Chowning v. State

297 N.E.2d 487, 156 Ind. App. 439, 1973 Ind. App. LEXIS 1144
CourtIndiana Court of Appeals
DecidedJune 19, 1973
DocketNo. 1-972A72
StatusPublished

This text of 297 N.E.2d 487 (Chowning v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chowning v. State, 297 N.E.2d 487, 156 Ind. App. 439, 1973 Ind. App. LEXIS 1144 (Ind. Ct. App. 1973).

Opinion

Hoffman, C.J.

Appellant William Chowning was charged by affidavit with the crime of second degree burglary of the [440]*440L & L Drive-Inn in Richmond, Indiana. Trial was to a jury which found Chowning guilty of the crime of second degree burglary as charged in the affidavit. Chowning was sentenced to be committed to the Indiana Department of Corrections for not less than two years nor more than five years and disfranchised and rendered incapable of holding any office of trust or profit for a period of four years. The timely motion to correct errors filed by Chowning was overruled and this appeal followed.

On appeal, Chowning first contends that “[t]he waiver of constitutional rights and the statement taken from defendant [Chowning] while under the influence of drugs was not voluntary and should have been suppressed.”

The record before us shows that Chowning was arrested on February 11,1972. Chowning testified that he had “smoked some marijuana that morning” and that he “had taken mescaline and speed.” Chowning was taken by the police to the City Building for questioning. He signed a written “warning and waiver [of] rights,” but refused to answer any questions. Chowning was then placed in solitary confinement at the Safety Building.

In the hearing on the motion to suppress, Chowning testified that after breakfast on the morning after he was arrested he took some mescaline which had been hidden in his shoe. Chowning further testified:

“I was under sort of an agony — when your system is introduced to speed and mescaline you get a tendency to talk to somebody and have people around, and I was under tension cause I was in solitary confinement and I needed somebody to talk to I guess.”

Later that morning, February 12, 1972, Chowning was questioned by the police but answered no questions.

During the afternoon of February 12, 1972, Chowning was taken to the City Building where he talked with the police. Chowning testified that he had no problems in observation or talking but felt a compulsion to talk. At that time Chowning [441]*441signed a written “waiver” and “voluntary statement” admitting breaking into the L & L Restaurant, however, such statement ivas not admitted into evidence at the trial.

On February 13, 1972, Chowning was taken to the City Building at which time he again signed a written “warning and waiver [of] rights” and “voluntary statement.” The pretrial motion of Chowning to suppress all statements given by the defendant was overruled by the trial court and the following portion of the February 13, 1972, statement was admitted into evidence at the trial:

“Q. Bill, we found a jar of change, some meat and two coats in the apt. of Donna Chaneys. Where did these come from. The jar had $25.24 in asst, [assorted] change in it?
“A. From the L & L, there was about $10.00 from there. The meat and coats came from the L & L. There was also about 10-12 packs of cigarettes in a bedroom vanity that came from the L & L.
“Q. Bill, did you hid [hide] all the stuff in the apt. of Donnas, [Donna’s], the meat, coat, cigarettes and money?
“A. No.
“Q. Bill, who hid it?
“A. I don’t know who hid it the only thing that I was worried about was hiding the money.
“Q. Bill, where did the rest of the money go to that was taken from the L & L ?
“A. Ron and I split the money and the last I knew he had hid his part in a dresser in the girls [girl’s] bedroom, I doubt if it is still there now.
“Q. Bill, is there anything else that you care to add ?
“A. No.
“Q. Bill, before you gave this statement today you were again advised of your rights, and do you understand them?
“A. Yes, and I signed the waiver form.”

Chowning testified that on February 13, 1972, he “was still a bit dizzy from the speed.” He also testified that he took mescaline through the nostrils which would cause “probably some unordinary sniffing.”

[442]*442Detective Sergeant Donald Kolentus testified that on the morning Chowning was arrested Chowning walked and talked normally. Detective Sergeant Kolentus testified that on February 12, Chowning appeared to be normal, he did not “sniffle.” Detective Sergeant Kolentus testified that on February 13, 1972, Chowning appeared to be normal, walked normally and talked clearly; his attitude was very good and he answered the questions he was asked but did not ramble.

Detective Sergeant Kolentus also testified as follows:

“I had received word Mr. Chowning wanted to see me on the 13th. The first thing I asked him was the fact he gave Detective Irvine and me a statement on the 12th and understood he had something else he wanted to say, which he did.”

Sergeant Richard Irvine testified that on February 11, 1972, Chowning looked normal, his reactions were normal, but his attitude was very poor. Sergeant Irvine also testified that on February 12, he and Detective Sergeant Kolentus talked to Chowning who “admitted he made a mistake and wanted to give a statement and cooperate.”

Police Officer Steven Stanford testified that he was present when the February 12,1972, statement was taken. He testified that Chowning looked normal, that his reactions were normal, that he was not overly talkative, and that he did not appear to have a cold.

In Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706, at 709, it was stated:

“A heavy burden rests upon the State to demonstrate that the appellant knowingly, voluntarily and intelligently waived his right to remain silent and to consult with appointed counsel.” (Citing authorities.)

In Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165, at 167, it was stated:

“The legal standard to be applied in determining whether an accused, who has been properly advised of his rights and has signed a waiver, has voluntarily waived his rights is the same as that used in the pre-Miranda coerced con[443]*443fession cases. The question, is whether, looking at all the circumstances, the confession was free and voluntary, and not induced by any violence, threats, promises, or other improper influence.”

In Townsend v. Sain (1963), 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770, the defendant, who was suffering from drug withdrawal symptoms, was administered hyoscine and phenobarbital by a police physician prior to confessing to the crime in question. At 307-308 of 372 U.S., at 754 of 83 S. Ct., it is stated:

“Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s 'will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced.

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Related

Townsend v. Sain
372 U.S. 293 (Supreme Court, 1963)
Hunt v. State
133 N.E.2d 48 (Indiana Supreme Court, 1956)
Hightower v. State
296 N.E.2d 654 (Indiana Supreme Court, 1973)
Millington v. State
289 N.E.2d 161 (Indiana Court of Appeals, 1972)
Taylor v. State of Indiana
140 N.E.2d 104 (Indiana Supreme Court, 1957)
Smith v. State
249 N.E.2d 493 (Indiana Supreme Court, 1969)
State v. Sullivan
163 N.E.2d 745 (Indiana Supreme Court, 1960)
Gibson v. State
271 N.E.2d 706 (Indiana Supreme Court, 1971)
Nacoff v. State
267 N.E.2d 165 (Indiana Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
297 N.E.2d 487, 156 Ind. App. 439, 1973 Ind. App. LEXIS 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chowning-v-state-indctapp-1973.