*1 Anthony Wayne of Indiana. Hall State August 10, May Rehearing 1976.] denied Filed 875S185. [No. Larry Champion, appellant. R. Indianapolis, for Lockhart, Sendak, Attorney General, Theodore Walter F. L. Attorney General, appellee. Deputy Wayne Anthony Hall indicted Hunter, J. County charged with first of Marion de- Jurors Grand Upon appellant’s gree Jean death of Crouch. insanity, jury guilty by returned reason of plea degree guilty He of second murder. was sentenced a verdict imprisonment motions to correct errors for life. appeals. overruled, erred trial presented first issue is whether written overruling suppress oral and appellant’s motion to his constitutional statements obtained violation of appellant’s state- surrounding the solicitation of facts *2 young lady in July 20, 1973, ments a are as follows. On her neighborhood gunpoint outside seized was raped. she was home and taken residence where August App., On Hall v. N.E.2d 913. an in body was discovered Crouch Jean day, neighborhood. garage The next abandoned same where the house Parnell warrant to search Officer a obtained Grever, Mary “hand appellant for resided with his occurring gun rape” July on 20. When or evidence of search to execute the Officer Parnell the residence went by appellant. The search warrant warrant, he was admitted arrest appellant placed he for was and was read warnings rape kidnapping July 20. Miranda No and although that given, appellant was advised he could were legal questioned permission obtained from until was Swails, guardian. present, were who also Officers Adams and station, leaving transported appellant police Officer to the arriving Upon search. Parnell conduct the behind to interrogation station, appellant room police was to an room, interrogation it reach the the fourth To on floor. through necessary appellant pass the homicide office for end the room. furnished a table at north which was sitting July just happened 20th assault to be The victim of the composure her broke “his saw on table. When momentum, Following Officer great up deal.” on down interrogation and room into the whisked Adams report department reading began from the himto reading pre- kidnapping. Adams’ rape Officer and said, “You appellant broke down and maturely halted when did say anything, I it.” don’t have Mary transpiring, foregoing were Grever events
While employment, her told of brother’s place of at her contacted arrest, delay. without advised to come station she con- When that her brother had arrived she was informed prime kidnapping fessed to the he and that suspect investigation.1 into murder She was taken interrogation present room and was Miranda, rights read his one could have advised parents present. (acting both as and his sister immediately guardian)2 were asked to execute a waiver and gave did so. about the incriminating writing statement which was reduced objection and admitted into evidence over at trial.
Appellant maintains
confession was inadmissible
product
because it was the
aof waiver
was not know-
ingly, voluntarily
intelligently
made. The minimum stand-
procuring
ards
valid waiver from a
set
State, (1972)
forth
Lewis
his
if he so chooses
of course that
there
Mary
1. While the evidence conflicts
whether
Grever learned of
charge
the murder
waiver,
after,
she executed the
or
we are
before
by
bound
Cooper
trial court’s resolution.
261 Ind.
659,
“THE INDIANAPOLIS AS FOLLOWS: VISES right parents present. have to have one or both
“1. You right to remain silent. “2. have You may against you Anything you say can be used “3. court. lawyer right present now. “4. You have the to have a money you you lawyer, If have court to retain “5. do not have right appointed you to have one any question before asked.” [sic] waiver, upon the un- relies In addition to the state testimony disputed officers sister the murder until about after *4 inquiry the waiver executed. The
arrived and presence cease the mere Lewis does not when under guardian has established. The parent or record must juvenile parent or affirmatively and his demonstrate meaningful opportunity afforded a counsel guardian together. Bridges N.E. 2d 616.
