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10/14/87 JERRY S. ZOOK v. STATE INDIANA

Filed: October 14, 1987.

JERRY S. ZOOK, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM MONROE SUPERIOR COURT III. The Honorable John G. Baker, Judge. No. CF841-027D.

Dickson, J., Shepard, C.j., and DeBRULER, Givan and Pivarnik, JJ., concur

Author: Dickson

DICKSON, J.

Defendant Jerry S. Zook was convicted of murder and arson following a fire at the Zeta Beta Tau fraternity house at Indiana University. In this direct appeal, defendant enumerates three issues:

1. whether defendant's pre-confession comment constituted a request for counsel prohibiting further interrogation,

2. whether defendant's confessions should have been suppressed due to an absence of probable cause for arrest,

3. sufficiency of evidence apart from the confessions.

We affirm the convictions.

The fire was first reported during the early morning hours on Sunday, October 21, 1984. Immediately following the fire, the Indiana University Police Department, the Monroe County Prosecutor, the Office of the Indiana State Fire Marshal, and the Bloomington

Fire Department began an extensive investigation. Approximately 60 persons were interviewed in the course of the day. By late evening, the investigators' only suspect was defendant, a 23-year-old Indianapolis resident who had traveled to Bloomington to visit friends that weekend. Deputy State Fire Marshal Ron Taylor telephoned defendant at approximately 11:00 p.m. on Sunday, October 21, 1984, and requested defendant to talk with him yet that night. In response, defendant voluntarily traveled to Bloomington from his home in Indianapolis accompanied by his sister, her boyfriend, and her roommate. They arrived at the Indiana University Police Department at approximately midnight and were greeted by Taylor. Defendant then voluntarily accompanied Taylor to a police interview room while his sister and companions remained in a waiting area apart from the interview room. Present in the interview room with the defendant were Taylor and Chief Deputy Investigator James Skaggs of the State Fire Marshal's office. The interview was observed through a clearly visible television camera which made a videotape recording of the ensuing events.

At the commencement of the interview, the investigators provided and read a standard advisement of rights. Defendant was informed of his right to remain silent and told that if he decided to answer questions without a lawyer present he would "still have the right to stop answering at any time. At 12:25 a.m., defendant signed a written waiver of rights which provided:

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Thereafter, the investigators began to question the defendant regarding the events of the day. While thorough, the questioning was polite, considerate, and not aggressive. When the interview began to focus on defendant's presence at the fraternity house near the time of the fire, he asked, "Am I under arrest now?" Skaggs replied that he was not.

In further questioning Skaggs and Taylor expressed sympathy with defendant's difficulties the day before. They told him that it was "best to get it out," and "don't keep it bottled up inside you." Defendant then replied that "I don't want to go to prison." In response, Skaggs stated "it is hard to confront, isn't it?" Defendant repeated "I don't want to go to prison." Further questioning ensued in which defendant explained that his presence at the fraternity house was because he wanted to go back and get his wallet. Then the following colloquy occurred:

Taylor: Let's do this, Jerry. Let's start out- -

Zook: I just--you know--I just...

Taylor: O.K., take a deep breath, okay. It'll help us out a little bit. ...


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