Tyson v. State, No. 278S36

Docket NºNo. 278S36
Citation270 Ind. 458, 386 N.E.2d 1185
Case DateMarch 19, 1979
CourtSupreme Court of Indiana

Page 1185

386 N.E.2d 1185
270 Ind. 458
Eric Lavern TYSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 278S36.
Supreme Court of Indiana.
March 19, 1979.

[270 Ind. 459]

Page 1187

George T. Popcheff, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

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. [270 Ind. 460] 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.

I.

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

Page 1188

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 [270 Ind. 461] 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 [270 Ind. 462] 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

Page 1189

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.

II.

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...

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27 practice notes
  • Judy v. State, No. 580S128
    • United States
    • 30 d5 Janeiro d5 1981
    ...L.Ed. 1461. See Baker v. State (1980) Ind., 400 N.E.2d 137; Holleman v. State (1980) Ind., 400 N.E.2d 123; Tyson v. State (1979) Ind., 386 N.E.2d 1185; State v. Brown (1941) 219 Ind. 251, 37 N.E.2d 73. Gilmore v. Utah, supra, presented substantially the same situation we face here. The defe......
  • Sours v. State, No. 61458
    • United States
    • United States State Supreme Court of Missouri
    • 15 d2 Janeiro d2 1980
    ...at the same trial has been rejected in cases that follow Harris. State v. Pinder, 375 So.2d 836, 838 (Fla.1979); Tyson v. State, Ind., 386 N.E.2d 1185, 1193 (1979); Mitchell v. State, Ind., 382 N.E.2d 932, 934 (1978); Elmore v. State, Ind., 382 N.E.2d 893, 894-95 (1978); State v. Frye, 283 ......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 d5 Novembro d5 1980
    ...intelligent and voluntary waiver. See generally Holleman v. State, (1980) Ind., 400 N.E.2d 123, 127; Tyson v. State, (1979) Ind., 386 N.E.2d 1185, 1188-89. At that point, the issue of appellant's condition, due to the ingestion of drugs or alcohol, affected the weight, and not the admissibi......
  • Handy v. State , No. 3043
    • United States
    • Court of Special Appeals of Maryland
    • 26 d3 Outubro d3 2011
    ...256 Kan. 48, 883 P.2d 1093, 1102 (1994) (permitting the practice of juror questioning subject to certain procedures); Tyson v. State, 270 Ind. 458, 386 N.E.2d 1185, 1192 (1979) (recognizing that jurors may propound questions to a witness, “subject to proper regulation by the trial court”); ......
  • Request a trial to view additional results
27 cases
  • Judy v. State, No. 580S128
    • United States
    • 30 d5 Janeiro d5 1981
    ...L.Ed. 1461. See Baker v. State (1980) Ind., 400 N.E.2d 137; Holleman v. State (1980) Ind., 400 N.E.2d 123; Tyson v. State (1979) Ind., 386 N.E.2d 1185; State v. Brown (1941) 219 Ind. 251, 37 N.E.2d 73. Gilmore v. Utah, supra, presented substantially the same situation we face here. The defe......
  • Sours v. State, No. 61458
    • United States
    • United States State Supreme Court of Missouri
    • 15 d2 Janeiro d2 1980
    ...at the same trial has been rejected in cases that follow Harris. State v. Pinder, 375 So.2d 836, 838 (Fla.1979); Tyson v. State, Ind., 386 N.E.2d 1185, 1193 (1979); Mitchell v. State, Ind., 382 N.E.2d 932, 934 (1978); Elmore v. State, Ind., 382 N.E.2d 893, 894-95 (1978); State v. Frye, 283 ......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • 7 d5 Novembro d5 1980
    ...intelligent and voluntary waiver. See generally Holleman v. State, (1980) Ind., 400 N.E.2d 123, 127; Tyson v. State, (1979) Ind., 386 N.E.2d 1185, 1188-89. At that point, the issue of appellant's condition, due to the ingestion of drugs or alcohol, affected the weight, and not the admissibi......
  • Handy v. State , No. 3043
    • United States
    • Court of Special Appeals of Maryland
    • 26 d3 Outubro d3 2011
    ...256 Kan. 48, 883 P.2d 1093, 1102 (1994) (permitting the practice of juror questioning subject to certain procedures); Tyson v. State, 270 Ind. 458, 386 N.E.2d 1185, 1192 (1979) (recognizing that jurors may propound questions to a witness, “subject to proper regulation by the trial court”); ......
  • Request a trial to view additional results

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