Payne v. State

• Decision Date: 11 March 1976
• Docket Number: No. 3--674A98,3--674A98
• Citation: 168 Ind.App. 394,343 N.E.2d 325
• Parties: Walter PAYNE, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 325

343 N.E.2d 325

168 Ind.App. 394

Walter PAYNE, Jr., Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

No. 3--674A98.

Court of Appeals of Indiana, Third District.

March 11, 1976.

Rehearing Denied May 26, 1976.

John J. Roper, Chapleau, Roper, McInerny, Minczeski & Farabaugh, South Bend, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Douglas W. Meyer, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Presiding Judge.

A jury found Walter E. Payne, Jr. guilty of possessing marijuana which was in violation of IC 1971, 16--6--8--3(c)(Burns Code Ed.).Payne was fined $700.00 and sentenced to imprisonment for a term of not less than one (1) year nor more than ten (10) years.His motion to correct errors raises these issues on appeal:

(1) Should the initial issue of the voluntariness of Payne's waiver of rights and subsequent confession have been decided in the presence of the jury?

(2) Was there probable cause to suspect Payne's criminal activity when the police set up a plan to buy marijuana from him?

(3) Was Payne's motion to suppress the marijuana evidence improperly overruled?

(4) Was a sufficient chain of custody established to warrant admission of the marijuana into evidence?

(5) Did the trial court err in admitting oral testimony regarding marijuana seized in a vehicle in Long Beach, Indiana?

We conclude that the trial court erred when it determined the initial question of voluntariness in the presence of the jury.It is the opinion of the majority of this court, not including the author of this opinion, that this cause should be remanded to the trial court for a hearing on the issue of voluntariness.If the trial court, on remand, makes an independent determination that the waiver of rights statement and the subsequent confession were voluntary, then the judgment of conviction must be affirmed, since we find no reversible error in the remaining issues presented for our review.If, however, the trial court on remand finds the confession involuntary, Payne's conviction must be set aside, and a new trial must be granted.

I.Voluntariness of Confession

The State's first witness, Sergeant Abraham, testified that Payne had been informed of his rights before signing a written waiver of rights form which indicated that he was willing to talk to the police.The State then asked Abraham what Payne said after the waiver was signed.Payne's defense counsel objected to any testimony about conversations after the waiver was signed for the reason that neither the waiver of rights nor any subsequent statements were shown to have been voluntarily made.The trial court treated the initial question of voluntariness as a question for the jury and, in the presence of the jury, permitted evidence to be heard.¹ At the conclusion of the evidence, which included the voir dire of Sergeant Abraham, ²the trial court overruled the objection.Abraham testified that Payne confessed his ownership of marijuana found in his suitcase.

IC 1971, 35--5--5--1 (Burns Code Ed.) mandates the trial court to hear evidence out of the presence and hearing of the jury to determine any issue as to voluntariness before admitting confessions ³ in evidence:

'In any criminal prosecution brought by the state of Indiana, a confession, as defined in section (5)(35--5--5--5) hereof, shall be admissible in evidence if it is voluntarily given.Before such confession is received in evidence, the trial judge shall, out of the presence and hearing of the jury, determine any issue as to voluntariness.If the trial judge determines that the confession was voluntarily made, it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.'(emphasis added).

The trial court's action, determining voluntariness in the presence of the jury, constituted a violation of section 35--5--5--1, as well as a violation of Payne's fifth and fourteenth amendment rights.Jackson v. Denno(1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.⁴ The only remaining question is the disposition of the case in the face of this error.

In Jackson v. Denno, supra, petitioner Jackson filed a petition for habeas corpus in the federal district court asserting that his New York conviction was invalid because it was founded on a confession not properly determined to have been voluntary.Consistent with the New York practice when a question was raised about the voluntariness of a confession, the trial court had submitted the issue to the jury.⁵The United States Supreme Court concluded that the New York procedure was inadequate to 'insure a reliable and clear-cut determination' of voluntariness 'unbeclouded by other issues and the effect of extraneous but prejudicial evidence.'378 U.S. at 390, 391, 84 S.Ct. at 1788, 12 L.Ed. at 923, 924.The Supreme Court determined that Jackson was entitled to a full evidentiary hearing in the New York courts to determine the factual context of Jackson's confession.The Court said:

'It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence.Jackson's position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence.So far we agree and hold that he is now entitled to such a hearing in the state court.But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty.True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible.If the jury relied upon it, it was entitled to do so.Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson's confession was involuntary, there must be a new trial on guilt or innocence without the confession's being admitted in evidence.'378 U.S. at 394, 84 S.Ct. at 1790, 12 L.Ed.2d at 925--26(footnote omitted).

The Court further stated:

'It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.But as to Jackson, who has already been convicted and now seeks collaterial relief, we cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary.'Id. at 395--96, 84 S.Ct. at 1790--91, 12 L.Ed.2d at 926--27.

Clearly, Jackson stands for the proposition that an accused has a constitutional right 'at some stage in the proceedings to object to the use of (his) confession and to have a fair hearing and a reliable determination on the issue of voluntariness.'Id. at 376--77, 84 S.Ct. at 1780--81, 12 L.Ed.2d at 915.However, Jackson finds no constitutional requirement that an accused, once tried and convicted at a trial at which his confession was considered by the jury, be given a new trial if, later, an independent and reliable determination is made that the confession was voluntary and, thus, was properly before the jury.

It is the opinion of this writer that, since Jackson only establishes the minimum to which an accused is constitutionally entitled, this Court must be bound by the procedure established by the Indiana legislature.IC 1971, 35--5--5--1 (Burns Code Ed.) clearly requires that the independent and reliable determination of voluntariness be made '(b)efore such confession is received in evidence.'A new trial is necessary to comply with the statute, which is mandatory.Remanding this case for an evidentiary hearing on the issue of voluntariness may remedy any constitutional defects in the trial court's procedure, but will not correct the trial court's disregard of the legislative mandate that the hearing be held before the confession is received into evidence.I would grant Payne a new trial in the face of the trial court's error.

It is the opinion of the majority of this Court, however, that Payne is first entitled only to an evidentiary hearing on the issue of voluntariness.If it is determined at this evidentiary hearing that Payne's confession was voluntary, then no prejudicial error was committed at trial when the confession was received in evidence.Of course, if the trial court determines after hearing that the confession was involuntary, a new trial will be required, since Payne's conviction on the basis of an involuntary confession cannot stand.Rogers v. Richmond(1961), 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760;Payne v. Arkansas(1958), 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.The majority reasons that, pursuant to Jackson, remand for such a hearing is constitutionally acceptable.Further, so long as Payne receives an independent and reliable determination of the voluntariness of his confession, out of the presence of the jury, he cannot establish harm from the trial court's error.

The case is remanded for an evidentiary hearing on the issue of the voluntariness of Payne's confession, consistent with the majority views expressed herein.If the trial court finds the...