Melvin D. Dixon - Police Officer - Motion to Suppress

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Melvin D. Dixon - Police Officer - Motion to Suppress

Postby admin » October 31st, 2010, 7:21 pm

MOTION TO SUPPRESS AND REJECT EVIDENCE, HELD OUT OF THE PRESENCE OF THE JURY

MELVIN D. DIXON , a witness called on behalf of the defense, in a Hearing to Suppress Evidence,
held out of the presence of the jury, being duly sworn by the Court, testified as follows:

DIRECT EXAMINATION (OUT OF THE PRESENCE OF THE JURY)
QUESTIONS BY MR. WILLIAM ERBECKER, ATTORNEY FOR DEFENDANT,
GERTRUDE BANISZEWSKI

Q. State your name, sir?

A. Melvin D. Dixon.

Q. Police Officer for the City of Indianapolis?

A. Yes.

Q. Were you such October 26, 1965?

A. Yes, sir.

Q. On that occasion were you on duty?

A. I was, sir.

Q. And in what capacity, motorcycle?

A. District car.

Q. Number what?

A. Boy 7.

Q. That would be assigned what neighborhood?

A. That is the east section that runs from Sherman Drive east to Ritter and from 10th Street north to the first tracks south of Washington.

Q. On that occasion, did you have occasion to talk to Gertrude Baniszewski, alias Gertrude Wright?

A. Yes, sir, I did.

Q. When and where?

A. October 26, 1965, at 6:27 I was radioed to 3850 East New York.

Q. Were you alone at the time?

A. Yes, sir.

Q. Did you go to 3850 East New York?

A. Yes, sir.

Q. When you arrived there, were there any other police officers there?

A. I believe somebody. I don't know who was there before I arrived.

Q. Who was that?

A. I don't have any idea, sir.

Q. Did you talk to him?

A. No, sir.

Q. Did you talk to Gertrude Baniszewski at that time?

A. Yes, sir.

Q. Were you the first police officer to talk to her, if you know?

A. I could not be certain of that.

Q. Where did you talk to her?

A. At 3850 East New York, in the house.

Q. At that time did you have a warrant for her arrest?

A. No, sir.

Q. At that time you were merely answering a routine call over your radio, right?

A. That is right, sir.

Q. To go to that house?

A. That is right.

Q. You did not know of your own knowledge, you did not know what the nature of the call was?

A. I received a radio run there, sir, to investigate - a girl may be dead.

Q. You went there?

A. Yes, sir.

Q. And when you talked to Gertrude Baniszewski was there anybody with her?

A. There were several children in the house.

Q. Do you know their names?

A. Not to be certain, sir.

Q. Did you make notes and records at that time you had conversation with her?

A. I did, sir.

Q. Have you got them with you?

A. Yes, sir.

Q. Is it necessary you refresh your recollection to remember what transpired without looking at your notes?

A. No, sir, there is no necessity.

MR. ERBECKER: I would like, Your Honor, to see those notes so I can check them as he testifies.

THE COURT: Why don't you ask him.

Q. May I have your notes?

A. You are welcome.

Q. This is the only memorandum, notes, statements that you took at the time this conversation or interrogation took place?

A. That is all I have taken from my investigation.

Q. No other notebook?

A. I have a notebook.

Q. Do you have that with you?

A. Yes, sir.

Q. Does it enlarge upon this?

A. No, it is approximately the same.

Q. Now, at the time you talked to Gertrude Baniszewski, did you effectively warn her of her right to remain silent, and of her right to counsel?

MR. NEW: We object.

THE COURT: Overruled.

A. No, sir.

Q. You did not, and did you tell her that she had a right to remain silent and say nothing, if she wished?

A. No, sir.

Q. And did you question her with reference to some girl, somebody that was in her house, concerning which you had a report she might be dead, did you?

A. Did I talk to her about it?

Q. Yes, sir.

A. Of the circumstances?

MR. ERBECKER: Read the question.

