
ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Kevin C. C. Wild                  Karen M. Freeman-Wilson
Indianapolis, Indiana             Attorney General of Indiana

                                        Christopher L. Lafuse
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JEROME OWENS,                           )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 49S00-0009-CR-546
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Tanya Walton Pratt, Judge
                       Cause No. 49G01-9906-CF-109366



                             September 17, 2001

SHEPARD, Chief Justice.


      Convicted murderer Jerome Owens  says  the  trial  court  should  have
excluded his  confession  because  several  hours  before  he  confessed  he
voluntarily  smoked  a  cigarette  laced  with   embalming   fluid,   animal
tranquilizer, ether and PCP.  It is an  impressive  factual  claim,  but  we
affirm.


                        Facts and Procedural History

      Owens was the primary suspect in the July 6, 1998, shooting  death  of
Linda Ferrell.  He  was  eventually  arrested  on  an  unrelated  charge  in
Louisville, Kentucky and brought to Indianapolis  for  questioning  on  June
22, 1999.  He signed an advisement of rights and a police interviewer  asked
him to describe in writing his activities  the  night  of  Ferrell’s  death.
Owens agreed and wrote a six-page account of his relationship  with  Ferrell
in which he denied any involvement in her murder.  The  interviewer  pointed
out that the statement contained almost no information about  the  night  of
the murder.  Owens then changed his story in a videotaped interview.

      Owens explained that Ferrell, a former girlfriend, had  once  promised
him money for a music recording business if he  stayed  with  her.   On  the
evening of June 22, 1998, he  was  living  with  another  woman  and  facing
eviction, and remembered Ferrell’s offer of financial support.  He  borrowed
a badly dented white Hyundai Excel that sometimes  “cut  off”  when  put  in
forward  gear,  and  went  to  visit  Ferrell.   He  took   his   25-caliber
semiautomatic handgun, which he kept cocked at all times.

      Ferrell answered the door, but blocked Owens’ entrance.   She  refused
Owens’ request for money  and  said  that  she  would  not  take  him  back.
Angered, Owens shot Ferrell once in the face, killing her.  As Ferrell  fell
backward Owens fled, backing the Excel out of the apartment complex at  high
speed.  Ferrell’s downstairs neighbor heard the gunshot and saw the  beat-up
Excel backing rapidly down the street.

      Before his trial, Owens sought to suppress  his  confession,  claiming
that he was under  the  influence  of  drugs  that  rendered  his  statement
involuntary.  He testified that about an hour and a half before  he  arrived
in Indianapolis, he voluntarily smoked  a  cigarette  laced  with  embalming
fluid, animal tranquilizer, ether and PCP acquired  from  some  unidentified
person at the Louisville jail.  The drugs did  not  affect  his  ability  to
write but slowed down his  thinking  and  actions  and  made  him  “stupid,”
“nonchalant,” and willing to say “basically  yeah  to  whatever”  for  about
five to six hours, during which time he confessed.[1]  (R. at 187, 199, 307-
08, 327.)  He offered no corroborating evidence for this story.

      The trial court denied Owens’ motion to suppress.  A jury found  Owens
guilty and the judge sentenced him to fifty-five  years  for  murder  and  a
concurrent 365 days for  unlicensed  handgun  possession.   In  this  direct
appeal, he claims that the trial court should have excluded  his  confession
because it was not voluntarily and intelligently given.[2]


