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03/22/88 KENNETH WAYNE DICKSON v. STATE INDIANA

Filed: March 22, 1988.

KENNETH WAYNE DICKSON, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM MARION COUNTY SUPERIOR COURT CRIMINAL DIVISION, ROOM V, The Honorable Roy F. Jones, Judge, Cause No. CR84-177E

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

Author: Givan

GIVAN, J.

A jury trial resulted in appellant's conviction of Robbery, a Class B felony, for which he received a sentence of twenty (20) Years; Confinement, a Class B felony, for which he received a sentence of twenty (20) years; and Murder, for which he received a sentence of forty (40) years, all sentences to run consecutively.

The facts are: On the evening of September 5, 1984, James Brussow was working as a clerk at a Super 7 Food Store at 21st and Mitthoeffer Road in Indianapolis. At approximately 9:00 p.m., Brussow noticed appellant at the magazine rack about two feet away because appellant stood at the rack for a long time. Steve Cass worked at Domino's Pizza next door to the Super 7. Brussow and Cass had become acquainted because Cass frequently visited the Super 7 and purchased items while on his break from work. Brussow asked Cass to go next door and get some change because he was running low. At that time, Leonard Dearduff entered the Super 7 and purchased some soft drinks. He spent several minutes in the store.

Cass returned and continued talking with Brussow at the cash register. At that time, appellant walked up to them and announced that he was robbing them. He told them to open the register and get on the floor. Cass said, "What?" and appellant raised a .22 caliber pistol and pointed it at Cass's head, fired the gun then pointed it at Brussow. He repeated, "Open the cash register and get on the floor." After the register was open, appellant took approximately $82.00 and walked out of the store. Cass died from the gunshot wound.

Brussow estimated that appellant was in the store for twenty minutes. He gave a detailed description of his physical characteristics. At trial, Brussow testified he was sure appellant was the man who shot Cass.

Dearduff noticed appellant when he was in the store purchasing soft drinks. Dearduff, a barber, saw the side of appellant's face and noticed his collar-length feathered hair which curled up on the end. Dearduff identified appellant as the man in the Super 7.

Kelly Hatcher testified that on the weekend of September 4, appellant and his friend Ronald Meeks unexpectedly visited her and her husband Mark, who was appellant's cousin, and they stayed for a few days. Upon their arrival, they showed Mark a .22 caliber automatic pistol. On the evening of September 5, appellant and Meeks left the apartment, which was located three blocks from the Super 7, and returned at about 1:00 a.m. At that time, Meeks rubbed a tonic on appellant's hair which turned it from brown to orange.

On September 12, 1984, appellant was in the custody of the Ft. Lauderdale Police Department. Police discovered there was a warrant for his arrest in Tennessee for the larceny of a gun, which turned out to be the murder weapon in the case at bar. They also learned he was wanted in Indianapolis in the instant case.

In Florida, appellant was interviewed by Detective Benoit. Benoit testified that appellant was given his Miranda warnings and waived his rights. Appellant then admitted that he took the gun from his father and held up the store, but that the gun went off accidentally and he did not mean to shoot anyone. Benoit said when appellant talked of the shooting he "broke down" as though he was going to cry. In a tape-recorded statement, appellant acknowledged that he had been advised of his rights then he repeated his confession.

Appellant believes reversible error was committed when the trial court admitted into evidence the Miranda rights waiver signed by him, his confession, his taped confession, and a search waiver form. Appellant contends that because he was in custody, informed by police that he was being held under a warrant in Tennessee and a suspect in a murder robbery in Indiana, and because he was only 18 at the time, he did not waive his Miranda rights voluntarily. Therefore, he believes the above-mentioned evidence should have been excluded.

The question of whether there has been a valid waiver of Miranda rights depends upon whether the defendant was advised of his rights then voluntarily chose to forego them. Upon review, we look to the totality of the circumstances and determine whether there was substantial evidence of probative value to support the trial court's finding. Patton v. State (1986), Ind., 501 N.E.2d 436.

At trial, Detective Benoit testified that he read each Miranda right to appellant and he responded that he understood each right before he signed the waiver. Benoit testified that appellant was coherent and not intoxicated at the time. In his statement to police, appellant agreed that prior to starting the statement he was advised of his rights, that he acknowledged and signed the rights waiver form, that he fully understood his rights, that he was giving the statement under his own free will, and that he had not ...


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