Seay v. State

• Decision Date: 25 November 1975
• Docket Number: No. 1--475A68,1--475A68
• Parties: Garry Tyrome SEAY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 489

337 N.E.2d 489

167 Ind.App. 22

Garry Tyrome SEAY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--475A68.

Court of Appeals of Indiana, First District.

Nov. 25, 1975.

John D. Clouse, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Joseph H. Reiswerg, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant Garry Tyrome Seay (Seay) brings his appeal from a conviction of two counts of assault and battery with intent to kill. ¹

FACTS:

On the night of May 3, 1974, Seay, then seventeen (17) years old, met one Timothy Boyd at a pool hall in Evansville. Prior to their meeting Seay had procured a pistol which he kept hidden near his home.

While at the pool hall the talk among those present focused on an acquaintance of Seay's who had been shot by police, and the feelong that too many black people were being shot.

Sometime shortly after 1:00 A.M. Seay and Boyd left the pool hall and proceeded to the corner of Lincoln and Governor Streets. While Seay was near the corner, Don and Peggy Hamilton approached in their car and stopped at a stop light. As the Hamiltons waited for the light to change, Don noticed a black man crouched and pointing a gun at him. The pistol was fired twice, and Don was struck in the arm and Peggy was shot in the head.

Boyd testified that he ran when Seay pulled out a pistol and did not see Seay aim at the car. Boyd, however, saw the car run the light, and saw Seay replace a pistol in his pants.

Further, another acquaintance of Seay's, Mike Scales, testified that on May 6, 1974, Seay came to him and stated that he thought he had shot someone. Seay gave the pistol to Scales, and police later recovered it at Soales' residence. The pistol recovered by police was identified by Scales as the one he received from Seay. Additionally, slugs and shell casings found near the scene of the shooting were matched with test firings from the pistol.

Subsequently, on May 9, 1974, Officer Coleman of the Vanderburgh Sheriff's Department approached Seay and requested that he go to the Sheriff's office. After arriving at the office, Coleman ascertained the name and address of Seay's guardians and contacted them by telephone.

Coleman advised the guardians of Seay's situation and stated he thought it would be best if one or both of them would come to the station while Seay was being questioned. Coleman also offered to provide transportation to the station house. Although Coleman advised the guardians that Seay had a right to remain silent, and that Seay should have an attorney present for questioning, the guardians stated they did not with to be present and that Seay could be questioned.

Coleman then proceeded to read a statement of rights to Seay. Following this, Coleman read to Seay a waiver of rights form, and asked Seay if he wanted an attorney or guardian present for questioning. Seay then stated he understood his rights, that he did not wish anyone else to be present, and he signed the waiver form.

Eventually, Seay completed and signed a written statement, in which he admitted the shooting.

Because of the nature of Seay's arguments below, it is necessary that we also present a rather completion of procedural facts.

On May 31, 1974, after waiver from Juvenile Court a one-court indictment (#1530) was returned against Seay. Thereafter, on June 7, Seay filed a motion to dismiss the indictment, alleging a lack of jurisdiction. No further action was taken until August 8th, ² when the State filed a petition for the waiver of Seay to adult (Circuit) court with regard to Juvenile Cause No. 74--JUV--317, which contained charges for the shooting of Peggy Hamilton.

Next, on August 12th, the Circuit Court ruled on Seay's motion to dismiss indictment #1530 by stating that

'The Court now finds Juvenile Court did not have jurisdiction and therefore orders this cause remanded to Juvenile Court for the purpose of having a hearing to determine whether Juvenile Court should have jurisdiction and if it is determined Juvenile Court does have jurisdiction then whether this defendant should be waived to adult/Circuit court.'

Following this action by the court, the State filed a second waiver petition with regard to Juvenile Cause No. 74--JUV--356, which related to charges for the shooting of Don Hamilton. Two weeks later, the trial court granted both of the pending waiver petitions.

Finally, on September 3rd, a two-count information, charging assault and battery with intent to kill both Peggy and Don Hamilton, was filed against Seay and assigned a cause number of 1595. A subsequent motion to dismiss the information was denied, and in the same proceeding the trial court dismissed the cause (indictment No. 1530) which had been previously remanded to Juvenile Court for a determination of jurisdiction of that court.

