Porter v. State

Decision Date03 July 1979
Docket NumberNo. 177S14,177S14
Citation391 N.E.2d 801,271 Ind. 180
PartiesEddie PORTER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Edwin S. Sedwick, Sellersburg, for appellant.

Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Porter was charged in an indictment by the Clark County Grand Jury with two counts of inflicting injury in the commission of a robbery, armed robbery and felony murder. Following a change of venue, appellant was found guilty on all counts by a jury in the Brown Circuit Court on August 6, 1976. He was accordingly sentenced to a term of thirty years in prison for armed robbery and to terms of life imprisonment on the other three counts.

Appellant presents twenty-one issues for our review concerning:

(1) The trial court's failure to grant appellant's motion to dismiss the grand jury.

(2) The trial court's failure to grant appellant's motion to suppress statements made by appellant Porter to the police.

(3) Denial of appellant's motion for severance.

(4) Admission into evidence of statements of the appellant before the corpus delicti had been established by the State.

(5) Admission into evidence of testimony of witness Gerald Hays regarding recorded conversations with appellant.

(6) Allowing witness Hays to read from transcripts of appellant Porter's statements.

(7) Denial of appellant's right to cross-examine Gerald Hays.

(8) Admission of testimony regarding alleged plea negotiations.

(9) Permitting State's witness Gwin to testify as to conclusions.

(10) Refusal of the trial court to grant a mistrial following witness Cardwell's reference to an escape from the Clark County Jail.

(11) Admitting evidence of appellant Porter's jail-breaking attempt.

(12) Error in the admission into evidence of Exhibits 15 through 34.

(13) Error in the admission into evidence of Exhibits 15 through 18.

(14) Error in the admission into evidence of Exhibits 29-32.

(15) Including State's instructions number 11 and 12 in the final instructions to the jury.

(16) Refusing to give appellant's tendered instruction number 7.

(17) The Court's refusal to allow appellant Porter to re-cross-examine the State's witness Violet Porter.

(18) Failure to sustain appellant's objection and challenge to the panel of prospective jurors.

(19) Overruling of appellant's defendant's challenge for cause of certain tentative jurors.

(20) The sufficiency of the evidence.

(21) Sentencing defendant on Count III of the indictment.

The evidence adduced at trial revealed that Martha and Ballard Keeling owned and operated a grocery store in Underwood, Indiana, Clark County, under the name of "Keeling's Underwood Supermarket." The Keelings lived directly across the street from their store. It was Ballard Keeling's general practice to arrive at the store each morning between 6:15 and 6:45 a. m., and to remain there alone until Martha came to the store at approximately 7:00 to 7:30 a. m. On the morning of February 28, 1975, Ballard Keeling was killed during an attempted robbery of his store about the time that Martha Keeling was arriving for the morning. Martha Keeling was also wounded, as well as one Richard Quick, a bread delivery man and witness to the incident.


Porter filed a pre-trial Motion to Dismiss on the ground that he was not given an opportunity to challenge the grand jury pursuant to Ind.Code § 35-1-15-11 (Burns 1975) which provided:

"A person held to answer a charge for a felony or misdemeanor may challenge an individual grand juror, before the jury is sworn, for one or more of the following causes only:

First. That such individual grand juror is under the age of eighteen (18) years.

Second. That he is not a freeholder or a householder of the county.

Third. That he is an alien.

Fourth. That he is insane.

Fifth. That he is the prosecuting witness upon a charge against the defendant.

Sixth. That he is a witness on the part of the prosecution.

Seventh. That such a state of mind exists on his part in reference to the party charged that he cannot act impartially and without prejudice to the substantial rights of the challenger.

Eighth. That he holds his place in the grand jury by reason of the corruption of the officer who selected and impaneled the grand jury.

Ninth. That he is in the habit of becoming intoxicated.

Tenth. That he has requested, or caused any officer or his deputy to be requested, to place him upon the grand jury."

