Larimer v. State

326 N.E.2d 277, 163 Ind. App. 673, 1975 Ind. App. LEXIS 1100
CourtIndiana Court of Appeals
DecidedApril 24, 1975
Docket2-374A62
StatusPublished
Cited by22 cases

This text of 326 N.E.2d 277 (Larimer 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
Larimer v. State, 326 N.E.2d 277, 163 Ind. App. 673, 1975 Ind. App. LEXIS 1100 (Ind. Ct. App. 1975).

Opinions

Staton, P.J.—

Larimer had been charged with incest.1 During his jury trial, his defense counsel objected to Detective Likens’ testimony relating to Larimer’s confession. This confession, the defense counsel contended, was involuntarily given by Larimer. The confession had been made by Larimer near the end of a four and one-half hour interrogation which ended after midnight in the prosecutor’s office. Larimer’s defense counsel was not present at the interrogation. The trial court overruled the objection to Detective Likens’ testimony. Later, the State offered a tape recording into evidence for the purpose of impeaching Larimer. The tape had been made during the four and one-half hour interrogation in the prosecutor’s office. It contained references to Larimer’s prior homosexual conduct as well as to his institutional treatment for mental illness at Muscatatuck. These references were not deleted before the tape was heard by the jury.

Larimer’s appeal to this Court raises the following issues for our review:

Issue One: Did the trial court err when it overruled the objection to Detective Likens’ testimony relating to Larimer’s confession?
Issue Two: Was the admission of Larimer’s confession harmless error?
[675]*675Issue Three: Must the trial court take appropriate steps to delete immaterial and prejudicial matters placed upon a tape recording which are not germane to purpose of impeachment?

Our review concludes that a separate evidentiary hearing out of the presense and hearing of the jury is required on the issue of voluntariness. The trial court must make a separate determination on the voluntariness of Larimer’s confession before it is admitted into evidence as mandated by IC 1971, 35-5-5-1; Ind. Ann. Stat. § 9-1634 (Burns 1974 Supp.). We further conclude that the trial court’s failure to make a separate voluntariness determination before admitting Larimer’s confession into evidence was not harmless error. The immaterial and prejudicial matters on the tape, which were not necessary for impeachment purposes, should have been deleted by the trial court. We reverse the trial court’s judgment, and we instruct the trial court to grant Larimer a new trial.

I.

Voluntariness and Harmless Error

Detective Likens was called by the State to give testimony concerning Larimer’s confession. Larimer’s defense counsel objected for the reason that the confession was not voluntarily given by Larimer. An evidentiary hearing was requested upon the issue of voluntariness. The trial court, in the presence and hearing of the jury, overruled the objection without determining the voluntariness issue. This was error. IC 1971, 35-5-5-1; Ind. Ann. Stat. § 9-1634 (Burns 1974 Supp.) mandates the trial court to hear evidence out of the presence and hearing of the jury and to determine the issue of voluntariness before admitting confessions in evidence. IC 1971, 35-5-5-1 provides:

“In any criminal prosecution brought by the state of Indiana, a confession, as defined in section (5) [§ 9-1638] hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the 'presence and healing of the jury, [676]*676determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made, it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” (Our Emphasis). Also see, Johnson v. State (1972), 258 Ind. 683, 688-89, 284 N.E.2d 517, 520.

The trial court’s failure to make “. . . a reliable determination . . .” that the confession was in fact voluntarily rendered constituted a violation of Larimer’s Fifth and Fourteenth Amendment rights, as well as a violation of IC 1971, § 35-5-5-1. Jackson v. Denno (1964), 378 U.S. 368, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908. This federal constitutional error requires that we determine whether, as a matter of federal law, this error was harmless beyond a reasonable doubt under the circumstances of this case. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158; Bauer v. State (1973), 157 Ind. App. 400, 300 N.E.2d 364.

Some harmless error guidance can be gleaned from Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828:

“. . . We, therefore, do no more than adhere to the meaning of our Fahy case when we hold as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard. . . .”

The Chapman Court characterized the facts as follows:

“. . . And though the case . . . presented a reasonably strong ‘circumstantial web of evidence’ against [the] petitioners ... it was also a case in which, absent the constitutionally forbidden comments, honest fair-minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor’s comments and the trial judge’s [677]*677instruction did not contribute to petitioners’ convictions.” 386 U.S. at 25-26, 87 S.Ct. at 829. (Our Emphasis).

When applying the federal harmless error standard, we must weigh the evidence against Larimer—absent his confession—and determine whether, beyond a reasonable doubt, an honest and fair-minded jury would have rendered a guilty verdict based solely on the remaining untainted evidence. See Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158.

Upon a review of all the evidence in the record—except Detective Likens’ testimony relating to Larimer’s confession—we are unable to conclude beyond a reasonable doubt that the constitutional error did not contribute to Larimer’s conviction. The State’s case-in-chief consisted of testimony from Larimer’s two minor daughters, Detective Likens and certain circumstantial evidence which tended to corroborate the testimony of the prosecuting witnesses. Larimer’s evidence consisted of his testimony which denied his daughters’ allegations. Additionally, he offered the testimony of his neighbors and a relative which tended to impeach the credibility of his daughters.

Absent Larimer’s confession, the jury’s resolution of Lari-mer’s guilt or innocence would have been substantially based on the credibility of the witnesses.

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Larimer v. State
326 N.E.2d 277 (Indiana Court of Appeals, 1975)

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Bluebook (online)
326 N.E.2d 277, 163 Ind. App. 673, 1975 Ind. App. LEXIS 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larimer-v-state-indctapp-1975.