*1 472 denied Defendant was knowledge the case. lack of of of his provided had which he counsel presence of an informed own, Through fault no through his resources. own pre- who had not counsel trial with local forced position in a investigated was not case and who pared or interests.” represent the defendant’s best properly following conclusion: came to the appellee there
The justice foregoing and in the interest reasons “For state, the the laws of this the established accordance with respectifully that this Court reverse recommends State and order a new trial.” decision court’s trial agreement thorough therewith and submit same I am in should, here. obtain result point I dissent is that the admission of
The second
on which
concerning
testimony
by appellant upon one
the assault
battery charged
prior
the assault and
weeks
Forrester
two
bar,
appellant,
over the
of the
con-
case
(1968),
659,
Meeks v.
reversible error.
State
249 Ind.
stituted
tions to
new
DeBruler, J., concurs.
Reported in
Note. —
Vasquez Indiana. Rehearing September July 30, denied 768S110. Filed 1970. [No. 1970.] *2 Wyss, Waterman, Wayne, L. Norbert Kenneth M. of Fort appellant. for Attorney Sendak, General, Dillon, L.
Theodore John J. Attorney General, Hassett, Deputy Former Robert F. At- torney General, appellee. appeal rape. an conviction of J. This is from a
Arterburn, assignment the trial court error avers that overruling particular erred in it his for a In motion new trial. argued is that certain at trial er- evidence introduced roneously appellant’s objection admitted over that fully rights prior being not advised of his constitutional questioned by police. appellant’s argument following
The crux of concerns the ruling by trial court made the direct examination of one of the officers:
“Q. Sgt. Herman, did a with him conversation morning? that Yes,
A. I did. rights And did him advise of his constitutional ?
A. sir. rights And what did advise him was he entitled to ? A. We advised us; anything him he didn’t have to talk to he law; he say would against be could used a him in court of right that he a attorney to have an [sic] if attorney couldn’t an appoint the court would afford one. anybody attorney Did he call or obtain an A. He called his brother work. He did his contact brother, torney. I believe, arrangements to make for an at- agree Did he to talk to after that? Yes, sir, he talked with us. was? his address what determine And did that he— He advised us any object sub- going Honor, I am Your
MR. WYSS: this man that the evidence mission into Herman, by Officer place indicated at the time said properly advised of was not reason that he for the rights. constitutional missing important here, detail Your is one There Honor, any- told this man that and that is this: He against him; thing he had could be used said attorney at the time that a to have requisite talking absolutely this is a to him and evidence; any he made in statement admission in the Miranda the latest law on this is every important recent that had case other case Supreme United handed down States been Court. HELMKE: him had a MR. He advised phone have an call and he make phone amake call. MR. WYSS: The Prosecutor he must tell knows *3 must tell him officer that he has during present an the conversation. wishes, MR. HELMKE: can if He waive that Your Honor. Objection
THE COURT: overruled. Q. may testify your You as to what Herman, conversation was. Sgt. you, I asked not he advised whether or you of his address ? Yes, staying upstairs A. sir he advised at he was apartment family. with the Torrez Q. living He advised was Mr. with and Mrs. Torrez? A. Yes.
Q. able to understand him when he said this you ? No, operating through A. interpreter an at this agreed time. Mrs. Torrez interpret had for us. Q. Vazquez Mrs. Torrez was with Mr. at this time? Yes, interrogation A. she was in the room with us. anybody present Was else ? Sgt. Royse A. At this time myself there was and Mrs. Vazquez Torrez and were the room. through interpretation that it was Mrs. So Torrez’s actually De- West learned he had lived 722% Street? Wald A. Yes. Vazquez in re- there else said Mr. Was your sponse question ? Well, had of the
A. asked him about activities evening at that time us he advised that, to the believe, payday it was and that he had been Broadway Gay Nineties at the Corner Taylor; there, approxi- I think that he had left it was mately gone so, 11:30 or and had home and he stated got asleep, the time home the Torrezes were both say Did he at what time he arrived home approximately 11:30, I tavern it A. believe was either left the time, that time about or arrived home at that exact on I’m not that. say Did he he was alone when he came home? Yes, Sir. Q. But he did arrive at the address known as West 722% Street, according DeWald night? sometime that (Emphasis Added) sir.” point during At one other ap- course of the trial pellant had reason to make an similar to the above. when This occurred the other officer present who was during appellant testified as to the substantially conversation. As the same matters were related questions raised, we need not opinion burden this with testimony, objection, ruling. latter argues Appellant clearly that he was never advised that he could have counsel with him argues apparent it is appel that while
lant was not told he could have attorney “present *4 during interrogation,” the he was at the same time that he told did not any questions. have to answer That in formation adequately. covered the situation may, regardless
Be that as it of such contentions, we believe there exists another why reason appellant’s position is by appellant were made the statements merit.
