Sotelo v. State

342 N.E.2d 844, 264 Ind. 298, 1976 Ind. LEXIS 458

• Court: Indiana Supreme Court
• Decided: March 12, 1976
• Docket: 574S89
• Status: Published

Opinions

Arterburn, J.

The Appellant, Raul Rudy Sotelo, of Gary, Indiana, was convicted on October 2, 1974, of the first degree murder of one Carrie Louise Duncan. A motion to correct errors was filed with the trial court on December 9, 1974. It is from the denial of this motion on January 14, 1975, that the Appellant presents this appeal.

The evidence at trial revealed that at about 7:40 a.m. on September 27, 1973, the Appellant borrowed the automobile of a co-worker, Alberto Alverez, explaining that he did not feel well. Shortly after 8:00 a.m. the Appellant offered a ride to a friend, Adrian Martinez, who was walking from his home to the high school he attended. The two drove around for some time and went to the home of one John Jacquez. Jacquez was not home at this time, but was found there when the Appellant and Martinez returned a short time later. Jacquez joined his two friends in their drive.

At approximately 9:30 a.m. or 10:00 a.m. the Appellant and his two passengers came across two girls walking along the street. One of the girls, Carrie Louise Duncan, the deceased, accepted a ride with them, while the other proceeded to her home. The Appellant and his three passengers drove to an isolated area of Ridgelawn Cemetery in Gary and stayed there approximately five minutes. They then drove to the home of Nini Badillo. The evidence revealed that Carrie Louise Duncan was at this time twelve years old.

Upon their arrival at the home of Nini Badillo, the Appellant and the deceased went into one of the bedrooms of the home for some twenty minutes. Their companions watched television. The Appellant, around 12:00 noon, announced that he was taking the victim home and left with her. He returned alone some ten to twenty-five minutes later.

The body of the deceased was found later that afternoon at Ridgelawn Cemetery. The partially-clad body showed a number of wounds. Articles of clothing were strewn around the scene of the crime.

After first denying any wrongdoing, the Appellant confessed to the killing. His rendition of events following his departure with the victim from the Badillo home is as follows:

“On Thursday, Sept. 27, 1973 the same things occurred as I had told you in the first statement I signed earlier in the day. Everything was true up till the time I left Nini’s house with Carrie, and I said I had dropped her off at 8th & Mathews St., but, I did not drop her off at her house. When we Carrie and I got to 8th & Mathews St., she did get out of the car. Then when I started backing up, she got back into the car. And I drove to Clark Rd., and then south toward Ridge Rd. At this time, she said I could have sex with her if I gave her $50.00 now and $100.00 later. She said she needed money to buy a dress for a wedding, and a bike tire. While I was driving south on Clerk Rd., she was taking off her clothes. I then told her I would give her some money, but that I did not have any money now. Then we drove into the Ridgelawn Cemetery, and I drove back to the wooded area on the west end of the cemetery. At this time, she only had her socks and tennis shoes on. We were listening to some tapes, and she was laying with her hed in my lap. She then said she wanted $50.00 now, or she was going to tell my wife and the Police. I told her I could not get the money, and she got out of the car, and put her clothes on the hood. She started getting dressed, putting on her bra and shirt. So at this time, I got scared and backed up, and pushed the gas, and ran over her. I then backed over her, and then drove over her again, and then backed over her a second time, and then took off. I then went back to Nini’s house, and picked up Adrian and Nini, and drove around like I said in the first statement. This is the true statement of what happened.”

We consider first the admissibility of this confession.

I.

The Appellant urges error in the admission of his confession into evidence on two grounds. First, it is asserted that the Appellant was not sufficiently advised of his rights under Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Second, it is contended that police conduct in the administration of a lie detector test of the Appellant was fraudulent and coercive, rendering the confession involuntary and inadmissible.

The waiver of rights signed by the Appellant which gives rise to the first contention reads as follows:

“I, Raul Rudy SOTELO, am 18 years old. My date of birth is November 2, 1954. I live at 1125 Dallas Street, Gary, Indiana. The person to whom I give the following voluntary statement, D. Kasper, D. Longfellow having identified and made himself known as a Detective of the Lake County Police Department, DULY WARNED AND ADVISED ME, AND I KNOW:

1. Before making this statement, I was advised that I have the right to remain silent and that anything I might say, may or will be used against me in a court of law.

2. That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose.

3. That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation.

4. That in the course of any conversation, I can refuse to answer any further questions, and remain silent, thereby terminating the conversation.

5. That if I cannot hire an attorney, one will be provided for me.”

The Appellant finds error in the words “of my choice” in Section 2 and the words “may or will” in Section 1. “Of my choice” is said to create ambiguity regarding the appointment of counsel prior to interrogation since one only has a choice of counsel when he can afford it. It is thus implied that pauper counsel is not possible at that time. “May or will” is found deficient in that it should be more emphatic. It should read “can and will.”

