DOWLUT v. STATE No. 30,740.
250 Ind. 86 (1968)
235 N.E.2d 173
DOWLUT v. STATE OF INDIANA.
Supreme Court of Indiana.
Filed April 1, 1968.
Ralph W. Probst, and Probst & Probst, of Kendallville, for appellant.
John J. Dillon, Attorney General, and Murray West, Deputy Attorney General, for appellee.
This is an appeal from a conviction of murder in the second degree.
The record in this case is so voluminous, consisting of two volumes of transcript and eight briefs, that only the bare essentials necessary for consideration in this appeal can be touched upon.
Appellant, who at the time was seventeen years of age, was arrested on April 15, 1963 at the home of his parents in South Bend, Indiana. The arrest was made about 10:30 at night, without warrant, by two uniformed policemen who immediately took appellant to the police station. Appellant was interrogated by the officers concerning the murder of Anna Marie Yocum. He was not advised of his constitutional rights, was refused the right to call an attorney or consult with his father, was told to "lift his hand" and was given a paraffin test. The interrogation continued until 2:30 the morning of April 16, 1963, when he was taken to the desk and booked. He was also required to empty his pockets and was searched. He was then placed in a cell and held there until Tuesday morning, April 16, 1963, then taken to an interrogation room and questioned until about 10:00 when the police took him and two other boys to a room at Memorial Hospital where a man was lying in bed. One of the police officers asked the man in bed if he recognized any of them. Appellant was then taken back to the police station where the interrogation continued until about midnight on the 16th. He was then taken back to the lockup where he had been the night before. All during this time the only thing the police talked to him about was murder. On Wednesday, April 17, 1963, about 8:00 o'clock he was taken from the lockup to the interrogation room where he was again continually questioned about the murder of Anna Marie Yocum. During the interrogation that afternoon he was told his Dad's gun was used in the shooting and unless he confessed his Dad would go to prison or even the electric chair for something he didn't do. Appellant was scared and asked the police what they wanted.
About 7:00 a.m. on Thursday, April 18, 1963, appellant got up and was served breakfast. About 8:00 a.m. he was taken to an interrogation room where the police again attempted to get him to sign a typewritten statement. Appellant refused. About 9:30 officer Hampton and attorney William Plowdowski walked in. The attorney asked Hampton not to talk to appellant any more and asked when appellant would be arraigned. Hampton said maybe tomorrow, and the attorney asked the officer not to bring appellant into court without notifying him first. Hampton assured the attorney no more police officers would talk to appellant and he would be notified when appellant would be brought into court. Appellant talked to his attorney about fifteen minutes, and the attorney then left. Then a police officer, not in uniform, came in and for about an hour tried to get appellant to sign a statement. At about 11:00 he was taken to city court. Appellant asked the police officer if his attorney had been notified, and he said they were not required to run errands for lawyers. The attorney
On April 24, 1963, the indictment on which appellant was tried was returned. Said indictment reads as follows:
Upon the return of the above indictment a warrant for the arrest of appellant was issued and served upon appellant.
Appellant indicated he desired to file a Motion to Suppress Evidence. The court fixed September 21, 1964, at 9:30 a.m. as the time for filing and hearing thereon; and, the cause being at issue, the court set the same for trial, by jury,
Thereafter on the 30th day of September, 1964, the trial court filed its written opinion, and judgment on the Motion to Suppress. A portion thereof, considered to be essential in this appeal, reads as follows, to-wit:
"The defendant has filed herein his motion to suppress evidence, seeking to suppress before trial:
1. All written or oral admissions, confessions, or writings made or alleged to have been made by the defendant.
2. A Webley revolver, together with ballistics tests, bullets, and empty shell casings, if any.
3. Paraffin tests results, if any...."
It is therefore ordered by the court that all confessions or admissions by the defendant made to the police from the time when he accompanied the police from his home at approximately ten P.M. on April 15, 1963, until he appeared before the City Court of the City of South Bend, Indiana, on April 18, 1963, be and they hereby are suppressed, and it is hereby ordered that no reference thereto be made during the course of the trial of this cause.
It is further ordered that in all other respects defendant's motion to suppress evidence is hereby denied."
The verdict of the jury reads as follows:
Appellant's Motion for a New Trial encompasses some twenty-six (26) pages of record and contains twenty-five main grounds, some of which are broken down into subsections and cover the waterfront from objections and exceptions to rulings on pleadings, sustaining and overruling motions, objections to questions, motions to strike the answers, motions to withdraw the submission from the jury and for mistrial, error on the part of the court in overruling the Plea in Abatement, in the overruling of the motion to quash, in refusing to permit defendant a hearing on Supplemental Plea in Abatement, in overruling that portion of the defendant's Motion to Suppress Evidence relative to the Webley revolver and related subjects. Let it suffice to say that the writer hereof,
Appellant's Assignment of Errors reads as follows:
In view of the determination we are compelled to make in this case we deem it unnecessary to discuss any of the issues raised by appellant other than those concerning the trial court's ruling on appellant's motion to suppress evidence. The court properly sustained the motion in so far as it concerned the induced confession. But the court erroneously denied that portion of the motion which sought to suppress all information and testimony relating to the gun, bullets and paraffin tests. The record clearly shows that all of the evidence appellant sought to have suppressed was obtained as a result of an unlawful incarceration. Since the confession was suppressed because of the unlawful methods used to obtain it, the evidence which is inextricably bound to such confession should also have been suppressed as the "poisoned fruit" thereof. The "poisoned fruit" could have been admitted into evidence only if it was shown that it was discovered by some means independent of the illegal confessions. Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570.
The record is void of any independent evidence; therefore, the trial court's repeated refusal to suppress the gun, bullets and paraffin tests constituted reversible error.
Judgment is reversed and the cause is remanded with instructions to grant appellant's Motion for a New Trial.
NOTE. — Reported in 235 N.E.2d 173.
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