THE COURT: There are to many. Restate it. First, did you question and did you talk. Restate it.

MR. ERBECKER: I will withdraw the question.

Q. Did you talk to Gertrude Baniszewski concerning your reason for going there, did you?

A. I certainly did.

Q. You interrogated her about somebody who was supposed to be dead there at the house?

A. I questioned her.

Q. How long did you question her?

A. Long enough to get the name of the girl and her age.

Q. Pardon?

A. The name of the girl and her age.

Q. What else did you ask her about?

A. I asked her what time the girl got home, after she stated she just came in the house.

Q. What else?

A. She handed me a note. I read the note.

Q. Gertrude Baniszewski handed you a note and you read it?

A. Right.

Q. What else did you talk to her about?

A. There was quite a few questions I asked.

Q. In general what did you ask her about?

A. I, of course, asked her how the girl happened to be in this house, her name being different from hers, and she told me -

Q. Told you what?

A. That the girl's name was Sylvia Marie Likens.

Q. Yes, now to refresh your recollection, will you read some of your notes?

A. Would you care for me to read out loud?

Q. No. Did you refresh your recollection?

A. Alright.

Q. Have you - now without reading the notes, after having refreshed your recollection, what else did you ask Mrs. Baniszewski?

A. I asked her what time the girl came in the house that evening.

Q. Did she answer you?

A. Yes, she did.

Q. What did she say?

A. Approximately 5:30.

Q. That evening?

A. That evening.

Q. What else did you ask Mrs. Baniszewski?

A. There were quite a few different words, I asked who was in the house at the time the girl came in.

Q. You what?

A. I asked who was in the house at the time the girl came in.

Q. Now, did you - did Gertrude Baniszewski describe the condition of the girl?

A. Yes, sir.

Q. What did she say?

A. She stated she came in the house -

Q. Who came in the house, the girl?

A. Sylvia walked in the house bare chested, no blouse -

THE COURT: May I stop you? Are there any witnesses in the court room who are not supposed to be here. Alright.

Q. Now, before we stopped, you said she came in the house without a blouse on, bare breasted?

A. Mrs. Wright stated that.

Q. What else did Mrs. Wright state?

A. I did not have too much conversation with her about Sylvia. I asked her where the girl was. I immediately went upstairs.

Q. You what?

A. I immediately went upstairs.

Q. To refresh your recollection, did Mrs. Wright, or Gertrude Baniszewski say in substance that the girl asked her to forgive her and that she handed her a note and stated she had been out with a gang of boys?

A. That is true.

Q. Is that what she told you?

A. Yes.

Q. Did she say the girl was returned in a car there, was driven up in a car?

A. I believe she stated she did not know how she got in there, she walked in the door.

Q. Mrs. Baniszewski described that some boys had abused this girl?

A. Would you repeat that, sir?

Q. Did Mrs. Baniszewski describe that some boys had abused this girl?

A. In accordance with the note she did.

Q. Using this note to refresh your recollection, did she or didn't she - look at it and answer the questions?

A. That is right, sir.

Q. After refreshing your recollection, can you tell us, in substance, what Mrs. Baniszewski told you with reference to the girl coming to the house - after refreshing your recollection?

A. She stated nothing about any description of any boys. All I read was the note describing what had happened.

Q. Who - did she give you a note, did Mrs. Baniszewski give you a note?

A. That is right.

Q. Did she say anything about some boys abusing the girl?

A. She read the note apparently and she stated she was out with some boys.

Q. Is that about the sum and substance of your conversation?

A. Yes, sir.

Q. Can you recall anything else I may have omitted or you may have omitted here?

A. I think you asked me a question a short time ago that I might rephrase, if you don't mind.

Q. What was that?

A. You said I advised her she should have counsel. She was not under arrest at that time, sir, that is the reason.

Q. I understand. You did interrogate her?

A. Yes.

Q. You went to that house because you received a call over the radio that possibly there was a dead girl there, is that right?

