ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Caudill Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Kelly A. Miklos
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 49S02-0701-JV-3
J.D., Appellant (Respondent below),
v.
STATE OF INDIANA, Appellee (Petitioner below).
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Appeal from the Marion Superior Court, Juvenile Division, No. 49D09-0502-JD-540
The Honorable Marilyn A. Moores, Judge
The Honorable Beth Jansen, Magistrate
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0506-JV-575
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January 5, 2007
Dickson, Justice.
In appealing the trial court judgment adjudicating her to be a delinquent child for com-
mitting disorderly conduct, a class B misdemeanor when committed by an adult, 1 J.D. asserts
that her conduct was an exercise of free speech protected by the Indiana Constitution, that the
trial court should not have admitted evidence of her statements, which were made without
1
See Ind. Code §§ 31-37-1-2, 35-45-1-3.
Miranda warnings, and that the trial court's dispositional order was excessively harsh. Conclud-
ing that J.D. was engaged in protected political speech, the Court of Appeals reversed. J.D. v.
State, 841 N.E.2d 204, 209-10 (Ind. Ct. App. 2006). We grant transfer and affirm the trial court.
As a seventeen-year-old resident of the Marion County Guardian's Home ("the Home"),
J.D. experienced problems with the Home's house parent. Marion County Deputy Sheriff Sherry
Gibbons—who also worked onsite at the Home, generally to maintain order and enforce rules—
discussed the matter with J.D. briefly in the dining room of the Home, and then, for privacy,
moved the discussion to her office. Though the officer was investigating complaints that J.D.
and other residents had intimidated the house parent, Deputy Gibbons testified that she did not
approach the discussion with J.D. intending to make an arrest. Instead, the officer sought to find
a "solution to this situation and try to work toward a behavior that was . . . good for everybody."
Tr. at 11. Deputy Gibbons described arrest in situations like this as "the last resort." Id. at 13.
The efforts of Deputy Gibbons to have a conversation with J.D. proved unsuccessful, as
louder interruptions from J.D. met each of the officer's attempts to speak to her. The officer de-
scribed the volume of the J.D.'s voice as "breaking on the eardrums," and said that J.D. re-
sponded to requests to stop hollering by stating that she "did not have to respect no one or no-
body that didn't respect her." Id. at 12. J.D., on the other hand, testified that she did not raise her
voice but just attempted to explain her objection to having been once written up by the house
parent and regarding other occasions where the house parent promoted facility rules. Neverthe-
less, after continued attempts to discuss J.D.'s behavior and to explain the potential consequences
of it, the officer advised J.D. that she would be arrested for intimidation and for disorderly con-
duct if she did not stop hollering. J.D. replied that she did not care, and she continued to talk
over Deputy Gibbons, who then arrested J.D.
The State filed a petition alleging J.D. was a delinquent child, and the Marion County Ju-
venile Court subsequently adjudicated her to be a delinquent for commission of disorderly con-
duct, a class B misdemeanor if committed by an adult. 2 The court ordered guardianship of J.D.
2
The intimidation charge, a class D felony when committed by an adult, appeared on the Proba-
tion Officers Report of Preliminary Inquiry and Investigation dated February 1, 2005, see Appellant's Ap-
2
to the Department of Correction but suspended her commitment, releasing her into the custody of
her half-sister.
J.D. brought this appeal, challenging her adjudication as a delinquent, claiming: (1) insuf-
ficient evidence because her behavior leading to the disorderly conduct charge was an exercise of
her freedom of expression protected by Indiana Constitution Article 1, § 9; (2) erroneous admis-
sion of Deputy Gibbons's testimony regarding J.D.'s statements made without the constitutionally
required waiver of her rights to remain silent and to be assisted by counsel; and (3) an abuse of
trial court discretion by ordering a suspended commitment to the Department of Correction.
