Villanueva v. State

Hoffman, J.

Villanueva was convicted of first-degree burglary in a jury trial. He now appeals, claiming that the court below erred when it failed to suppress his confession, when it instructed the jury regarding the voluntariness of his confession, and when it failed to sua sponte declare a mistrial. He also argues that the evidence was insufficient to support his conviction.

I.

In reviewing a trial court’s determination of the voluntariness of a confession, this Court looks to the totality of the circumstances. In so doing, it may not weigh the evidence, but must consider the evidence which supports the decision of the trier of fact where the evidence is in conflict, along with any uncontested evidence presented by the appellant.

Ortiz v. State (1976), 265 Ind. 549, at 553, 356 N.E.2d 118, at 1191;

Magley v. State (1975), 263 Ind. 618, at 628, 335 N.E.2d 811, at 818.

In the case at bar it was undisputed that Villanueva was a heroin addict with a $100-a-day habit and that he had been incarcerated on another charge for about three days at the time he gave his statement. It was also undisputed that Villanueva was nervous and pale, and that he had watery eyes —all of which are symptoms of drug withdrawal. Villanueva’s own testimony was that he could recall nothing of the time during which his statement was given.

However, there was also uncontradicted evidence that Villanueva was both alert and understandable. He repeatedly asked what penalty was imposed for burglary, thereby showing that he fully comprehended his situation. Sergeant DeHaven, who took Villanueva’s statement, testified that he twice explained Villanueva’s rights to him and that he fully explained a waiver of rights form to him. Villanueva then signed the waiver and agreed to give a statement. Before giving the statement, however, Villanueva accompanied police officers while they drove through a section of Merrillville as he pointed out the exact locations of a number of other burglaries he had committed. During this trip he vomited once in the police vehicle. Upon returning to the Gary police station, Villanueva gave a written statement to police. In it he described in detail his actions relating to the burglary for which he stands convicted. When DeHaven presented him with a typewritten copy of the statement, he signed it in a clear, legible hand, making no corrections. At no time did Villanueva ask DeHaven or the other officers present for either medical care or drugs.

By pointing out the specific locations of the prior burglaries, Villanueva demonstrated that his memory was unimpaired at the time he gave his statement, even though he later claimed he could remember nothing but his illness. His signatures on the waiver of rights form and on the statement itself were the products of a steady hand.' Further, his testimony that he was continuously vomiting and was otherwise experiencing serious physical discomfort was directly contradicted by the interrogating officers’ testimony that he vomited only once and that he at no time requested a doctor’s aid.

This evidence was sufficient to support the finding below that Villanueva’s waiver and statement were voluntary beyond a reasonable doubt.

Magley v. State, supra;

Ortiz v. State, supra.

Therefore, no error was committed by admitting the confession.¹

II.

In its final instructions, the trial court instructed the jury that the voluntariness of Villanueva’s confession must be proved by a preponderance of the evidence before that confession could be considered. Villanueva asserts, correctly, that this instruction was an erroneous statement of the law of this jurisdiction. Voluntariness of a confession must be proved beyond a reasonable doubt.

Magley v. State, supra;

Ortiz v. State, supra.

The record shows that Villanueva tendered three jury instructions on the standard of proof of voluntariness. One of those instructions was modified (in a manner undisclosed by the record) and given by the court though it contained the incorrect statement noted above. Villanueva, however, did not object to the giving of this instruction, thereby failing to preserve that error for review. Ind. Rules of Procedure, Trial Rule 51(C). As this Court has previously held in Grimes v. State (1976), 170 Ind.App. 525, at 533, 353 N.E.2d 500, at 508:

“A defendant may not stand idly by while the trial court makes an error in instructing the jury and then claim, on appeal, that because of this error he is entitled to a new trial.”

Even if Villanueva had properly preserved this error for review, a reversal would not be proper in this case. Where, as here, a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise, errors in the giving or refusing of instructions are harmless and will not be considered on appeal. Pinkerton v. State (1972), 258 Ind. 610, at 622, 283 N.E.2d 376, at 382.

III.

At the trial Officer DeHaven was questioned about the events which occurred prior to the time of Villanueva’s confession. DeHaven stated that Villanueva had, while riding through Merrillville with police, pointed out eleven other residences which he had burglarized. To this testimony Villanueva objected, and the trial court admonished the jury to disregard the reference to other burglaries.

Villanueva now argues that the court should, sua sponte, have declared a mistrial after this incident. Such an argument has no merit; for even if Villanueva had affirmatively sought relief by moving for a mistrial, this Court could not hold the denial of the motion to be reversible error in this case. The decision to grant or deny such a motion is in the sound discretion of the trial court and is reviewable only for abuse thereof. Where, as here, a jury is admonished to disregard improper matter, or if other reasonable curative measures are taken, no reversible error will be found. Ballard v. State (1974), 262 Ind. 482, at 489, 318 N.E.2d 798, at 803.

IV.

Villanueva asserts that his conviction was not supported by sufficient evidence. The sole basis for this argument is his claim that his confession was involuntarily given and therefore inadmissible. Without that confession, he argues, the remaining evidence is insufficient to support a finding of guilt.

As the confession was admissible for the reasons stated above, Villanueva’s conviction was indeed supported by sufficient evidence. Since Villanueva, in his confession, admitted each of the acts charged, there was ample evidence to support a finding beyond a reasonable doubt that he broke and entered the Oskins’ residence with intent to commit a felony therein.

For the foregoing reasons, the judgment below is affirmed.

Affirmed.

Lowdermilk, J., participating by designation, concurs.

Staton, J. dissents with opinion.

1 . This Court notes, as did the trial court, that Villanueva’s response to questioning at the hearing on the motion to suppress indicated a level of comprehension clearly sufficient to permit a knowing and voluntary waiver of the right to remain silent. Villanueva’s assertion that his foreign background and low level of intelligence severely limited his understanding is belied by the record of his conduct in open court.