Shepler v. State
| Decision Date | 07 November 1980 |
| Docket Number | No. 180S2,180S2 |
| Citation | 274 Ind. 331,412 N.E.2d 62 |
| Parties | John SHEPLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was charged by information with, Count I, auto theft, Ind.Code § 35-43-4-2 (Burns 1979); Count II, attempted murder, Ind.Code § 35-41-5-1; § 35-42-1-1 (Burns 1979); Count III, battery, Ind.Code § 35-42-2-1 (Burns 1979); Count IV, resisting a law enforcement officer, Ind.Code § 35-44-3-3 (Burns 1979); Count V, theft, Ind.Code § 35-43-4-2 (Burns 1979); and Count VI, habitual offender, Ind.Code § 35-50-2-8 (Burns 1979). After trial by jury, he was convicted upon Counts I, IV and VI. 1 The trial court sentenced the defendant to six (6) months imprisonment on Count I; three (3) years imprisonment on Count IV, sentences to run concurrently; and to thirty (30) years imprisonment on Count VI. This direct appeal presents the following issues:
(1) Whether or not the trial court erred in admitting the defendant's confession.
(2) Whether or not the trial court erred in continuing the trial in the defendant's absence.
(3) Whether or not the trial court conducted a proper voir dire examination of the jury regarding their possible exposure to newspaper publicity.
(4) Whether or not the evidence is sufficient to support the verdict of guilty of resisting a law enforcement officer.
(5) Whether or not the trial court improperly admitted evidence of flight during the State's presentation of rebuttal evidence.
(6) Whether or not the trial court erred in refusing to give the defendant's tendered instruction number nine which would have informed the jury that they should acquit upon the battery charge if they found that the battery was provoked.
(7) Whether or not the trial court erred in giving an instruction on flight.
(8) Whether the bifurcated procedure provided for by the habitual offenders statute is constitutional, and whether the statute is unconstitutional as subjecting an accused to double jeopardy.
(9) Whether or not the prosecutor, in summation, improperly commented upon Defendant's failure to testify.
(10) Whether or not the record fails to show that the gun the defendant carried was loaded.
(11) Whether or not the trial court erred in failing to give the defendant's tendered instruction on recklessness, as a lessor included offense.
(12) Whether or not the trial court erred in refusing to provide funds for an investigation or alternatively to release the defendant to enable him to make an investigation, to determine whether one of the jurors had been biased against him.
Over timely objection and a pre-trial suppression motion, the trial court admitted a redacted transcript of a tape recorded statement which the defendant had given to the police within eight (8) hours after his arrest. The statement, in pertinent part, consists of a confession to the charge of auto theft and resisting a law enforcement officer. The defendant contends that the confession was not knowingly and voluntarily rendered.
It is the State's burden to prove, beyond a reasonable doubt, that the defendant voluntarily and intelligently waived his rights, and that the defendant's confession was voluntarily given. Grey v. State, (1980) Ind., 404 N.E.2d 1348, 1351; Magley v. State, (1975) 263 Ind. 618, 626-27, 335 N.E.2d 811, 817. In considering whether such burden was satisfied, we look at the totality of the circumstances, to determine whether there had been any inducement, such as violence, threats, promises, or other improper influence. Grey v. State, supra; Nacoff v. State, (1971) 256 Ind. 97, 101, 267 N.E.2d 165, 167. However, in reviewing the trial court's ruling upon the issue, when the evidence is in conflict, we will consider only that evidence which supports the ruling, and the unrefuted evidence in the defendant's favor. Feller v. State, (1976) 264 Ind. 541, 545, 348 N.E.2d 8, 12-13.
The defendant was arrested on the day of his wife's funeral. The arrest was effected at the funeral home by three police officers acting pursuant to a warrant. At the hearing had on the motion to suppress the confession, the defendant testified that Officer Crisler had told him, by telephone on the previous night, that no arrest would take place until after the services at the cemetery had been concluded, and that Officer Crisler later promised him a ride to the cemetery, if he cooperated.
Another arresting officer, Officer Paschall was alleged to have said that the defendant should not try to get up and run out of the interrogation room, or the officer would get him before he got to the door.
