Stone v. State

• Decision Date: 17 July 1978
• Docket Number: No. 377S162,377S162
• Parties: Lorenzo STONE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1372

377 N.E.2d 1372

268 Ind. 672

Lorenzo STONE, Appellant, v. STATE of Indiana, Appellee.

No. 377S162.

Supreme Court of Indiana.

July 17, 1978.

James F. Stanton, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Lorenzo Stone was convicted after trial by jury of first degree premeditated murder and first degree murder in the commission of a robbery (felony murder), Ind. Code § 35-13-4-1(a) repealed effective October 1, 1977, and sentenced to life imprisonment for the felony murder.

Appellant Stone contends on appeal that the trial court erred in admitting several items of evidence including: (1) his own confession, (2) the record of the guilty plea proceeding of the State's witness James, (3) the confession of the codefendant Williams.

The evidentiary facts are simple and indicate that on the night of February 25, 1976, appellant, together with four other men, James, Barber, Rogers and Williams went to Mona's Lounge in Gary, Indiana at 10:00 p. m. At least two of the group were armed with handguns. Four of the men went in and one of them announced that it was a stickup and ordered the customers present to get on the floor. A customer David Clay was armed and drew his weapon in self-defense. A fire fight ensued during which Clay was shot and killed and one of the gunmen wounded. The men then fled.

The five men were jointly indicted. James entered a plea agreement and became a witness for the State. Appellant, together with Barber, Rogers and Williams were tried jointly and convicted. At their trial appellant's confession and the confession of Williams were admitted in redacted form. The record of the James' guilty plea proceeding was admitted in evidence when he refused on the stand at the trial to give evidence against appellant and the others being tried. The conviction of the co-defendant Rogers was recently affirmed by this Court in an opinion by Pivarnik, J., appearing at 375 N.E.2d 1089. (DeBruler, J., concurring in result, Prentice, J., dissenting) Rogers raised issues similar to the ones raised and considered here.

I.

In the mistaken belief that appellant was nineteen years old and therefore not entitled to the special additional safeguards of parental or familial presence and advisement, and an opportunity to consult with such friendly and familiar person or with an attorney, required by Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138, as a condition of a valid juvenile waiver of constitutional rights, the police complied only with the requirements for adult waiver and took appellant's confession. Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant's motion to suppress the confession was based upon non-compliance with Lewis ; the motion was overruled; and that ruling is assigned as error here.

In making the erroneous threshold determination of age, the interrogating officers relied upon appellant's own statements, twice made in the preliminary stage of the interrogation, that he was born on September 13, 1956, and was nineteen years old; and upon the police records of four past arrests of appellant which also showed that appellant was nineteen years old. We conclude that the trial court did not commit error in overruling appellant's motion.

In reaching our conclusion on this issue, we expressly disclaim reliance upon a supposed waiver by appellant of his right to be treated with the special deference required by Lewis, nor do we intend to retreat from or diminish the holding of that case. We expressly reaffirm the holding in Lewis and in so doing note that several states have recently joined the increasing number of states which have adopted similar protective procedures governing police interrogation of juvenile suspects. In Re Dino, 359 So.2d 586 (La.1978); Commonwealth v. Roane, (1974) 459 Pa. 389, 329 A.2d 286; Freeman v. Wilcox, (1969) 119 Ga.App. 325, 167 S.E.2d 163. Our holding today is limited in application to the threshold determination of age and is that where the police do not flaunt the rule of Lewis or seek to circumvent its requirements, but make good faith and diligent effort to implement it in making the determination of the age of the suspect, and are frustrated in such effort by the misstatement of the suspect as to age, then and in that event, as a matter of state law, the requirements of Lewis will be deemed satisfied. Appellant's confession was properly admitted.

II.

Previous to the joint trial of appellant, Barber, Rogers and Williams, codefendant James entered into a plea agreement which was recommended to the trial judge and accepted. Pursuant to its terms he agreed to testify for the State against appellant and the others and in exchange entered his plea to second degree murder and received a sentence of fifteen to twenty-five years. Upon taking the witness stand at such trial he testified without objection that he had entered a plea of guilty but he denied being at Mona's Lounge on the day of the crime and denied having any knowledge of the participation of appellant and the others in the crime. He admitted making statements at the time of his plea implicating appellant and the others but denied the truth of those statements, claiming he had made them out of fear for his safety while in jail, but nevertheless asserted that he did not wish to withdraw his plea of guilty. On the basis of surprise claimed by the prosecution, the witness was declared hostile. On cross-examination by the prosecution, among other lapses of memory concerning the details of prior statements, he said that he did not remember having told the court during the plea proceeding the facts making him guilty of second degree murder. In response the State, over the hearsay objection of this appellant, was permitted to read the record of James' guilty plea proceeding, with the exception of police reports which the trial court excluded on its own motion, before the jury as part of a question in which James was asked to affirm its accuracy. Appellant contends that the trial court erred in overruling this objection.

The assertions made by James reflected in the transcript included his responses to the court's advisement of constitutional and trial rights and the nature of the charge, his responses recognizing his understanding of the terms of the plea agreement, and his factual description of the events of the crime, including the participation of appellant and the others therein. He also stated that he had given a prior statement to the police that he had not gone into the lounge or had a gun on the occasion of the crime and that he had lied in giving that version, and also stated that he had made a statement to a probation officer, although its contents were not included in the question.

In White v. State, (1967) 249 Ind. 105, 229 N.E.2d 652, this Court stated:

"In a criminal prosecution where the testimony of a witness for the State is prejudicial to the prosecution on a proper showing of surprise, the State may show that the witness made statements to the contrary." 249 Ind. at 109, 229 N.E.2d at 654.

At the time that case was written, it was contemplated that such prior statements were admissible as impeaching evidence and not evidence of guilt and upon request by the opponent of such evidence the jury was to be instructed accordingly. We find no cases dealing with the use of prior statements given by a witness in his own guilty plea proceeding for impeachment, and appellant does not take the position or cite authorities that such statement should be treated differently than other statements when offered for such purpose.

The limitation upon the use of prior inconsistent statements to impeachment was based upon hearsay considerations. Ortiz v. State, (1976) Ind.,...