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Filed: February 14, 1978.


Defendant-Appellant takes this appeal from his conviction of First Degree Murder and Murder in Commission of a Felony. From the Vigo Superior Court, Division III, William H. Miller, Special Judge.

Givan, C.j. Hunter and Pivarnik, JJ., concur; DeBruler, J., concurs in result with opinion in which Prentice, J., concurs.

Author: Givan

Appellant was convicted of first degree murder and murder in the commission of a felony. The record discloses the following: In the course of investigation, appellant, a 15 year old boy, was taken to the police station for questioning. His parents were summoned and were with him for the questioning. Both he and his parents consented to the taking of his statement. Later, while in jail awaiting trial, appellant, in return for an offer from fellow prisoners to give him cigarettes, wrote out two statements regarding his involvement in the murder and gave them to the fellow prisoners. One of the statements was turned over to the prosecutor; the other was found in a jail cell by a police officer.

The statement taken by the police in the presence of appellant's parents and the two notes written at the jail were introduced into evidence at trial over objection by defense counsel.

Appellant first contends the statement taken by police was inadmissible because the requirements of Lewis v. State, (1972) 259 Ind. 431, 288 N.E.2d 138, were not met. This Court held in Lewis that a juvenile's statement or confession cannot be used against him unless he and his parents are informed of his constitutional rights and are given an opportunity for consultation prior to the questioning. In Hall v. State, (1976) 264 Ind. 448, 346 N.E.2d 584, this Court held that the record must demonstrate that there was a meaningful opportunity for the juvenile and his parents to counsel together. In the case at bar the statement shows that both appellant and his parents were informed of his constitutional rights as required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. These rights subsequently were waived by appellant and his parents. Furthermore, appellant's father testified that appellant and his parents were alone in the room prior to the questioning and that they discussed the case. Clearly the record satisfies the requirements of the Hall and Lewis holdings.

Appellant also argues that neither he nor his parents were formally advised that he was a suspect in the homicide; consequently, that his statement cannot be used against him. IC 1971, 35-5-5-2 provides that in determining the voluntariness of a confession the trial Judge shall consider "all the circumstances surrounding the giving of the confession," including inter alia, "whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of the making of the confession." The statute further provides that the "presence or absence of any of the above-mentioned factors to be taken into consideration by the Judge need not be conclusive on the issue of voluntariness of the confession." On appeal this Court will review the trial court's determination of voluntariness with regard to the "totality of the circumstances," and will consider only the evidence most favorable to the State. Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811. In the case at bar the murder occurred next door to appellant's home. A detective had informed appellant's father the day before that he was investigating the homicide. Appellant's mother was present the morning when appellant was first questioned about the murder. Thus there is sufficient evidence that appellant and his parents were aware that he was a suspect in the homicide. Sanders v. State, (1972) 259 Ind. 43, 284 N.E.2d 751. The trial court did not err in admitting the statement taken by the police officers into evidence.

Appellant next claims the two statements which appellant wrote out for fellow prisoners in the jail were inadmissible because they were given under duress. This Court recognizes the validity of the rule excluding confessions given under threats or coercion. Johnson v. State, (1968) 250 Ind. 283, 235 N.E.2d 688; IC 1971, 35-1-31-5. Nevertheless, this Court has previously held that the exclusionary rule does not apply to situations where private citizens gather evidence apart from police activity, even if the information was procured by chicanery. McFarland v. State, (1975)

263 Ind. 657, 336 N.E.2d 824; Trinkle v. State, (1972) 259 Ind. 114, 284 N.E.2d 816; Luckett v. State, (1973) 158 Ind. App. 571, 303 N.E.2d 670.

In Leaver v. State, (1968) 250 Ind. 523, 237 N.E.2d 368, the defendant had written a note to another inmate while awaiting trial. The note contained, among other things, the statement, "I am guilty." This Court held that the writing was admissible. The case of U.S. ex rel. Milani v. Pate, (7th Cir. 1970) 425 F.2d 6, cert. denied 400 U.S. 867, provides an apt analysis. In that case a prisoner several times reported to the FBI incriminating statements made by the defendant. In holding the statements admissible, the Court stated:

"The only role the police played was that of a passive receiver of information relayed to them by an informer working entirely independent of the police." 425 F.2d at p. 8.

The Court further observed that "while the recapitulation of a damaging confession might amount to a betrayal of an ostensible friendship, we know of no rule of evidence which is thereby violated." On the basis of the above authorities we hold that the notes written by the appellant at the urging of his fellow inmates were admissible into evidence.

With respect to the note found on the floor of the jail cell by a police officer, appellant makes the further argument that the reading of this note by the policeman was improper under Procunier v. Martinez, (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224. However the Procunier case was concerned solely with the censoring of incoming and outgoing mail and did not address the question of communications between prisoners. We see no need to restrict the operation of jails and prisons by condoning a rule such as that urged by appellant. Moreover, this was not censorship or regulation of mail before a prisoner received it. This note was found in a jail cell after it was received and read. We therefore hold this note was properly admitted into evidence.

Finally appellant contends the trial court was incorrect in sentencing him to two terms of life imprisonment for the same homicide. Under the holding of Holland v. State, (1976) 265 Ind. 216, 352 N.E.2d 752, his contention is correct. Accordingly the cause is remanded to the trial court with instructions to vacate one of the two life ...

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