Smith v. State, No. 767S44

Docket NºNo. 767S44
Citation252 Ind. 425, 18 Ind.Dec. 189, 249 N.E.2d 493
Case DateJuly 15, 1969
CourtSupreme Court of Indiana

Page 493

249 N.E.2d 493
252 Ind. 425
Melvin W. SMITH, Appellant,
v.
STATE of Indiana, Appellee.
No. 767S44.
Supreme Court of Indiana.
July 15, 1969.

[252 Ind. 428]

Page 495

Nick J. Thiros, Gary, for appellant.

John J. Dillon, Atty. Gen., of Indiana, Michael V. Gooch, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

This is an appeal from a conviction of murder in the second degree following trial by jury in the Lake Criminal Court. The appellant was sentenced to the Indiana State Prison for the remainder of his natural life.

Following his conviction the appellant filed a motion for new trial pro se, which was overruled by the Court.

Counsel appointed by the Court to perfect appellant's appeal filed an assignment of errors averring that the Court erred in overruling appellant's motion for new trial. He subsequently filed a supplemental assignment of errors wherein he sets out additional alleged error by the Trial Court.

An examination of the supplemental assignment of errors discloses matters which were or could have been covered by the motion for new trial. We, therefore, could confine our examination of this case to the grounds raised in the motion for new trial and the assigned error that the Court erred in overruling the same. Groce v. State (1968), Ind., 14 Ind.Dec. 233, 236 N.E.2d 597; Rule 2--6, Rules Indiana Supreme Court.

[252 Ind. 429] In the Groce case this Court recognized an exception to the foregoing rule, citing Hayden v. State (1964), 245 Ind. 591, 599, 3 Ind.Dec. 492, 199 N.E.2d 102, 3 Ind.Dec. 753, 201 N.E.2d 329. In the Hayden case the Court said:

'Such errors may not ordinarily be presented for the first time in the assignment of errors on appeal to this court, although conceivably a possible exception to the rule might be made where the error appears as a matter of record and is of such a nature that this court can take judicial knowledge that such error being present, the appellant could not, under any circumstances, have had a fair trial.'

Appellant urges that the exception in the Hayden case should be extended to this case for the reason that trial counsel did not file a Motion for New Trial for appellant and that appellant was forced to file his motion pro se. With this we agree. Trial counsel had a duty to file a proper Motion for New Trial. His duty to represent the appellant was not complete until this was accomplished. Since appellant was deprived of this representation, we will consider all assignments of error which have been very ably briefed by the appointed appellant counsel.

The appellant is a twenty-fix year old negro, who had dropped out of school after the eighth grade, and who had no previous record of arrest or conviction.

Page 496

At about 8:00 A.M. on August 4, 1965, the appellant went to the home of one Paul Stubblefield, a Constable for a Justice of the Peace. Appellant testified, 'I gave myself up to Paul Stubblefield.'

Constable Stubblefield in turn took the appellant to the home of Gary Police Officer Clinton Savage. At this time the appellant told Stubblefield and Savage that he had been in East Chicago the night before, and that he had seen a man get shot; that when he heard the shots he ran from the scene and in so doing lost his hat. Appellant said he [252 Ind. 430] felt that he had better contact authorities as they would be looking for him. Officer Savage advised the defendant at that time that in his experience the East Chicago police would be looking for the appellant as a material witness in the case, and that they should go to the Gary Police Station and contact the East Chicago Police Department. This they did.

The Appellant was then asked if he had his own transportation to go to the East Chicago Police Station. When he advised that he did not, arrangements were made for East Chicago Police Officers to come to Gary and transport the appellant to East Chicago.

At approximately 11:00 A.M. the appellant arrived at the East Chicago Police Station where he was questioned by East Chicago Police Officers Ford and Jackson. Prior to asking the appellant any questions these officers advised him that he was a suspect, and that he had a right to have an attorney, to remain silent, to make a phone call, and that any statement that he might make might be used against him in court. After being so advised, the appellant told the Police Officers that he just wanted to get it off his chest and conscience. At that time he informed the Police Officers that the gun used in the shooting belonged to a friend of his and was in Gary. The Officers took him to Gary where the gun was recovered.

Upon returning to East Chicago the first of two written statements was made by the appellant. This was done at about 3:00 P.M. In this statement the appellant admitted having shot the decedent, but claimed that it was a matter of self-defense. The appellant himself testified that he was interrogated at intervals between 10:00 A.M. and 7:30 P.M.

At 7:30 P.M., again being fully advised of his rights to counsel and rights to remain silent, the appellant made a second statement.

The second statement was taken according to Officer Jackson when the appellant had a Bible in his hand and when [252 Ind. 431] he told the officers that somebody was healing him. He insisted on making a statement.

The admission into evidence of these two statements is now claimed by appellant to be reversible error.

The appellant's testimony of what happened in regard to the actions of the police officers in advising him of his rights and their use of mental coercion is contradictory to the testimony of the police officers. When the evidence in the record is in conflict as to whether the confessions or statements were voluntarily given, the Supreme Court will not disturb the Trial Court's ruling based on the conflicting evidence. Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387.

