Petition for Writ of Certiorari — Bates v. Indiana

ee

ig

LIBRARY.

; Supreme Court, U. S.

SUPR: |: >URT, U. 8.

FILED

NOV 29 1973

no.73-851

MICHAEL ROBAK, JR.,CL

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

JAMES BATES, SR.,

Petitioner

vs.

STATE OF INDIANA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Of Counsel: Counsel for Petitioner:

Ralph R. Blume Donald D. Doxsee

Stanley A. Levine 323 West Berry Street

344 Utility Bldg. Fort Wayne, Indiana 46802

Fort Wayne, Ind. Phone:

46802 219-422-3436

November, 1973

INDEX

Opinions Below ......-«..-.

Semiegiction ...s«+e+sr-+«eee @

Question Presented . .......

Constitutional Provisions Involved

Statement of the Facts ......

Federal Question Raised in

State Cour al J . = _ — J = a e e -

Reasons for Granting Writ. ....

Dn os & « &« «© + 6 « 6 @ 6

Appendix A - Opinion of the Court

ep ee ee ee

Appendix B - Petition for

Re-Hearing. . . ‘© *

Denial of Petition for.

Re-Hearing ° . ° e ee ee e . .

Appendix C - Petition for Transfer

to Indiana Supreme Court. .. .

Denial of Petition for Transfer

Appendix D - Sentence of Trial

Court o _ . J J . . s s ~ — a 7.

Motion to Correct Errors. ...

Pb td Rica HE atte

AUTHORITIES

Cases:

Miranda v. Arizona (1966) 384 U.S.

436, 86 S. Ct. 1602, 16 L.Ed.2d 694 . 4, 5,

Se F

Orozio v. Texas (1969) 394 U.S. 324,

22 L.Bd.2a 311, 89 S. Ct. 10958 .- « §€

Shreckloth v. Bustamonte (1973)

U.S. , 36 L.Ed.2d 854, 93 S.Ct. _—«‘¢6,, 8

Constitutional Provisions:

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

Statutes:

28 U.S.C. $1257 (.3) * e * e e e o io e * 2

ii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

=

JAMES BATES, SR.,

Petitioner

VS.

STATE OF INDIANA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

The petitioner, JAMES BATES, SR.,

prays that a Writ of Certiorari issue to

review the opinion and judgment of the

Indiana Court of Appeals rendered in this

proceeding on March 28, 1973. A timely

petition for re-hearing was denied on

May 9, 1973, and a timely petition for

transfer to the Supreme Court of Indiana

was denied without opinion on September 4,

1973.

OPINIONS BELOW

The opinion of the Indiana Court of

Appeals (Appendix A, pp. A-2 to A-7) was

rendered on March 28, 1973, and is reported

in ___ Ind. App. , 294 N.E.2d 185.

The petition for re-hearing (Appendix B,

pp. B-l to B-3) was denied without opinion

(Appendix B, p. B-4) on May 9, 1973. The

petition for transfer to the Supreme Court

of Indiana (Appendix C, pp. C-1l to C-2) was

denied without opinion (Appendix C, p. C-3)

on September 4, 1973, and is not yet reported.

JURISDICTION

The order or judgment of the Indiana

Court of Appeals was rendered March 28, 1973.

A timely petition for re-hearing was filed

and denied on May 9, 1973. A timely petition

for transfer to the Supreme Court of Indiana

was filed and denied without opinion on

September 4, 1973. This petition is filed

less than 90 days from the date of the

Supreme Court of Indiana's denial of transfer.

The jurisdiction _of this Court is invoked

under 28 U.S.C. §1257(3).

QUESTION PRESENTED

The petitioner was arrested on a

warrant charging professional gambling.

Prior to the petitioner's arrest two

police officers operating undercover on

two separate occasions had conversations

with the petitioner. On neither of these

occasions was the petitioner advised of

his rights. Over the objections of

petitioner's counsel, evidence as to those

conversations was admitted into evidence.