Sufficiency of Evidence
J.D. first contends that, because her expressions to Deputy Gibbons were protected politi-
cal speech under Article 1, Section 9, of the Indiana Constitution, 3 as applied in Price v. State,
622 N.E.2d 954 (Ind. 1993), there was insufficient evidence to support the trial court's adjudica-
tion that she was a delinquent child. The State asserts that J.D.'s speaking was not constitution-
ally protected political expression and that her manner of speaking was an abuse of the right of
free speech, emphasizing that the right of free speech protected in Section 9 is expressly quali-
fied by the phrase "but for the abuse of that right, every person shall be responsible."
In Price, the defendant loudly, and with profanity, objected first to the arrest of another
person, and then objected to a police threat to arrest her for her protest. She was charged with
two counts of obstructing or interfering with a law enforcement officer by force, public intoxica-
tion, and disorderly conduct. After a bench trial, she was acquitted on the interfering counts but
convicted of public intoxication and disorderly conduct. We reversed the disorderly conduct
conviction, finding that her noisy protest about the police officer's conduct toward another per-
son constituted political speech, that any harm suffered by others did not rise "above the level of
p'x. at 13, but it was excluded from the charging information filed with the court on February 2, 2005, see
id. at 12.
3
Article 1, Section 9, of the Indiana Constitution provides: "No law shall be passed, restraining
the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any
subject whatever: but for the abuse of that right, every person shall be responsible."
3
a fleeting annoyance," and that, given the large number of officers and civilians assembled and
the level of the commotion before Price's arrival, "the link between her expression and any harm
that was suffered" was not established. Price, 622 N.E.2d at 964.
The present case is distinguishable from Price, where the defendant's speech did not ob-
struct or interfere with the police. Here, J.D.'s alleged political speech consisted of persistent
loud yelling over and obscuring of Deputy Gibbons's attempts to speak and function as a law en-
forcement officer. Because it obstructed and interfered with Deputy Gibbons, J.D.'s alleged po-
litical speech clearly amounted to an abuse of the right to free speech and thus subjected her to
accountability under Section 9.
Because we find that J.D.'s abusive speech is not analogous to the relatively harmless
speech in Price, and that her loud over-talking of the officer was not constitutionally-protected
speech, we reject the claim of insufficient evidence.
Admission of Deputy's Testimony
J.D. also contends that the trial court erred by admitting the testimony from Deputy Gib-
bons regarding her "interrogation" of J.D. Appellant's Br. at 1, 5, 12, 17. J.D. argues that her
statements to the officer were made during a custodial interrogation and that J.D. was not ad-
vised of her rights to remain silent and to have counsel present nor did she knowingly and volun-
tarily waive those rights.
In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), the United
States Supreme Court instructs: "the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at
444, 16 L.Ed.2d at 706, 86 S.Ct. at 1612. These "procedural safeguards" include advisement of
the right to remain silent, that any statement made may be used against the person, and of the
right to the presence of an attorney. Id. at 444, 16 L.Ed.2d at 706-07, 86 S.Ct. at 1612. The pur-
pose of the issuance of Miranda warnings is to secure the constitutional privilege against self-
4
incrimination by providing procedural safeguards to be employed during questioning initiated by
officers focusing on a person suspected of wrongdoing. Id. at 444, 16 L.Ed.2d at 706, 86 S.Ct. at
1612. "[W]ithout proper safeguards the process of in-custody interrogation of persons suspected
or accused of crime contains inherently compelling pressures which work to undermine the indi-
vidual's will to resist and to compel him to speak where he would not otherwise do so freely."
Id. at 467, 16 L. Ed.2d at 719, 86 S. Ct. at 1624. But Miranda recognizes that "[a]ny statement
given freely and voluntarily without any compelling influences is . . . admissible in evidence."
Id. at 478, 16 L.Ed.2d at 726, 86 S.Ct. at 1630.
