Edwards v. State

412 N.E.2d 223, 274 Ind. 387, 1980 Ind. LEXIS 791

• Court: Indiana Supreme Court
• Decided: November 18, 1980
• Docket: 975 S 225
• Status: Published

Opinions

DeBRULER, Justice.

This is an appeal from a conviction for second degree murder. Appellant Edwards received a sentence of life imprisonment. Among the issues raised in this appeal, he contends that the trial court committed error when it admitted appellant’s confession into evidence at trial. Appellant unsuccessfully challenged the admissibility of the confession by way of a motion to suppress and by a subsequent in-trial objection on the basis that the advisement of rights given appellant by the police who interrogated him did not comply with the requirements of Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that there had been no valid waiver of rights. The motion was heard prior to trial by a judge who was not the one who ultimately tried the case. At the hearing the judge held to the erroneous view that the burden was upon appellant to sustain his allegations, since a defense motion was being heard. After hearing the testimony of a psychiatrist and the interrogating officer, the court took the motion under advisement and later denied it. Much of the same evidence was developed at trial, and the judge trying the case overruled the in-trial objection to the admission of the confession.

The testimony developed that on October 5, 1973, at about 7:00 a. m., one Joan McCabe was attacked in Hammond, Indiana, and died there in an alley of severe wounds. The presence of the body of the victim was first reported to the local police department by a woman who lived in a nearby house. She had stated that a man had drawn her attention and told her of it. He had said that he was late for work, asked her to report it to the police and left his name and address with her. Appellant was this man. At the time he was a mental patient on leave from a state hospital and employed by the city.

At approximately 10:00 a. m., the police contacted appellant at his work and at their request appellant reported to the police station after work at 4:30 p. m. He was handed a document entitled: “Voluntary Appearance; Advice of Rights” which contained a complete and accurate advisement of rights according to the prescription in Miranda, a recital that appellant was appearing voluntarily and was not under arrest, and a waiver statement. Appellant executed the waiver and gave a written statement describing how he had simply come upon the body while walking to work. During this interview appellant told the police that he had been in a psychiatric hospital. He also responded that he would be at a bowling alley that night should they wish to contact him. He then left the police station.

The police then investigated appellant’s background and determined that he had been committed to the hospital because of something nebulous to do with a girl. Their suspicions heightened, the officers went to the bowling alley at about 9:00 p. m., confronted appellant and asked him to accompany them. He did so, and while in a police car outside the place, he was given an oral advisement of rights. The sum total of evidence describing this advisement was the testimony of the officer that he “advised him orally of his rights.” On the way to the station, they stopped off at appellant’s apartment and he got them the clothes he had been wearing that day. They continued on to the station, engaging only in “small talk”. The police did not interrogate him until later when he and they were ensconced in the police station. The interrogating officer testified that at the commencement of the interrogation appellant was again “very well advised” of his rights. He added “I told him, ‘Eddie you don’t have to talk if you don’t want to. We are not going to hurt you. I am not going to beat you.” This is the sum total of evidence describing the advisement of rights at the station house. The formal stage of the interrogation then commenced. Up to this point in the events of the evening, no express waiver of rights was given by appellant. Nevertheless, the formal stage of the interrogation was commenced.

As appellant prepared to answer their questions, a woman appeared in the door of the interrogation room and said in a voice loud enough for appellant to hear: “Yes, that’s the man.” Thereupon appellant admitted his guilt for the first time and was subsequently presented and did sign a written waiver of rights containing a complete advisement of rights. His admission was then put on paper. The officer testified that this woman was in fact a clerk at the police station who had appeared there and uttered those words by pre-arrangement with the'interrogators as a ploy. She was not an actual witness, but played the role of an eyewitness engaged in identifying appellant. In regard to the timing of this woman’s statement, the following testimony was given:

“Q. And that was the statement that was made before he made any kind of oral statement or written statement?

A. Yes, sir. That was just prior to him making the oral statement. About at nine-thirty.”

There are two problems with this case. The first is that the prosecution did not present any evidence of the actual content of the oral advisements given by the officer, but chose to rely instead upon the officer’s general answers which variously described the advisement as having been for example “in accordance with the Miranda decision.”

The question for our decision is whether this evidence is sufficient to satisfy the prosecution’s burden to demonstrate a proper advisement before interrogation. The second problem is whether, in light of the false identification of appellant by the policewoman, the State has demonstrated a valid waiver of Fifth and Sixth Amendment rights.

The information which must be given to a suspect prior to custodial interrogation is expressly set out in the Miranda opinion:

“At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent.

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“The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it.

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“[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation....

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“[I]t is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.

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“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.” 384 U.S. at 467-68, 469, 471, 473, 476, 86 S.Ct. at 1624-1627, 1629.

When, as in the case at bar, the issue of the admissibility of the statements of the accused is raised, a heavy burden falls upon the State to demonstrate the required warnings and waivers:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.... This Court has always set high standards of proof for the waiver of constitutional rights ... and we reassert these standards as applied to in custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is right on its shoulders.” (Emphasis added.) 384 U.S. at 475, 86 S.Ct. at 1628.