without a night was at bar the on in substance Further, appellant stated home. p.m. and then went 11:30 until wearing pair dark a that he was during the gold polka jacket, a shirt with sport black plaid pants, a dots. gen very appellant were
Thus, the made statements the addition, In They were not confessions. eral in nature. to the examination, as testified appellant, direct on same facts adduced day March recalling of work?
“Q. 21st Now, Vasquez, Mr. from you home arrive what time did Tuesdays. we Then They got got paid at A. He off 3:30. money but get store, Chavin, some to Mr. went he was closed and then home, went there we then from hos- at the Mr. Torrez the kids picked up wife of up then we picked pital arrived at home. and then we Q. What time
A. Around 4:30.
Q. evening? something Did to eat there that Yes. What time did leave? A. 6:30 or 7:00. And time what return ? Gay Broadway, Nineties, I on tavern talking American, I man, and was he’s an speaks a Spanish. pizzas little He makes Then there. drinking a it then beer talked quarter 2:00', stopped he told me that awas serving. Then after he drank his last beer he went
home. Did home ? walk Broadway A. He walked from there on and then De- home. Wald and then DeWald stop way Did on the home? A. No. you alone ?
A. Yes.
477 evening? all alone I left After home. clothing articles of have on when What evening referring left home on the we were to before? boots, jacket pants, A. Black black the of John Torrez and shirt of John Torrez. the polka that the shirt in earlier Was dot we saw Court today? it is. night? Did see Mrs. Nichael that open
A. She used to the door and look at us and us see open in the window. She would the window and she would see us. night Did see that her A. No.” only appellant testify
Not did the to the same facts con tained in the police statement of officers, the not refuting any them, but also two other defense witnesses, namely, appel lant’s landlord and wife, the landlord’s testified to the same clothing facts relative to the worn and where appellant the night question. the We thus conclude that questioned admission of the statements made to the officers, most, at the from point of view, constitutes harmless error. Greer v. State (1969), 20, 252 Ind. 245 N. E. 158; MacGregor 2d (1967), v. 195, 249 Ind. 231 N. E. 2d 241. reason,
For the judgment above of the trial court is affirmed.
Hunter, C.J., DeBruler, JJ., Givan and Jackson, J., concur. opinion. dissents with
Dissenting Opinion am J. unable to majority concur in opin Jackson, ion and my opinion is dissent thereto. It appellant that adequately not rights advised specified constitutional as in the case of (1966), Miranda Arizona 384 436, U. S. 86
478 Supreme United States L. Ed. 2d 694. The
S. Ct. Miranda, stated: Court interroga- held for an individual “Accordingly, we hold that clearly he has that informed
tion must be lawyer him lawyer with and to have with a consult during system protecting the under the warnings today. As with privilege delineate can be used stated silent and remain warning pre- against him, is an absolute in evidence *6 * * (Emphasis supplied) requisite to advised that he could have Appellant was not interrogation, therefore, not ade- during the rights. Accordingly, the quately advised of his constitutional admitting appellant’s into evidence state- erred lower court given officers ments judgment should be reversed and of the trial court to sustain motion with instructions
cause remanded for new trial. E. 2d Reported in N. 779.
Note. — Reynolds of Indiana. July 31, 1970.] Filed 1069S226.
[No.