The question presented then is whether

the investigations had focused on the

petitioner and whether the conversations

constituted a custodial interrogation

requiring that the petitioner be advised

of his rights.

. = ie * CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the following

constitutional provisions:

(1) The Fifth Amendment to the

Constitution of the United States, which

provides as follows:

"No person .. . shall be

compelled in any criminal

case to be a witness against

himself nor be deprived of

life, liberty, or property,

without due process of law... ."

(2) The Sixth Amendment to the

Constitution of the United States, which

provides as follows:

"In all criminal prosecutions,

the accused shall enjoy the

right .. . to have the

assistance of counsel for

his defense.

(3) The Fourteenth Amendment to the

Constitution of the United States, which

provides as follows:

"All persons born or naturalized

in the United States and subject

to the jurisdiction thereof, are

citizens of the United States

and of the state wherein they

reside. No state shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States nor shall any

state deprive any person of

:

ms | =e siidiaheeaaamnammain — atk emecaind

life, liberty, or ag ght

..- --. without. dne process of law: .-

nor deny to any person within

its jurisdiction the equal

protection of the laws."

STATEMENT OF THE FACTS

On March 15 and 16, 1971, Officers

Combs and Grant of the Indianapolis, Indiana,

Police Department, acting as undercover

agents for the Fort Wayne, Indiana, Police

Department, went to Jones’ Smoke Shop in

Fort Wayne, Indiana, dressed in civilian

clothes. The officers had been advised by

the Fort Wayne Police that the petitioner

was involved in selling numbers. On neither

occasion did the officers advise the

petitioner of his constitutional rights

under the Miranda decision of this Court.

The officers testified that on both

occasions they entered Jones' Smoke Shop by

the front door, walked past a counter in

the front room through a door to the back

room and observed the petitioner sitting

at a table.

Over the objection of counsel for the

petitioner, Officers Combs and Grant

testified as to the conversations they had

with the petitioner about the alleged

purchase of numbers slips and they intro-

duced into evidence the purported numbers

slips purchased during the conversations

with petitioner.

Without the evidence of the officers

as to the conversations with the petitioner

and the purported numbers purchases, there

could have been no conviction.

be RR aS Gliese s+

CNS Ete a ee ea

FEDERAL QUESTION RAISED IN STATE COURT

“@@@ae - @ «+-@ -“s @

In the Circuit Court ‘of Allen County:

At the trial of this cause the federal

question raised by this petition was raised

by objections to the direct testimony of

Officers Combs and Grant and by objections

to the admission into evidence of the

purported numbers slips purchased by

Officers Combs and Grant. The objections

to the testimony and evidence were

specifically made on the bases of the

Fifth, Sixth and Fourteenth Amendments

to the United States Constitution and by

the citation of the case of Miranda v.

Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602.

The issue was preserved on appeal by the

Motion to Correct Errors (Appendix D,

pp. D-2 to D-5).

In the Indiana Court of Appeals:

The question was preserved by the filing

of the above-mentioned Motion to Correct

Errors in the Indiana Court of Appeals and

in the arguments and briefs filed with the

Court. The petition was further preserved

in the petition for re-hearing (Appendix B,

In the Supreme Court of Indiana:

The federal question was preserved in the

petitioner's petition to the Supreme Court

of Indiana to accept transfer of the case

(Appendix C, pp. C-1l to C-2).

WREST GS EEL OGLE LAE LO PATS w : ts sa elec

REASONS FOR GRANTING WRIT

‘“* “Phie* court bélow has decideti a Federal ~

estfon of substance in a way probably not

tn accord with = ERS net ey of this

Court. The question invo s whether oral

statements of a suspect obtained from him

by undercover police officers following

interrogation but prior to his arrest, are

admissible against the suspect during his

criminal trial on the charge resulting from

the interrogation, although the accused had

not been advised of constitutional rights

to remain silent and to have the assistance

of counsel as set forth in this Court's

holdings in Miranda v. Arizona (1966) 384

U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694,

and Orozio v. Texas (1969) 394 U.S. 324,

22 L.Ed.2d. 311, 89 S. Ct. 1095, and

Schreckloth v. Bustamonte (1973) U.S.

