D.M. v. STATE OF INDIANA
No. 49S02-1101-JV-11
Indiana Supreme Court
June 22, 2011
Lisa M. Johnson
Ann Sutton
Brownsburg, Indiana
ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Attorney General of Indiana
Angela N. Sanchez
Michael Gene Worden
Deputy Attorneys General
Indianapolis, Indiana
In the
Indiana Supreme Court
D.M.,
Appellant (Respondent below),
v.
STATE OF INDIANA,
Appellee (Petitioner below).
Appeal from the Marion Superior Court, Juvenile Division, No. 49D09-1001-JD-000125
The Honorable Marilyn A. Moores, Judge
The Honorable Scott B. Stowers, Magistrate
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1005-JV-551
June 22, 2011
Sullivan, Justice.
A juvenile challenges the admissibility of his confession in a delinquency proceeding on grounds that he was not afforded an opportunity for meaningful consultation with his mother and that the waiver of his rights was not knowing and voluntary. We conclude that there was substantial evidence of probative value to support the juvenile court‘s decision to admit the confes-
Background
On Wednesday, January 13, 2010, thirteen-year-old D.M. and his friend, C.W., entered firefighter Brian Braunagel‘s residence without permission while no one was home and took several items of Braunagel‘s personal property. They entered the house by using the garage-door code they had obtained from Braunagel‘s sons, with whom they had had a recent disagreement.
Braunagel was notified of the apparent break-in while he was at work. He left work immediately and called the police at approximately 1:50 p.m., while en route to his house. When the police arrived, they were given information that implicated D.M. and C.W. in the break-in. Two uniformed officers went to C.W.‘s house sometime after 2:00 p.m., arrested D.M. and C.W., and brought them to the Braunagel residence.
Shortly after 3:00 p.m., a uniformed officer went to D.M.‘s residence and informed D.M.‘s mother (“Mother“) that her son had been arrested. She went down the street to the Braunagel residence where D.M. was being held in a police cruiser. According to Mother, D.M. attempted on several occasions to speak with her through the window of the police car, but the police officers on scene told her that she could not speak to him until the detective arrived because they did not want the investigation impaired. Mother also testified that she was told by the officers that she would not be permitted to speak to D.M. until she signed a waiver form. Furthermore, Mother alleged that there were several firefighters on the scene who were glaring at her and making hostile comments.
Around 4:00 p.m., Indianapolis Metropolitan Police Detective Mark Quigley arrived at the Braunagel residence and was introduced to D.M. and Mother. He spoke briefly with Mother, who advised him that D.M. would make a statement. Quigley then took D.M. and Mother to his car and advised them of D.M.‘s rights. He read the rights to them from the “Juvenile Waiver” form and then had D.M. and Mother read the form. After D.M. and Mother signed the top part
On January 14, 2010, the State filed a petition in Marion Superior Court, Juvenile Division, alleging D.M. to be a delinquent child for committing acts that would constitute Class B felony burglary1 and Class D felony theft2 if committed by an adult. At the factfinding hearing on April 1, 2010, D.M.‘s confession was admitted over objection, and the juvenile court found that the allegations in the petition were true. At a dispositional hearing on April 29, 2010, the juvenile court placed D.M. on probation until October 28, 2010, with special conditions.
The Court of Appeals affirmed in a 2-1 unpublished memorandum decision. D.M. v. State, No. 49A02-1005-JV-551, 2010 Ind. App. Unpub. LEXIS 1575, 2010 WL 4546660 (Ind. Ct. App. Nov. 12, 2010). Over the dissent of Judge Mathias, the majority held that D.M. had been given an opportunity for meaningful consultation with Mother and that D.M.‘s waiver was voluntary under the totality of the circumstances.
D.M. sought, and we granted, transfer, D.M. v. State, ___ N.E.2d ___ (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).
Additional facts will be provided where necessary.