We will review the admissibility of a confession on appeal for the purpose of deciding as a question of law whether there is substantive evidence in support of the required material facts essential to a conviction. Johnson v. State (1968), Ind., 14 Ind.Dec. 39, 235 N.E.2d 688.

The standards applied to confessions on admissibility are the same as in federal cases. They must be 'free and voluntary' as was stated in Malloy v. Hogan (1964), 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653:

'* * * the admissibility of a confession in a state criminal prosecution

Page 497

is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, the Court held that '(i)n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the constitution of the United States commanding that no person 'shall be compelled in any criminal case to be a witness against himself." Id., 168 U.S. at 542, 18 S.Ct. at 187. Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary; [252 Ind. 432] that is, (it) must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * *" (Citing cases.)

In Blackburn v. Alabama (1960), 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, the Supreme Court stated that the inquiry determining the admissibility of confessions must be based upon the totality of the circumstances and the facts involved.

In Fikes v. Alabama (1957), 352 U.S. 191, 197, 77 S.Ct. 281, 285, 1 L.Ed.2d 246, Chief Justice Warren in discussing the totality of the circumstances states:

'In Stein, the Court said: 'The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal."

In a concurring opinion Justice Frankfurter states:

'For myself, I cannot see the difference, with respect to the 'voluntariness' of a confession, between the subversion of freedom of the will through physical punishment and the sapping of the will appropriately to be inferred from the circumstances of this case--detention of the accused virtually incommunicado for a long period; failure to arraign him in that period; horse-shedding of the accused at the intermittent pleasure of the police until confession was forthcoming. No single one of these circumstances alone would in my opinion justify a reversal. I cannot escape the conclusion, however, that in combination they bring the result below the Plimsoll line of 'due process." (Emphasis ours.)

The appellant asserts that he had no criminal record and had never been arrested, therefore he lacked experience in criminal matters. While lack of criminal experience is a factor, it is not complete in itself. The real question is whether, considering all factors, was he in possession of information at the time to render his confession [252 Ind. 433] knowingly and voluntarily. Miranda v. Arizona (1966), 384...

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43 practice notes
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • 21 de outubro de 1975
    ...this fact: Brown v. State (1971), 256 Ind. 558, 270 N.E.2d 751; Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Dowlut v. State Page 821 (1968), 250 Ind. 86, 235 N.E.2d 173. See also, 1 A.L.R.2d 1012. The history of the use and develop......
  • Light v. State, No. 61S00-8709-CR-861
    • United States
    • Indiana Supreme Court of Indiana
    • 15 de dezembro de 1989
    ...sleep and sickness, given several polygraph tests and taken on a trip to the grave site by police). He also cites Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493, a case in which admission of the defendant's statement was upheld. Smith, a 26-year-old man with an eighth grade education a......
  • Townsend v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • 14 de fevereiro de 1989
    ...as well as his youth are factors which a court should use in judging the voluntariness of his statement, citing Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493. However, Smith states that while a lack of criminal experience is a factor to be considered, it is not complete in itself as a......
  • Moreno v. State, No. 3--1273A181
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 de novembro de 1975
    ...the evidence nor judge the credibility of the witnesses. Bridges v. State (1970), 255 Ind. 201, 263 N.E.2d 368; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387; Hutts v. State (1973), Ind.App., 298 N.E.2d 487. As this Court recentl......
  • Request a trial to view additional results
43 cases
  • Magley v. State, No. 574S94
    • United States
    • Indiana Supreme Court of Indiana
    • 21 de outubro de 1975
    ...this fact: Brown v. State (1971), 256 Ind. 558, 270 N.E.2d 751; Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Dowlut v. State Page 821 (1968), 250 Ind. 86, 235 N.E.2d 173. See also, 1 A.L.R.2d 1012. The history of the use and develop......
  • Light v. State, No. 61S00-8709-CR-861
    • United States
    • Indiana Supreme Court of Indiana
    • 15 de dezembro de 1989
    ...sleep and sickness, given several polygraph tests and taken on a trip to the grave site by police). He also cites Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493, a case in which admission of the defendant's statement was upheld. Smith, a 26-year-old man with an eighth grade education a......
  • Townsend v. State, No. 885
    • United States
    • Indiana Supreme Court of Indiana
    • 14 de fevereiro de 1989
    ...as well as his youth are factors which a court should use in judging the voluntariness of his statement, citing Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493. However, Smith states that while a lack of criminal experience is a factor to be considered, it is not complete in itself as a......
  • Moreno v. State, No. 3--1273A181
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 de novembro de 1975
    ...the evidence nor judge the credibility of the witnesses. Bridges v. State (1970), 255 Ind. 201, 263 N.E.2d 368; Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493; Matthews v. State (1959), 239 Ind. 252, 156 N.E.2d 387; Hutts v. State (1973), Ind.App., 298 N.E.2d 487. As this Court recentl......
  • Request a trial to view additional results

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