Smith v. State

• Decision Date: 07 August 1975
• Docket Number: No. 2--474A81,2--474A81
• Citation: 165 Ind.App. 291,332 N.E.2d 121
• Court: Indiana Appellate Court
• Parties: John Ellis SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 121

332 N.E.2d 121

165 Ind.App. 291

John Ellis SMITH, Defendant-Appellant, v.STATE of Indiana, Plaintiff-Appellee.

No. 2--474A81.

Court of Appeals of Indiana, Second District.

Aug. 7, 1975.

Jack Quirk, Muncie, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

BUCHANAN, Judge.

CASE SUMMARY

John Ellis Smith(Appellant) appeals from a judgment convicting him of Armed Robbery, claiming error in the admission of certain exhibits and the unconstitutionality of the Armed Robbery Statute.

FACTS

The facts and evidence most favorable to the State are as follows:

On the 8th day of June, 1972, Smith entered the El-Raye Beauty Salon located on State Highway 32 near Muncie, Indiana.Present in the beauty salon were the proprietor, two attendants and two customers.

Smith asked for a person named 'Hayes' and, being informed there was no one there by that name, he looked around the salon and appeared about to leave when he drew a gun and announced, 'This is a hold-up'.The salon proprietor was ordered to open the cash register from which Smith withdrew the sum of $29.75.

After herding the others into the lounge area, Smith took one of the attendants into a back room and made sexual advances to her, finally departing when her screams caused a customer to enter the room.

Smith then entered a waiting car driven by one McIntosh and the two men departed.

One of the attendants in the beauty salon immediately phoned the police and gave a description of the automobile in which the accused had fled, including the license number and the number of persons in the vehicle.

An FBI agent returning to Muncie from Anderson, Indiana heard the police alert and noticed an automobile matching the description near him at an intersection and gave chase.He apprehended McIntosh after Smith jumped from the moving automobile, and a Muncie police officer shortly thereafter captured Smith.

On the evening of that day, June 8, Smith made a full confession to the Muncie City Police and the Delaware County Deputy Prosecuting Attorney, the latter being a former boyhood classmate of Smith.Prior to giving the confession, Smith was fully informed of his constitutional rights on three different occasions.After the confession was transcribed by the police, Smith signed each page of the confession and acknowledged in writing that he had been informed of his constitutional rights.

On the following evening, Smith requested a conference with one of the officers and agreed to take him to the place where he had discarded the gun.This was done and the loaded weapon, a .32 calibre revolver, was obtained and became State's ExhibitNo. 6.

Smith filed a motion to suppress evidence as to the voluntariness of the confession and the fruits of that confession.The court overruled this motion prior to the jury trial which was held on July 25, 1972.On August 3, 1972, the jury returned a verdict of guilty of Armed Robbery and Smith was sentenced upon the verdict to a determine sentence of ten years (the minimum sentence).

Smith appeals from denial of his Motion to Correct Errors.

ISSUE ONE

Was it reversible error to admit Smith's confession into evidence?

Smith contends that the confession was obtained from him by the Deputy Prosecutor, an old friend, who instilled the emotion of hope in his mind, that his old friend would help him avoid punishment, i.e., that he was duped into waiving his constitutional rights (relying onState v. Muse(1971), 11 N.C.App. 389, 181 S.E.2d 207)

The State responds that the waiver was knowingly, intelligently and voluntarily given and extensive warnings were made informing Smith of his rights and, further, that no 'promises' were made to Smith.

ADDITIONAL FACTS

At the hearing on Smith's motion to suppress the confession, witness Robert Barnet, the Deputy Prosecutor, testified regarding the nature of Smith's confession.

'A.As I remember when I first saw him.The first thing I did I shook hands with him when I walked in at 10:10 and I said, 'John you have a right to a lawyer.' and at that time I went through the whole list of rights . . ..'

'Q.All right.Now during the course of your conversation how many times did you advise him of his constitutional rights?

'A.As I remember I advised him twice before any of the other officers were called and then I believe one of the officers were called in, he was advised again.I also understand he was advised of his rights before I saw him at 10:10.'

Officer Golden, who received Smith's confession, testified at trial regarding the circumstances under which such confession was given.Included in this testimony was the following:

'Q.Now, at that time (when the confession was taken), to your knowledge, do you know whether or not the Defendant, John Ellis Smith was advised of his Constitutional Rights?

'A.Yes sir.

'Q.By whom?