The Fifth Amendment,3 the Due Process Clause of the Fourteenth Amendment,4 and Article I, Section 14 of the Indiana Constitution5 protect the privilege against self-incrimination and ensure that only a person‘s voluntary statements can be used against that person in a criminal prosecution. E.g., Dickerson v. United States, 530 U.S. 428, 432-34 (2000); Ajabu v. State, 693 N.E.2d 921, 927-34 (Ind. 1998). The privilege applies not only in court proceedings but also when law enforcement interrogates a suspect who is in custody - i.e., custodial interrogation. See, e.g., Bram v. United States, 168 U.S. 532, 542 (1897); Ogle v. State, 193 Ind. 187, 191-93, 127 N.E. 547, 548-49 (1920). The privilege also prohibits the use of compelled statements in juvenile delinquency proceedings.6 In re Gault, 387 U.S. 1, 42-55 (1967); see, e.g., J.D.B. v. North Carolina, 564 U.S. ___ (2011); J.D.P. v. State, 857 N.E.2d 1000 (Ind. Ct. App. 2006); see also
In 1972, this Court responded to the U.S. Supreme Court‘s admonition that “special caution” be used in the context of juvenile confessions, In re Gault, 387 U.S. at 45; see also Fare v. Michael C., 442 U.S. 707, 728-30 (1979) (Marshall, J., dissenting), by holding that Indiana law requires the use of procedural safeguards in addition to those required by Miranda v. Arizona, 384 U.S. 436, 445-67, 478-79 (1966), when a juvenile is subjected to custodial interrogation. Lewis v. State, 259 Ind. 431, 439-40, 288 N.E.2d 138, 142 (1972). In an opinion written by Justice DeBruler, we held that, as a precondition to using a juvenile‘s statements from a custodial interrogation against him or her in court, both the juvenile and his or her parent or guardian must be advised of the juvenile‘s Miranda rights and they must be afforded an opportunity for meaningful consultation with each other to discuss privately whether the juvenile should waive or invoke his or her rights. Id. We reasoned that “[h]aving a familiar and friendly influence present
The General Assembly subsequently codified our holding in Lewis.7 Pub. L. No. 136-1978, § 1, 1978 Ind. Acts 1196, 1232 (codified as amended at
(2) by the child‘s custodial parent, guardian, custodian, or guardian ad litem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver
In Indiana, there are thus four requirements that must be satisfied before a juvenile‘s statements made during a custodial interrogation8 can be used in the State‘s case-in-chief. First, both the juvenile and his or her parent9 must be adequately advised of the juvenile‘s rights. Miranda, 384 U.S. at 444-45, 467-74, 478-79; Lewis, 259 Ind. at 439, 288 N.E.2d at 142. Second, the juvenile must be given an opportunity for meaningful consultation with his or her parent.
D.M. challenges the juvenile court‘s denial of his motion to suppress on two fronts.10 First, he contends that he was deprived of an opportunity for meaningful consultation with Mother. Second, he contends that the waiver of his rights was not knowing, intelligent, and voluntary.
The State bears the burden of proving beyond a reasonable doubt that the juvenile received all of the protections of
A
D.M. contends that the juvenile court erred in admitting his confession because the State failed to carry its burden in proving that he received the protections of the juvenile waiver statute.