A. Right.

Q. And you then went upstairs, did you?

A. Yes, sir.

Q. And how long were you talking to Mrs. Baniszewski before you went upstairs?

A. I immediately went upstairs. I talked to her upstairs.

Q. You talked to Mrs. Baniszewski upstairs?

A. That is right.

Q. How long did you talk to her altogether upstairs and downstairs?

A. Not more than ten minutes?

Q. Then what did you do?

A. Of course I waited till the coroner and identification and all the other equipment arrived that I called for.

Q. You were in uniform?

A. Yes, sir.

Q. Will you describe the appearance of Mrs. Baniszewski?

A. Well, she looked like a normal person - people get upset over surroundings.

Q. What do you mean by that?

A. She was nervous - she was bound to be.

Q. How was she dressed?

A. She had a dress on.

Q. Was her hair put up or disheveled or how was that?

A. Approximately the same, I would say, as she is now.

Q. What was the weather out at that particular time?

A. Clear.

Q. Warm or cold?

A. It was fair, just fair weather, not too cold.

Q. Are you able to describe who the people were who were with her at the time you interrogated her?

A. No, sir, I could not.

Q. How long did you stay there after you called - who did you call, the coroner?

A. I called the coroner and our identification and homicide division.

Q. While you were there did any other police officers arrive on the scene?

A. Yes, sir.

Q. Who?

A. Inspector Euliss, Dilk, Sgt. Derrickson, Lt. Cline.

Q. Did you determine she was dead when you got there, upstairs there?

A. Yes, sir.

Q. How?

A. By looking.

Q. Where was the girl lying, where was the body lying?

A. On a mattress on the floor.

Q. Upstairs?

A. Upstairs.

Q. The mattress was on the floor? How big was the room?

A. It was rather small sized room, I would say approximately 10x10.

Q. Was there any furniture in the room?

A. One bed.

Q. Anything else?

A. I am not just too certain about that.

Q. To your knowledge, were you the first police officer that viewed the body?

A. I don't believe I was.

Q. You don't believe you were?

A. No.

Q. Who saw it before you?

A. I could not tell you.

Q. Can you tell us who the police officers were who were there before you?

A. No, sir.

Q. Have you talked to any member of the prosecutor's office as to what your testimony would be here?

A. I have talked to the prosecutor.

Q. Who?

A. LeRoy New.

Q. When?

A. About a week ago, also today.

Q. Have you ever been - attempted to find out who the police were who were there when you arrived there?

A. No.

Q. You don't know?

A. No.

Q. Are you supposed to make that part of your record?

A. The reason I don't know who the officers were, I was not particularly interested in them. I received the run there, possibly a dead girl. That was my utmost interest.

