights waiver without understanding it. At one point he said that Detective Shannon told him that the police would 'see what they could do' for him. Later he testified that Shannon had said that if Williams made a statement Shannon 'could probably talk to the prosecutor and make a deal.' Williams also said that the polygraph operator had earlier told him that he had given untruthful answers to his questions. He said that his reasons for giving the statement were that 'people out on the street,' apparently friends of the decedent Gregory Hill were threatening him, and that he thought if he gave the statement he would not be 'involved.'

Appellants argue that the statement was not voluntary, and that the State failed to show a knowing and intelligent waiver of Williams' right to counsel and to remain silent.

A statement by an accused is not admissible against him if it is not voluntarily given. Malloy v. Hogan, (1964) 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Ind.Code § 35--5--5--1 (Burns 1975). A statement made under circumstances requiring the giving of Miranda warnings is not admissible unless such warnings are given and a knowing and intelligent waiver of the rights involved is made. Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Pirtle v. State, (1975) Ind., 323 N.E.2d 634.

In determining whether a statement was voluntarily given, we look to all the circumstances surrounding its giving to determine whether it was 'induced by any violence, threats, promises, or other improper influence.' Montes v. State, (1975) Ind., 332 N.E.2d 786, 792. The same test determines whether a waiver of the Miranda rights has occurred. Nacoff v. State, (1971) 256 Ind. 97, 267 N.E.2d 165. The burden is on the State to prove beyond a reasonable doubt the voluntariness of the statement or waiver. Burton v. State, (1973) 260 Ind. 94, 292 N.E.2d 790. In reviewing the trial court's ruling on the voluntariness of a statement or waiver, we do not weigh the evidence, but determine whether there is sufficient evidence to support the trial court's finding. Raines v. State, (1971) 256 Ind. 404, 269 N.E.2d 378.

Appellants correctly assert that the signing of a waiver form does not conclusively show a valid waiver. Dickerson v. State, (1972) 257 Ind. 562, 276 N.E.2d 845. However, there was testimony which would justify the trial court in finding that Detective Shannon read and explained Williams' rights to him and indicated that Williams should sign the form if he wished to waive his rights to counsel and silence. In such circumstances the court could properly have found a knowing and intelligent waiver, absent further factors showing involuntariness. There is no evidence here which suggests physical abuse or threats, unreasonably prolonged 1 interrogation, or deprivation of food, water, or rest, all of which have been condemned as coercive factors. Montes v. State, supra.

Appellants point out that Williams' statement was made without the presence of an attorney. The absence of an attorney is one factor tending to disprove voluntariness, but it is possible for an accused to make a valid waiver without counsel. Appellants also contend that 'Williams is poorly educated and has difficulty in reading English.' Yet he testified that he had completed three years of high school, and there is nothing in the record to suggest that the education he received was substandard. Moreover, lack of formal education is more detrimental to the validity of a waiver in those cases in which the accused is merely given an advice of rights form to read for himself. E.g. Dickerson v. State, supra. Appellants urge that Williams' lack of a felony record indicates that he was inexperienced in dealing with the police; however, Williams admitted that he had given statements and signed rights waivers before. Appellants urge that the waiver and statement were not voluntary because of alleged threats on Williams' life by friends of Gregory Hill. While it is true that threats may render a confession involuntary, Nacoff v. State, supra, such threats must obviously bear some relationship to the confession to do so. An accused's fear of retaliation by friends of a murder victim has no logical connection to his confession of guilt. There is no reason to believe that anyone threatened to harm Williams only if he failed to confess. The statement was not the product of police inducement because of Shannon's representation that he would 'see what he could do' for Williams; such a representation is so vague and indefinite that the trial court would be justified in finding that Shannon's statement did not "bring about' a confession 'not freely self-determined'.' Shotwell Manufacturing Co. v. U.S., (1963) 371 U.S. 341, 348, 83 S.Ct. 448, 453, 9 L.Ed.2d 357. We have held that a confession is inadmissible if obtained by a promise of immunity or mitigation of punishment. Ashby v. State, (1976) Ind., 354 N.E.2d 192. In Ashby the defendants confessed to a robbery during which injury was done to the victim, for which they could have received a life sentence, in return for a promise of a ten-year determinate sentence ('ten flat'). 354 N.E.2d at 193. This vague 'promise' falls far short of the Ashby mark.

Finally appellants rely on language from Sparks v. State, (1967) 248 Ind. 429, 229 N.E.2d 642, which states that a confession is voluntary only if 'in making it the accused was aware of the probable consequences of his act.' 248 Ind. at 433, 229 N.E.2d at 645, and argue that Williams did not understand that the facts he admitted (that he gave Ortiz a sawed-off shotgun after Ortiz announced his intention to shoot Hill) rendered him guilty as an accessory to first degree murder. We did not hold in Sparks that a confession is voluntary only when the accused understands the elements of the crime to which he confesses. As the appellants contend in their brief, even many 'literate, well-informed citizens' have not mastered the area of criminal law. It is for that reason that an accused undergoing custodial interrogation is entitled to the assistance of counsel in deciding what, if anything, to say. If, having been advised of his right to have an attorney present, a defendant chooses to proceed without legal advice to make a statement, in the mistaken belief that the content of the statement is exculpatory, he has made a voluntary statement.

We find that the trial court's overruling of appellants' motion to suppress was supported by sufficient evidence.


Williams' statement was to the effect that on the night of the shooting, he was with Ortiz. They both saw the decedent Hill walk by. Ortiz wanted revenge on Hill for an incident in which Hill supposedly shot at Ortiz and his companions with a shotgun. Ortiz asked Williams to get him a sawed-off shotgun which Williams had previously found and hidden. Williams gave Ortiz the gun, and Ortiz said 'that he was going to blow the dudes head off.' Williams left Ortiz near the shooting scene, and heard a shot as he hurried away. Williams encountered Ortiz the next day, and Ortiz 'said he blowed the dudes head off.' Ortiz was identified by his first name, Hector, numerous times throughout the statement, and once by his full name.

After overruling appellants' motion to suppress the statement, the trial court read it to the jury with Ortiz's name replaced by the word 'blank' wherever it occurred. This was the only...

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