Purcell v. State

• Citation: 406 N.E.2d 1255
• Decision Date: 16 July 1980
• Docket Number: No. 3-1179A317,3-1179A317
• Parties: Terry W. PURCELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 1255

406 N.E.2d 1255

Terry W. PURCELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1179A317.

Court of Appeals of Indiana, Third District.

July 16, 1980.

Terry E. Johnston, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Terry W. Purcell was charged with theft ¹ and found guilty by a jury of the lesser included offense of conversion. ² The trial court sentenced Purcell to the Indiana Department of Correction for one year. Purcell urges the following issues for our review:

(1) With respect to the admission of certain testimony, whether the trial court erred for the following reasons:

a. Suppressed evidence was admitted for the purpose of impeachment;

b. The trial court did not admonish the jury concerning the purpose of the impeachment testimony;

c. Whether the legality of Purcell's arrest required suppression of the evidence derived therefrom; and,

d. Insufficient foundation was laid for the admission of impeachment testimony;

(2) Whether there was sufficient evidence before the trial court to declare a witness hostile;

(3) Whether the crime charged was in effect upon the date of Purcell's arrest;

(4) Whether there was sufficient prosecutive merit to waive Purcell from juvenile court; and,

(5) Whether the jury selection process was in error.

We affirm.

I. Facts

The following evidence was presented at trial. Paul Allen's gray 1975 Kawasaki motorcycle was chained to the house trailer of Albert Huffman on July 28, 1978. The following morning (July 29, 1978) Huffman discovered the chain cut and the motorcycle missing. At 1:30 a. m. on August 5, 1978, officer Zostik though not on duty nor in uniform was riding in a marked police car driven by officer Basista who was on duty and in uniform. Officers Basista and Zostik worked for the Lake Station Police Department in the city of Lake Station located in Lake County, Indiana. Officer Zostik testified that he observed a motorcycle traveling at a very high rate of speed and that he and officer Basista followed and caught up with the motorcycle at a stop light in Lake Station. Officer Zostik observed that the motorcycle was being ridden by two teenagers and that the driver was wearing a brown leather jacket and blue jeans whereas the passenger wore a light colored shirt or jacket.

When the light turned from red to green officer Basista engaged his emergency overhead lights. The motorcycle's lights were extinguished and the motorcycle accelerated at a very high rate of speed. Officers Basista and Zostik gave pursuit with red lights flashing and siren engaged reaching speeds in excess of ninety miles per hour. As the pursuit approached the Porter County line, officer Basista radioed ahead to notify the Portage police of their imminent entry into the jurisdiction of the Portage police. Eventually, the motorcycle pulled into a gravel parking lot with officers Basista and Zostik in close pursuit. The motorcycle slowed and the passenger jumped off making good his escape on foot. At this point the motorcycle nearly fell and officer Zostik exited the squad car, pulled the driver off the motorcycle, placed the driver face down and advised him of his arrest. Officer Zostik testified that as he pulled the driver off the motorcycle the driver stated "You have got me" or "I give up." Purcell was wearing a brown leather jacket and blue jeans.

The arrest as well as part of the pursuit occurred in Porter County. After the arrival of Portage police, the driver was identified as the defendant Terry W. Purcell, a juvenile being under the age of eighteen and the motorcycle was identified as the stolen gray 1975 Kawasaki belonging to Paul Allen. Purcell was taken to the Portage Police Department, charged with theft and incarcerated.

That same morning, August 5, 1978, at 9:00 a. m., officer Untch assigned to the juvenile division of the Portage Police Department took Purcell from the jail portion to the booking room portion of the Portage City jail. Shortly thereafter, Purcell made a statement that would later contradict his testimony at trial. The essence of his statement was that he was not driving the motorcycle but had been picked up while hitchhiking and that he did not know who the driver was. He shortly thereafter stated that the driver's name was Larry. Since officer Untch violated the clear mandates of Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138, ³ the trial court, at a suppression hearing, ruled that evidence with respect to this statement would be suppressed. The trial court specifically ruled at the same hearing however, that the statement could be used for the purpose of impeachment.

At his trial Purcell took the stand and testified that he was merely the passenger on the motorcycle without knowledge of it being a stolen vehicle and that it was the driver who jumped off the motorcycle and escaped. Over Purcell's objection officer Untch took the stand for the purpose of impeaching Purcell's testimony and related the contents of Purcell's interrogation statement the one previously ruled to be suppressed except for the purpose of impeachment. The jury found Purcell guilty of conversion and the trial court set his sentence at one year.

II. Admission of Testimony

Purcell argues that the trial court erred with respect to the admission of certain testimony by officers Untch and Zostik. Purcell urges this Court to find reversible error in four separate contexts.

A. Suppressed Evidence Used for Impeachment

Purcell contends that the trial court erred in allowing the suppressed evidence of Purcell's interrogation statement to be admitted through the vehicle of impeaching testimony by officer Untch. Purcell's statement made to officer Untch was suppressed in the State's case in chief because such statement was received in clear violation of the mandates of Lewis, supra.

In Lewis, the Indiana Supreme Court addressed the issue of the so-called Miranda rights (see Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) as applied to the custodial interrogation of juveniles. The purpose of outlining such procedures was stated, in pertinent part, as follows:

"The authorities seeking to question a juvenile enter into an area of doubt and confusion when the child appears to waive his rights to counsel and against self-incrimination. They are faced with the possibility of taking a statement from him only to have a court later find that his age and the surrounding circumstances precluded the child from making a valid waiver. There are no concrete guidelines for the authorities to follow in order to insure that the waiver will be upheld. The police are forced to speculate as to whether the law will judge this accused juvenile on the same plane as an adult in regard to the waiver of his constitutional rights, or whether the court will take cognizance of the age of the child and apply different standards.

"Clearly defined procedures should be established in areas which lend themselves to such standards in order to assure both efficient police procedure and protection of the important constitutional rights of the accused. . . . "

259 Ind. at 436-37, 288 N.E.2d at 141. The Court then proceeded to outline the procedures required of police in interrogating juveniles. See note 3, supra. Lewis prescribes in effect, therefore, the procedures to be used by police in implementing the Miranda rights to juveniles with respect to custodial interrogation. See, Lewis, supra.

It is a well established rule in the federal courts, Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and in the Indiana courts, Johnson v. State (1972), 258 Ind. 683, 284 N.E.2d 517, that statements inadmissible under Miranda in the prosecutor's case in chief may be used for the purpose of impeaching the credibility of the defendant's trial testimony. In Harris, supra, the petitioner's statement made in contravention of Miranda was suppressed in the prosecutor's case in chief but was admitted for the purpose of impeaching petitioner's trial testimony. As stated by the United States Supreme Court in Harris :

"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . .

"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements."

401 U.S. at 225-26, 91 S.Ct. at 645-46.

Although not previously decided in this state, we feel the same reasoning should be adopted where the procedures outlined in Lewis are not followed. That is, statements obtained in contravention of the mandates of Lewis cannot be used in the prosecutor's case in chief. If the juvenile defendant chooses to take the stand and testify, however, he does so with the risk of confrontation with any prior inconsistent statements including statements received in violation of the Lewis procedures. We therefore affirm the trial court's ruling with respect to the admissibility of the impeaching testimony of officer Untch.

B. Admonishment of Jury

Purcell further argues that the trial court failed to admonish the jury with respect to officer Untch's impeaching testimony. Purcell contends it was reversible error for the trial court to fail to inform the jury at the time officer Untch testified that his testimony was to be considered solely for the purpose of weighing Purcell's credibility.

Whether to admonish the...