Stanger v. State

• Decision Date: 06 November 1989
• Docket Number: No. 32A01-8903-CR-00105,32A01-8903-CR-00105
• Parties: James A. STANGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1105

545 N.E.2d 1105

James A. STANGER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 32A01-8903-CR-00105.

Court of Appeals of Indiana First District.

Nov. 6, 1989.

Arthur L. Logsdon, Elmendorf, Meyer & Freese, Brownsburg, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

James H. Stanger appeals his conviction of four counts of child molesting. We affirm.

Stanger's appeal presents essentially eight issues for our review:

(1) whether statements to the police should have been excluded because they were the product of improper inducement or coercion;

(2) whether the trial court committed fundamental error by informing the jury that Stanger's confession had been given voluntarily;

(3) whether angling of the witness chair toward the jury or the presence of a support person at the side of the child witnesses denied Stanger his rights to confrontation or due process;

(4) whether the trial court's refusal to authorize funds for re-examination of the victims, assistance in evaluating the medical evidence, and expert medical testimony on behalf of the defense, denied Stanger due process;

(5) whether continuances requested by Stanger should have been granted when the State moved to add a count, amend its informations and add witnesses within days of trial;

(6) whether the trial judge's exposure to evidence on a "CHINS" petition required a change of judge;

(7) whether the record of sentencing contains a sufficient statement of aggravating circumstances; and,

(8) whether the trial court's failure to hold a hearing on Stanger's indigency before imposing fines constitutes reversible error.

I.

First, Stanger challenges the admissibility of statements made while he was in police custody. Arguing the evidence most favorable to his position, Stanger contends his confession was the result of psychological and mental coercion and impermissible promises of leniency. Stanger emphasizes the 65-hour custodial period preceding his interrogation and conditions at the jail as the primary indicia of his statement's involuntary nature.

Often, the admissibility of a particular confession turns upon questions of fact to be resolved by the trial court. This being so, the standard of appellate review is the same as for any other fact sensitive issue. As a reviewing court, we are bound by the trial court's resolution of conflicts in the evidence; if the evidence is conflicting, on appeal, only that evidence which tends to support the trial court's ruling will be considered with the uncontradicted evidence. Coleman v. State (1986), Ind., 490 N.E.2d 711, 712-713. See also, Bowen v. State (1985), Ind., 478 N.E.2d 44, 45.

To admit a confession into evidence in Indiana, the State must prove beyond a reasonable doubt that the confession was voluntary and the defendant knowingly and intelligently waived his rights not to incriminate himself and to have an attorney present. Coates v. State (1989), Ind., 534 N.E.2d 1087, 1092, 1093; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192, 195. But cf., Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (federal constitution requires only preponderance standard). A statement or confession is admissible if, after examining the totality of all surrounding circumstances, including the defendant's age, educational level and awareness of Miranda rights, and the entire course of police conduct, the trial court finds that the confession was given voluntarily and not through inducement, violence, threats or other improper influences so as to overcome the free will of the accused. See, Anderson v. State (1984), Ind., 466 N.E.2d 27, 32. Delay in obtaining a confession is one such factor which must be weighed. See, Graham v. State (1984), Ind., 464 N.E.2d 1; Allen v. State (1982), Ind., 431 N.E.2d 478.

Police officers with the Hendricks County Sheriff's Department arrested Stanger, a 31 year-old male with a ninth grade education, at approximately 4:30 p.m. on Friday, April 8, 1988. Stanger received Miranda warnings from the arresting officer and was advised again, in the police car, not to talk to anybody until he talked to an attorney. Stanger was held in the county jail until approximately 10:00 a.m. Monday when the investigating detective removed him for questioning.