L.Ed. 2d. 854, 93 S. Ct. al ame

The question presented concerns the

problem of undercover police officers

obtaining sought after incriminating

statements from suspects prior to their

arrest or physical custody by the police

and then using these statements against the

suspect without any effort whatsoever to

obtain from the suspect any express or

implied waiver of his right to remain silent

and to have the assistance of counsel.

It is clear and undisputed from the

State's evidence in this case that petitioner's

statements were not the result of a “general

on-the-scene questioning", but were indeed

the result of a planned and intentional

inquiry by police into the activities of this

particular suspect which was obviously

designed to obtain his arrest and conviction.

a

4

a4

_—

any CONROE ” Bae lke in

: It is also obvious from the evidence

4 that your petitioner did not speak spontaneously

‘or voluntarily rior did*he manifest-any-desire .-.

to give a confession of his acitivities in

the sale of "numbers", illegal in the State

of Indiana.

The statements obtained by the undercover

police were coerced or "tricked" out of your

petitioner by subterfuge and device and as

such cannot be considered a voluntary

confession constitutionally admissible, perhaps

even under the pre-Miranda authority of this

Court, but surely not after.

5 sci Wie aN RE ERE TERE papas anes ann SS ie aad

The Court of Appeals of Indiana in

sustaining the trial court's admission

into evidence of your petitioner's out-

of-court statements cites at length from

Miranda v. State of Arizona, supra, at

page 187 and then holds:

The above language is

Clear that "[t])he requirements

of warning and waiver imposed

by Miranda v. [State of] Arizona

(1966), 384 U.S. 436, 86 S.Ct. 1602,

16 L.Ed.2d 694, apply only to

custodial interrogation." New v

State (1970), 254 Ind. 307, at 314,

259 N.E.2d 696 at 700.

; In the instant case, there is

no evidence of "custodial interro-

gation", the freedom of Bates was

not restrained. On both March 15,

1971, and March 16, 1971, Bates

was free to sell numbers, or not

to sell numbers, to the police.

He chose the former. Miranda does

not require suppression of any of the

evidence in this cause.

—

ISD) Hoty BOORMAN Pia ate

EBS here sense

From this language it is submitted that

the only criteria used by the Indiana Court

was to determine whether there was an‘ arrest

or other physical restraint of your petitioner.

: There was no effort by the Court to consider

3 whether your petitioner's freedom of action

4 had been deprived in any significant manner

id Other than by physical control or arrest

; as such. In addition, the Indiana Court

made no effort to find or rely on any express

or implied waiver of your petitioner's

right to remain silent and to have the

assistance of counsel as required by this

Court's opinion in Schneckloth v.

Bustamonte (1973), supra.

«- ad - <

et che BESS ee

The crucial point in this petition

is that your petitioner was given no

choice to waive or not to waive his rights

and as a matter of fact was coerced by

trickery and subterfuge into making

incriminating statements and these state-

ments were used against him at his trial to

convict him. The question then is whether

this type of coercion and undercover

interrogation relieves the police of their

obligation to give suspects the "Miranda"

warnings. To maintain that his freedom

of action was not in any diminished, as

was held by the Indiana Court of Appeals,

is to deny reality. This means that

undercover police officers are free to

interrogate suspects at any time and any

place without giving the warnings, but

other officers are not. This reduces the

issues of "waiver" and "fair trial"

) simply to matter of form and ignores the

significant, substantive constitutional

rights here involved.

z ° ae =

2 AEGO S cTns

4 It is submitted that the admission

: of your petitioner's statements to under-

cover police officers into evidence over

a Eade one dt HO! to ares

the objection of counsel as being in

_. Violation of the principles set forth in

Miranda, supra, is cricial ahd prejudicial - ~~

to petitioner, in that these statements

were necessary to establish the intent

to engage in "professional gambling" which

is the crime charged and for which your

petitioner was convicted. Your petitioner's

statements to the undercover officers

were specifically cited, quoted, and

relied on in the Indiana Court of Appeals

decision below, Ind. App. , 294

N. on 2d 186, 187 Appendix A, pp. A-l to

A- .