In Jones v. State, (1969) 253 Ind. 235, 252 N.E.2d 572, this court discussed the adequacy of the wording of such ad-visements. We quoted with approval Coyote v. United States (10th Cir. 1967) 380 F.2d 305 at 308:

“Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unléarned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated impart a clear, understandable warning of all of his rights.

“It is, of course, always open to an accused to subjectively deny that he understood the precautionary warning, and advice with respect to the assistance of counsel. When the issue is raised in an admissibility hearing, i.e., see McHenry v. United States 10 Cir., 308 F.2d 700, it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning.”

An extensive hearing on the Appellant’s motion to suppress the confession was held by the trial court. Evidence, including a tape recording of the Appellant’s interrogation, revealed that the Appellant was orally advised of his rights in addition to having the waiver form presented to him. That oral advisement did not contain the language complained of in the written form. It simply said, in part, that anything said “can” be used against him in a court and that he had a right to an attorney. Testimony at the suppression hearing also revealed that prior to interrogation the Appellant was asked if he understood the waiver form he was reading. He replied that he did because he had been arrested before.

. The waiver form used by police here is not on its face ambiguous or misleading. A common sense reading does not lead to the Appellant’s conclusions of ambiguity. Moreover, evidence heard at the suppression hearing clearly established that the Appellant was not subjectively misled. There is sufficient evidence on the record to support the trial court’s conclusion that the Appellant’s confession was knowingly given.

The Appellant’s contention that his confession was involuntary revolves around his submission to a polygraph examination on the night of his confession. The Appellant told police that he wished to take a polygraph test to show he was truthful. It is contended that the administration of this test amounted to actual or psychological coercion. This court recognized the potentially coercive effects of polygraph examination in Montes v. State, (1975) 263 Ind. 390, 332 N.E.2d 786. We wrote at 792-793:

“We agree with appellants that the use of the lie detector shown here is a factor which must be weighed negatively in the determination of voluntariness. The State did not present testimony describing the conduct of the polygraph examination or explaining how the conclusions of the examiner were used in the questioning process. Without this evidence, the possibility that the State tricked appellants into confessing, by attributing qualities to the test results which did not exist, has not been dispelled. Prior to submitting to the tests, appellants claimed innocence. A short time after the testing period, both confessed.”

Unlike Montes v. State, supra, the trial court in this case was presented with a complete record of the polygraph examination. The test had been videotaped and the recording and a written transcript of it were presented to the trial court. The record reveals no flagrant misstatements to the Appellant of the test results. The complained of examiner repeated his interpretation before the trial court. An expert called to dispute that interpretation admitted that differences of professional opinion are not uncommon. The record also reveals no blatantly coercive interrogation. The Appellant was certainly coaxed into making his admissions. A reading of that interrogation, however, does not necessarily give rise to conclusions of coercion.

This court will not disturb a trial court’s ruling on the admissibility of a confession when that ruling is based on substantial evidence, even though conflicting with other evidence. Rogers v. State, (1974) 262 Ind. 315, 315 N.E.2d 707; Cooper v. State, (1974) 261 Ind. 659, 309 N.E.2d 807. As with the issue of the knowing nature of the Appellant’s waiver of his rights, the trial court was presented with ample evidence upon which it could conclude that the confession was voluntary. We can therefore find no error in the admission of the Appellant’s confession into evidence.

II.

The Appellant also contends that the verdict of the jury regarding the sanity of the Appellant was not supported by sufficient evidence. The issue of sanity is one to be determined by the trier of fact and one for which the State bears a burden of proof beyond a reasonable doubt. This court in Blake v. State, (1975) 262 Ind. 659, 323 N.E.2d 227, stated the standard of appellate review to be followed:

“We have recently reiterated that the question of insanity is a question of fact not unlike other factual issues, which are to be decided by the trier of fact. Whenever such a factual question is appealed, this Court does not weigh the evidence nor judge the credibility of witnesses. We look to the evidence on the issue most favorable to the state and the reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value to support the decision of the trier of fact, the decision will be affirmed. Dragon v. State, (1974) 262 Ind. 394, 316 N.E.2d 827; Moore v. State, (1973) 260 Ind. 154, 293 N.E.2d 28; Majors v. State, (1974) 160 Ind. App. 124, 310 N.E.2d 283.”

The Appellant presented six witnesses in support of his plea of not guilty by reason of insanity. Called by the trial court to testify were two physicians appointed to examine the Appellant pursuant to Ind. Code §35-5-2-2 (Burns 1975). These witnesses presented the evidence upon which the Appellant’s sufficiency argument is based.

Lay testimony by four witnesses — the Appellant’s mother, sister, wife, and a former school classmate — established a pattern of emotional distress following the death of the Appellant’s father when the Appellant was nine years old. The Appellant was subject to frequent outbursts of anger and a desire to be alone much of the time. The Appellant on occasions beat his mother, sister, and wife.