The record herein fails meet the standard. The evidence conflicts as to whether the was allowed consult prior with his sister execution of waiver and the solicitation of his confession. mean- While a ingful only consultation can occur in the absence neutralizing pressures police presence, which result from the record is unclear whether and his sister were ever left alone to the execution of the waiver. regard record is silent in provided consultation, to the time and thus it cannot opportunity whether determined meaningful consult was in relation to the seriousness of investigation. offense under nothing Where the record reveals conflicting evidence, more than however, we are bound the trial court’s admissibility determination as to the aof Cooper State, (1974) confession. foregoing evidence, addition to the
record demonstrates without conflict that ar- rested, police station, but any not advised of parent other than to present have a or prior immediately questioning, subjected arrival was to an illegal procedure, identification after which he lost com- posure, then policeman reading confronted from kidnapping report, all before his present. In Lewis we stated: placed quandry “If the are in a confronting juvenile accused, perhaps in the most serious
predicament of his short life. In most cases he is aware he is in If trouble. not under formal arrest he is usually being questioned and finds police-dominated in a atmosphere himself in some instances cut anything off from comforting or Many familiar to him. times he faces accusers alone and without benefit of either It is in these counsel. eighteen circumstances that children under required they to decide whether give wish to intricate, important long up the established fifth and questionable sixth amendment indeed seems any falling child legally whether age defined
453 setting said a can be confronted such and willingly most voluntarily, waive those to and to be able 138, rights.” 431, 437, important station, arrived at When against protect designed precise presence forces her activities, by already applied overzealous had meaningful there could be no under these circumstances and forego fifth his on whether should consultation trial court We hold and sixth amendment suppress his oral denying motion to erred in result of an invalid waiver.3 which were the written statements unlawfully suppressed it was because a confession When inextricably con- obtained, which is bound to objection, upon proper suppressed also be fession will 86, (1968) 250 Ind. 255 N.E.2d Dowlut v. dis 173, the evidence unless it shown that confession, illegal independent means of the some covered 80, his (1950) 229 Ind. In Watts clothing confession, described the which he was wearing re the crime was committed. Officer Parnell gave and she appellant’s residence with turned pair jeans, pullover sweater and a pair of blue officer provide holding special measure in Lewis was fashioned 3. Our rights important waiving juveniles constitutional of care holding reaching our to them under Miranda. In must be disclosed which herein, the recently narrowing boundaries unmindful nothing (1975) Michigan Mosley, We find 321, decision. Miranda 313, however, 46 L. Ed. 2d incon 96 S. Ct. which is 423 U.S. sistent with opinion. this Mosley, was arrested connection with certain the defendant In being Upon advised of his constitutional robberies. regarding Mosley questioned Miranda, to be the robberies. declined given warnings Mosley again later, Miranda an- hours Several him about an unrelated who then murder. officer other incriminating Mosley’s properly statement was admitted held that questioning right scrupulously Mosley’s to cut had been off because questioning sig- resumption honored, occurred after a warnings repeated. lapse and after Miranda had been time nificant given case, was first his after his the record discloses warnings allowed to consult Miranda rape-kidnapping Utilizing had been elicited. confession by appellant’s crime, confession first established momentum immediately procured secured waivers and the statement in- officers criminating appellant case. in the murder jeans of tennis shoes. The traces blood shoes with on them were as admitted Exhibits Nos. State’s 30A box, 30B. Also recovered lid of pictured “Daisy Single and described a B-B Gun Action— Six Repeater, Spittin’ Image 12 Shot of the Famed Six Western lid, Exhibit Gun.” State’s No. was admitted into objected evidence. to the admission of of these each expressed above, For the reason exhibits. we hold failing suppress trial court erred in State’s Nos. Exhibits *6 29, testimony relating 30B all 30A and The thereto. admitting err in 28, trial did not State’s Exhibit No. merely because it 22, cumulative of State’s Exhibit No. resting photograph refrigerator top of the lid residence, appellant’s photograph being said admitted without objection having by been taken photographer the time by of a search authorized valid warrant and appellant’s confession.