In this case, Deputy Gibbons approached J.D. in the dining room of the Home, where the
juvenile resided. The officer asked J.D. to accompany her into her office. Once in the office, the
officer shut the door and began an informal discussion with J.D. regarding her recent confronta-
tions with the house parent. The officer described this approach as her normal course under the
circumstances, an arrest of a resident being the last resort. What took place was far less intrusive
than the "[g]eneral on-the-scene questioning . . . or other general questioning of citizens in the
fact-finding process" left unaffected by the Miranda holding. Id. at 477-78, 16 L.Ed.2d at 725,
86 S.Ct. at 1629. The trial court aptly described the circumstances: "what started out as an in-
formal discussion to perhaps smooth over some problems . . . just flat out got out of hand." Tr. at
25.
J.D.'s statements made during her meeting with Deputy Gibbons were not received in
evidence as an admission to prove J.D.'s prior wrongful conduct. The present charges do not
refer to a previous incident but rather to the nature and manner of the juvenile's behavior while
she was making her statements. The content of J.D.'s shouting was not relevant to establish the
charged act of delinquency. Furthermore, she voluntarily engaged in the conduct that included
these statements. The trial court did not err in admitting testimony describing the manner and
extent of J.D.'s refusal to engage in a discussion with Deputy Gibbons and her continued volun-
tary shouting after the officer requested that she stop.
We decline to find error in the trial court's admission of testimony from Deputy Gibbons
describing J.D.'s conduct and statements.
5
Dispositional Determination
J.D. contends that the trial court's final disposition amounted to an abuse of discretion.
The dispositional order committed J.D. to the Indiana Department of Correction, but suspended
the commitment and placed her on probation subject to her compliance with the Marion County
Office of Family and Children caseplan. J.D. argues that this disposition was inconsistent with a
less restrictive alternative that had been recommended by the Probation Department, and that it
contravened statutory principles.
Prior to the dispositional hearing, the trial court's Probation Department submitted an
"Addendum Report" dated May 18, 2005, supplementing its initial February 1, 2005, "Report of
Preliminary Inquiry and Investigation." Appellant's App'x. at 13, 30. The Addendum Report
concluded by recommending that J.D. be placed on "Formal Probation," that she "[p]articipate in
and successfully complete the caseplan as arranged for by the Marion County Office of Family
and Children," and that she pay all court fees. Id. at 34. The trial court followed the recommen-
dation except that, before ordering probation, it first committed J.D. to the Indiana Department of
Correction for housing in correctional facility for children, and then suspended the commitment,
placed her on probation, and released her to the physical custody of her half-sister. Id. at 10.
Indiana Code section 31-37-18-6 provides:
If consistent with the safety of the community and the best interest of the child, the juve-
nile court shall enter a dispositional decree that:
(1) is:
(A) in the least restrictive (most family like) and most appropriate setting
available; and
(B) close to the parents' home, consistent with the best interest and special
needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child's parent,
guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child's parent,
guardian, or custodian.
6
In its dispositional decree, the trial court expressly noted that J.D. had a "prior history of
delinquent activity." Appellant's App'x. at 9. Her prior history included criminal mischief, bat-
tery (twice), and criminal recklessness. She had previously been placed on formal probation for
two months, and twice on suspended commitment, once for five months and another time for
four months. Id. at 31. In its remarks made at the conclusion of the dispositional hearing, the
trial court stated:
A suspended commitment to Girl School, . . . , you've been down that road once before.
We have tried a number of services with you, and yet somehow we have failed to the ex-
tent that when an adult tells you shut up, you don't shut up. So we need to continue to
stress to you that when you are told to do certain things, you do them, because on that
date, I think you failed miserably.
Tr. at 29.
Under the statute, placement in "the least restrictive (most family like) and most appro-
priate setting available" applies only "[i]f consistent with the safety of the community and the
best interest of the child." I.C. § 31-37-18-6. In view of J.D.'s prior history of delinquent behav-
ior and her failure to adequately respond to prior attempts at rehabilitation, the disposition or-
dered by the trial court is quite consistent with her best interest and the safety of the community.
We find no abuse of discretion.
Conclusion
We grant transfer and affirm the trial court's dispositional order in this case.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
7