Two expert witnesses were also called by the Appellant to testify. The first, a psychologist, testified regarding psychological tests he administered to the Appellant. Indicated, he concluded, was a diagnosis of paranoid schizophrenia. The second expert, a psychiatrist, testified that he examined the Appellant and concluded that on September 27 the Appellant was suffering from a mental disorder which made him unable to determine the wrongfulness of his act. The disorder was diagnosed as chronic and differentiated schizophrenia. It was his opinion that the Appellant’s psychotic condition at the time of the crime also rendered him unable to conform his conduct to the requirements of the law.

The two psychiatrists appointed by the court did not go so far as to diagnose the Appellant’s precise mental disorder. It was the conclusion of each physician, however, that the Appellant was at the time of the crime, unable to conform his conduct to the requirements of the law and was therefore legally insane.

Against this evidence the jury considered other evidence of sanity on the part of the Appellant. First, as the brief of the Appellee points out, “there was considerable testimony by persons who were in the presence of the defendant immediately preceding the commission of the murder and immediately following the commission of the murder. All such testimony was that the defendant appeared cool, normal and did not appear to be acting in any manner other than normal.” While the Appellee’s brief neither points to the parts of the record where such testimony exists nor names the witnesses so testifying, our review of the record indicates that this was the case.

A second factor indicating sanity on the part of the Appellant when this crime was committed was the Appellant’s description of the crime in his confession. He simply admitted that he “got scared and backed up, and pushed the gas, and ran over her.” The witnesses called by the defense established a pattern of physical violence evidenced by beatings a,nd possible loss of memory. The jury could have determined that this crime did not fit into this established pattern.

Third, testimony by police officers revealed that on two occasions the Appellant exhibited anger without any physical violence whatsoever. The Appellant, after his first interrogation, was told he was being placed under arrest. He turned red, shouted, cursed in both English and Spanish, but exhibited no attempt at physical force. Similarly, when the Appellant’s wife was arrested for disturbing the peace by talking to the Appellant from outside a window of the jail, the Appellant became angry with no sign of physical violence.

The jury in this case chose to interpret these events as inconsistent with the Appellant’s claim of insanity. We cannot weigh the evidence, nor can we judge the credibility of the witnesses. Accordingly, we can only find that there was sufficient evidence to support the jury’s verdict.

III.

The Appellant also finds reversible error in the admission into evidence of State’s Exhibits 6 and 7, color photographs of the body of the victim at the scene of the crime. He argues that these photographs were gruesome and shocking and that there were numerous black and white photographs depicting the same subject matter available to the State.

The Appellant has failed to show prejudice resulting from the admission of the photographs. His primary rationale in support of his position — that a number of black and white photographs virtually identical to the color ones could and should have been used — is also his undoing. Several such photographs were admitted. The black and white photographs entered without objection into evidence by the State and those entered into evidence by the Appellant himself are no less gruesome than those questioned here.

Indeed, the essence of the Appellant’s argument appears to be that color photographs are more gruesome than black and white photographs. This was not the case here and certainly cannot stand as a general principle of law. Moreover, the Appellant does not contend that these photographs are not a true representation of what they portray. The fact is that a color photograph, properly processed, should be more true and accurate in its representation than a black and white photograph.

“One can hardly conceive of a more gruesome and disagreeable picture than that of a decomposed body of the victim of a homicide found lying in weeds with the skull and bones showing, as was true in Hawkins v. State, (1941) 219 Ind. 116, 37 N.E.2d 79. The same objection was made there as here, namely that its introduction inflamed the jury emotionally and prejudiced the defendant. The court analyzed the law, citing Wigmore and stated that where oral testimony is competent to describe the facts, a picture is competent to describe the same details, regardless of how gruesome, horrible and revolting the picture may be. See also: Denson v. State, (1960) 240 Ind. 324, 163 N.E.2d 749.

“The mere fact that evidence is injurious (i.e. prejudicial) to a defendant does not for such reason make it incompetent or inadmissible, if relevant. As a matter of fact, all evidence which is relevant and presented by the State or a party in a law suit is prejudicial. It is introduced for the very purpose of influencing the jury. It is only when evidence is irrelevant, regardless of its damaging (i.e. prejudicial) nature, that it becomes inadmissible.

“The fact that the details of a murder may be gory, revolting or inflammatory when presented to a jury is no grounds for excluding such evidence, as revealed by the cases cited above. No crime is a ‘tea party.’ Life is real, and the jury is entitled to all the details of the acts of a defendant relating to the crime. No defendant in a criminal case is entitled to have the revolting, inflammatory and gory details relating to the crime excluded, if evidence shows he participated in the activities and brought about such a condition. To hold otherwise would be to throw a cloak of protection about those guilty of horrible, revolting and gory acts which they themselves create.”

Meredith v. State, (1966) 247 Ind. 233 at 237-238, 214 N.E.2d 385 at 387-388. The photographs here were relevant and accurate. We can find no error in permitting the jury to see them.

The judgment of the trial court below is affirmed.

Givan, C.J., Prentice, J., concur; DeBruler, J., concurs in result with opinion; Hunter, J., concurs in result with opinion.