The defendant was interrogated from approximately 11:30 a. m. until 6:30 or 7:00 p. m., without having food or drink. He was told that a lawyer, whom he had used in the past, had been contacted and was not interested in defending him. The officers also asked a number of questions concerning the defendant's relationship with his wife and the details of her recent death, but these questions and answers were not included in the redacted version admitted at trial.
The defendant further testified that several of his answers appearing in the statement were untrue, that he had taken four tuinal tablets during the morning of the funeral and that the drugs had depressed him even further and that he had smoked Defendant claimed that he had signed a waiver of his rights without reading it. However, he acknowledged that he was aware of his right to counsel and knew that he did not have to give a statement if he did not want to. He also acknowledged that he knew that he could stop the questioning at any time. He made no request for food, permission to urinate or for the assistance of a lawyer. In general, he was not in physical discomfort.
marijuana that morning as well and could not think clearly at the time the statement was given.
Defendant also testified that he made his statement in order to obtain a ride to the cemetery and that he assumed that, if his former attorney did not want his case, neither would any other.
Marilyn Walker confirmed the defendant's ingestion of four "blue tips" (tuinal) and his generally depressed mood on the day of the funeral.
Detective Crisler testified for the State and stated that the defendant did not appear depressed and did not slur his words. He also testified that he made no promises to the defendant, although the defendant had mentioned the possibility of his going to the cemetery. He admitted that he had told Defendant's sister that he could go to the cemetery.
Detective Paschall testified that while at the funeral home, he advised the defendant of his rights and while at the police station, he told the defendant that if he tried to run, he would not get very far. He also testified that during the interrogation, the defendant asked if he could go to the graveyard, but that he did not indicate that the giving of his statement was contingent upon obtaining permission. During the interrogation, the defendant was calm and in control of himself.
Paschall acknowledged that he had told the defendant that he could go to the burial grounds, if he signed the statement and cooperated.
Upon the foregoing, we find there was ample evidence to sustain the trial court's denial of Defendant's suppression motion. North Carolina v. Butler, (1979) 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286; Jackson v. State, (1980) Ind., (No. 879 S 241); Grey v. State, (1980) Ind., 404 N.E.2d 1348, 1352; Brown v. State, (1979) Ind., 390 N.E.2d 1000, 1003; Franklin v. State, (1977) 266 Ind. 540, 546, 364 N.E.2d 1019, 1022; Ortiz v. State, (1976) 265 Ind. 549, 553-54, 356 N.E.2d 1188, 1191; Montes v. State, (1975) 263 Ind. 390, 399, 332 N.E.2d 786, 793.
On the second day of trial and during the State's presentation of its evidence, the defendant failed to reappear, following the lunch recess. Following a delay of one hour and fifteen minutes, during which time the defendant neither appeared nor contacted the court, the trial was resumed. The defendant did not appear on the following day, and the trial continued and was concluded in his absence.
The defendant contends that the resumption of trial, in his absence, violated his rights under the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Indiana Constitution. 2 He has offered no explanation for his absence either by way of his motion to correct errors or by way of his briefs to this Court. He was aware of his obligation to return after the lunch recess, and on this record, we hold that he waived his right to be present for the remainder of his trial. Taylor v. United States, (1973) 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (per curiam); McHenry v. State, (1980) Ind.App., 401 N.E.2d 745, 747-48; Taylor v. State, (1978) Ind.App., 383 N.E.2d 1068, 1070-71.
Defendant charges that the court failed to conduct a proper voir dire of the The trial court permitted defense counsel to conduct a voir dire of the jury in this connection; and a further complaint is that such interrogation was unduly restricted. However, the record discloses that the restriction occurred to prevent a juror from revealing to the other jurors, if he had known, the content of the questionable publication. This is precisely the purpose of the two-tier voir dire procedure prescribed by Lindsey, supra, and the court committed no error.
jury following a suggestion, during trial, that the jury may have been improperly subjected to some prejudicial publication concerning the case. He complains that the court's voir dire of the panel was insufficient, apparently because it did not take the jurors, one-by-one, and interrogate each one privately concerning the degree of exposure and possibility of resulting...
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