Turner v. State

• Decision Date: 21 July 1980
• Docket Number: No. 878S161,878S161
• Citation: 273 Ind. 627,407 N.E.2d 235
• Parties: Jerry TURNER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 235

407 N.E.2d 235

273 Ind. 627

Jerry TURNER, Appellant, v. STATE of Indiana, Appellee.

No. 878S161.

Supreme Court of Indiana.

July 21, 1980.

Michael D. O'Neall, O'Neall & O'Neall, Crawfordsville, for appellant.

Theodore L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of first degree murder and commission of a robbery while armed with a deadly weapon. He was sentenced to life imprisonment for the murder conviction and 30 years for the commission of robbery while armed with a deadly weapon.

The victim, Russell Foxworthy, was discovered lying facedown in his barnyard on August 9, 1977. He died of multiple gunshot wounds. The victim's billfold and several pieces of identification were missing.

On August 23, 1977, appellant was arrested in his automobile. Appellant was held at the scene for approximately one-half hour before being transported to the Montgomery County Jail. After signing a waiver of rights form, the appellant was questioned by the sheriff and a State Police Officer. The interrogation ended when appellant stated that he was tired. He was placed in a cell and allowed to sleep. After eating breakfast at 7:00 a. m., and returning to sleep, he was again questioned at approximately 11:00 a. m. Turner again signed a waiver of rights form. He then confessed that he had shot Mr. Foxworthy. The appellant led the police to the locations of the weapon and the victim's billfold. After returning to the police station, the appellant gave both an oral and a written statement which were preceded by signing a waiver of rights form. Mr. Turner appeared in court at approximately 11:30 a. m. on August 24, 1977.

Appellant claims the trial court erred in overruling his motion to suppress all evidence of statements and confessions made by him and all tangible or testimonial evidence obtained through information or knowledge gained from his statements or confessions. He also claims error in the introduction of such evidence at the time of his trial over his objection.

In determining whether a statement was voluntarily given we consider the surrounding circumstances. Ortiz v. State (1976) 265 Ind. 549, 356 N.E.2d 1188. A statement must not be induced by any violence, threats, promises or any other improper influences. Ortiz, supra. In viewing the voluntariness of a confession we do not weigh the evidence. If there is sufficient evidence to support the trial court, we will not disturb the ruling of admissibility.

Appellant argues he was under the influence of drugs at the time of the confession. Statements and confessions taken while a defendant is intoxicated may be inadmissible. This Court has previously stated:

"If an individual's 'will was overborne' or if his confession was not 'the product of a rational intellect and free will' his confession is inadmissible because coerced. These standards are applicable whether a confession is a product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement."

Townsend v. Sain (1963) 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770, 782.

Of critical importance is the degree of impairment of mental faculties. Rodgers v. State (1979) Ind., 385 N.E.2d 1136. Appellant had consumed approximately six beers and smoked marijuana during the day of the murder. His first incriminating statement was made nearly ten hours after being taken into custody. He had eaten and slept before his statement. Furthermore, Turner explicitly stated that he did not feel that he was under the influence of intoxicants when he gave the statement. We therefore hold there is sufficient evidence in this record to support the decision of the trial court that appellant was not sufficiently impaired by intoxication to void his confession.

Appellant further claims that his fatigue, concern for potential probation revocation, headache or disorientation should be considered in the examination of the circumstances surrounding his confession. While it is true that all of these things may be considered in such a circumstance, there is nothing in this record to indicate the existence of any of these factors or a combination thereof to the extent necessary to impair his confession.

Appellant next argues that the confession was inadmissible because his Sixth Amendment rights to counsel were violated. Once a defendant requests counsel during an interrogation, all questioning must cease. This is so even if the defendant had previously waived his rights to counsel. Pirtle v. State (1975) 263 Ind. 16, 323 N.E.2d 634. However the case at bar is distinguishable from Pirtle, supra. In Pirtle the defendant emphatically requested counsel. In the case at bar appellant signed waiver forms on two different occasions, then at one point during interrogation, he stated that he "might want to speak to an attorney" before talking about the Foxworthy murder. The officer replied that conferring with counsel was a decision Turner would have to make. At that point Turner made no request for an attorney and continued to discuss the happenings of the day before with the officer. They generally discussed the amount of beer and marijuana appellant consumed on the day before, and the places where he had been. At a later time during the conversation the appellant told the officer that he, in fact, did kill Mr. Foxworthy. We hold that appellant's comment concerning an attorney, followed by his voluntary conversation with the police officer, does not rise to the stature of a violation of his Sixth Amendment rights. He had been fully advised of his right to counsel and his right to remain silent, and yet although he had mentioned the possibility of speaking to counsel, he did not follow his comment with a request for counsel nor did he choose to remain silent. This is not a case of police interrogation in the face of an attempt of a suspect to exercise his constitutional rights.

Appellant argues that another factor to be considered in the admissibility of his confession is the length of detention before his statement and before appearing in front of a magistrate. IC § 35-5-5-3 provides that:

"In any criminal prosecution by the state of Indiana, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer of law-enforcement agency, shall not be inadmissible solely because of the delay in bringing such person before a judge if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six (6) hours immediately following his arrest or other detention:

"Provided, That the time limitation contained in this section shall not apply in any case in which the delay in bringing such person before a judge beyond such six (6) hour period is found by the trial judge to be reasonable, considering the means of transportation and the distance to be traveled to the nearest available judge."

Detention beyond six hours does not make a confession inadmissible per se. Williams v. State (1976) 264 Ind. 664, 348 N.E.2d 623. In Williams, supra, the defendant was arrested without a warrant and without probable cause. The defendant was detained about 68 hours before confessing. In the case at bar the appellant was arrested on August 23, 1977, after a high speed chase. Upon stopping the appellant's vehicle, the officers found marijuana in open view in the automobile. There was probable cause for the arrest of the appellant. Appellant's first confession was made approximately ten hours after the arrest. The appellant had slept and eaten during this period. After making the statement to officers, the appellant accompanied them to locations where he had discarded articles belonging to the victim. On the morning of August 24, 1977, the appellant was taken before a magistrate. We hold this was not an unreasonable delay under the circumstances.

Appellant also claims that an officer discussed the possibility of a charge of second degree murder with him if he confessed. A confession obtained through a promise of lesser punishment is inadmissible. Ashby v. State (1976) 265 Ind. 316, 354 N.E.2d 192. However, the officer testified in the suppression hearing that he "just told him (Turner) that he could be charged with either." (first or second degree murder) The officer also testified that he told appellant he could inform the prosecutor that appellant had cooperated. Appellant's testimony regarding this matter is as follows:

"Q. Did you talk about the differences between first and second degree murder?

"A. He said something about parole differences or something like that.

"Q. That was about it?

"A. Yes."

In instances such as the case at bar where there is conflicting evidence as to what representations were actually made, this Court will not disturb the finding of the trial court. Timm v. State (1976) 265 Ind. 537, 356 N.E.2d 222. We hold the trial court did not err in finding that no improper representations had been made to the appellant.

Appellant also urges totality of the circumstances surrounding the taking of his confession. After examination of this entire transcript concerning the circumstances surrounding the taking of the confession, we hold that these circumstances do not rise to the level necessary for reversal under constitutional standards. We hold the trial court did not err in ruling that the confession was voluntary and in overruling appellant's motion to suppress.

Appellant claims the trial court erred in admitting,...