Pointon v. State

• Decision Date: 03 September 1980
• Docket Number: No. 477S266,477S266
• Citation: 274 Ind. 44,408 N.E.2d 1255
• Parties: James Edward POINTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1255

408 N.E.2d 1255

274 Ind. 44

James Edward POINTON, Appellant, v. STATE of Indiana, Appellee.

No. 477S266.

Supreme Court of Indiana.

Sept. 3, 1980.

John J. Davie, LaPorte, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On October 14, 1976, appellant James Edward Pointon was convicted by jury in LaPorte Superior Court No. 2, of murder in the first degree, felony murder, and rape. He was sentenced to life imprisonment on each count of murder and twenty-one years imprisonment on the rape conviction. We note at the outset of our consideration of this appeal that this cause involves the homicide of one individual. Therefore, the trial court could not impose a sentence on both counts of murder. Franks v. State, (1975) 262 Ind. 649, 323 N.E.2d 221. We remand this cause with instructions to vacate the judgment and sentence for felony murder.

Appellant raises five issues for our consideration in this appeal, which are as follows: (1) the denial of his petition for discharge, based on the fact that he was an adjudged criminal sexual psychopath at the time of the commission of the crimes charged here; (2) the admission of a confession and the admission of items obtained as the fruits of that confession; (3) the admission of items found in a police search of appellant's automobile; (4) the giving of final instructions Numbers 20 and 21; and (5) the refusal of the court to give appellant's tendered final instructions Numbers 1 to 5.

The evidence showed that on July 22, 1974, Mary Ellen Doll was in the city of LaPorte, Indiana, en route to the home of her parents in Union Mills, Indiana. She called her parents to report to them that she was having automobile trouble. About fifteen minutes later she called her mother again and reported that a man helped her and that he would take her to meet her parents in Union Mills. Arrangements had been made for this man to take her to a certain point in the town of Union Mills. Her parents were to meet her there and take her on to their home. These calls were placed from a laundromat in LaPorte, Indiana, which was next door to a gasoline filling station. Mr. and Mrs. Roy Redman observed Miss Doll and a man they identified as the defendant-appellant, in the filling station looking under the hood of Miss Doll's car. It was apparent that there were severe leaks in the radiator. The Redmans helped appellant and Miss Doll push the car away from the pump area of the station since the station was closed at that time. Miss Doll and appellant then went to the laundromat and made the phone calls to her parents. She was seen in the laundromat, making the phone calls, by a woman who identified the appellant as the man with her at the time. Miss Doll had told the Redmans that appellant was going to take her home. Miss Doll's body was found early the next morning, July 23, 1974, in a newly cut wheat field in an area between LaPorte and Union Mills, Indiana. She had been killed by a shotgun blast to the head. She also had sustained a fractured jaw, which was not caused by the shotgun wound, and bruises on her arms, her left thigh, around her eyes, her breast, and the back of her upper right arm which also had gouge marks. Sometime after six p. m., the preceding day she had had sexual intercourse, which had broken her hymen. A stone or pearl was missing from a ring on the finger of Miss Doll. Nearby tire tracks showed a fairly distinctive tread pattern. Straw was later found on the undercarriage of appellant's car, and wheat chaff was found in the car. The tread on the tires of appellant's car matched the impression of tires on the field. Blood smears were apparent inside the automobile. A black stone, which fit Miss Doll's ring, was found on the front seat of appellant's automobile by the police. On July 23, when appellant appeared for work, he had what appeared to be fresh superficial scratches on his upper left arm. Appellant gave the police verbal and written consent to search his automobile and his room at the County Home and later gave an oral confession, which was videotaped by the police and shown to the jury during the trial, and a written confession.

I.

In 1965, defendant-appellant was charged in the LaPorte Circuit Court with the crime of rape. On December 28, of that year, he was adjudged a criminal sexual psychopathic person and committed to the custody of the Division of Mental Health of the State of Indiana for treatment and institutionalization until he recovered from such psychopathy. Appellant was committed to Beatty Memorial Hospital in Westville, Indiana, where he remained for a period of five years. He was paroled by the Department of Mental Health after five years, but his status as a criminal sexual psychopath was never changed by the court. Appellant now contends that since he was never adjudged to have recovered from being a criminal sexual psychopath, the State is now barred from prosecuting him for any sex-related crime.

