Carter v. State

Decision Date10 October 1997
Docket NumberNo. 48S00-9603-CR-240,48S00-9603-CR-240
CourtIndiana Supreme Court
PartiesKevin Lamar CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Montague M. Oliver, Jr., Anderson, for Appellant.

Pamela Carter, Attorney General, James D. Dimitri, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

On August 24, 1994, a seven year old girl was brutally stabbed and beaten to death. Fourteen year old Kevin L. Carter was charged with murder and was waived into adult court where, after a mistrial, a jury convicted him as charged. He was sentenced to sixty years in prison. On this direct appeal, Carter presents four issues:

I. Was his confession properly admitted?

II. Did the trial court err in refusing to grant defense counsel's requests for a continuance?

III. Did the prosecutor's remarks during closing argument result in prosecutorial misconduct?

IV. Did the trial court err in sentencing?

We affirm the conviction and remand for new sentencing.

Factual Background

The victim and Carter lived in the same apartment complex in Anderson, Indiana. On the afternoon of her death the victim asked Carter for help with a flat tire on her bicycle. According to Carter's confession, he intended to help her find a bicycle pump so she could fix the tire. The two went to his apartment together. While she watched television in his mother's bedroom, Carter entered the room with his trousers off. He retrieved a steak knife from a night stand and told the victim that if she did not take off her clothes, he would kill her. She laughed in response. Carter then dropped the knife, approached her, took off her clothes, and attempted sexual intercourse but failed to penetrate. After telling the victim to put her clothes on, Carter donned his trousers and at some point changed his shirt and put the steak knife into his pocket. He then led the victim out the back door of the apartment, telling her not to tell anyone what had happened. Finally, he took her by the arm to a nearby wooded area. When she screamed Carter killed her.

The victim's body was discovered in the early hours of the next day. Police had investigated her disappearance and were aware that a neighbor had seen the victim with a "big black kid" at about the time she was last seen. Carter and his friend Clifton Jones fit this description and were questioned by the police both before and after discovery of the body. In his first statement to police, Carter claimed to have been with Jones at the time of the killing. The police learned, however, that Jones was out of town and could not have been with Carter. On September 13, the police picked up Carter and Jones after school and brought them to the police station for questioning. Both mothers were called to the station. After Carter's mother, Marchal Armstead, arrived and met for several minutes with Carter, the two were given a waiver of rights form. A detective read the rights aloud and they both signed the waiver form acknowledging the reading. They then refused an offer to consult privately with each other, and signed the waiver form again, this time formally acknowledging waiver of Carter's rights. Shortly after the questioning began, Carter asked to speak with the detectives alone and Armstead agreed to leave the room. The interview continued without Armstead and eventually Carter confessed. At trial, in addition to the confession, the evidence indicated that Carter's tennis shoes were stained with human blood. DNA tests showed a 99.9% probability that the blood was the victim's. An expert determined that pubic hair found on the victim's body was similar in characteristics to a sample of Carter's pubic hair. Ink impressions taken from the bloody pair of Carter's shoes were consistent with an imprint on the victim's arm.

I. Admissibility of Confession

At both the first and second trial, Carter's motion to suppress the confession was denied. The motion presents two related issues: voluntariness of the waiver of Miranda rights and voluntariness of the confession. Carter contends that he did not voluntarily waive his Miranda rights, citing Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (applying the totality of the circumstances approach to determine whether a juvenile has waived his rights). Carter also contends that his confession was involuntary and therefore should be excluded under the authority of Jackson v. State, 269 Ind. 256, 379 N.E.2d 975 (1978), Ashby v. State, 265 Ind. 316, 354 N.E.2d 192 (1976), and Pamer v. State, 426 N.E.2d 1369 (Ind.Ct.App.1981). These cases, and the authorities they cite, ultimately rely on Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), which explicitly turned on the Fourteenth Amendment's incorporation of the Fifth Amendment privilege against self incrimination to evaluate the voluntariness of a confession in a state court prosecution. The verbal formulation of the test for voluntariness is the same for both the waiver and the confession--the totality of the circumstances. Ashby, 265 Ind. at 321, 354 N.E.2d at 195.

