Tippitt v. State
| Decision Date | 14 July 1977 |
| Docket Number | No. 576S165,576S165 |
| Citation | 266 Ind. 517,364 N.E.2d 763 |
| Parties | Maurice TIPPITT and Maurice Smith, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William J. Muha, Daniel G. Hoebeke, Highland, for appellants.
Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.
Appellants, Maurice Tippitt and Maurice Smith were convicted of first degree murder, Ind. Code § 35-13-4-1(a) (Burns 1975) and second degree murder, Ind. Code § 35-1-54-1 (Burns 1975) after trial by jury; they appeal their convictions. Appellant Tippit raises two issues:
(1) whether a statement made by Tippitt, a juvenile, after his arrest, was inadmissible; and (2) whether a statement by Smith, introduced at their joint trial, improperly incriminated Tippitt.
Appellant Smith raises two issues as well:
(3) sufficiency of the evidence of his guilt; and (4) propriety of an instruction on accessory status.
On the night of September 24, 1975, a service station in Gary was robbed by a man with a pistol. The robber shot two service station attendants, one of whom, J. T. Graham, died of the wound.
Appellants and one Frederick Green were jointly charged by indictment with first degree (premeditated) murder and first degree (felony) murder (in the commission of a robbery). Green plead guilty to robbery pursuant to a plea bargain wherein he agreed to testify for the State. Both Smith and Tippitt gave statements to the Gary police during their investigation of the case.
At trial, two attendants of the service station described the robbery and shootings, but neither they nor a customer who arrived during the robbery could identify the robber. Frederick Green described the planning of the robbery by himself and appellants and its execution by himself and Tippitt. Green testified that Tippitt entered the station and performed the actual robbery and shootings while Green watched from outside. Tippitt testified that Green was the robber and that he watched from outside. Smith's participation will be detailed in the section of this opinion considering the sufficiency of the evidence of his guilt.
The jury found both appellants guilty of felony murder as charged by Count II of the information and of second degree murder as included in Count I.
On October 13, 1975, Detectives Cash and Herma of the Gary Police Department went to the Lake County Jail, where Tippitt was being held. They took him to Gary police headquarters and obtained a written confession of his guilt. This confession was admitted at trial over objection that it was obtained from Tippitt, a fourteen year old juvenile, without an opportunity for meaningful consultation with a parent or guardian.
At an in-trial suppression hearing, outside the presence of the jury, the following evidence was developed. Upon meeting Tippitt at the jail, the detectives advised him of his rights. At this point in time, Tippitt was under arrest and being detained in custody. They ascertained that he had, shortly before this date and during this same period of detention, signed a waiver of rights for two other Gary officers after consultation with his mother. The detectives did not interrogate Tippitt prior to their arrival at police headquarters. Upon arriving there they telephoned Mrs. Tippitt and requested that she come to the station. After this call but before Mrs. Tippitt arrived, Tippitt answered questions about this case, culminating in his admission that he had robbed the station and shot the attendant. Mrs. Tippitt arrived, consulted with her son for five or ten minutes, and left to bring him some dinner. The detectives then advised Tippitt and his mother of his rights. Each signed the waiver form. Tippitt gave a confession which was reduced to writing and signed by mother and son. Only this confession, and not the oral admission, was introduced at trial.
In Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138, we held that the confession of a juvenile suspect is not admissible against him unless he is given an opportunity to consult with a parent, guardian, or counsel prior to waiver of his privilege against self-incrimination. Tippitt argues that his oral admission of guilt was taken with no opportunity to consult with a friendly adult and that this admission vitiated any subsequent consultation so as to render it meaningless. Tippitt cites Hall v. State, (1976) Ind., 346 N.E.2d 584, in which we held that Lewis requires the opportunity for meaningful consultation, free from pressures which could neutralize the benefit of the parent's presence, and that no meaningful consultation can occur when the youth had already been subjected to the pressures against which that presence is intended to guard. 346 N.E.2d at 587-88.
Here however, Tippitt had already executed a waiver of his Miranda rights, after consultation with his mother, when Detectives Cash and Herma first approached him. The validity of this waiver was never challenged. He was reminded of these rights and freely consented to answer more questions without the presence of his mother. His mother did not request that no interrogation take place without her presence. Under these circumstances the oral statement was not obtained in violation of Lewis and Tippitt's reliance on Hall is therefore misplaced. Tippitt's confession was properly admitted.
Tippitt also argues that the statement of appellant Smith improperly incriminated him in contravention of Tippitt's Sixth Amendment right of confrontation, relying on Bruton v. United States, (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.
Smith's statement described Tippitt's and Green's roles in the robbery. The trial court admitted the statement with Tippitt's name deleted and replaced with "name omitted." Tippitt contends that this redaction was insufficient to prevent the jury from concluding that he was the person referred to.
We need not decide whether the redaction was adequate, for Smith testified and was available for cross-examination by Tippitt concerning his statement. Under similar circumstances we have held that where a co-defendant testifies and is subject to cross-examination, use of his statement does not deny the defendant incriminated thereby his right to confront the declarant. Ortiz v. State, (1976) Ind., 356 N.E.2d 1188. There was no error in admission of Smith's statement as to Tippitt.
Smith claims that the verdicts against him are not supported by sufficient evidence, and that...
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