To prove that “actual consultation of a meaningful nature” occurred, the State needs only to prove that the police provided a relatively private atmosphere that was free from police pressure in which the juvenile and the parent could have had a meaningful discussion about the “allegations, the circumstances of the case, and the ramifications of their responses to police questioning and confessions.” Trowbridge v. State, 717 N.E.2d 138, 148 (Ind. 1999); see also Hall, 264 Ind. at 452, 346 N.E.2d at 587 (providing that “meaningful consultation can only occur in the absence of the neutralizing pressures which result from police presence“). The interrogating officer cannot dictate or even recommend how they should use this time. Trowbridge, 717 N.E.2d at 148; Patton, 588 N.E.2d at 495 n.3; Whipple v. State, 523 N.E.2d 1363, 1371 (Ind. 1988); Buchanan v. State, 268 Ind. 503, 506-07, 376 N.E.2d 1131, 1134 (1978). “What is important is that the child and adult be aware of and understand the child‘s rights in order to discuss them intelligently.” Patton, 588 N.E.2d at 496. Once such an opportunity is provided, it is up to the juvenile and the parent to use this opportunity to their advantage. Id. at 495 n.3; Whipple, 523 N.E.2d at 1371. The State need not show that the consultation was beneficial in helping the juvenile and his or her parent decide whether to waive or stand on the juvenile‘s rights. Fortson v. State, 270 Ind. 289, 298-99, 385 N.E.2d 429, 436 (1979); cf. Trowbridge, 717 N.E.2d at 148; Fowler v. State, 483 N.E.2d 739, 743 (Ind. 1985); Buchanan, 268 Ind. at 506-07, 376 N.E.2d at 1134. Rather, the extent to which the conversation aids in the waiver decision “is a circumstance among many others which the trial court may consider in arriving at its decision as to whether the waiver is voluntary and knowing.” Fortson, 270 Ind. at 299, 385 N.E.2d at 436.
D.M.‘s primary argument is that the “uncontested evidence” establishes that Mother was told that she could not talk to her son until she signed a waiver, and, therefore, the decision to waive his rights was made prior to the opportunity for consultation. We cannot characterize Mother‘s testimony as “uncontested.” Although the State did not directly contradict Mother‘s testimony, it did attempt to impeach her credibility. For example, it challenged her memory by showing that she could not remember how many times she had signed the juvenile waiver form. She testified that she had signed the form once, and when presented with the form, which bore her signature twice, she testified that she did not remember signing it more than once. She was also reluctant to admit that she had no personal knowledge of how long D.M. had been detained before she was permitted to speak with him, refusing to provide a direct answer to the State‘s rather straightforward question until being prompted by the court to “[a]nswer the question please.” Tr. 34-36. Furthermore, at several points in her testimony she stated that D.M. had been in custody for over three hours before Quigley arrived, but the record indicates that he was in custody for two hours, at the most.12 Having listened to Mother‘s live testimony and observed her demeanor, the juvenile court reasonably could have found that she was not a credible witness. Cf. Willsey, 698 N.E.2d at 790 n.4.
D.M. also argues that the atmosphere was too intimidating for a “meaningful consultation” because he and Mother were in the backseat of a police car, there were many uniformed officers and firefighters on scene, Mother was concerned that their conversation was being recorded (despite Quigley‘s statement to the contrary), and some of the firefighters were glaring at and making hostile comments to Mother prior to Quigley‘s arrival. The atmosphere here is analogous to the atmosphere in Fowler v. State, 483 N.E.2d 739, 743 (Ind. 1985). In that case, we concluded that the juvenile and his mother had had sufficient privacy to discuss the waiver decision even though they talked in a laboratory reception area at the police station where people were “coming and going” while the interrogating officer stood on the opposite side of a sliding-
Finally, relying on Garrett v. State, 265 Ind. 63, 351 N.E.2d 30 (1976), D.M. argues that the consultation was not meaningful because it was too short and because Mother was unable to serve in an advisory capacity since she had been told that she had to sign a waiver to talk to D.M.