CONCLUSION

For the foregoing reasons, this

Petition for a Writ of Certiorari should

be granted.

teeta submitted,

‘Don ot xsee

Attorney for Petitioner

November 28, 1973

STATE OF INOIANA

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

BILLIE R. McCULLOUGH, CLERK

217 STATE HOUSE

INOIANAPOLIS, INDIANA 46204

TELEPHONE 633-5200

NO. 3-972A61

James Bates Sr. V. State of Indiana

You are hereby notified that the Court of Ap-

peal has on this day issued the enclosed Opin-

ion.

Please acknowledge receipt of

this notice in order that our

records may show that you have

been notified of this action.

WITNESS my name and the seal of

said Court, this 28th day of

March, 1973.

/s/ Billie R. McCula’ough

Clerk Supreme Court and Court

of Appeals

a |

DILTON

IN THE

COURT OF APPEALS OF INDIANA

THIRD DISTRICT

JAMES BATES, SR.,

Defendant-Appellant

V. No. 3-972-A-61

STATE OF INOIANA

Plaintiff-Appellee

APPEAL FROM THE ALLEN CIRCUIT COURT

HONGRABLE JACK P. DUNTEN, SPECIAL JUDGE

HOFFMAN, CHIEF JUDGE.

The primary issue presented by this ap-

peal is whether sufficient evidence was pre-

sented to sustain the conviction of defen-

dant-appellant James Bates, Sr. for profes-

sional gambling.

Bates was charged by affidavit with the

crime of professional gambling. Trial was to

the court without the intervention of a jury.

Bates was found quilty of the crime of pro-

fessional gambling as charged in the affida-

vit, and sentenced to the Indiana State Farm

for a period of six months and fined in the

penal sum of $500. Sates filed his motion to

correct errors which was overruled by the tri-

al court and this appeal followed.

The evidence in the record before us

|

Ra Pe RSccuren tex

PPE PS EU AA SO

RE I Pe Oe EWA AB

— ELGAR BERS SOY LBS S POLI EIMe tency pane ee

most favorable to the finding of the trial

court is as follows:

On March 15, 1971, Police Officers

Richard Combs and George Grant of the Indi-

anapolis Police Department were in Fort Wayne,

Indiana, to “assist the Fort Wayne Police De-

partment in the investigation of numbers."

Between saven and eight A.M. on that morning

Officers Combs and Grant, dressed in civilian

clothes, entered the Jones Smoke Shop in Fort

Wayne. Upon entering the premises they ob-

served two people in the front and one gentle-

men in the back part of the premises. Bates

was sitting at a table in the back of the

building writing bank clearing numbers which

are numbers corresponding to the daily stock

market average.

Combs asked Bates for four numbers.

Bates said, “Hell, man, I don't know ya.”

Combs identified himself as being from Indi-

anapolis and Bates proceeded to write the

four numbers for which Combs paid two dollars.

Another man then entered the building

who said, “I'm in a hurry, I*ve gotta get my

numbers in so I can get out of here." Bates

wrote a number for this man. Bates then wrote

two numbers for Officer Grant for which Crant

paid Bates eighty cents.

On the following day, March 16, 1971, at

A-3

eS: Soren

ee eee a Dek REPRE FR SS

pon Fe

7:40 A.M. Grant and Combs again entered the

Jores Smoke Shop. Bates was sitting at the

table in the rear of the building writing

numbers. Bates wrote two numbers for Combs

for which Combs paid one dollar, and two num-

bers for Crant for which Grant paid fifty

cents.

