Sotelo v. State, No. 574S89

• Docket Nº: No. 574S89
• Citation: 264 Ind. 298, 342 N.E.2d 844, 51 Ind.Dec. 578
• Case Date: March 12, 1976
• Court: Supreme Court of Indiana

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342 N.E.2d 844 264 Ind. 298 Raul Rudy SOTELO, Appellant,
v.
STATE of Indiana, Appellee. No. 574S89. Supreme Court of Indiana. March 12, 1976.

[264 Ind. 299]

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A. Martin Katz, Katz & Brenman, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Raul Rudy Sotelo, of Gary, Indiana, was convicted on October 2, 1974, of the first degree murder of one Carrie Louise Duncan. A motion to correct errors was filed with the trial court on December 9, 1974. It is from the denial of this motion on January 14, 1975, the the Appellant presents this appeal.

The evidence at trial revealed that at about 7:40 a.m. on September 27, 1973, the Appellant borrowed the automobile of a co-worker, Alberto Alverez, explaining that he did not feel well. Shortly after 8:00 a.m. the Appellant offered a ride to a friend, Adrian Martinez, who was walking from his home to the high school he attended. The two drove around for some time and went to the home of one John Jacquez. Jacquez was not home at this time, but was found there when the Appellant and Martinez returned a short time later. Jacquez joined his two friends in their drive.

At approximately 9:30 a.m. or 10:00 a.m. the Appellant and his two passengers came across two girls walking along the street. One of the girls, Carrie Louise Duncan, the deceased, accepted a ride with them, while the other proceeded to her home. The Appellant and his three passengers drove to an isolated area of Ridgelawn Cemetery in Gary and stayed there approximately five minutes. They then drove to the home [264 Ind. 300] of Nini Badillo. The evidence revealed that Carrie Louise Duncan was at this time twelve years old.

Upon their arrival at the home of Nini Badillo, the Appellant and the deceased went into one of the bedrooms of the home for some twenty minutes. Their companions watched television. The Appellant, around 12:00 noon, announced that he was taking the victim home and left with her. He returned alone some ten to twenty-five minutes later.

The body of the deceased was found later that afternoon at Ridgelawn Cemetery.

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The partially-clad body showed a number of wounds. Articles of clothing were strewn around the scene of the crime.

After first denying any wrongdoing, the Appellant confessed to the killing. His rendition of events following his departure with the victim from the Badillo home is as follows:

'On Thursday, Sept. 27, 1973 the same things occurred as I had told you in the first statement I signed earlier in the day. Everything was true up till the time I left Nini's house with Carrie, and I said I had dropped her off at 8th & Mathews St., but, I did not drop her off at her house. When we Carrie and I got to 8th & Mathews St., she did get out of the car. The when I started backing up, she got back into the car. And I drove to Clark Rd., and then south toward Ridge Rd. At this time, she said I could have sex with her if I gave her $50.00 now and $100.00 later. She said she needed money to buy a dress for a wedding, and a bike tire. While I was driving south on Clerk Rd., she was taking off her clothes. I then told her I would give her some money, but that I did not have any money now. Then we drove into the Ridgelawn Cemetery, and I drove back to the wooded area on the west end of the cemetery. At this time, she only had her socks and tennis shoes on. We were listening to some tapes, and she was laying with her hed in my lap. She then said she wanted $50.00 now, or she was going to tell my wife and the Police. I told her I could not get the money, and she got out of the car, and put her clothes on the hood. She started getting dressed, putting on her bra and shirt. So at this time, I got scared and backed up, and pushed the gas, and ran over her. I then backed over her, and then drove over her again, and then backed over her a second time, and then took off. I then [264 Ind. 301] went back to Nini's house, and picked up Adrian and Nini, and drove around like I said in the first statement. This is the true statement of what happened.'

We consider first the admissibility of this confession.

I.

The Appellant urges error in the admission of his confession into evidence on two grounds. First, it is asserted that the Appellant was not sufficiently advised of his rights under Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Second, it is contended that police conduct in the administration of a lie detector test of the Appellant was fraudulent and coercive, rendering the confession involuntary and inadmissible.

The waiver of rights signed by the Appellant which gives rise to the first contention reads as follows:

'I, Raul Rudy SOTELO, am 18 years old. My date of birth is November 2, 1954. I live at 1125 Dallas Street, Gary, Indiana. The person to whom I give the following voluntary statement, D. Kasper, D. Longfellow having identified and made himself known as a Detective of the Lake County Police Department, DULY WARNED AND ADVISED ME, AND I KNOW:

1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say, may or will be used against me in a court of law.

2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

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4. That in the course of any conversation, I can refuse to answer any further questions, and remain silent, thereby terminating the conversation.

5. That if I cannot hire an attorney, one will be provided for me.'

[264 Ind. 302] The Appellant finds error in the words 'of my choice' in Section 2 and the words 'may or will' in Section 1. 'Of my choice' is said to create ambiguity regarding the appointment of counsel prior to interrogation since one only has a choice of counsel when he can afford it. It is thus implied that pauper counsel is not possible at that time. 'May or will' is found deficient in that it should be more emphatic. It should read 'can and will.'

In Jones v. State, (1967), 253 Ind. 235, 252 N.E.2d 572, this court discussed the adequacy of the wording of such advisements. We quoted with approval Coyote v. United States (10th Cir. 1967) 380 F.2d 305 at 308:

'Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated impart a clear, understandable warning of all of his rights.

'It is, of course, always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, i.e., see McHenry v. United States, 10 Cir., 308 F.2d 700, it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning.'

An extensive hearing on the Appellant's motion to suppress the confession was held by the trial court. Evidence, including a tape recording of the Appellant's interrogation, revealed that the Appellant was orally advised of his rights in addition to having the waiver form presented to him. That oral advisement did not contain the language complained of in the written form. It simply said, in part, that anything said 'can' be used against him in a court and that he had a right to an [264 Ind. 303] attorney. Testimony at the suppression hearing also revealed that prior to interrogation the Appellant was asked if he understood the waiver form he was reading. He replied that he did because he had been arrested before.

The waiver form used by police here is not on its face ambiguous or misleading. A common sense reading does not lead to the Appellant's conclusions of ambiguity. Moreover, evidence heard at the suppression hearing clearly established that the Appellant was not subjectively misled. There is sufficient evidence on the record to support the trial court's conclusion that the Appellant's confession was knowingly given.

The Appellant's contention that his confession was involuntary revolves around his submission to a polygraph examination on the night of his confession. The Appellant told police that he wished to take a polygraph test to show he was truthful. It is contended that the administration of this test amounted to actual or psychological coercion. This court recognized the potentially coercive effects of polygraph examination in Montes v. State, (1975) Ind., 332 N.E.2d 786. We wrote at 792--793:

'We agree with appellants that the use of the lie detector shown here is a factor which must be weighed negatively in the determination of voluntariness. The State did not present testimony describing

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the conduct of the polygraph examination or explaining how the conclusions of the examiner were used in the questioning process. Without this evidence, the possibility that the State tricked appellants into confessing, by attributing qualities to the test results which did not exist, has not been dispelled. Prior to submitting to the tests, appellants claimed innocence. A short time after the testing period, both confessed.'

Unlike Montes v. State, supra, the trial court in this case was presented with a complete record of the polygraph...