Judges： Walker, Galbreath, Oliver
Filed Date： 10/2/1969
Status： Precedential
Modified Date： 11/15/2024
OPINION
From his conviction of first degree murder of Phyllis Seibers and sentence to 99 years in the penitentiary, the defendant below, Edward Joseph McGee, appeals to this court.
On December 18, 1966, Phyllis Seibers, age eight, and her cousin, Deborah Ray, age nine, went to the Shelby-ville city dump to play. They were there sexually
When the girls failed to return home, a large search party attempted to find them. The defendant had been seen in the dump at about the time of their disappearance and he participated in the search. The officers asked him a number of questions about the girls’ disappearance before he became a suspect. One of their interviews took place at the city jail. Later he was given warnings and interrogated at the city hall for a rather lengthly period, in which his answers were exculpatory. He says he volunteered to be interrogated at these times and also volunteered to take a polygraph test. He does not object to these interrogations or the taking of the test.
The principal question before us is the admission of his confession on January 24, 1967, to which he does object.
At the time of this incident, the defendant had been convicted of burglary and the question of a suspended sentence was before the court. For reasons not connected with this casé, the trial judge declined to suspend the sentence and committed him to the penitentiary on the burglary conviction.
At his own request in the penitentiary, he was transferred to the maximum security unit. He says some prisoners were unfriendly to him because of the charges against him about the girls.
On January 24, 1967, T.B.I. agents Shelton and Coleman interrogated him in the penitentiary. Both testify
At this hearing, the trial judge held that he had been properly warned and had waived his constitutional rights and further that the confession was not coerced and was voluntary.
There is a direct conflict between the testimony of the defendant and the officers which raises questions of fact as to whether the defendant was warned and waived his rights and whether or not his confession was voluntary. The trial court determined these questions in favor of the State. On review we will not disturb such determination unless against the preponderance of the evidence.
The defendant contends that he could not silently waive his rights. The proof shows that he affirmatively answered by nodding his head and replying, “Yes,” when asked if he wanted to talk. He says he must expressly reject counsel to waive his right.
Once a defendant has been informed of his rights and indicates that he understands those rights, his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them. Of course, the attendant facts must show clearly and convincingly that he did relinquish his constitutional rights knowingly, intelligently and voluntarily, but a statement by the defendant to that effect is
He contends that his confession was coerced. The defendant, age nineteen, has had emotional problems, some connected with sex, and had attended an institution for problem children in Kentucky. He had also been twice confined in Central State Hospital. He was sane at the tune of this occurrence. Although he has only a third grade education, his testimony does not show any lack of intelligence.
In this interrogation, Agent Shelton told him that the polygraph test and the tests of the clothing showed he had been untruthful. Shelton mentioned no specific test of clothing. He was confronted with inconsistencies in his previous interrogations. The officers led him to believe that they knew he was guilty without his confession. Shelton asked him about his belief in God, but this did not amount to coercion.
The defendant says that Shelton threatened him with a club and belt which he took from a drawer; that he told him the he detector proved his guilt and that his clothes showed blood and that a rock had his fingerprints. He says that the officers put words in his mouth. He admits telling that he beat the girls with a rock and threw them in the creek but he steadfastly denied any sexual molestation of them.
In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684, the accused was falsely told that his co-defendant had confessed, after which the accused made a full confession. Holding the confession admissible, the court held:
“* * * The fact that the police, misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary . confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’ # * * ”
In People v. Robinson, 31 A.D.2d 724, 297 N.Y.S.2d 82 (1968), the police deceived the defendant by showing him a false confession of another suspect. The court held that this did not invalidate his subsequent confession.
The defendant further says that the confession was obtained by confronting him with clothing obtained in an illegal search of the defendant’s room. The trial judge held the articles obtained inadmissible and they were not presented to the jury. The State excepted to this ruling.
The defendant lived as a member of the family of Mr. and Mrs. William Harold Farrar, to whom he was not related. At the request of the officers, without a search warrant, Mrs. Farrar permitted them to take some of
Persons having equal rights to use or occupation of the premises may consent to a search of them and such search will be binding upon the co-occupants. See Lester v. State, 216 Tenn. 615, 393 S.W.2d 288. A joint user has authority to consent to a search. See Frazier v. Cupp, supra. We think that the clothing was not obtained by an illegal search.
All assignments on the admissibility of the confession are overruled.
The defendant says that the court erred in refusing his motion to withdraw his not guilty plea and permit him to file a plea in abatement alleging that the indictment was based on an illegal confession and an unlawful search.
On a motion to quash or a plea in abatement, the court will not review the character of the evidence on which the indictment was found. 42 C.J.S. Indictments and Informations § 209. The general rule is that the law does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury to determine whether it was in whole or in part competent and legal. 41 Am.Jur.2d, Indictments and Informations, Sec. 232. See also 38 C.J.S. Grand Juries § 42.
Moreover, we have now held admissible on trial the evidence to which the defendant objects.
Finally, the defendant says that the trial judge should have declared a mistrial because of an emotional out
The trial court said, at page 523 of the bill of exceptions:
“Before I let you go, I want to state to you that just before the noon recess, we had an occurrence in the Court room, where a member of the audience made some statements in your presence. I’m instructing you to completely disregard anything that the spectator may have said, or you may have heard said — just put that from your mind. It has absolutely no evidentiary value in this case at all. Just disregard it completely.”
We think the court was referring to the outburst, about which the defendant complains. In any event, he let the jury know they were not to be influenced by any actions of the spectators. He further emphasized in his instructions that the jury should have no sympathy or prejudice or allow anything but the law and the evidence to influence their verdict. This assignment is, liksewise, overruled.
We find that the verdict of guilty was fully justified by the evidence and that there were no errors on the trial warranting a reversal of the judgment of conviction.
The judgment is affirmed.
This case was heard and submitted to the Court prior to the enactment of Chapter 330 of the Public Acts of 1969 increasing the membership of the Court.