The record shows that appellant knew his cause was to be placed before the grand jury prior to the time it was sworn, and raised no question as to the composition of the grand jury until he filed his Motion to Dismiss on January 6, 1976, nearly a year after the indictments had been returned. He does not now claim that any of the grand jurors were subject to any statutory causes for challenge noted above. He complains only that he was not given an opportunity to challenge them before they were sworn as a grand jury. We have previously held that when one knows he is to be held to answer a charge before a grand jury and fails to make a request to appear before the court at the impanelling of the grand jury, he waives his right to challenge the jury. King v. State, (1957) 236 Ind. 268, 272-73, 139 N.E.2d 547, 549-50; Sisk v. State, (1953) 232 Ind. 214, 219, 110 N.E.2d 627, 629, Cert. denied (1953) 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360. Compare McFarland v. State, (1978) Ind., 381 N.E.2d 85. Accordingly, the trial court properly overruled his Motion to Dismiss on these grounds.


The evidence shows that the police talked to this appellant on the day of the occurrence, February 28, 1975, in the vicinity of the mobile home trailer in which he lived. After talking to him for a short time, the State Police arrested him for public intoxication and took him into custody. Later that same day, he was served with a warrant charging him with the offenses under review here. Approximately three weeks later, on March 25, 1975, the defendant gave to the police the self-incriminating statements that are in question here.

The defendant sent word to the prosecuting attorney, Gwin, that he wished to make a statement regarding this incident. The prosecutor and Officer Gerald Hays then went to the jail and had conversations with the defendant, which were, in part, put into evidence in this cause. The conversations between Porter and Hays, in the presence of Prosecutor Gwin, were preserved in a tape recording, which was then transcribed into typewritten pages. The recording and transcription were both available in court but were not put into evidence. Officer Hays testified as to parts of the statements given to him in which appellant Porter admitted being at the scene of the crime and admitting participating in it. The evidence was presented in this manner to protect the rights of co-defendant James Deaton, who was tried jointly with this defendant. All references to Deaton were redacted entirely from the statement summaries given to the jury, so that defendant Deaton would not be incriminated in any manner by the statements of appellant Porter. Porter claims these statements were inadmissible for several different reasons. We shall proceed to deal with those arguments.

The question of the admissibility of confessions is, of course, to be controlled largely by determining from the totality of the circumstances whether or not they were made voluntarily. We review these questions on appeal as we do other sufficiency matters. That is, we do not weigh the evidence, but rather determine whether there is substantial probative evidence to support the trial court's finding that the statements were made voluntarily. Richardson v. State, (1978) Ind., 373 N.E.2d 874, 875; Murphy v. State, (1977) Ind., 369 N.E.2d 411, 414.

The evidence shows that before the police questioned appellant about this incident on the night of March 25, 1975, they advised him of his Miranda rights by discussing them with him orally and presenting them to him in writing. Before discussing the facts of this case with the police, appellant stated that he understood these rights and also signed waiver forms. In addition, Porter was fully advised of his rights many times prior to this date: first on the day of his arrest on February 28, 1975, and several times thereafter.

The appellant first claims these confessions should not have been admitted into evidence because his arrest was illegal. He argues that the police did not have probable cause to arrest him for public intoxication, and that, in truth, they arrested him as a suspect in this crime. Thus, the argument runs, the original illegal arrest continued to taint his custody even as to the March 25th confessions he made to the police. As authority for this proposition, appellant cites Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, and Williams v. State, (1976) 264 Ind. 664, 348 N.E.2d 623. Those cases clearly hold that if probable cause for the initial detention is lacking, or if the initial detention is otherwise illegal, any confession obtained as a result thereof should be suppressed, unless the confession is a product of the individual's free will. In Williams, supra, we noted the factors established by Brown v. Illinois, supra, which are relevant in determining whether or not a confession is a product of a free will. These factors are: (1) whether the individual was informed of his rights as required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) "particularly, the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427.

Witnesses testified at the hearing on the Motion to Suppress that when the police approached Porter on the morning...

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