Combs testified that the only conversa-

tion on the second day was as follows:

“I just told him that if I hit, I

want my money, and he (Bates) said

"You'll get your money.‘"

On appeal, Sates arques that his convic-

tion is not supported by sufficient evidence.

The scope of review to be applied by

this court was recently stated in Priola v.

State (1973), ___Ind. » 292 N.E. 2d 604,

at 605, as follows:

"Initially, we must again reiterate

that when we are called upon to de-

cide an appeal concerning the suffi-

ciency of the evidence of a convic-

tion we will not weigh the evidence

nor resolve questions of credibility

of witnesses, but will look to that

evidence and the reasonable infer-

ences therefrom which support the

findings of the trial court. Smith v.

State (1970), 254 Ind. 40l, 260 N.E.

8. The conviction will be af-

firmed if from that viewpoint there

is evidence of probative value from

which a jury could reasonably infer

that the appellant was guilty beyond

a reasonable doubt. Turner v. State

Rice SERA PE Aang one Si ea

OT IER oe na + * ~

o= Ss ee = 3 eR Ih meee SU

y

Fs

(1972), Ind., 287 N.E. 2d 339."

The crime of professional gambling is de-

fined in IC 1971, 35-25-1-2(3), Ind. Ann.

Stat. 8 10-2330(3) (Burns 1972 Cum. Supp.),

as follows:

"(3) ‘Professional gambling'

means accepting or offering to ac-

cept, for personal gain or profit,

money, credits, deposits of other

things of value risked in gambling,

or any claims thereon or interest

therein. Without limiting the gen-

erality of this definition, the fol-

lowing shall be included: poolsell-

ing and bookmaking; maintaining slot

machines, one-ball machines or var-

iants thereof, pinball machines

which award anything other than an

immediate and unrecorded right of

replay, roulette wheels, dice tables,

or money merchandise pushcards, punch-

boards, jars or spindlas, in any place

accessible to the public; and con-

ducting lotteries, gift enterprises,

or policy or numbers games, or sell-

ing chances therein; and the follow-

ing shall be presumed to be included:

conducting any banking or percentage

games played with cards, dice or

counters, or accepting any fixed

share of the stakes therein.”

The foreoing evidence and reasonable

inferences flowing therefrom provide a suffi-

cient probative basis from which the trial

court could: find that Bates was quilty beyond

a reasonable doubt of each element of the of-

fense charged. We will not disturb that

£ thee te a Oe. OLA Rp Soe lo ee

EP Fa RE RE CEE EE BE wreaks <r SA

oe

finding.

The second contention arqued by Bates is

that the trial court erred in admitting into

evidence certain statements made by the de-

fendant and the numbers slips obtained from

him because the police officers did not ad-

vise Bates of his rights under Miranda v.

State of Arizona (1966), 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed. 2d 694.

In Miranda, at 478-479 of 384 U.S., at

1630 of 86 S.Ct., at 726 of 16 L.Ed. 2d, it

is stated:

“To summarize, we hold that when

an individual is taken into custody

or otherwise deprived of his free-

dom by the authorities in any sig-

nificant way and is subjected to

questioning, the privilege against

self-incrimination is jeopardized.

Procedural safeguards must be enm-

ployec to protect the privilege and

unless other fully effective means

are adopted to notify the person of

his right of silence and to assure

that the exercise of the right will

be scrupulously honored, the fol-

lowing measures are required. He

must be warned prior to any ques-

tioning that he has the right to re-

main silent, that anything he says

can be used against him in a court

of law, that he has the right to the

presence of an attorney, and that if

he cannot afford an attorney one will

be appointed for him prior to any

questioning if he so desires. Op-

portunity to exercise these rights

A-6

RAGA exrscmneanenmeRveumicaeenNte:

Bes tai

must be afforded to him through-

out the interrogation. After such

warnings have been given, and such

opportunity afforded him, the in-

dividual may knowingly and intelli-

gently waive these rights and agree

to answer questions or make a state-

“4 ment. But unless and until such

4 warnings and waiver are demonstrated

by the prosecution at trial, no evi-

dence obtained as a result of in-

terrogation can be used against him.”