In sum, there is substantial evidence of probative value that D.M. and Mother were afforded an opportunity for meaningful consultation free from police pressure. The meaningful consultation requirement is a safeguard in addition to Miranda intended to ensure that police action does not overcome the juvenile‘s will and result in a compelled statement. Mother‘s appar-
B
D.M. also challenges the juvenile court‘s decision to admit his confession on grounds that the State failed to carry its burden in proving that the waiver of his rights was knowing, intelligent, and voluntary, repeating most of the arguments he made concerning the consultation requirement. Where juvenile waivers are concerned,
An express oral or written statement is not required to establish a knowing and voluntary waiver of rights - valid waivers may be implied. Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010); North Carolina v. Butler, 441 U.S. 369, 373 (1979). A written waiver, however, is certainly strong proof that a valid waiver occurred, Butler, 441 U.S. at 373, but, when challenged, the State may be required to tender additional proof of voluntariness, Ringo v. State, 736 N.E.2d 1209, 1212 (Ind. 2000). Thus, a written waiver is neither necessary nor sufficient to establish that a person voluntarily waived his or her Miranda rights. Butler, 441 U.S. at 373. Generally, a valid implied waiver occurs where a suspect who has been advised of his or her Miranda rights and has acknowledged an understanding of those rights makes an uncoerced statement without
In determining the voluntariness of a Miranda waiver, we examine the totality of the circumstances surrounding the interrogation to determine whether the suspect‘s choice “was the product of a free and deliberate choice rather than intimidation, coercion, or deception” and whether the waiver was “made with a full awareness of both the nature of the right[s] being abandoned and the consequences of the decision to abandon [them].” Burbine, 475 U.S. at 421; see also Crain, 736 N.E.2d at 1230 (reviewing totality of the circumstances to ensure that waiver was “not induced by violence, threats, or other improper influences that overcame the defendant‘s free will“); cf. Michael C., 442 U.S. at 725 (holding that the totality-of-the-circumstances test applies to juvenile waivers). Relevant considerations include the juvenile‘s physical, mental, and emotional maturity; whether the juvenile or his or her parent understood the consequences of the juvenile‘s statements; whether the juvenile and his or her parent were informed of the delinquent act for which the juvenile was suspected; the length of time the juvenile was held in custody before consulting with his or her parent; whether there was any force, coercion, or inducement; and whether the juvenile and his or her parent had been advised of the juvenile‘s Miranda rights.
The totality of the circumstances surrounding the interrogation of D.M. supports the juvenile court‘s conclusion that he knowingly, intelligently, and voluntarily waived his rights. Although the record is unclear, the juvenile court reasonably could have concluded that Mother had been informed of the reason for the arrest when the uniformed officer came to her house, particularly since no claim has been made that she was unaware of the reason. D.M. was detained for only two hours, at the most, before he was permitted to talk to Mother. Furthermore, both D.M. and Mother were advised of D.M.‘s Miranda rights, and they acknowledged an understanding of those rights, signed the advisement section of the juvenile waiver form, consulted with each other in private, and read and signed the actual waiver of rights. They never asked any questions concerning D.M.‘s rights, and they never displayed any hesitation or uncertainty with regard to the rights or the procedure used. Moreover, they never invoked D.M.‘s rights; rather, D.M. gave a detailed confession in response to Quigley‘s first question. D.M. was a thirteen-year-old se-
D.M. argues that his waiver was involuntary because it was obtained through force, coercion, or inducement. The presence or lack of police coercion is an important factor in assessing the voluntariness of waiver. But the existence of some modicum of police coercion or pressure does not necessarily lead to a finding of involuntariness. Rather, such coercion is considered in light of the totality of the circumstances, and it is possible that other factors will neutralize or remedy such coercion.