Q. Now, Car No. 83, Officer Kaiser, who is that?

A. Sgt. William Kaiser, Homicide.

Q. Homicide - was he one that was there?

A. Yes, sir.

Q. How was the girl dressed?

A. What girl was that, sir?

Q. The girl you found there.

A. Sylvia?

Q. Yes.

A. She had on a pullover sweater and a pair of slacks.

Q. Were there any covers on her?

A. Jumpers, you say?

Q. No, covers?

A. There was a bed cover.

Q. Over her?

A. Yes.

Q. All the way over her or just up to her head?

A. About half way.

Q. Can you tell us the names of the people who were in there at the time you talked to Sylvia?

A. At the time I talked to Sylvia?

Q. I mean the time you talked to Gertrude Baniszewski.

A. I could not tell you that. I was not interested in that.

Q. Were any of the defendants there, if you know?

A. That again I could not be certain of.

Q. Did you talk to the police out there when you arrived, did you talk to them?

A. No, sir.

Q. Did you stay until the coroner arrived?

A. Yes, sir.

Q. Do you recall having talked to Stephanie Baniszewski at that time?

A. I don't recall it.

Q. You don't recall it? Did you take any of them down to headquarters for questioning?

A. Yes, sir.

Q. Who did you take?

A. I took Mrs. Wright. I took one of the daughters, I am not too certain which daughter it was.

Q. If the report says Stephanie, white, fifteen was taken to Homicide for questioning, would that be her?

A. Might I see her?

Q. I think the State has got her - I don't know where she is.

A. Mrs. Wright is all I can recall, actually, being sure.

Q. You made a report?

A. I took one of the girls down, I am not too certain which it was.

Q. If it says Stephanie?

A. Then it would be Stephanie.

Q. All this information you got then you turned over to the authorities, meaning the prosecutor, did you?

A. I turned in my report.

Q. And did you testify in front of the Grand Jury?

A. I don't believe I did, sir.

Q. You didn't? When is the first time you talked to the prosecuting attorney or one of his investigators or deputies concerning your report?

A. The day the trial opened here.

Q. And you did talk to Sgt. Kaiser about this, did you?

A. Yes, sir.

Q. And he arrived after you did, did he?

A. Yes, sir.

Q. Did you talk to him after he arrived?

A. Yes.

Q. Did you tell him that - the conversation you had with Mrs. Gertrude Baniszewski?

A. Right.

Q. Did you make a statement for him?

A. No statement. I told him the facts and handed him the note and he read the note also.

Q. You gave him the note?

A. Yes, sir.

Q. Did you tell him what Gertrude Baniszewski said about the note?

A. Yes.

Q. Everything you related on the witness stand, in substance, you related to Sgt. Kaiser?

A. Right.

Q. The same Sgt. Kaiser assigned in this case, is it?

A. Right.

Q. All - strike that - you did not take a written statement from Gertrude Baniszewski?

A. No.

Q. The oral statement you took from her and the conversation you had with her and the answers she gave you to the questions you gave her - all that you turned over to Sgt. Kaiser?

A. Yes.

MR. ERBECKER: No further questions.

THE COURT: Any cross?

CROSS EXAMINATION (OUT OF THE PRESENCE OF THE JURY),
QUESTIONS BY MR. LEROY NEW,
DEPUTY PROSECUTOR

Q. Officer Dixon, do you see the woman you designated as Mrs. Wright in the courtroom?

A. Yes.

Q. Designate.

A. The lady on the end with her hand up to her mouth, with the red skirt and blouse. (indicating defendant Gertrude Baniszewski)

Q. Where did you get the name Wright?

A. From Mrs. Wright.

Q. At the time you arrived at the home?

A. Yes.

Q. When you arrived at the scene, what was the first thing you saw and did?

A. The door was opened for me and I was allowed to enter in the house.

Q. Who did you see?

A. Mrs. Wright was in the living room.

Q. What was said or done at that time?

A. I asked her where the girl was and she said upstairs. I immediately went upstairs.

Q. Can you describe the stairway as it relates to the living room and the front door?

A. It goes upstairs from the living room.

Q. About the center?

A. It would be the north wall.

Q. And you would be walking north as you come in the front door?

A. Yes, sir.

Q. You would hardly have to turn left or right in order to go upstairs?

A. It is straight in, I am quite certain.

Q. Did she go upstairs with you?

A. Yes, she did.

Q. Did anyone else go upstairs that you recall at that moment?

A. No, sir, not that I can recall.

THE COURT: What do you intend to show by this, Mr. New?

MR. NEW: There is a Motion to Suppress exhibits in writing. These are exhibits. We want to be sure they are not suppressed. I see, about the fourth line down, not only to suppress testimony but exhibits and these are the exhibits, am I correct?

MR. ERBECKER: Yes.

THE COURT: There is no evidence this man took any of these exhibits. Stick to cross examination of the testimony.