This Court in Burton v. State, (1973) 260 Ind. 94, 292 N.E.2d 790, in furtherance of the protection to be accorded the Fifth and Sixth Amendments rights of the accused in the interrogation context has established the standard to be applied to this burden of the State to be proof beyond a reasonable doubt. Craig v. State, (1980) Ind., 398 N.E.2d 661; Ortiz v. State, (1976) 265 Ind. 549, 356 N.E.2d 1188; Hooker v. State, (1979) Ind.App., 387 N.E.2d 1354. Applying this standard to the evidence presented which tends to support compliance with Miranda, we find that it could not suffice to convince a reasonable trier of fact that the oral advisements were in accordance with the express requirements set down by the United States Supreme Court in Miranda. With regard to the first and complete advisement at the police station before the first statement was given, we know that the officer read that advisement from a written form, whereas all we know about the second was that it was orally given. That complete advisement came five hours earlier when appellant was under little suspicion, whereas at the time of the second one, five hours later, he was clearly suspect. There is simply no way to infer the completeness and accuracy of the oral advisement at the bowling alley from the complete advisement five hours earlier.

The general statement by the interrogator in his testimony that he fully advised appellant of his Miranda rights does little to fulfill the State’s heavy burden. During past years this Court has often litigated the question of the sufficiency of Miranda ad-visements. Never has this Court affirmed the admissibility of a confession upon so little evidence of the specific content of an advisement of rights. Furthermore, the testimony by the interrogator that he told appellant that he need not answer questions is evidence of compliance with the requirement that the suspect be informed of the privilege against self-incrimination, but does not support compliance with the remaining requirements, i. e., that he be told of the consequences of foregoing the privilege, and the right to counsel.

Avery v. State, (1976) 265 Ind. 417, 355 N.E.2d 395, is a case worthy of consideration here. In that case the trial judge was under a duty to advise the defendant in a criminal case of the specific rights which were being relinquished by entering a plea of guilty and to make a record of his efforts in that regard. On review the record disclosed only that the defendant had been “instructed as to his constitutional rights”. This Court permitted that plea to be withdrawn because the record was inadequate to demonstrate compliance with the duty to advise. And so it is with the case at bar. The record before us provides no assurance that appellant was completely and accurately advised of rights and matters required by the Miranda case prior to his admission of guilt upon custodial interrogation, and therefore on this basis alone, the trial court erred in permitting the State to use that admission as evidence of guilt at appellant’s trial.

This brings us to consideration of the sufficiency of the evidence to support the conclusion that appellant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. The trick and falsehood employed by the interrogators in having a policewoman walk by the door and say “yes, that’s the man”, came very shortly after appellant arrived at the interrogation room and prior to any express waiver. A form of this ploy is described in the Miranda opinion:

“The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. ‘The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party.’ Then the questioning resumes ‘as though there were now no doubt about the guilt of the subject.’ ” 384 U.S. at 453, 86 S.Ct. at 1616-1617.

This type of deception can be used to persuade, trick, or cajole the suspect out of exercising his constitutional rights. The use of such fraudulent devices underpins the Court’s holding that:

“[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that defendant did not voluntarily waive his privilege.” 384 U.S. at 476, 86 S.Ct. at 1602.

The deception in this ease was employed after the oral advisement in the police car and the interrogation room had been given and before a waiver was requested by the interrogators or offered by appellant. At the particular point in time when the deception was employed then, appellant was in the position of having to consider the content of the advisement of rights and to decide whether to relinquish those rights. The deception was successfully employed, as appellant immediately responded to it by admitting his guilt, thereby effectuating in all likelihood a waiver of rights by conduct. North Carolina v. Butler, (1979) 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286. According to the Miranda opinion deceptive practices of the police must weigh heavily against the State in determining the volun-tariness of a waiver of rights. There is further evidence that the interrogators knew that their suspect was a mental patient on furlough at the time from a state hospital. It is just such use of deceptive practices by police interrogators which justifies requiring them to adhere to the procedural safeguards intended to protect the rights of the accused granted by our Constitutions.

Their use in precipitating a waiver of basic rights such as the right to counsel should not be tolerated by any court. As judges we are bound through our oaths to be intolerant of the use of any deception and trick in the custodial interrogation of suspects by the police. And our duty to condemn such practices is even greater where their use communicates with the loss of such basic constitutional rights as the right to counsel or to know that statements can later be used to convict. Upon this record we are bound to conclude that the State has failed to show a voluntary waiver of the privilege against self-incrimination and the right to counsel, and that by reason thereof also, it was error to admit appellant’s confession against him at trial.

The conviction is reversed and a new trial ordered.

HUNTER and PRENTICE, JJ., concur. PIVARNIK, J., dissents with opinion in which GIVAN, C. J., concurs.