(Footnote omitted. )

The above language is clear that "(t)he

requirements of warning and waiver imposed by

Miranda v. (State of) Arizona (1966), 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, apply

only to custodial interrogation.” New v.

State (1970), 254 Ind. 307, at 314, 259 N.E.

2d 696, at 700.

In the instant case, there is no evi-

dence of “custodial interrogation." The

freedom of Bates was not restrained. On

both March 15, 1971 and March 16, 1971, Bates

was free to sell numbers, or not to sell num-

bers, to the police. He chose the former.

Miranda does not require suppression of any

of the evidence in this cause.

The judgment of conviction appealed from

is affirmed.

AFFIRMED.

SHARP and STATON, JJ. CONCUR.

Ae Uefa ig ey Sens tt wr . SEWN ' oem

souls a

Rita da AA EK

SENATE, it

IN THE

COURT OF APPEALS OF INDIANA

THIRO OISTRICT

JAMES BATES, SR. » NO. 3+972-A~-61

Defendant-Appellant

vs.

STATE OF INOIANA,

Plaintiff-Appellee

APPELLANT'S PETITION FOR REHEARING

The Appellant petitions the Court to

grant a rehearing in the above-entitled

cause.

The Appellant respectfully represents

that the Court erred in its opinion and de-

cision in the following respects:

1. The opinion of this Court contra-

venes a ruling precedent of the United States

Supreme Court and the Supreme Court of Indi-

ana as stated in opinions in the following

cases:

Miranda v. Arizona (1966) 384 U.S.

436, 86 S. Ct. 1602, 16 L.Ed. 2d 694

Noel v. State (1971) Ind. .

274 Nek. 20 245

Dickerson v. State (1972) Ind.

® Ad N.-. 20 845

The ruling precedent is that Miranda

warnings must be given when the individual is

first subjected to police interrogation at the

point that he is deprived of his “freedom of

B-1

action in any significant way", whether or

not such police questioning occurs while the

individual is “in custody" at the police sta-

tion or any other place or location. For the

individual's answers to be admissible in evi-

dence over Miranda objections they must have

been made “freely, voluntarily, and spontane-

ously” and not made in response to police in-

terrogation in the course of a police investi-

gation in an answer-compelling atmosphere,

whether such atmosphere is created directly or

by trick and subterfuae.

That said ruling precedent was contra-

vened by the Court in this case as shown by

the following lanquage contained in the opin-

ion of this Courts

The above language is clear that

"(t)he requirements of warning and

waiver imposed by Miranda v. (state

of) Arizona (1966) owe *

- Ct. 1602, 16 L.Ed. 2d 694, apply

only to custodial interrogation."

New v. State (1970) 254 Ind. 307,

at 314, 259 N.E. 2d 696, at 700.

In the instant case, there is no

evidence of “custodial interrogation".

A The freedom of Bates was not restrained.

d On both March 15, 1971 and March 16,

1971, Bates was free to sell numbers,

or not to sell numbers, to the po-

lice. He chose the former. Mir-

anda does not require suppression

of any of the evidence in this caugse.