Similar to his challenges to the consultation, D.M. argues that the waiver was obtained through an improper inducement because uniformed officers allegedly told Mother that she was required to waive D.M.‘s rights in order to speak with him. As noted in Part I-A, supra, we cannot characterize Mother‘s testimony as uncontested. But even accepting her testimony as true, there is no evidence of police coercion sufficient to render the waiver of D.M.‘s rights involuntary under the totality of the circumstances. It is well-settled that matters of which a suspect is unaware are not relevant to whether the suspect knowingly, intelligently, and voluntarily waived his or her rights. Cf. Burbine, 475 U.S. at 422; Ajabu, 693 N.E.2d at 932-34. Accordingly, the alleged statements are not relevant to the voluntariness of D.M.‘s waiver because they were alleged to have been made to Mother, not D.M., and there is no evidence that he heard them from the backseat of the police cruiser in which he was being detained. D.M. has not challenged the voluntariness of Mother‘s waiver, but our conclusion on this record would be no different had he done so. The officers’ alleged statements are merely ambiguous in light of the waiver form used because Mother did sign it before talking to D.M. privately, but at that point she had not waived
Additionally, D.M. argues that the atmosphere was intimidating and coercive. Importantly, this is not a case where the police attempted to wear down the juvenile‘s will by subjecting him to prolonged interrogation or holding him incommunicado. Cf. Gallegos v. Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948) (plurality opinion). And the inherent coerciveness of a custodial interrogation is minimized when the police adhere to the dictates of Miranda and the meaningful consultation requirement. There is no evidence that the presence or alleged actions of the firefighters, whom D.M. concedes were present in their capacities as private citizens, had any impact on him or that he was ever aware of anything they said or did. And both he and Mother were advised of his Miranda rights, acknowledged that they understood them, and had an opportunity for consultation free from coercive pressures before waiving D.M.‘s rights, and it is undisputed that D.M.‘s confession was uncoerced. Cf. Thompkins, 130 S. Ct. at 2262.
In sum, there is substantial evidence of probative value that D.M.‘s rights were waived knowingly, intelligently, and voluntarily under the totality of the circumstances. Accordingly, the juvenile court did not err in admitting D.M.‘s confession.
II
The dispute in this case may have been averted had the juvenile waiver form been clearer. Although the form was not so deficient that it violated the constitutional requirements of Miranda or the essential statutory requirements of
We perceive several deficiencies with the waiver form. First, and most important, is the last sentence of the advisement section - “My parents and/or legal guardian and I have been allowed time by ourselves without the presence of a police officer to discuss the waiver of my rights before signing the waiver of rights.” By using the past tense “have been,” the form suggests that the opportunity for consultation occurred before the advisement, or at least before signing the acknowledgment of the advisement. But in this case, the opportunity for consultation occurred after the advisement and before the waiver. This is as it should be. In fact, a consultation can only be meaningful where both the juvenile and the parent are advised of the juvenile‘s rights prior to the consultation:
To ensure that a juvenile‘s waiver of constitutional rights is voluntary, Lewis prescribed the procedural safeguards to be followed by the police. First, both the juvenile and the parent or guardian must be informed of the right to an attorney and the right to remain silent. Second, the juvenile must be given a meaningful opportunity to consult with his [or her] parent, guardian or attorney about the waiver decision. A meaningful opportunity for the parent-juvenile consultation requires timeliness: pursuant to Lewis, the consultation must occur after the advisement of rights but prior to the decision to execute a waiver and make a statement. To be meaningful, the consultation must be held in the absence of pressures which result from police presence.
Douglas, 481 N.E.2d at 111 (emphasis added) (citation omitted).20
This deficiency can be remedied simply by changing the past tense to the present or future tense: “My parents and/or legal guardian and I will be allowed time by ourselves without the presence of a police officer to discuss the waiver of my rights before signing the waiver of rights.”
Lastly, the waiver section does not clearly indicate that both the juvenile and the parent are required to waive the juvenile‘s rights. The three statements are phrased such that they apply only to the juvenile, which suggests that it is only the juvenile who is waiving his or her rights. To be sure, the signature line requires the signature of the parent, rather than a mere witness. Cf. Garrett, 351 N.E.2d at 33. But the form could more clearly indicate the parent‘s role.
Written waiver forms are not required to satisfy the constitutional demands of Miranda or the statutory requirements of
Conclusion
We affirm the juvenile court‘s decision to admit D.M.‘s confession and its finding that D.M. is a delinquent child for committing acts that would have been felonies if they had been committed by an adult.
Shepard, C.J., and Dickson and David, JJ., concur.
Rucker, J., concurs in result.