Since this cause must be trial, remanded for a new we find unnecessary alleged it predicated to review upon errors the change trial court’s denial of a county, of venue from the challenge jurors, denial of defendant’s of certain of denial permission purpose to recall asking witness for the an of alleged question, prosecutorial omitted misconduct the closing assigned recur, statement. Other may errors and so following specifications consider the for the trial guidance. court’s assigns
Appellant as error the admission testimony of of M.W., victim-prosecutrix rape. July 20 view insanity, plea of testimony state offered such Stamper State, (1973) 211, 260 Ind. wrongfulness show consciousness of the Together presented with other act. herein, it testimony clear that M.W.’s was also admissible to establish operandi similar modus identify between the acts and thus perpetrator charged. as the of the offense Cobbs There was N.E.2d 632. 264 Ind. testimony. no error in this the admission of pathologist questioned its examination, On direct state appearing wounds about the nature of the decedent’s subsequently autopsy photographs several at the the wounds pathologist identified admitted into evidence. about skull, wounds, animal bites as a fractured stab bites, pathologist face. When asked to elaborate skin on stated, superficial defects “The bites are by produced right they those look as side of the face and argues, without cockroaches, post ants or mortem.” prosecutor intended authority proposition, for this jury. passions questioning this line to inflame the to assist agree. questioning do not served Wo We believe reminding considering them jury photographs, were not the cause of death and such marks generally attributable to the defendant. Carroll v. See no error in There was questioning. line of failing asserts erred in trial court instructions, give his 1 and No. of these No. thrust *7 jury the that instructions was to inform if it found guilty by “just insanity, escape not reason would not punishment,” the merited but would be sentenced judicial hearing. subsequent Appellant’s is at contention Coppenhaver holding State, by the in (1902) answered 160 551, Ind. 540, N.E. 457: 67 “ might argu- propriety the with ounsel for defense [C]
ment have called attention to or read the relative statute person procedure acquitted solely upon to the the in case a is * * * ground insanity. necessary It not the that upon subject, however, court should instruct matter the for such nothing has with the to do law the case.” Judgment is reversed and the cause is remanded with grant appellant instructions new trial at which suppressible held shall to be not evidence herein be admitted. JJ., concur; Prentice, J., dissents Arterburn, DeBruler and C.J., opinion Givan, in which concurs. Dissenting Opinion majority J. I feel I dissent from should Arterburn, opinion Appellant second in which the conviction of degree murder is reversed. The trial court is instructed suppress Ap- certain oral and written statements pellant similarly suppress “inex- physical and to tricably bound” to those statements. years
The evidence Appellant shows that the was about age kidnapping when he was arrested for Margaret of one Appellant time Wilson. The that living gone Mary with his their Police had Grever. home awith Appellant search warrant when the custody. into validity warrant not that search challenged. they suspected until entered the home that crime, had committed still another the murder
of one body Jean Crouch. The of this victim had found garage in an neighborhood abandoned Ap- where pellant lived. This is the crime for Appellant’s convicted. It is the confession that is at issue here.
The written question and oral statements made were after Appellant’s joined sister had him station and after the Ap- two were of them advised pellant’s Miranda opinion, turns requirement affirmatively the record must show afforded meaningful opportunity to confer before waiver of Fifth rights. Bridges and Sixth Amendment (I agree meaning sister was his within the of Lewis v. 138.) 288 The consultation itself *8 which Appellant occurred between the and his sister not conflicts, here The the focus of our attention. a trial of ordinarily a determination do not overturn that deter- regarding a confession the of voluntariness Cooper conflicting evidence. mination is based rather, opinion, The N.E.2d 807. leading up the circumstances draws our attention to agree the conclusion I do not that consultation. meaningful precluded possibility these circumstances consultation. Appel- preceding events opinion in the
Listed “arrested, taken to He lant’s confession. was entirely Appellant appropriate. The station.” This seems have any than to not other at this time “was advised questioning.” can present I this here, Appellant was not see no error as Appellant his informed The time and was later illegal procedure.” identification subjected to an “was happened. Appellant explained The where this is not interrogation way passed room. On the he taken to an kidnapping-rape for arrested. which victim illegality this. has not elaborated on Hunter Justice composure” event, Appellant think “lost his I any if simply evidence. ordinary only particularly out of the conduct reading Appellant part of the kid- here was done, investigation report. napping When this was say said, Appellant “You don’t broke down have to anything, I it.” This confession to the crime did arrested, the one for which which the ultimately shortly It was state- convicted. after this he was Appellant’s sister arrived. ment together Appellant’s informed rights, of the as sister were signed by The waiver form stated above. present during She upon his instruction.
sister questioning resulted confession. these circumstances were so
I not believe coercive do as *9 meaningless render had with consultation the me, opinion close his sister. To Hunter comes of Justice saying presence that the mere officers constitutes any a threat sufficient to make invalid confession made hamper police investigation them. This would normal since excluding very grounds presence their would be com- they petent evidence which observed. come close in We imposition duty opinion de- to assist a maintaining composure. fendant I find it difficult imagine especially juvenile, confession, in which a one composure play at least loss does role. some also I think it is wise to ask whether the consultation requirement Bridges applicable of the Leiois and cases that, case such as have here. true the time age arrest, doubt, was under the I person age.” young that he was a “tender This enough enough nearly man old to commit old Furthermore, (Burns vote. Supp. Code 81-5-7-13 § 1975) juveniles charged provides degree with first regular murder should be tried adult court. I think the procedure applicable per- rules of criminal to adults should haps applied age, also charged of this sort crimes found here.
Givan, C.J., concurs.
Reported at
Note. — Gerald Edward Critchlow State of Indiana. May Rehearing Filed August 575S123. [No. denied 1976.]