576 N.E.2d 590 (Ind. 1991), 49S00-8807-CR-625, Harden v. State

Docket Nº:49S00-8807-CR-625.
Citation:576 N.E.2d 590
Party Name:Mark Lewis HARDEN, Appellant, v. STATE of Indiana, Appellee.
Case Date:August 20, 1991
Court:Supreme Court of Indiana
 
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Page 590

576 N.E.2d 590 (Ind. 1991)

Mark Lewis HARDEN, Appellant,

v.

STATE of Indiana, Appellee.

No. 49S00-8807-CR-625.

Supreme Court of Indiana.

August 20, 1991

Page 591

William L. Soards, Soards & Fruechtenicht, Indianapolis, for appellant.

Page 592

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of three counts of Murder, one count of Robbery, a Class A felony, one count of Rape, a Class A felony, and one count of Confinement, a Class B felony. The three murder convictions were merged by the trial judge by reason of the fact that only one person had been killed. Although the jury recommended the death penalty, the trial judge found mitigating circumstances and sentenced appellant to forty (40) years enhanced by twenty (20) years for the murder, thirty (30) years for the robbery, and thirty (30) years for the rape, all of these sentences to be served consecutively. In addition, he gave a sentence of ten (10) years for the confinement to run concurrently with the murder conviction.

The facts are: On the night of June 3, 1986, Eunice Stone was a visitor in the home of appellant's parents. Appellant asked her for money. When she said she did not have any, he forced her to the garage where he raped her and beat her to death with his fist, a piece of concrete block, and a garage door spring. Her nude body was discovered by Almond Harden, the father of appellant. The police were summoned, and after questioning members of the family, they took appellant, who at that time was seventeen years of age, to police headquarters for further questioning. He requested that his father be present, which request was granted.

After consulting with his father in private for approximately twenty minutes, appellant gave a videotaped statement in which he admitted robbing, raping, and beating the victim to death with his fists, a spring from a garage door, and a piece of concrete block. Appellant stated that he had been drinking and smoking marijuana earlier on the day of the crime and that during its commission he had no control over his actions.

Appellant claims the trial court erred in failing to grant his motion to suppress his videotaped statement. He concedes that on the day of his arrest and prior to giving the statement, he and his father signed a juvenile rights waiver. However, he argues the waiver was improper because the State did not comply with Ind.Code Sec. 31-6-7-3, which provides in pertinent part as follows:

"(a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:

(1) by counsel retained or appointed to represent the child, if the child knowingly and voluntarily joins with the waiver; or

(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."

Appellant claims the statute was violated in that he was not allowed "meaningful consultation" with his father. He cites Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138 for the proposition that in order for the waiver to be valid they must have been advised of their rights and they must have been given the opportunity for meaningful consultation. He cites Hall v. State (1976), 264 Ind. 448, 346 N.E.2d 584 for the proposition that the consultation must be held in the absence of police officers.

Appellant contends he was placed in an interrogation room at approximately 2:00 p.m. but that his father did not enter until about 6:00 p.m. at which time appellant was "cold, hungry, crying, and distraught," and that he was unable to say anything to his father. He claims that during the twenty minutes he and his father were alone in the room, all his father told him was that the police officers stated it would be easier on him if he talked. After this, the police

Page 593

officers entered the room, advised both of them of their rights, they executed the waiver, and the videotaped statement was made.

At trial, after the State rested, appellant took the stand and testified as to the rape and murder of the decedent; every damaging admission contained in the tape was reiterated in appellant's testimony. The principle of law applicable in such circumstances is that a legal error in admitting proof of a fact is rendered harmless when the defendant himself testifies to the same fact. MacGregor v. State (1967), 249 Ind. 195, 231 N.E.2d 241. See also Vaden v. State (1978), 270 Ind. 29, 383 N.E.2d 60.

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