Stewart v. State

ATTORNEY FOR APPELLANT

Ann Sutton
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

James B. Martin
Deputy Attorney General
Indianapolis, Indiana
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IN THE

SUPREME COURT OF INDIANA

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ALFRED L. STEWART, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0010-CR-587
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9812-CF-191462
__________________________________________________________________

ON DIRECT APPEAL

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August 29, 2001

BOEHM, Justice.
Alfred Stewart, a juvenile, was convicted of felony murder and
robbery. In this direct appeal, Stewart contends that the trial court
should have suppressed his confession to the police because it was taken in
violation of Indiana Code section 31-32-5-1. We reverse the conviction and
remand for a new trial.

Factual and Procedural Background

At some point on December 4, 1998, Damon Forte, Stewart’s cousin,
suggested that, because he and Stewart were out of cash, they should rob
someone. The pair had been sitting at the Bigfoot Gas Station parking lot
on East 38th Street for about four hours when Johnnie Smith and Ralph Moore
arrived after dark to refuel Smith’s car. As Moore slept in the car, Smith
decided to make a call on an outdoor payphone near the lot. Stewart and
Forte approached Smith. Smith struck up a conversation with the pair, but
turned to walk away when he saw that Forte had a rifle. Stewart then
grabbed Smith and demanded his money. When he refused, Smith was shot in
the foot, beaten with the rifle, punched repeatedly, and finally shot in
the chest. Smith collapsed and died at the scene. Forte and Stewart
grabbed Smith’s cash and fled in different directions. Later, they split
the money, with Stewart taking about $300. The pair then went to see
Ashley Rice, Forte’s girlfriend. Forte asked Rice to keep $200 until he
could collect it later.
Detective Ken Martinez’s investigation led him to Stewart and Forte.
Martinez and another officer found the pair at an East 38th Street address
near the Bigfoot station. As Martinez approached, Stewart immediately
volunteered “that his cousin was getting him locked up for something that
he got him into.” Asked whether he was talking about what happened at the
Bigfoot parking lot, Stewart replied, “Yes.” Martinez then asked Stewart
and Forte how old they were. When both replied that they were seventeen
years old, he immediately stopped asking questions, put the two into
separate cars, and transported them to the police station.
At the station, Martinez unsuccessfully attempted to contact
Stewart’s mother, then located Stewart’s father. The father, upon arriving
at the station, told Martinez that he was Stewart’s biological father, but
that Stewart did not live with him. Martinez provided Stewart and his
father with a copy of a “juvenile form” that, in essence, contains the
basic Miranda warnings as well as the statements, “You have the right to
have one or both parents present,” and, “The juvenile and his parents are
entitled to a conference.”
Martinez waited outside the room while Stewart and his father talked
for fifteen to thirty minutes. Stewart and his father then signed the
waiver of rights at the bottom of the form and Martinez audiotaped
Stewart’s confession. Stewart was charged with felony murder and robbery
as a Class A felony. A jury found him guilty on both counts. The trial
court vacated the robbery conviction, and sentenced Stewart to fifty-five
years imprisonment for felony murder.

I. Admissibility of Juvenile Confession

Stewart contends the trial court erred in admitting his audiotaped
confession. Stewart filed a motion to suppress the confession, which the
trial court denied.[1] Indiana Code section 31-32-5-1 provides, in
relevant part, that the state and federal constitutional rights of an
unemancipated person under eighteen years of age may be waived only:
(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.