Seay was eventually tried and convicted of the charges contained in information No. 1595.

ISSUES:

The questions presented for review are as follows:

1. Whether jurisdiction was ever properly effected in the Juvenile and adult courts involved and, therefore, whether it was error to overrule Seay's motion to dismiss.

2. Whether it was error for the trial court to deny part of Seay's motion for discovery.

3. Whether Seay was denied a fair trial by the exclusion of Negroes from the jury.

4. Whether the court gave an improper instruction.

5. Whether Seay's confession was properly admitted into evidence.

I.

The issues set forth above present serious challenges to the propriety of the proceedings below. In reviewing the arguments of appellant Seay, and in considering the various parts of the record before us, we find a disturbing absence of material information. Thus, in considering Seay's arguments this court has inspected the entire transcript, and we will address all issues made apparent by such inspection. While several of the problems to be discussed below are not directly raised by Seay's arguments, such does not preclude this court from a consideration thereof. As was stated in Summers v. State (1967), 248 Ind. 551, 554, 230 N.E.2d 320, 322,

'At the outset it should be pointed out that the questions we are deciding here are not specifically raised by the appellant on the appeal, however, in cases where the interests, rights and privileges of juveniles are involved, the rule is stated that this Court is permitted to search the record for a determination of issues inherently revealed by the record.' (Citations omitted.)

See also, Hicks v. State (1967), 249 Ind. 24, 230 N.E.2d 757.

In addition, in passing upon the contentions of the parties, we must consider any applicable sections of the juvenile code ³ in light of express statutory provisions and judicial pronouncements.

First, the legislative purpose behind the juvenile code (IC 1971, 31--5--7--1 to 31--5--7--25) is to

'. . . secure for each child within its provisions such care, guidance and control, preferably in his own home, as will serve the child's welfare and the best interests of the state; and when such child is removed from his own family, to secure for him custody, care and discipline as nearly as possible equivalent to that which should have been given by his parents.

The principle is hereby recognized the children under the jurisdiction of the court are subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them.' IC 1971, 31--5--7--1.

This statement of purpose has been interpreted to mean that there is a presumption in favor of dealing with the delinquent within the juvenile system. Atkins v. State (1972), Ind. 290 N.E.2d 441, 443. Also, it has been established that all provisions of the juvenile code must be closely followed.

'We know that courts do not assume jurisdiction, sua sponte. In proceedings to determine whether or not delinquent, dependent or neglected children should be made wards of the Juvenile Court, the jurisdiction of the court must be invoked by the verified accusation as provided for by Sections 9--3207 and 9--3208, supra. Not until the proper charge is filed may the court cite the party charged and attain jurisdiction over his person or the subject matter of the particular case. We believe the Act itself clearly indicates jurisdiction is dependent upon strict compliance with its provisions. 'Statutes which take away, change or diminish fundamental rights, statutory remedies for rights unknown to the common law, and statutes which provide new and extraordinary remedies must be construed strictly both to the cases embraced within their terms and as to the methods to be pursued.' 59 C.J., Sec. 669, p. 1130.' Shupe v. Bell (1957), 127 Ind.App. 292, 295, 141 N.E.2d 351.

Other decisions of courts of this state have elucidated the standards with regard to particular requirements in the juvenile code. See, Shupe v. Bell, supra, proper filing of a delinquency petition; In re Johnson v. State (1964), 136 Ind.App. 528, 202 N.E.2d 895, service of process to and appearances by necessary parties; Hicks v. State, supra, and State ex rel. Atkins v. Juvenile Ct. of Marion Co. (1969), 252 Ind. 237, 247 N.E.2d 53, transfer of cases from criminal court to juvenile court. Finally, two Indiana Supreme Court cases have discussed the procedure which is required when a juvenile offender is sought to be waived over to adult court.

The landmark case of Summers v. State, supra, was the first to extensively consider proper waiver procedures. The court relied heavily on Kent v. United States (1966), 383 U.S. 541, and stated, at p. 559, 86 S.Ct. 1045, at p. 1056, 16 L.Ed.2d 84,

'In Kent, supra, there is a lengthy discussion and criticism of juvenile proceedings in general. Suffice it to say that in a decision on the question of waiver such as presented here, the court held that the determination of whether a...