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02/23/88 PERRY J. MCFARLAND v. STATE INDIANA

Filed: February 23, 1988.

PERRY J. MCFARLAND, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



Appeal from the Vanderburgh Circuit Court, The Honorable Robert S. Matthews, Judge, Cause No. 4781

Pivarnik, J., Shepard, C.j., DeBruler, Givan, Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Perry McFarland was tried before a jury and convicted of Robbery, a class B felony. He was sentenced to fifteen (15) years to the Indiana Department of Corrections, and all but six (6) years was suspended to probation. McFarland was also required to make restitution while on probation. His Motion to Correct Errors was denied and he appeals directly to this court.

McFarland presents two issues on appeal:

1. trial court error in overruling his Motion to Suppress and admitting his statements to interrogating police officers; and

2. trial court error in refusing to instruct the jury on the crimes of Robbery as a class C felony, Theft, Intimidation, and Conversion.

The facts most favorable to the verdict show that on March 10, 1985, the Save Cash Store at Weinbach and Covert avenues in Vanderburgh County, Indiana was robbed at gunpoint by a black male at approximately 2:00 a.m. Jeanine Wilson, the cashier, was the only person in the store at that time. Earlier in the day, McFarland entered the store with another person, and an acquaintance of Wilson's pointed McFarland out to her as being someone with whom her brother had fought. Wilson recognized the male who robbed the store as McFarland. Initially she described the assailant to police, but two days later gave them McFarland's name.

On March 11, 1985, police officers arrested McFarland at his home, gave him his Miranda warnings and brought him to the Evansville Police Department and Vanderburgh County Jail. Officers questioned McFarland three times. He signed three waiver of rights forms and in the first two interrogations denied any involvement in either this robbery at the Save Cash Store or a robbery at a Pantry Store in Evansville. The Pantry Store robbery occurred on the same night as the Save Cash Store robbery, about two (2) hours earlier. McFarland was questioned on both robberies. At the third interrogation, McFarland stated he did not rob the Save Cash Store but "maybe" he robbed the Pantry Store. McFarland was charged with four robberies but on his motion for severance, he was tried here for robbery of the Save Cash Store and attempted robbery of the Pantry Store. The jury acquitted McFarland of the Pantry Store charge.

I

The first issue presented for our review is whether the trial court erred in admitting McFarland's statements into evidence. McFarland contends his Fifth and Sixth Amendment rights were violated because he was not allowed, after three requests, to be brought to the jail without answering questions, and that he was coerced into making the statements to police.

After he was first brought to Police Headquarters, McFarland was placed in the interrogation room where he was questioned by Officer McDaniels and Officer Cook. There is evidence that Officer McDaniels pulled up McFarland's shirt sleeve and asked whether he was on drugs. After about thirty minutes, McFarland was booked and given jail clothes and then brought down for more questioning. Eventually Officer Mattingly spoke to McFarland alone, and it was during this time McFarland told Mattingly he "maybe" robbed the Pantry Store, but gave the impression he did not rob the Save Cash Store. McDaniels, Cook, and Mattingly all testified, contrary to McFarland's testimony, that McFarland never indicated he did not want to answer questions, and never asked to be brought to the jail.

When a defendant challenges the validity of a confession, the State carries a heavy burden to demonstrate at the trial level that the defendant knowingly, voluntarily, and intelligently waived his right to remain silent and to consult with counsel. Kizer v. State (1979), 271 Ind. 277, 392 N.E.2d 466, 469; Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The signing of a waiver form, however, does not conclusively show a valid waiver. Dickerson v. State (1972), 257 Ind. 562, 276 N.E.2d 845. The question is whether, looking at all the circumstances, the confession was made freely and voluntarily and was not induced by any threats or improper influences. Kizer, 392 N.E.2d at 469. McFarland denied the Save Cash robbery but admitted the Pantry robbery. The jury acquitted him of the latter charge.

In determining admissibility, the United States Supreme Court has stated: "A waiver is ordinarily an intentional relinquishment of a known right or privilege. The determination as to whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461. The trial court must take into account the "totality of the circumstances" in determining whether a defendant makes a knowing and intelligent waiver of his Fifth Amendment right against self-incrimination. Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. McFarland was arrested, given numerous Miranda warnings, and three times signed a waiver form. He indicated to the arresting officers he understood his rights. Although McFarland contends he asked several times to be brought up to the jail, three testifying officers stated he at no time made such a request. They also stated ...


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