Perry v. State
| Decision Date | 11 April 1978 |
| Docket Number | No. 3-777A176,3-777A176 |
| Citation | 176 Ind.App. 120,374 N.E.2d 558 |
| Parties | James PERRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
John F. Surbeck, Jr., Ft. Wayne, for defendant-appellant.
Theodore L. Sendak, Atty. Gen. (J. Roland Duvall, Deputy Atty. Gen.), Indianapolis, for plaintiff-appellee.
Defendant-appellant James Perry was convicted following trial to a jury of the offense of second degree burglary 1 and sentenced to the custody of the Indiana Department of Corrections for a period of not less than two nor more than five years. Thereafter, appellant's motion to correct errors was denied and this appeal follows. The issues presented for our resolution are whether incriminating statements made by appellant were involuntarily made as the product of fraud and misrepresentation on the part of interrogating officers and whether the evidence was sufficient to support the verdict.
Appellant contends that the confession was involuntary because it was the direct result of an implied promise of immunity, Walker v. State (1968), 249 Ind. 551, 233 N.E.2d 483, or at least, an implied promise of mitigation of punishment. Ashby v. State (1976), Ind., 354 N.E.2d 192. An in-trial suppression hearing was conducted outside the presence of the jury. Detective Captain Louis E. Seibt of the Allen County Police Department testified that after appellant was advised of his Miranda rights, he admitted acting as a lookout while two other men entered King's Department Store and took articles of property. The following was then elicited from Captain Seibt:
It is the answer to the above question which appellant contends constituted the improper inducement rendering the confession inadmissible. In Walker v. State, supra, the defendant was questioned during the course of a police investigation into a robbery of a clothing store. The police advised defendant that they had information defendant had visited the robbers in a motel. Defendant confirmed this statement and told the police he had purchased some suits from the robbers. The police told appellant they were not interested in the suits, but wanted the robbers and asked the defendant's cooperation. The appellant and at least some of the police officers acted on the belief that the statement made to the defendant was a promise of immunity in exchange for his cooperation in the robbery investigation. In the case at bar, however, the statement cannot reasonably be construed as a promise of immunity from prosecution because the statement made by the police officers was that it would look better for appellant "in court".
The statement of the officers is likewise not sufficient to constitute a promise of mitigation of punishment. In Ashby v. State, supra, the defendants confessed to inflicting injury in the course of a robbery, for which they could have received life imprisonment, in return for a promise of a ten-year determinate sentence. In Ortiz v. State (1976), Ind., 356 N.E.2d 1188, a police officer told defendant that the police would "see what they could do" for him, and later told defendant if he made a statement the officer "could probably talk to the prosecutor and make a deal". Our Supreme Court stated that the officer's representation that he "would see what he could do" for the defendant was so vague and indefinite that the trial court would be justified in finding that the officer's representation did not bring about a confession not freely self-determined. The court distinguished Ashby, stating that such a vague promise as that found in Ortiz falls short of the standard set forth in Ashby.
The statement of the police officer in the case at bar is more akin to the Ort...
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...alone, render a confession involuntary. See, e.g., United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978); Perry v. State, 176 Ind.App. 120, 121-22, 374 N.E.2d 558 (1978). In United States v. Ballard, the Fifth Circuit Court of Appeals approved the practice of pointing out that such c......
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