The Indiana Legislature provided for the care and treatment of persons found to be criminal sexual psychopaths in Burns § 9-3401 through 3409 inclusive. Acts 1949 Ch. 124 p. 1-9, Amended Acts 1959, Ch. 356 § 1, 2, p. 955 by providing that a person found to be in such state be committed to a mental institution for treatment and, if possible, cure, rather than suffer criminal penalty for his crime. Criminal sexual psychopathic person was defined as:

"Any person over the age of sixteen (16) years who is suffering from a mental disorder and is not insane or feeble minded which mental disorder is coupled with criminal propensities to the commission of sex offenses, is hereby declared to be a criminal sexual psychopathic person."

It was further provided in Burns § 9-3409 that:

"No person who is found in such original hearing to be a criminal sexual psychopathic person, and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition."

These statutes were all repealed in 1971, and replaced by the Indiana Legislature by Indiana Code § 35-11-3.1-1 et seq., which deal with criminal sexual deviants and provide that prosecution is in no way barred by a previous determination of criminal sexual deviancy for crimes committed after such finding.

It was the finding of the trial court here that appellant's adjudged status as a criminal sexual psychopathic person in 1965 only exempted him for prosecution of the crime from which that finding arose, and that such status had no effect upon his prosecution for these acts committed in 1974. We find the trial court to be correct in its interpretation of this law. Appellant's being adjudged a criminal sexual psychopathic person in 1965 had no effect on his status in the charges of rape and murder before the court in this case in 1976. The trial court properly overruled appellant's Motion for discharge.

II.

Appellant contends the trial court improperly denied his motion to suppress his videotaped confession on the grounds that it was given without counsel being present when he had previously told police he did not want to talk to them without having a lawyer present. The evidence showed that appellant was arrested at the county home in LaPorte on July 23, by the sheriff and several other officers. At the time he was informed of his Miranda rights and indicated to the police officers that he understood his rights. He subsequently gave the police permission, both orally and in writing, to search his automobile and his room. His attitude was described as being cooperative and the encounter was without conflict. Appellant was then taken to the LaPorte Police Station and escorted to an interview room. Present in that room with the appellant was the sheriff of LaPorte County, Detective Thorp, Officer Reeder, and State Police Detective Cole. The appellant had indicated to the police officers present that he was willing to talk to them and give them a statement. Officer Reeder was in the process of setting up the videotape equipment. The testimony was that everyone was friendly and that there was small talk going on between the appellant and the officers. The sheriff got the appellant a cup of coffee and then told him that he was under arrest. The sheriff also told him he wanted to get a statement from him, but before he did, the sheriff said he wanted to advise the appellant of his rights again. This he did, by using a standard LaPorte City Police waiver form that contained the advices and provision for waiver that are commonly called the Miranda warnings. The sheriff then showed the form to the appellant and let him read it. The appellant responded to the sheriff that he understood his rights and that he was willing to talk to them, but he wanted a lawyer before he did so. The police officers then withdrew from their attempt to talk to the appellant. Appellant was left in the interrogation room for about fifteen minutes before he was removed to a cell. Detectives Thorp and Reeder were with him in the interrogation room. Thorp talked to Pointon about religion and family relationships. He reportedly asked Pointon if he believed in God and the appellant responded to him, "Why do people do things?" The appellant told Officer Thorp that he did not want to talk in front of the sheriff, as he did not trust the sheriff because of past dealings with him. No further discussion was had with the appellant. He was placed in the county jail at about 11:00 p. m. The appellant was given an opportunity to use the phone that evening, but refused, and made no calls.

A probable cause hearing was had in the LaPorte City Court the next morning and appellant was present for the hearing. Appellant was advised by the judge of the LaPorte City Court as to all of his constitutional rights,...