Q. Officer, upon your arrival upstairs you went in the bedroom located at the northwest segment of the house?

A. Right.

Q. There you saw a roll-away bed and mattress on which the body was lying?

A. Yes.

Q. Was that person lying on the bed identified to you by Mrs. Wright?

A. Yes, sir.

Q. What did she say?

A. For my reports I have to have the name of the individual involved, which was Sylvia Marie Likens.

Q. Did she give you an age?

A. Yes.

Q. What age did she give you?

A. Sixteen.

Q. Did she also give you a note?

A. Yes, she did.

Q. You ultimately gave that note to Sgt. Kaiser?

A. Yes.

Q. Did you remain till the coroner arrived?

A. Yes, sir.

Q. Did you remain till Sgt. Kaiser arrived?

A. Yes.

Q. Do you know whether Police Officer Paul Harmon was also at the scene?

A. I could not say for sure.

Q. Do you know Officer Harmon?

A. Yes, I do.

Q. Did the defendant Ricky Hobbs any time arrive at the scene before you left?

A. Yes.

Q. Indicate him, please.

A. Ricky Hobbs is sitting behind Mr. Nedeff wearing glasses. (indicating defendant Richard Hobbs)

Q. During the time you arrived at the home, from that time on till you left, did Mrs. Baniszewski, alias Mrs. Wright cooperate with you?

A. Yes, sir.

Q. Did she answer your questions, respond to your questions?

A. Yes.

Q. Were her answers coherent?

A. Yes, sir.

Q. Did she assist you in the examination by giving you a note and giving you information what might have happened?

A. Yes, sir.

Q. Did she provide other information, such as age and name of the girl?

A. Yes, sir.

Q. Did she give you a statement or information at that time that would implicate herself in this crime?

A. No, sir.

MR. ERBECKER: I move the last answer be stricken for the purpose of making an objection. It is the prerogative of the Court whether it is incriminating.

THE COURT: On the last interpretation of Escobedo case I think it is important. Overruled.

MR. NEW: That is all.

RE-DIRECT EXAMINATION (OUT OF THE PRESENCE OF THE JURY),
QUESTIONS BY MR. WILLIAM ERBECKER, ATTORNEY FOR DEFENDANT,
GERTRUDE BANISZEWSKI

Q. Now, Officer, the first person you questioned was defendant Gertrude Baniszewski?

A. Yes, sir.

Q. She was the only person you questioned, was she?

A. No, sir.

Q. But you questioned her first?

A. Yes.

Q. And while questioning her were any pictures taken at your direction?

A. Not at my direction.

Q. Were they taken in your presence, at your instance or request?

A. Yes, sir.

Q. Were any drawings or maps made by you or anyone at your direction?

A. No, sir.

Q. Was any outline of the upstairs made?

A. Not that I know of.

Q. Pictures were taken, pursuant to your direction?

A. Yes, sir.

Q. And some of the pictures was what Mr. New brought up there, was it?

A. Yes, sir.

Q. And the picture was taken in the presence of Gertrude Baniszewski, was it?

A. The picture was taken in the presence of Gertrude - I am not too certain she was upstairs at the time.

Q. Now, when Mr. New asked you if Gertrude gave you any incriminating statement, you said "no" didn't you?

MR. NEW: We object.

THE COURT: Objection sustained.

MR. ERBECKER: Alright, for the purpose of making sure, I respectfully ask the Court to direct the court reporter to read back the one question I objected to.

THE COURT: Overruled. Keep questioning.

Q. Did Gertrude Baniszewski - did you testify in substance that she did not give you any statements or any evidence that would incriminate her, did you testify that?

A. She gave me no statements whatsoever that would incriminate her.

Q. No written or verbal?

A. No, sir.

Q. She did relate to you about the note and about the girl coming in the car?

A. Yes.

Q. She handed you a note?

A. She handed me the note.

Q. She did tell you Sylvia was gone two weeks and returned about 5:00 o'clock that night?

A. Approximately 5:30.

Q. She did tell you that?

A. Yes, sir.

Q. What happened to the note she gave you?

A. It went into Sgt. Kaiser's hands.

Q. Now then, did you at that time seize or take into custody or take with you or set aside for taking by other police officers any of the following, or all - one black leather belt?