BLA TR SE ee!

on 7 ti

ba at iia eaecasiaaiccs

RPT a Te Ee TR NITE EI eR EH Ee RRL

RDN Re sd a) x Sdn Me

PRE

a

344 Utility Building

Fort Wayne, Indiana 46802

219-423-3525

Attorney for Appellant-

Defendant

B-3

CLR Fee

STATE OF INOIANA

CLERK OF THE SUPREME COURT

ANDO COURT OF APPEALS

BILLIE R. McCULLOUGH, CLERK

217 STATE HOUSE

INDIANAPOLIS, INOIANA 46204

TELEPHONE 633-5200

NO. 3-972A61

James Bates, Sr. V. State of Indiana

You are hereby notifed that the Indiana Court

of Appeals has on this day Denied Appellant's

Petition for Rehearing without Opinion.

Hoffman, Jr. Co Je

Please acknowledge receipt of

this notice in order that our

records may show that you have

been notified of this action.

WITNESS my name and the seal of

said Court, this 9th day of May,

1973.

(SEAL)

{sfBillie R. McCullough

Clerk Supreme Court and

Court of Appeals

B=-4

IN THE

SUPREME COURT OF INDIANA

JAMES BATES, SR.

Defendant-Appellant

VS. NO. 3-972A61

STATE OF INOIANA

Plaintiff-Appellee

APPELLANT'S PETITION FOR TRANSFER

The Appellant petitions the Supreme

Court to transfer this cause to said Supreme

Court for review and in support of his peti-

tion states the following pursuant to Appel-

late Rule 11(8)(1) and (2):

1. The Indiana Court of Appeals

decided this case with a writ-

ten opinion filed on the 28th

day of March, 1973.

2. The decision of the Court of

Appeals was against this ap-

pellant.

3. That a petition for rehearing

was filed with the Court of

Appeals in time on April 17,

1973, and that a rehearing

was denied on the 9th day of

May, 1973.

4. That the decision of the Court

of Appeals is in error in that

it contravenes a ruling prece-

dent of this Court as stated

in the cases of Noel v. State

(1971) Ind. > 274 Nee.

2d 245, and Dickerson. ve. State

(1972 2) Ind. ° 270 N.E.

C-1

a SNE AI

oo

2d 845, in which this Court held

that the Miranda warnings must

be given when the individual is

first subjected to police inter-

rogation at the point that he

is deprived of his “freedom of

action in any significant way",

whether or not such police ques-

tioning occurs while the indivi-

dual is “in custody” at the po-

lice station or any other place

or location. In addition, to be

admissible in evidence over Mir-

anda objections the statements

and answers of those interroge-

ted must have been made “freely,

voluntarily, and spontaneously”

and not in response to police

interrogation in an answeer-

compelling atmosphere. Contrary

to these precedents the Indiana

Court of Appeals has ruled that

the requirement for Miranda warr-

ings and their waiver apply only

to “custodial interrogation”

when physical freedom of move-

ment is actually restrained by

the interrogating police officers.

s/ Ralph R. Blum

pis Re Blume

344 Utility Building

Fort Wayne, Indiana 46802

219-423-3525

Attorney for Defendant-

Appellant

C=-2

STATE OF INOIANA

CLERK OF THE SUPREME COURT

AND COURT OF APPEALS

BILLIE R. McCULLOUGH, CLERK

217 STATE HOUSE

INOIANAPOLIS, INOIANA 46204

TELEPHONE 633-5200

NO. 3-972A61

James Bates, Sr. V. State of Indiana

You are hereby notified that the Indiana Su-

preme Court has on this day Denied Appellant's

Petition to Transfer. Prentice, Acting C.J.

All Justices Concur

Please acknowledge receipt of

this notice in order that our

records may show that you have

been notified of this action-

WITNESS my name and the seal of

said Court, this 4th day of

Sept ember, 1973.

(SEAL)

S/ BILLIE R. McCULLOUGH

er upreme Court an

Court of Appeals

seiidliceieeion

mn

COURT

STATE OF INDIANA IN THE ALLEN CIRCUIT

CAUSE NO. 14654

COUNTY OF ALLEN

STATE OF INDIANA

vs.

