Purcell v. State

• Citation: 418 N.E.2d 533
• Decision Date: 30 March 1981
• 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 533

418 N.E.2d 533

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

No. 3-1179A317.

Court of Appeals of Indiana, Third District.

March 30, 1981.

Terry E. Johnston, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION FOR REHEARING

STATON, Judge.

This Court affirmed the conviction of Terry W. Purcell for the offense of conversion. Purcell v. State (1980), Ind.App., 406 The apparent thrust of Purcell's petition for rehearing is that a statement obtained in violation of Lewis is necessarily not a "voluntary" statement. This argument is clearly in error. As we stated in our original opinion, supra, 406 N.E.2d at 1259:

N.E.2d 1255. In that opinion, we decided a statement obtained in contravention of the Lewis mandates ¹ could be used for the purpose of impeachment. In Purcell's petition for rehearing, he contends that this Court erred in not addressing the issue of "voluntariness." The Lewis mandates and the issue of voluntariness though inherently intertwined ² involved two analytically distinct issues. In our opinion affirming Purcell's conviction, we limited our discussion to the issue of the admissibility. This opinion will analyze the issue of voluntariness.

"Lewis prescribes in effect, therefore, the procedures to be used by police in implementing the Miranda rights to juveniles with respect to custodial interrogation."

The Miranda rights are guidelines and procedural mandates implemented as a prophylactic measure to prevent police abuses regarding custodial interrogations. Michigan v. Tucker (1974), 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Lewis, the Court held that the rule instituted therein "lays down a concrete and specific procedure for the authorities to follow...." 259 Ind. at 440, 288 N.E.2d at 143.

These procedural mandates are not of constitutional dimensions. Michigan v. Tucker, supra; Miranda v. Arizona, supra. Voluntariness, on the other hand, is of constitutional dimensions based upon the precept of due process of law. Miranda v. Arizona, supra; Bram v. United States (1897), 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. Miranda and Lewis are procedural safeguards to help insure that statements are voluntary. A violation of Miranda is not synonymous with a violation of the voluntariness standards. Michigan v. Tucker, supra. A statement may be inadmissible under Miranda even though "voluntary" under traditional analysis. Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313; Miranda v. Arizona, supra; Mulry v. State (1980), Ind.App., 399 N.E.2d 413 (specifically contrasting Miranda rights from "voluntariness" under Indiana law).

For a statement tainted by the failure to meet the requirements of Miranda v. Arizona, supra, to be used collaterally in a criminal trial, the tainted statement must be judged voluntary under due process standards. Oregon v. Hass (1975), 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570; Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. The tainted statement is admissible for collateral use, "provided of course that the trustworthiness of the evidence satisfies legal standards." Harris, supra, 401 U.S. at 224, 91 S.Ct. at 645. As stated in Mincey v. Arizona (1978), 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290: "(A)ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law...." (original emphasis). To be admissible for impeachment purposes, the tainted statement must be voluntary in the sense of being "the product of a rational intellect and a free will...." (original emphasis). Id. at 398, 98 S.Ct. at 2417; Blackburn v. Alabama (1960), 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242; State v. Cooley (1974), 162 Ind.App. 482, 486, 319 N.E.2d 868, 870.

Likewise, where a statement is tainted because of the failure to meet the requirements of Lewis and is offered for impeachment purposes, the statement must otherwise meet the legal standards of trustworthiness required for admissibility.

In our opinion affirming Purcell's conviction at Section II.A., Ind.App., 406 N.E.2d at 1259, we concluded "(S)tatements 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 add to this conclusion the following statement: These prior inconsistent statements must, of course, otherwise meet the legal standards of trustworthiness required for admissibility.

Indiana has codified voluntariness determinations. Ind.Code §§ 35-5-5-1 to 5 (1976 & Supp.1980). Section 5 defines confession as used under these provisions in part, as "any self-incriminating statement." Thus, these provisions apply to the Purcell statement. See Purcell v. State, supra, Ind.App., 406 N.E.2d at 1258. Section 2 provides guidelines for the trial court in its determination whether a statement was made voluntarily:

"The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including but not limited to (1) the time elapsing between the arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession."

Ind.Code § 35-5-5-2.

Purcell filed a motion with the trial court for the suppression of the statement here in issuing alleging among other reasons the statement to have been obtained contrary to Lewis and that it was not a voluntary statement. The trial court, in compliance with Ind.Code § 35-5-5-1, held a suppression hearing on the issue out of the presence of the jury. Prior to our reviewing the record of this suppression hearing, we note the recent statement by our Supreme Court on the proper standard of review:

"In determining whether a statement was voluntarily given we consider the surrounding circumstances ... A statement must not be induced by any violence, threats, promises or any other improper influences ... In viewing the voluntariness of a confession we do not weigh the evidence. If there is sufficient evidence to support the trial court, we will not disturb the ruling of admissibility."

Turner v. State (1980), Ind., 407 N.E.2d 235, 237 (citations omitted).

The trial court had the following evidence before it: (1) Purcell was 17 years old at the time of his arrest and the making of the statement here in issue. (2) Purcell had a seventh or eighth grade education. (3) The approximate elapse of time between Purcell's arrest and the making of the statement. Purcell was arrested in the early morning hours and made the statement that same morning sometime after 9:00...