Richey v. State

Decision Date06 October 1981
Docket NumberNo. 1280S442,1280S442
Citation426 N.E.2d 389
PartiesDonald RICHEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Mark W. McNeely, McNeely & Sanders, Shelbyville, for appellant (defendant below).

Linley E. Pearson, Atty. Gen. of Indiana, Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

Donald Richey was convicted by a jury of two counts of burglary, a class B felony, and one count of burglary, a class C felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.), as well as three counts of theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Corrections for two terms of sixteen years, one term of seven years, and three terms of four years, respectively. The court ordered that the terms run concurrently.

In his direct appeal, defendant raises the following issues for our review:

1. Whether the trial court erred when it permitted the state to place in evidence a statement made by defendant in the presence of police;

2. Whether the trial court erred when it permitted the state to place in evidence a "mug shot" of the defendant;

3. Whether the trial court erred when it permitted the state to place in evidence proof of a separate and distinct crime;

4. Whether the trial court erred when it failed to heed defendant's request to admonish the jury to disregard particular statements made by the prosecutor during final argument;

5. Whether the trial court erred when it refused to give various final instructions tendered by defendant;

6. Whether the trial court erred when it permitted the jury to deliberate in the courtroom rather than in the jury's chambers; and

7. Whether the trial court erred when it sentenced defendant for each count of theft, which were included offenses of the burglaries.

The record reveals that on the evening of March 4, 1980, property was stolen from three separate residences in a rural area of Shelby County, Indiana. That evening, a resident of the area observed an automobile occupied by four people in the vicinity of one of the burglarized homes. Because the conduct of the occupants aroused her suspicions, she made a written note of the license plate number. When word of the burglaries reached her the following day, she reported the license number to the police. The subsequent police investigation culminated in defendant's arrest and the convictions at issue.


Defendant contends the trial court erred when it permitted the state to place in evidence a statement he had made in the presence of police officers. Therein, he related to police officers that he had fenced two guns and a pair of binoculars which had been taken in the burglaries; the statement did not include an express admission that defendant had participated in the burglaries.

Initially, we note the state briefly asserts that the defendant's statement does not fall within the parameters of Ind.Code § 35-5-5-1 et seq. (Burns 1979 Repl.), which, together with constitutional guarantees, governs the admissibility of confessions and self-incriminating statements. The unexplained possession of stolen property, although insufficient by itself to support a conviction, is circumstantial evidence of an offense against property. Sansom v. State, (1977) 267 Ind. 33, 366 N.E.2d 1171; Boyd v. State, (1977) Ind.App., 370 N.E.2d 939; Parsons v. State, (1973) 159 Ind.App. 160, 304 N.E.2d 802. Defendant's incriminating statement thus fell within the provisions of Ind.Code § 35-5-5-5 (Burns 1979 Repl.), which defines those statements governed by Ind.Code § 35-5-5-1 et seq., supra.

Defendant's assertion that his incriminating statement was inadmissible is predicated on two bases. He maintains the statement was involuntarily made as a result of his illegal detention. In addition, he argues he was under the influence of drugs at the time the statement was made and that, consequently, it was not the product of his free will.

It is, of course, well settled that the state has the burden of proving beyond a reasonable doubt that a defendant's statement was voluntarily made. Morris v. State, (1980) Ind., 399 N.E.2d 740; Rodgers v. State, (1979) Ind., 385 N.E.2d 1136. See also, Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. It is equally well settled that in our review of a trial court's ruling on the admissibility of a confession or incriminating statement, this Court cannot weigh the evidence or judge the credibility of witnesses. Rather, we must examine the evidence most favorable to the state, together with the reasonable inferences which can be drawn therefrom. If, from that viewpoint, there is substantial evidence to support the court's conclusion, it will not be set aside. Combs v. State, (1978) 267 Ind. 578, 372 N.E.2d 179; Riggs v. State, (1976) 264 Ind. 263, 342 N.E.2d 838.

