Perkins v. State, No. 3-978A223

• Docket Nº: No. 3-978A223
• Citation: 392 N.E.2d 490, 181 Ind.App. 461
• Case Date: July 25, 1979
• Court: Court of Appeals of Indiana

Page 490

392 N.E.2d 490 181 Ind.App. 461 Hattie Belle PERKINS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3-978A223. Court of Appeals of Indiana, Third District. July 25, 1979.

[181 Ind.App. 462]

Page 492

Harriette Bailey Conn, Public Defender, Marcia L. Dumond, David P. Freund, Deputy Public Defenders, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

At 3:00 p. m. on October 16, 1977, Mandy Lynn Perkins, age 13 months, was admitted to Wabash County Hospital and was pronounced dead on arrival. Mandy had multiple bruises over her body, the worst being a bruise on her lower left chest extending across her abdomen. Her death was determined to be caused by several severe blows to the abdomen causing serious internal blood loss and injuries to abdominal organs. The pathologist determined that the blows had been inflicted up to 24 hours prior to death. Eddie Childress admitted that he had struck the child four times in the abdomen and head on October 15 at approximately 3:00-3:30 p. m. Mandy's mother, appellant Hattie Belle Perkins (Perkins) was in the next room when Mandy was beaten. She came to the child and Childress and spoke with Childress about hitting Mandy. After the beating, Mandy vomited, cried, appeared pale and listless. No medical attention was sought until the following afternoon when she was barely able to breathe. Mandy was taken to the hospital by her mother at Childress' suggestion. In a statement made to the police, Perkins admitted that she knew that Childress had beaten the child and that she should have taken Mandy to the hospital.

Perkins was convicted of the offense of neglect of a dependent ¹ and was sentenced to a fixed term of three years' imprisonment. On appeal, she raises the following issues:

[181 Ind.App. 463] 1. Whether the trial court erred in admitting the statement Perkins made to the police.

2. Whether the trial court erred in admitting state's exhibits 4, 5, 6, 8 and 9 into evidence.

3. Whether the trial court erred in considering the age of the child as an aggravating circumstance for the purpose of sentencing.

4. Whether the evidence was sufficient as a matter of law to sustain the conviction.

Page 493

Issue I:

Perkins first argues that the trial court erred in finding that her confession was made voluntarily. She asserts that she did not make a knowing and intelligent waiver of her constitutional rights since she was not fully advised of her rights and the rights were not adequately explained. In reviewing a trial court's determination of the voluntariness of a confession, this court looks to the totality of the circumstances. In doing so, we do not weigh the evidence or rejudge the credibility of the witnesses. We consider the evidence which supports the trier of fact where the evidence is in conflict, along with any uncontested evidence. Ortiz v. State (1976), 265 Ind. 549, 356 N.E.2d 1188; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811; Villanueva v. State (1978), Ind.App., 383 N.E.2d 437.

Although the state is required to prove the voluntariness of Perkins' confession beyond a reasonable doubt, we review the question on appeal as we do other sufficiency matters: to determine whether there was substantial probative evidence to support the trial court's finding. Murphy v. State (1977), Ind., 369 N.E.2d 411.

[181 Ind.App. 464] The evidence reveals that on October 27, 1977, Perkins was contacted by Officer Jerry West and was requested to come to the police station to give a statement. Upon her arrival at the station, Perkins was served with an arrest warrant. Officer West then read Perkins her rights from a Miranda card and from the statement form. She was asked if she understood her rights and she answered that she did. The statement was taken in a question and answer form and was typed contemporaneously with the questioning. After the statement was completed, Perkins was given the statement to read and sign. Perkins, as well as the officers present, signed the statement.

Perkins contends that she was not adequately informed of her constitutional right to counsel because she was not advised she could end the questioning until her lawyer was present. The statement form states that Perkins was advised of her right to the advice and presence of a lawyer before or at any time during questioning and that one would be appointed if she could not afford an attorney. She was advised that she did not have to make any statement or answer any questions at all. Such advice adequately informed Perkins of her right to counsel.

Perkins also contends that she did not understand the meaning of the words used in the form and therefore did not understand her rights. However, when Officer West asked her if she understood her rights, she answered that she did. We find that there was sufficient evidence of probative value to support the court's finding that Perkins understood her constitutional rights. The rights were read to her twice and she acknowledged that she understood them. Perkins did not ask for explanation of any of the words used nor for a further explanation of her rights.

Perkins next contends that her waiver was not intelligently made because she was not informed of the charge against her until after the statement was made. She admits, however, that the time on the return indicates that the arrest warrant was read to her before the statement process began. Officer Smith testified that Perkins was under arrest when she made the statement. ²

[181 Ind.App. 465] After considering the totality of the circumstances we cannot say that the trial court erred in finding that the statement was voluntarily made.

Perkins also contends that the statement was wrongfully admitted because the state did not establish a corpus delicti before the statement was introduced.

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