Ind. Code § 31-32-5-1(2) (1998) (originally enacted as Indiana Code section
31-6-7-3 (1978)). The statute represents the legislature’s agreement with
this Court’s conclusions in Lewis v. State, 259 Ind. 431, 439, 288 N.E.2d
138, 142 (Ind. 1972), that extra protections are necessary when juveniles
are faced with the prospect of waiving their constitutional rights. The
statute requires the participation of a “custodial parent” and prohibits a
unilateral waiver of rights by the child. Whipple v. State, 523 N.E.2d
1363, 1370 n.2 (Ind. 1988). The burden is on the State to show that such a
waiver occurred beyond a reasonable doubt. Garrett v. State, 265 Ind. 63,
65, 351 N.E.2d 30, 32 (1976).
An adult’s waiver of Miranda rights is analyzed in terms of whether it
is voluntarily, knowingly, and intelligently given. Miranda v. Arizona,
384 U.S. 436, 444 (1966); see also Carter v. State, 730 N.E.2d 155, 157
(Ind. 2000). In stating its reasons for overruling Stewart’s motion to
suppress his confession, the trial court focused on whether Stewart
voluntarily waived his rights. Indiana Code section 31-32-5-4 provides
trial courts with a non-exclusive list of factors, particular to juveniles,
to aid in the determination of voluntariness. However, section 31-32-5-1
imposes additional safeguards where a juvenile’s waiver of Miranda rights
is concerned. Before a court reaches the question of whether a juvenile’s
waiver is voluntary, it must determine whether the proper parties gave the
waiver. Section 31-32-5-1 makes it clear that no unemancipated juvenile
may unilaterally waive his or her Miranda rights; rather, any waiver of a
juvenile’s constitutional rights is ineffective unless joined by one of the
parties named in the section. This requirement is in addition to, and
independent of, the inquiry into whether the waiver was voluntarily,
knowingly, and intelligently given.
If section 31-32-5-1 is violated, “the introduction in evidence of a
statement made by a person under eighteen years of age is forbidden.”
Stidham v. State, 608 N.E.2d 699, 700 (Ind. 1993). Thus, the principal
issue is whether Stewart’s biological father qualifies as one of those
necessary parties, namely a “custodial parent.” The undisputed facts are:
(1) Stewart was born out of wedlock; (2) a court award of custody neither
appears in the record nor is claimed to exist by either the State or
Stewart; and (3) Stewart did not live with his biological father. In light
of the foregoing, we conclude that Stewart’s father does not qualify as a
“custodial parent.”
Several statutory definitions would exclude Stewart’s father from the
status of “custodial parent,” but none is controlling here. The term
“custodial parent” is not defined by section 31-32-5-1. It is defined in
Indiana Code section 31-9-2-30 as “the parent who has been awarded physical
custody of a child by a court.” However, that definition is not
dispositive here because, by its terms, the definition applies only to
certain listed statutes, and section 31-32-5-1 is not among them.[2] In
addition, Indiana Code section 31-14-13-1, a part of the laws addressing
“Establishment of Paternity,” states, “A biological mother of a child born
out of wedlock has sole legal custody of the child, unless a statute or
court order provides otherwise.” However, that statute makes no mention of
its potential application to section 31-32-5-1. By contrast, the
definition of “custodian” in section 31-9-2-31, “a person with whom a child
resides,” is to be used “for purposes of the juvenile law” and presumably
applies to all of Title 31, “Family Law and Juvenile Law.” Though none of
these provides a direct answer to the present issue, all three statutes
point toward the conclusion that a “custodial parent” is understood to mean
either a person who has been adjudicated by a court to have legal custody
of the child, or a parent who actually resides with the unemancipated
juvenile.
The conclusion that this definition is appropriate for section 31-32-5-
1 is reinforced by our holding in Graham v. State, 464 N.E.2d 1 (Ind.
1984). In Graham, this Court held that even though a juvenile was a legal
ward of the Howard County Welfare Department, his father was a “custodial
parent” under section 31-32-5-1 because the juvenile “actually resided with
his grandmother and father.” Id. at 4. Thus, Graham implied that, for the
purposes of section 31-32-5-1, “custodial parent” means either a parent who
has legal custody, or a parent with whom the juvenile resides at the time
of the interrogation.
Because of their biological relationship, the State contends that
Stewart’s father satisfied the requirements of section 31-32-5-1. However,
the State offers no explanation of how Stewart’s father is a “custodial
parent” in the face of these statutory definitions, the case law, and the