'A.I advised him of his rights.He told me at that time he had been advised of his rights previous to that.There was a statement taken, he was advised again, then.On the evening of the ninth, when I talked to him, I advised him again, at that time.'

Moreover, the typewritten transcription of Smith's confession, introduced into the evidence at trial as State's ExhibitNo. 8, also contains a full recitation of Smith's constitutional rights.

The Deputy Prosecutor did reminisce with Smith, but there is nothing in the Record of any specific promises made by the Deputy Prosecutor to Smith, only that Smith thought the Deputy Prosecutor would help him.

Smith testified he had eleven years of schooling, could read and write, and had previously been convicted of a felony.

DECISION

CONCLUSION--There was sufficient evidence to support admission of Smith's confession as his voluntary act and, therefore, it was not error to admit it into evidence.

The burden of showing that a confession was obtained voluntarily is on the State.Lego v. Twomey(1971), 92 S.Ct. 619, 404 U.S. 477, 30 L.Ed.2d 618;Lewis v. State (1972), Ind., 288 N.E.2d 138, 140;Smith v. State(1969), 252 Ind. 425, 438--439, 249 N.E.2d 493.

Also seeJames v. State(1972), 258 Ind. 392, 281 N.E.2d 469.

And in reviewing a confession to determine if it was voluntarily given, a reviewing court will examine the trial proceedings to determine if there was substantial evidence of probative value that the confession was knowingly, intelligently and voluntarily given.Jackson v. Denno(1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908;Dawson v. State (1975), Ind.App., 324 N.E.2d 839;Snipes v. State (1973), Ind.App., 298 N.E.2d 503(reversed on other grounds, Ind., 307 N.E.2d 470).

Cf.Winston v. State (1975), Ind., 323 N.E.2d 228.And this court will not reweigh the evidence to reach a different conclusion.Smith v. State, supra;Matthews v. State(1959), 239 Ind. 252, 156 N.E.2d 387;Dawson v. State, supra.

In view of the extensive warnings given Smith and the failure to point to any promises made to him other than a vague promise of help from 'his friend', the Deputy Prosecutor, we can only conclude that the confession was voluntarily given and was supported by sufficient evidence.

Smith's statement that the 'emotion of hope' instilled in him by the Deputy Prosecutor vitiates the voluntariness of his confession has no Indiana authority to support it and his reliance on a North Carolina case (State v. Muse, supra)¹ is misplaced because no warnings whatsoever were given the defendant in that case.

ISSUE TWO²

Was a proper chain of custody established for the admission into evidence of certain money (State's ExhibitNo. 1) and certain bullets removed from the .32 calibre revolver (State's ExhibitNo. 5)?

Smith relies generally on the landmark case of Graham v. State(1970), 253 Ind. 525, 255 N.E.2d 652, and argues that the State's witness did not properly identify the bullets or the money and that there was a missing link in the chain of custody because the person in whose custody they were placed in the prosecutor's office did not testify.

The State responds that the chain of custody need not be perfect and that the exact whereabouts of these exhibits at all times was demonstrated.

ADDITIONAL FACTS

ExhibitNo. 1 consisted of money taken from both Smith and Richard McIntosh, Smith's companion.Officer Stonebraker testified that the money had been taken from Smith and McIntosh in Stonebraker's presence by Officer Eiler.Stonebraker testified that he had initialed and dated the bills received and turned them over to Captain Daugherty.Stonebraker also testified he believed the exhibit to be the same money he had taken from them because the bills in the exhibit bore his same initials which he had placed on the bills at that time.

Captain Daugherty testified he placed the bills in envelopes and had signed the envelopes in Stonebraker's presence.Daugherty further stated the envelopes were then turned over to Officer Baker, who testified that he had placed the envelopes in his locker located at the Delaware County Jail.The testimony further established that no one had access to Baker's locker other than Baker himself.On the Monday immediately prior to trial, Baker stated that he went to his locker, removed State's ExhibitNo. 1, and brought it to the courtroom and turned over the exhibit to the prosecuting attorney, who retained it until trial the next day.

ExhibitNo. 5 consisted of bullets taken by Officer Golden from the .32 calibre revolver which Smith acknowledged as his on the occasion of retrieving the gun from the area where Smith had discarded it shortly after the robbery.Officer Golden testified that he had removed the bullets from the gun, had placed them in a plastic envelope used for such purposes and filled out the tag attached to the bag which identified its contents, the date, and the initials of Officer Golden.The bag was then stapled shut so that the contents would be secure and the bag...