A. No, sir.

Q. Four pieces of brass colored tubing?

A. No, sir.

Q. Three pieces of orange colored wood?

A. No, sir.

Q. One black colored crowbar?

A. No, sir.

Q. One wooden paddle?

A. No, sir.

Q. One package containing colored shorts?

A. No, sir.

Q. How many pictures were taken at your request?

A. I did not count them.

Q. One or two?

A. Several sides of the demised.

Q. About half a dozen?

A. I would say approximately.

Q. You were there when these were taken?

A. Yes.

Q. You more or less supervised the taking of them?

A. No, sir.

Q. Who did?

A. Identification.

Q. Identification?

A. Yes, sir.

Q. Anything in the conversation with Mrs. Baniszewski did she ever relate to you in substance she rented the house or lived there, did she ever tell you that?

A. I assumed she did - they did live there.

Q. Did she tell you she was the only adult living there, did she tell you that?

A. She stated her husband was in the army.

Q. Could you - was it obvious the other people there were minors, could you ascertain they were under the age of majority?

A. In my opinion, yes, sir.

Q. In your opinion they were?

A. Yes, sir.

Q. And she told you she was the head of the house or ran the house?

A. Yes, sir.

Q. She told you that, and are you the officer who took her downtown with the other defendants?

A. She went in my car.

Q. Now, did you say that she appeared nervous and upset, did you say that?

A. Normally.

Q. Did she appear nervous?

A. As I say, normally.

Q. How did she talk, in a nervous tone or quiet and unemotionally, how was it?

A. It is pretty hard to say actually - I mean after something like that occurred in your home you are bound to be somewhat nervous.

Q. Was it hard for you to understand her?

A. No, I could understand her fine.

Q. Did she sob or cry?

A. She was not crying.

Q. Did she sob?

A. No.

Q. Did she break down any time when she was talking to you?

A. No, sir.

Q. Did she appear emotionally concerned to the point she could not consider conversation?

A. No, sir.

Q. What do you mean by nervous and upset?

A. It is a normal feeling when the police come into your house to investigate a person who might be dead there is a certain amount of nervousness.

Q. You told her she was wanted for questioning, did you?

A. She was told by Sgt. Kaiser to accompany us to headquarters.

Q. Sgt. Kaiser told her that after you had related to him what she had said, is that right?

A. Well, of course, I would have to tell him that first.

Q. Naturally you would have and after receiving the benefit of your conversation with him and you told him that, Sgt. Kaiser told her she was either under arrest or wanted for questioning, right?

A. I believe Sgt. Kaiser asked her if she would come to headquarters - for further questioning and statements.

Q. And you took her to headquarters?

A. She went in my car.

Q. On the way down did she talk?

A. No, she did not.

Q. After you got to police headquarters, what did you do?

A. Took her immediately upstairs to Homicide Division.

Q. Did you question her?

A. I did not question her.

Q. Who took over the questioning?

A. Sgt. Kaiser.

Q. That terminates your relation with the case?

A. Yes, sir.

MR. NEW: Nothing further.

WITNESS EXCUSED.

THE COURT: Next witness, please.

MR. ERBECKER: Under Escobedo vs Illinois we move this officer's testimony be suppressed because it is obvious when he got that call -

THE COURT: Have you got the last one on this that says it does not apply? I think it is an Indiana citation, maybe last week.

MR. ERBECKER: I am talking about Escobedo.

THE COURT: I am talking about that too. You don't have that citation with you that says Escobedo does not apply in cases of this kind, the Supreme Court opinion?

MR. ERBECKER: No.

THE COURT: O.K. Any other evidence, sir?

MR. ERBECKER: Yes there is. I would like to get a ruling.

THE COURT: You can't piecemeal a ruling.

MR. ERBECKER: I am talking about officer.

THE COURT: You can't go on one witness.

MR. ERBECKER: I am talking about his testimony solely.

THE COURT: Do you rest on your motion?

MR. ERBECKER: No.

THE COURT: Next witness, please.

MR. ERBECKER: Officer Paul Harmon.
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