language of section 31-32-5-1. Rather, the State merely claims that the
statute requires only that “his parent” join in Stewart’s waiver. This
contention plainly reads “custodial” out of the statute. It seems clear
that the statute contemplates consultation and waiver by a person in the
close relationship afforded by either formal custody or actual residence,
in addition to a biological or adoptive relationship. Stewart’s father
meets neither test. We think the statute and applicable case law are clear
that it was error to admit Stewart’s statement given in custody despite his
purported waiver of rights.
II. Harmless Error
“Errors in the admission or exclusion of evidence are to be
disregarded as harmless error unless they affect the substantial rights of
a party.” Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citing Ind.
Trial Rule 61). “[A]n error will be found harmless if its probable impact
on the jury, in light of all of the evidence in the case, is sufficiently
minor so as not to affect the substantial rights of the parties.” Id. at
1142. Therefore, we must assess the probable impact of Stewart’s
confession on the jury, in light of all the other evidence the State
presented at trial.
In addition to Stewart’s confession, the State presented the witness
testimony of Ashley Rice, Forte’s girlfriend. Rice testified that she knew
Stewart and that he went by the nickname “Man.” She testified that Forte
and Stewart met her on a street corner near her house and Forte gave her
$200 that he later returned to collect. She also overheard Stewart tell
Forte, “I think he’s dead, man. You hit him too hard.” She could not
remember Stewart saying anything else.
The State also presented the witness testimony of Detective Martinez.
Martinez testified that, in the course of his investigation, he “learned
that the two possible individuals involved in this had the nickname of Man
and the first name of Damon.” Martinez obtained a physical description of
the person nicknamed “Man,” and an address where he could locate Forte.
Martinez also spoke with Rice and discovered that Forte was Rice’s
boyfriend. Eventually, Martinez found Forte and Stewart.
Martinez testified that, when he encountered Forte and Stewart,
Stewart immediately volunteered the statement “that his cousin was getting
him locked up for something that he got him into.” Stewart acknowledged
that he was talking about “something to do with what happened on the
Bigfoot … parking lot.” Stewart made no other statements to Martinez other
than his confession. Finally, the gun used to kill Smith was found in the
area where Forte and Stewart were arrested.
But for Stewart’s confession, the State presented no evidence directly
placing Stewart at the scene of Smith’s murder. We do not discount the
significance of the State’s other evidence; however, we are unwilling to
say that, in comparison to the probable impact of Stewart’s confession, the
trial court’s error did not affect Stewart’s substantial rights. The
confession definitively established Stewart’s role in the commission of the
robbery and murder of Smith. The jury did not have to piece together
Stewart’s culpability from the collage of what Rice overheard Stewart say
to Forte, Stewart’s spontaneous statement to Martinez, and where the gun
was found. The jury had Stewart, on tape, admitting his guilt. The
probable impact of this evidence on the jury, in light of the other
evidence, is not “sufficiently minor” so as not to affect Stewart’s
substantial rights. Therefore, the trial court’s error in admitting
Stewart’s confession was not harmless. Double jeopardy does not bar a
retrial. Robinette v. State, 741 N.E.2d 1162, 1167-68 (Ind. 2001); Smith
v. State, 721 N.E.2d 213, 220 (Ind. 1999).
Conclusion
We reverse the conviction and remand for a new trial.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
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[1] It is not clear when the trial court first ruled on Stewart’s motion to
suppress, although it appears that the ruling took place just before trial.
In the middle of trial, the court allowed Stewart to object to the
admissibility of the confession and present the testimony of Stewart’s
father in support. The court then stated its reasons for denying Stewart’s
motion on the record.
[2] Section 31-9-2-30 states that the definition of “custodial parent” is
given “for purposes of IC 31-14-13-8 [Custody Modification Proceeding;
Violation of Injunction or Temporary Restraining Order as Factor], IC 31-14-
15 [Temporary Restraining Orders and Permanent Injunctions Against
Custodial Parents], IC 31-17-2-22 [Custodial Parent’s Violation of
Injunction or Temporary Restraining Order; Considered in Custody
Modification], and IC 31-17-4 [Visitation Rights of Noncustodial Parent].”