                   Voluntary Intoxication and Confessions

      The  touchstone  for  admissibility  of  confessions  is  whether  the
defendant was “compelled . . . to  be  a  witness  against  himself.”   U.S.
Const.  amend.  V.   This  inquiry  focuses  on  whether  there   has   been
overreaching or misconduct by the police; there is no Fifth Amendment  right
to testify only when well advised or when it  is  in  the  defendant’s  best
interest.  See Colorado v. Connelly, 479 U.S. 157 (1986).  A confession  may
be inadmissible if the defendant was so intoxicated or  impaired  as  to  be
unconscious of what he was doing, or in  a  state  of  mania.   Luckhart  v.
State, 736 N.E.2d 227, 231 (Ind. 2000); Houchin v. State, 581  N.E.2d  1228,
1231 (Ind. 1991).  A lesser degree of intoxication goes only to  the  weight
the finder of fact  gives  to  the  confession,  not  its  admissibility.[3]
Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997)  (confession  by  defendant
claiming to have been under the influence of alcohol and marijuana  properly
admitted).  In reviewing the trial court’s  ruling,  we  consider  only  the
evidence supporting  that  decision  plus  any  unrefuted  evidence  in  the
defendant’s favor.  Houchin, 581 N.E.2d at 1231.


                            The Tale of the Tape

      The State rebutted Owens’ claim of a drug-related impairment with  his
own videotaped  statement.[4]   Throughout  his  confession,  Owens  talked,
gestured and reacted to questions at a normal pace.   (R.  at  304,  State’s
Exh. 12.)  He appeared calm but alert,  and  was  responsive  to  inquiries.
(R. at 304, State’s Exh. 12); see  Brooks,  683  N.E.2d  at  576  (defendant
appeared relaxed, alert and responsive in videotaped confession).  He  spoke
distinctly and seemed oriented to his surroundings.   (R.  at  304,  State’s
Exh. 12); see Lambert v. State, 643 N.E.2d 349,  353  (Ind.  1994)(defendant
was oriented as to time and place and did not slur his words).  He told  his
story in a logical sequence.  (R. at 304, State’s  Exh.  12);  see  Lambert,
643 N.E.2d at 353 (defendant recounted events in logical order).

      Owens also demonstrated physical coordination as  he  sipped  a  soda,
smoked several  cigarettes,  and  initialed  his  handwritten  statement  at
various places upon request.  (R. at 304, State’s  Exh.  12);  see  Houchin,
581 N.E.2d at 1232  (defendant  showed  coordination  by  ability  to  smoke
cigarettes).  He provided a number of details such as what  the  victim  was
wearing (a nightgown) and not wearing (her eyeglasses), where she stood  and
how she fell, and the nature and location of her fatal wound.  (R.  at  304,
State’s Exh. 12.)  He displayed awareness of the fix he  was  in  by  asking
the interviewer at the conclusion of his statement whether “even if I  would
have lied, you still would have known . . . ?”  (R.  at  304,  State’s  Exh.
12);  see Houchin, 581 N.E.2d at 1232 (defendant displayed awareness of  his
situation by asking about his likely sentence).

      In short, the videotape does not show that Owens was impaired at  all,
and there is no particular claim of compulsion.  The  trial  court  did  not
err in denying his motion to suppress.




                                 Conclusion


      We affirm the judgment of the trial court.




Dickson, Sullivan, Boehm, and Rucker, JJ., concur.




-----------------------
[1] Owens also claims that the drugs made him “paranoid,” which seems at
odds with his claim that they made him excessively cooperative.  (R. at
187.)
[2] In addition to claiming that he was under the influence of drugs, Owens
says his advisement of rights was stale by the time he confessed.
(Appellant’s Br. at 9.)  However, the videotape clearly shows the police
interviewer reviewing the previously signed advisement with Owens just
before Owens began telling what happened the night of the murder.  (R. at
304, State’s Exh. 12.)
   Owens also says he is “of limited intelligence and suffering from mental
health illness.”  (R. at 67; Appellant’s Br. at 9.)  He offers no
supporting evidence, so this claim is similarly unavailing.

[3] Owens chose to testify at trial, and told the jury about the tainted
cigarette.  (R. at 327-30.)
[4] The State verified that Owens was free of the influence of drugs at the
suppression hearing, to allow the trial judge to compare the “real” Owens’
demeanor to the image on the tape.  (R. at 203-04.)