Pursuant to Ind.Code § 35-5-5-1, supra, the trial court conducted a hearing outside the presence of the jury to determine the voluntariness and admissibility of defendant's statement. The record of the hearing reveals that at approximately 4:30 p. m. on March 25, defendant was arrested in Decatur County for a theft unrelated to the offenses at issue. He was detained in that county's jail. The arrest, made pursuant to a warrant, was executed by State Police Detective John Oldham, who was investigating burglaries in a six-county area embracing both Shelby and Decatur Counties. According to Oldham, defendant was advised of his rights, informed of the Decatur County offense which had prompted his arrest, and told he was also a suspect in the investigation of Shelby County burglaries.

The record reveals defendant was not taken before a magistrate on the Decatur County theft charge until March 27, at which time counsel was appointed for him. Meanwhile, the previous day March 26 defendant had requested an opportunity to talk with Detective Oldham. The request and resulting conversation between the two occurred at approximately noon and was witnessed by Charles "Mike" Herndon, a detective with the Shelby County Sheriff's Department who was investigating the string of burglaries in that jurisdiction. The conversation was not tape-recorded or transcribed. Oldham indicated that if he made any notes of the conversation, the memoranda "had probably been thrown away." Herndon stated his notes were "on my rough field report and then it was dictated." No written notes, summaries, or records of the conversation were admitted at the hearing.

It is uncontradicted that at the outset of the meeting, Oldham again advised defendant of his Miranda rights. Oldham could not remember whether he asked defendant to sign a waiver of his rights; at any rate he testified defendant did not sign a written waiver. Neither Herndon nor Oldham asked defendant if he was under the influence of drugs; both indicated he acted normally and appeared rational.

The record reveals a paucity of information concerning the conversation itself. There is no evidence regarding its duration or format, with the exception of the following colloquies between the state and the police officers. Oldham testified as follows:

MR. LINDER: "Now did you use any force to get him to speak with you?"

WITNESS: "I did not."

MR. LINDER: "Did you use any threats?"


Similarly, Herndon testified:

MR. LINDER: "Was any force used to make him talk?"

WITNESS: "No, sir, this interview was at his request."

MR. LINDER: "Any threats?"

WITNESS: "No, sir."

MR. LINDER: "Any promises made to him if he talked?"


The record reveals nothing regarding the substantive matters discussed during the meeting beyond those statements heretofore delineated and the fact that defendant admitted he had fenced property taken in the Shelby County burglaries.

We are enamored neither of the police conduct nor the state's approach to its burden of proof in the instant case. Defendant was detained in the Decatur County Jail for a period somewhere between forty and forty-eight hours before he was taken in front of a magistrate. As Chief Justice Givan explained in Pawloski v. State, (1978) 269 Ind. 350, 358, 380 N.E.2d 1230, 1234:

"There is a heavy responsibility placed upon state officials to bring an arrestee before a neutral and detached magistrate without undue delay. An arrestee must be brought before a magistrate for a probable cause determination within 24 hours of being placed in custody except where Sunday intervenes, in which case the arrestee can be detained no longer than 48 hours. IC § 18-1-11-8 (Burns 1974). A delay in bringing an arrestee before a magistrate will not render a confession inadmissible if the judge finds the delay to be reasonable and the confession voluntary."

Notwithstanding the state's "heavy responsibility," it presented no evidence to explain its failure to take defendant, who was arrested on Tuesday, before a magistrate until Thursday.

The state's failure to explain the reason for the extended detention flies in the face of Ind.Code § 35-5-5-3 (Burns 1979 Repl.), upon which defendant relies. Contemplated in the statute is a determination by the trial judge whether a delay in presenting a defendant to a magistrate beyond six hours from the arrest is "reasonable." Ind.Code § 35-5-5-3, supra :

"In any criminal prosecution by the state of Indiana, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law enforcement officer or law enforcement agency, shall not be inadmissible solely because of the delay in bringing such person before a judge if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention:

"Provided, That the time...

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