Officers questioned Stanger for a total of two hours in a 14' X 14' carpeted room formerly used as the master bedroom of the Sheriff's residence. After the first hour of questioning by one officer, and a 10-15 minute break, questioning resumed by the officer with the arresting detective present to take notes. The officers gave Stanger opportunities to use the restroom but he declined. He was given water to drink and he smoked cigarettes profusely. The officers read Stanger Miranda warnings from a printed card, specifically advising Stanger that he had a right to talk to a lawyer before questioning and to have a lawyer present during questioning. The officers testified that Stanger agreed to answer their questions, did not ask for an attorney and never stopped the questioning. Contrary to Stanger's assertions, the officers denied making any promises of probation, therapy without jail, or jailtime on the weekends. They also denied Stanger's claims that they had agreed to use their friendship with the judge to obtain leniency. Neither officer could recall any screaming or threats of any kind.

The investigating officer testified that Stanger was not interrogated until Monday morning April 11 because she was off-duty over the weekend and overtime hours are discouraged by the department. Yet, the detective felt it necessary upon learning of the incidents at 2:45 Friday afternoon to remove Stanger from the home immediately to protect the children.

The State also offered testimony from the detainee in the cell next to Stanger's rebutting Stanger's claims that other inmates threw pudding and urine on him. The detainee did confirm that the other inmates called Stanger names. However, Stanger made no complaints to jail officials about his treatment.

Upon this record and in spite of the 65-hour delay in initiating questioning, we find the trial court justified in determining, based upon the totality of circumstances, that Stanger's statements were the product of legitimate efforts to obtain admissions and not official coercion, intimidation or overreaching as Stanger has portrayed them. The State's evidence refutes the inference desired by Stanger that the period in custody prior to interrogation was conceived as a means of eliciting a confession. Furthermore, officers warned Stanger three times that he did not need to submit to questioning without first conferring with an attorney. One officer explicitly advised him that it would be best if he waited to talk to an attorney. The purpose of these warnings was to relieve the inherently compelling pressures generated by the custodial setting itself and to ensure that the police did not trick Stanger into a confession. The record supports the conclusion that Stanger despite the warnings made a deliberate decision to talk. Accordingly, there was no error in the trial court's determination that the statements were admissible.

II.

Stanger contends the trial judge committed fundamental error by twice stating in the presence of the jury that he had determined Stanger confessed voluntarily. The thrust of Stanger's argument seems to be that as the judge of both the law and the facts, the jury was required to decide whether his confession was given knowingly and voluntarily. By informing the jury of his determination on that issue, Stanger argues, the judge implicitly expressed an opinion as to the existence of a confession, unfairly emphasizing and crediting the State's evidence. In so doing, the judge invaded the province of the jury to resolve whether Stanger confessed and whether that confession was knowingly and voluntarily made. ¹

Stanger concedes that ordinarily, to preserve error for appeal, specific and contemporaneous objections must be made at trial and that he expressed no objections to either the court's comments in ruling upon the admissibility of the evidence or to the court's use of the word "confession" in the ruling. In fact, defense counsel referred to Stanger's statements to the police as a "confession" in his objection and in the instruction he tendered dealing with the statements. ² Even so, Stanger contends he was denied fundamental due process by the disclosure.

Stanger's premise is that the jury must determine for itself whether a confession has been knowingly and voluntarily given. ³ However, this argument fails to distinguish between the competency of his confession as evidence from its probative value, two discrete matters. Indiana law has long followed what is commonly referred to as the orthodox rule in allocating the determinations of competency and credibility of a confession between judge and jury. In Hauk v. State (1897), 148 Ind. 238, 46 N.E. 127, overruled on other grounds, 234 Ind. 209, 125 N.E.2d 705, the appellant sought to have the court submit the competency of his written confession to the jury upon the ground that it had been made by him under the influence of fear produced by threats. He argued that it was the province of the jury to determine whether the confession was made involuntarily, and if that fact were believed by the jury, to reject the confession as evidence. The court ruled that the exclusion of the confession as incompetent evidence was a preliminary question to be decided by the court; once that legal question had been settled by the court, the appellant was not entitled to have it submitted to the jury for its decision. 148 Ind. at 259, 46 N.E. 127. Upon petition for rehearing, the court explained further:

The competency of any character of evidence is a question exclusively for the determination of ...