JAMES BATES

SENTENCING

It is, therefore, ordered, adjudged and

decreed by the Court thet defendant, James

Bates, Sr-, is guilty of the offense of pro-

fessional gambling, 4s charged in the affida-

vit, that he be and he is hereby sentenced to

the Indiana State Farm for a period of six (6)

months, and that he be fined in the penel sum

of Five Hundred ($500) Dollars, and that he

pay and satisfy the costs herein taxed. (TR.

p.» Sl, 1. 18 to l- 26.)

/s/ Jack P. Ounten

The Honorable Jack P. OUNteN,

Special Judge

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STATE OF INDIANA IN THE ALLEN CIRCUIT

SS: COURT

COUNTY OF ALLEN ) CAUSE NO. 14654

STATE OF INDIANA

vs.

JAMES BATES

DEFENDANT'S MOTION TO CORRECT ERRORS

Comes now the Defendant James Bates and

files herewith the following Motion to Correct

Errors as follows:

1. The decision of the Court is not

supported by sufficient evidence upon all ne-

cessary elements of the crime of “profession-

al gambling” as charged in the Affidavit filed

herein, in thats

A. The State failed to prove beyond

@ reasonable doubt that the Defendant: |

(1) Knowingly engaged in pro-

fessional geabling;:

(2) Accepted or offered to ac-

cept money or other things

of value risked in gambling;

(3) Accepted money or other

things for a profit;

(4) Affected the public by any

activity on his part;

(S) Owned, controlled, and main-

tained gambling lotteries or

numbers games or sold chances

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therein.

B. The State failed to present evi-

dence in this case, one based solely on cir-

cumstantial evidence, which was so conclusive

in character or which pointed so surely and

unerringly to tine guilt of the Defendant that

every reasonable hypothesis of innocence was

excluded.

2. Uncorrected error of law occurred

and was properly raised in the proceedings at

the trial in thats

The Court admitted into evidence cer-

tain statements of the Defendant and slips of

paper obtained by the police officers from

the Defendant over the timely objection of the

Defendant and such evidence was obtained with-

out the police officers having first advised

the Defendant of his Constitutional rights to

remain silent and to have the assistance of

counsel, all as required by the Fifth, Sixth,

and Fourteenth Amendments of the United States

Constitution.

STATEMENT OF FACTS AND GROUNDS

l. As to the specification of error in

Paragraphs 1A and 18 above, the facts and

grounds are:

The only evidence introduced by

the State during the course of the

trial involved a single isolated

incident in which police officers

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paid the Defendant a few cents and

they obtained in return slips of

paper bearing numbers which they

had quoted to the Defendant. This

evidence is clearly not sufficient

to prove that Defendant was engaged

in professional gambling as alleged

in the Affidevit filed in this

cause; and is not so conclusive in

character nor does it so surely and

unerringly point to the quilt of the

Defendant as to exclude every rea-

sonable hypothesis of Defendant's

innocence in this pure case of cir-

cumstantial evidence.

2. As to the specification of error in

Paragraph 2 above, the facts and grounds are:

During the course of the trial of

this cause to the Court, the Court

over the timely objection of the

Defendant, admitted into evidence

certain figures written thereon by

Defendant, and other actions and

statements of Defendant, which were

induced and obtained by the police

officers acting in their official

capacity during an investigation of

Defendant by the officers at a time

when Defendant was significantly

deprived of his freedom of action

and before he had been advised of

his Constitutional rights to remain

silent and to have the assistance of

counsel; all as required by the Uni-

ted States Supreme Court in its

decision in Miranda v. Arizona (1966)

384 U.S. 436.

WHEREFORE, Defendant prays that this

Court grant Defendant's Motion to Correct

Errors and enter a dismissal of this cause of

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of action.

BLUME, WYNEKEN, LEVINE & CLIFFORD

BY: Let op ie Re Slume

p ume

344 Utility Building

Fort Wayne, Indiana 46802

Phone: 219-423-3525