Propes v. State, No. 10S00-8803-PC-325

Docket NºNo. 10S00-8803-PC-325
Citation550 N.E.2d 755
Case DateMarch 08, 1990
CourtSupreme Court of Indiana

Page 755

550 N.E.2d 755
Norman PROPES, Appellant,
v.
STATE of Indiana, Appellee.
No. 10S00-8803-PC-325.
Supreme Court of Indiana.
March 8, 1990.

Page 756

Susan K. Carpenter, Public Defender and Novella L. Nedeff, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

This is an appeal from a denial of post-conviction relief. In 1977, appellant was convicted of Conspiracy to Commit a Felony and First Degree Murder, for which he received concurrent sentences of two (2) to fourteen (14) years and life imprisonment, respectively. This Court affirmed the judgment below on direct appeal, Propes v. State (1978), 269 Ind. 626, 382 N.E.2d 910.

In 1984, appellant filed pro se his petition for post-conviction relief; shortly thereafter, the Public Defender of Indiana entered her appearance on appellant's behalf. Three years (and four motions, three of them pro se, to amend the petition) later, a hearing was held on the petition. The post-conviction court subsequently issued written findings denying the petition, and this appeal followed.

Appellant contends the post-conviction court erred in failing to grant him a new trial based upon the admission at trial of his pretrial statements, which, he argues, should have been suppressed because they were taken in violation of his right to counsel.

In the case of Minnick v. State (1984), Ind., 467 N.E.2d 754, cert. denied, 472 U.S. 1032, 105 S.Ct. 3512, 87 L.Ed.2d 642, we reversed and remanded for a new trial due to the erroneous admission of Minnick's custodial confession in violation of his right to counsel. There, the appellant was detained for questioning and after realizing

Page 757

he was a suspect, asked to see a lawyer, refused to make any further statement, and was incarcerated.

Later that day, before Minnick had been given access to counsel, a deputy sheriff went to his cell and twice asked him if he would like to answer questions. Minnick then assented, was questioned, and the resulting statement was introduced at his first trial. We reversed that conviction, adopting the United States Supreme Court's rationale enunciated in Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, that an accused, having once requested counsel, is denied his Sixth Amendment right to counsel if the authorities subsequently elicit inculpatory statements, "unless the accused himself initiates further communications, exchanges, or conversations with the police." Id. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386.

Here, the same situation obtained: appellant at his first interrogation clearly indicated his desire for counsel; instead of breaking off communication, the officers persisted in going over the waiver of rights form and then requested appellant to sign it. Here, as in Minnick, appellant was in custody when he asserted a request for the assistance of counsel. Unlike in Minnick, where officers stopped the interrogation immediately, here they merely continued their attempts at securing appellant's waiver of counsel. Moreover, here appellant was not only in custody, he had been charged by information nearly two weeks prior to the first interrogation, yet never was informed on that occasion of the charges pending against him. See United States v. Mohabir (2d Cir.1980), 624 F.2d 1140.

As to appellant's second statement, wherein he insisted for fifty minutes upon his right to counsel before officers ceased interrogation, its admission was erroneous even though its substance was not directly inculpatory. In Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court held that comments at trial in reference to a defendant's post-Miranda silence constitute reversible error. Where, as here, the entire statement was admitted into evidence, it clearly amounts to an impermissible, tangible reference to appellant's exercise of his Fifth Amendment right to remain silent.

Regarding appellant's third interrogation, which resulted in a statement largely conforming to the versions provided by other...

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28 practice notes
  • State v. KIRK N., No. 31315.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2003
    ...892 (Fla.Dist.Ct.App.2002) ("[D]enial of the Sixth Amendment right to counsel is per se reversible error."); Propes v. State, 550 N.E.2d 755, 758 (Ind.1990) ("[V]iolation of the right to counsel is fundamental error, reversible per se despite other, independent evidence suffi......
  • Sauerheber v. State, No. 89S00-9701-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1998
    ...assertion of the right to counsel at a time when that right exists, i.e., in the context of custodial interrogation. See Propes v. State, 550 N.E.2d 755 (Ind.1990); Sleek v. State, 499 N.E.2d 751 (Ind.1986); Minnick v. State, 467 N.E.2d 754 (Ind.1984). The rationale of the authorities on wh......
  • Fleenor v. State, No. 41S00-9106-PD-433
    • United States
    • Indiana Supreme Court of Indiana
    • September 3, 1993
    ...of the rejection of the ineffective assistance ground by the post-conviction court is largely obviated. Propes v. State (1990), Ind., 550 N.E.2d 755. There remains the allegation that defense counsel failed to develop an adequate record in support of mitigating circumstances and the penalty......
  • Brown v. State, No. 49A02-9010-PC-626
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1992
    ...and fundamental error dominate the pages of many, if not most, of our post-conviction review decisions. See Propes v. State (1990) Ind., 550 N.E.2d 755; Perkins v. State (1989) Ind., 541 N.E.2d 927; Schiro v. State (1989) Ind., 533 N.E.2d 1201, cert. denied 475 U.S. 1036, 106 S.Ct. 1247, 89......
  • Request a trial to view additional results
28 cases
  • State v. KIRK N., No. 31315.
    • United States
    • Supreme Court of West Virginia
    • December 4, 2003
    ...892 (Fla.Dist.Ct.App.2002) ("[D]enial of the Sixth Amendment right to counsel is per se reversible error."); Propes v. State, 550 N.E.2d 755, 758 (Ind.1990) ("[V]iolation of the right to counsel is fundamental error, reversible per se despite other, independent evidence suffi......
  • Sauerheber v. State, No. 89S00-9701-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1998
    ...assertion of the right to counsel at a time when that right exists, i.e., in the context of custodial interrogation. See Propes v. State, 550 N.E.2d 755 (Ind.1990); Sleek v. State, 499 N.E.2d 751 (Ind.1986); Minnick v. State, 467 N.E.2d 754 (Ind.1984). The rationale of the authorities on wh......
  • Fleenor v. State, No. 41S00-9106-PD-433
    • United States
    • Indiana Supreme Court of Indiana
    • September 3, 1993
    ...of the rejection of the ineffective assistance ground by the post-conviction court is largely obviated. Propes v. State (1990), Ind., 550 N.E.2d 755. There remains the allegation that defense counsel failed to develop an adequate record in support of mitigating circumstances and the penalty......
  • Brown v. State, No. 49A02-9010-PC-626
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1992
    ...and fundamental error dominate the pages of many, if not most, of our post-conviction review decisions. See Propes v. State (1990) Ind., 550 N.E.2d 755; Perkins v. State (1989) Ind., 541 N.E.2d 927; Schiro v. State (1989) Ind., 533 N.E.2d 1201, cert. denied 475 U.S. 1036, 106 S.Ct. 1247, 89......
  • Request a trial to view additional results

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