Tyson v. State
| Citation | 270 Ind. 458,386 N.E.2d 1185 |
| Decision Date | 19 March 1979 |
| Docket Number | No. 278S36,278S36 |
| Parties | Eric Lavern TYSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
George T. Popcheff, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Tyson and one Bruce Allen Kimble were charged by way of information with two counts of murder in the perpetration of first degree burglary and one count of first degree burglary. A jury in the Marion Criminal Court found Tyson guilty of all three counts on August 24, 1977. He was sentenced to life imprisonment on each of the murder counts and to a term of ten to twenty years for burglary. The charges arose from an incident which occurred on or about October 4, 1975, when two elderly ladies, who were sisters, were killed during a burglary of their home located in Indianapolis. Also charged in relation to these offenses was one James Coleman who was charged in a separate information. Nine alleged errors are argued by appellant. These concern: (1) the admission into evidence of an incriminating statement made by appellant; (2) remarks made by the trial judge in a videotape shown to the panel of jurors during an orientation session prior to their being called for trial; (3) remarks made by the trial judge to the jury during voir dire; (4) the court's decision to restrict counsel to a total of twenty minutes for interrogating prospective jurors; (5) the trial judge informing the jury that two expert psychiatric witnesses were appointed by the Court; (6) the Court's instruction No. 33; (7) the Court's instruction No. 23; (8) remarks made by the prosecutor during final argument, and; (9) the trial Court's procedure of allowing the jurors to submit written questions to the Court to be asked of counsel in clarification of statements made during final argument.
Appellant filed a pre-trial motion to suppress a statement he made to Officer James Parnell and other members of the Indianapolis Police Department on October 6, 1975. On that date, appellant was in the Marion County Jail serving a week-end sentence on another charge and was due to be released at 5:00 a. m. that morning. However, the police had earlier arrested James Coleman and had obtained appellant's name from Coleman's statements relative to the burglary and killings. The police accordingly removed appellant from his cell at approximately 3:30 a. m. for the purpose of interrogating him about the incident.
Officer Parnell advised appellant of his Miranda rights by the use of a written form which he furnished to appellant and which stated: "You have the right to remain silent, anything you say can be used against you in court, you have a right to have a lawyer present now, and if you do not have the money to obtain a lawyer, you have the right to have one appointed for you by the court." Appellant read this form in the officer's presence and the officer in turn read the form to appellant. Tyson then signed the waiver on the form which stated that he had read it and fully understood his rights and did not want a lawyer to represent him at that time. This waiver occurred at about 4:00 a. m.
The statement was taken by means of a tape recorder and was later reduced to a typed statement but was not signed by appellant. The written statement indicates that appellant was again advised of his right to have counsel present and was asked if he understood this to which he replied, "Yes." Appellant made no request for an attorney during the course of the statement.
Appellant first argued for suppression of his statement based on the alleged illegality of his arrest on the morning of October 6. This argument is without merit. In the first place, appellant was already in police custody and was not due to be released until 5:00 a. m. Furthermore, the police clearly had probable cause to suspect that appellant was involved in the felonies based on the statement of appellant's accomplice, James Coleman. The police thus had the right to question appellant without first obtaining an arrest warrant from a magistrate since it would be straining due process requirements to expect that the police should properly have attempted to locate a magistrate at 3:00 a. m. under circumstances in which the defendant was scheduled for release within two hours. As the police had probable cause to suspect that appellant was involved in these crimes they were justified in arresting him without a warrant. Garr v. State, (1974) 262 Ind. 143, 312 N.E.2d 70.
Appellant further argues that even though he was advised by police of his right to have a lawyer and that one would be appointed for him if he could not afford his own, it nevertheless was not made plain to him that he had an immediate right to a lawyer and that all questioning would cease if he desired to wait until one could be obtained. The record sufficiently shows, however, that in addition to the written Miranda form set out above, appellant was asked twice by the interrogating officer whether he understood that he had a right to an attorney at that time and he stated, "Yes," he did understand that. His signed waiver indicated that he was willing to make the statement and did not wish to have an attorney appointed for him. We conclude that appellant's waiver of rights was based on sufficient and adequate advisements in compliance with Miranda and similar advisements which this Court has previously upheld. See Gaddis v. State, (1977) Ind., 368 N.E.2d 244; Jones v. State, (1969) 253 Ind. 235, 252 N.E.2d 572, Cert. denied (1977) 431 U.S. 971, 97 S.Ct. 2934, 53 L.Ed.2d 1069.
Finally, appellant contends that due to his low mentality, he was unable to understand his rights and therefore his statement was involuntary. At the competency and suppression hearings both court appointed doctors, Hull and Schuster, testified that appellant was competent, and understood the charges against him and the legal proceedings in which he was involved. Dr. Hull testified that appellant could understand the English language and was able to comprehend the questions that Dr. Hull asked. Dr. Hull further stated that merely because a person has difficulty reading does not mean that he is without intelligence. He also felt that this appellant had the ability to learn and could relate his previous experiences which included numerous encounters with the law. It was the opinion of these two experts that appellant had sufficient understanding of his constitutional rights to be able to waive them. Appellant called his own expert witness at the suppression hearing whose testimony disagreed with the conclusions reached by doctors Hull and Schuster.
The question of the admissibility of a confession is to be controlled by determining from the totality of the surrounding circumstances whether or not it was made voluntarily. The same test is applied to determine whether a valid waiver of the Miranda rights has occurred. We review these questions on appeal as we do other sufficiency matters. We do not weigh the evidence or judge the credibility of witnesses, but rather, determine whether there is substantial probative evidence to support the trial court's finding. This Court will not ordinarily disturb such finding when it is based on conflicting evidence. Richardson v. State, (1978) Ind., 373 N.E.2d 874; Sypniewski v. State, (1977) Ind., 368 N.E.2d 1359, 1363. As there was substantial, though conflicting evidence presented at the suppression hearing we affirm the trial court's ruling with respect to the admissibility of appellant's statement.
Appellant's next objection goes to remarks by the trial court contained in a videotaped recording which was presented to prospective jurors outside the presence of appellant and his attorney. This videotape presentation was in the nature of an orientation session for newly assembled jurors called to serve in criminal trials. Appellant argues that certain of the judge's comments in the recording were tantamount to jury instructions and thus should not have been given outside the presence of counsel. We disagree.
Again, we emphasize that these jurors had not yet been called to serve in any particular case but were merely assembled as a panel from which the parties could select a jury for their case. An examination of the transcript reveals that the orientation presentation was designed to give prospective jurors general instruction and information on what they might expect as to the process of selection of a jury in a criminal trial. None of the judge's comments were directed to a particular case or trial. The comments applied to all trials generally and attempted to inform the jurors of the part they would take at trial, should they be selected, along with general information about criminal law with reference to evidence, burdens of proof, etc. Since this presentation did not in any way refer to the particular law or facts applicable to appellant's case, we fail to see how he was prejudiced by not being present at the time. Moreover, the record shows that the jury which eventually heard appellant's trial was adequately instructed, both preliminarily and finally, as to the appropriate law of the case. With the exception of the instructions treated in Issues VI and VII, Infra, there is no allegation that the jury was not completely and properly instructed by the court. We therefore find that no reversible error was committed by the court regarding this issue.
The appellant moved for a mistrial at three different points during the voir dire examination of the jury in which the judge was discussing and explaining the charges faced by Tyson. After reviewing the record of the entire discussion, we conclude that the statements, taken in context, were not offensive.
First, in explaining the difference between felony murder and premeditated murder, the judge stated that even an accidental...
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