As to the waiver issue, Indiana Code § 31-6-7-3 sets out additional specific requirements for a valid waiver of Indiana state or federal constitutional rights by a juvenile. Under the relevant part of the statute, these rights may be waived only:

(2) by the child's custodial parent ... 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 § 31-6-7-3(a)(2) (1993). 1 Carter asserts that the waiver was involuntary. The standard of appellate review of a trial court's ruling as to the voluntariness of a waiver is made with regard to the totality of the circumstances considering only evidence favorable to the state and any uncontested evidence. Tingle v. State, 632 N.E.2d 345, 352 (Ind.1994). Relevant circumstances include the child's physical, mental, and emotional maturity; whether the child or parent understood the consequences of the child's statements; whether the child and parent had been informed of the delinquent act; the length of time the child was held in custody before consulting with his parent; whether there was any coercion, force, or inducement; and whether the child and parent were advised of the child's right to remain silent and to the appointment of counsel. IND.CODE § 31-6-7-3(d) (1993).

Applying these factors to the facts of this case, we conclude that Carter's waiver was voluntary. Carter and Armstead were presented with a waiver of rights form. They both acknowledged verbally or by nodding that they understood each right after each was read aloud by a detective. They both signed the form indicating that they had been informed of Carter's rights. They were given an opportunity to consult privately with each other immediately after the rights were read. 2 They declined the opportunity to consult. They then signed the form again to indicate that they waived Carter's constitutional rights. There is no allegation or evidence in the record of coercion, force, or inducement. There is no evidence that Carter or Armstead did not know or understand what they were doing.

The only concern as to the waiver arises because of uncertainty as to whether Armstead was aware at the time she signed the waiver that Carter was a suspect. It is clear that Carter and Armstead were aware of the girl's murder. Although Carter had not been charged or told that he was a suspect, the reading of rights after being unexpectedly brought to the police station is a clear indication that the rights should be taken seriously. More importantly, a suspect's parent or guardian need not be aware that her ward is a suspect for there to be an effective waiver. Tingle, 632 N.E.2d at 352-53 (neither juvenile defendant nor his custodian were informed of the possible offenses to be charged, or that defendant could be charged as an adult, but that fact alone was not enough to overturn trial court's finding of voluntariness); Smith v. State, 580 N.E.2d 298, 301 (Ind.Ct.App.1991) ("[parent's] own failure to appreciate the fact that her son was in jeopardy of prosecution even though he had not been identified" is by itself, insufficient to render a waiver involuntary). In addition, Carter and Armstead were told of the right to remain silent and the right to counsel. Carter was alone at the station for no more than an hour before consulting with Armstead. Carter does not argue, nor does the record show, that at the time of waiver, Carter was physically, mentally, or emotionally immature for someone of his age. In light of all of the above factors, we cannot say that the trial court's conclusion to admit the confession was unsupported by the totality of the circumstances.

The second issue is the voluntariness of the confession. In effect, Carter contends that his confession was involuntary because it was induced by an implied promise. Carter argues that Detective Copeland, Carter's interrogator, impermissibly led Carter to believe that if he confessed he would be tried as a juvenile. We conclude that Carter's confession was voluntarily given.

The Fourteenth Amendment incorporates the Fifth Amendment privilege against self incrimination. Withrow v. Williams, 507 U.S. 680, 688-89, 113 S.Ct. 1745, 1751-52, 123 L.Ed.2d 407 (1993); Malloy, 378 U.S. at 6-7, 84 S.Ct. at 1492-93. Accordingly, to be admissible consistent with federal due process, a suspect's confession must be voluntarily given. Ashby, 265 Ind. at 321-22, 354 N.E.2d at 196. The admissibility of a confession is for the trial court in the first instance, based on an evaluation of the totality of the circumstances, including whether the confession was voluntarily made and not provided through inducement, violence, threats,...

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