Daniel v. State, 49S00-8812-CR-982

• Decision Date: 10 December 1991
• Docket Number: No. 49S00-8812-CR-982,49S00-8812-CR-982
• Parties: Bobby Del DANIEL, Jr. Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 364

582 N.E.2d 364

Bobby Del DANIEL, Jr. Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8812-CR-982.

Supreme Court of Indiana.

Dec. 10, 1991.

Rehearing Denied Feb. 14, 1992.

Monica Foster, Indianapolis, for appellant.

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 Burglary, a Class A felony, for which he was sentenced to twenty (20) years imprisonment.

The facts are: Biff Brent Hornaday was an assistant band director at Pike High School in Indianapolis, Indiana. On Sunday, May 3, 1987, he drove to the school to prepare for a noon meeting with some colleagues from out of town to discuss judging marching band competitions. While walking down the hallway near the industrial arts area of the school building, Hornaday noticed light coming from an open classroom door. Stopping to say hello to the instructor he expected to find there, Hornaday instead saw appellant sitting on a table.

When Hornaday asked "What are you doing here?" appellant replied, "Don't move, don't move," and, reaching behind him, produced a pistol, aimed it at Hornaday and repeatedly pulled the trigger. The handgun misfired, however, and Hornaday assured appellant, "I don't know who you are, these doors are open, why don't you leave." Backing out of the classroom, Hornaday started to trot down the hallway when appellant jumped out of the doorway, yelled "hey" and fired a shot at Hornaday's face, penetrating his chin. Hornaday was stunned but soon recovered and continued running down the corridor. Appellant caught up with him and endeavored to hit him with a claw hammer. After a brief struggle, appellant demanded that Hornaday lie down. To placate his assailant, Hornaday complied and was rendered unconscious by a hammer blow to the back of his head. Upon regaining consciousness, Hornaday made his way over to a telephone booth located near the entrance to the school cafeteria and called 911. After authorities arrived, Hornaday was transported by ambulance to St. Vincent Hospital where he was admitted for treatment of the gunshot wound to his face as well as the depression wounds and lacerations to his head from the hammer's head and claw.

Police investigators discovered several rooms in the school had been ransacked, and an old metal safe had been moved from an administrative office to the shop where Hornaday had initially encountered appellant. Holes had been drilled into the safe and the dial had been damaged. Five days after the incident, Hornaday assisted detectives in developing a composite picture of the perpetrator, which was presented to Pike High School officials who were able to generate a list of past and present students who fit the profile to some degree. From the list, detectives conducted interviews of twelve juveniles, including appellant, who waived his rights, gave an exculpatory statement, and was fingerprinted. Latent fingerprints found on the safe turned out to match appellant's, and the instant prosecution ensued.

Appellant contends the trial court erred in granting the State's motion to waive him from juvenile court to stand trial as an adult. He argues he was denied due process of law because the court's order waiving jurisdiction was not sufficiently specific to comply with the provisions of Ind.Code Sec. 31-6-2-4(e), which permits waiver to adult criminal court jurisdiction once a showing is made that the child is charged with the equivalent of a Class A or B felony, that probable cause exists to believe the child committed the act charged, and the child was at least sixteen years of age when the charged act was committed, "unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system."

Appellant cites authority, including Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 and Gerrick v. State (1983), Ind., 451 N.E.2d 327, for the propositions that due process requires a statement of reasons, including relevant facts, underlying a waiver from juvenile jurisdiction and that such statement must not merely recite statutory language. According to Clemons v. State (1974), 162 Ind.App. 50, 317 N.E.2d 859, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86, in making the waiver determination, the juvenile court must necessarily consider the nature of the offense, whether it is part of a repetitive pattern, whether the child is beyond juvenile justice rehabilitation, and whether waiver is necessary to protect the public security. The Clemons court went on to hold that specifying these considerations in the record would permit meaningful review so as to keep the standard away from the verge of unconstitutional vagueness.

As the State points out, however, a juvenile court's decision to waive jurisdiction is reviewed only for an abuse of discretion, citing Trotter v. State (1981), Ind., 429 N.E.2d 637. We noted in that case that the Supreme Court's opinion in Kent, supra was an interpretation of the District of Columbia juvenile code and thus not of constitutional dimension. And in Trotter, as in the present case, the court's statement reflected its inability to find it would be in the best interests of the child and of the safety and welfare of the community for the child to remain in the juvenile system, without reciting specific facts in support.

Here, however, as in Trotter, the record reflects sufficient facts for the court to determine waiver was appropriate; as we noted in Gerrick, supra, such supporting facts must appear either in the order or in the record of the waiver hearing. The court here had before it the viciousness of appellant's attack, the lack of any justification for it, the seriousness of its results, and the relatively mature age, 17, of the juvenile involved. These facts are ample to support a finding that it would not be in the best interests of the community to retain appellant in the juvenile system.

The trial court did not err in ordering appellant waived into criminal court.

Appellant contends the trial court erred in denying his motion to suppress and in admitting, over his timely objection, evidence pertaining to his fingerprints and palmprints. He argues his prints were taken in violation of his Fourth Amendment rights to be free from unreasonable search and seizure in that his consent to be fingerprinted was vitiated by the investigating officer's assertion that in any event, a warrant would be issued allowing him to take the prints.

Appellant cites Ind.Code Sec. 31-6-8-1.5(c) which states that a juvenile's fingerprints may be taken if the officer has probable cause to believe that latent prints found during an investigation belong to that juvenile. He also cites federal authority to the effect that probable cause must precede non-consensual fingerprinting, e.g., Hayes v. Florida (1985), 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705. Noting the absence of proof in the court below of probable cause to arrest appellant prior to the comparison of fingerprints, he accordingly concludes the absence of both consent and probable cause renders the fingerprint evidence inadmissible.

Appellant further notes the trial court, in ruling on the motion to suppress, expressed concern that the officer had told appellant and his parents that he "could go get a court order" if they failed to consent, yet went on to deny the motion, finding "we don't feel that the defendants have made the sufficient case, at this particular time." Appellant maintains this reflects trial court error in allocating to him the burden of proof regarding consent, which properly rests entirely with the State. See Gregory v. State (1989), Ind., 540 N.E.2d 585. In context, however, it appears the court was referring to appellant's burden to support his motion to dismiss rather than any burden to prove involuntariness of his consent. This interpretation is reinforced by the lack of any contemporaneous objection to the trial court's remark, which also means this allegation of error has been waived. Wood v. State (1987), Ind., 512 N.E.2d 1094.

Both appellant and the State acknowledge that whether an advisement that a search warrant will be obtained, as opposed to sought, constitutes coercion so as to vitiate subsequent consent to a search, is a question of first impression in Indiana. The State notes the split of federal authority on this point and suggests this Court should resolve any such question of voluntariness as a question of fact to be determined by the trial court, reviewable only by examining the evidence most favorable to the trial court's decision together with any uncontradicted adverse evidence, citing Maynard v. State (1987), Ind.App., 508 N.E.2d 1346.

Appellant, however, asserts it clearly is the majority position that such an advisement renders choice illusory and consent involuntary where a warrant in fact could not lawfully issue, citing, e.g., United States v. Anderson (E.D.N.Y.1990), 752 F.Supp. 565; United States v. Cruz (S.D.N.Y.1988), 701 F.Supp. 440.

Detective Beasley informed appellant and his parents "that eventually I would have to probably get a search warrant for his fingerprints some way, someplace down the road, if [they] objected, which would be fine with me, one way or the other, but it would save me a lot of paperwork." Appellant's mother testified Detective Beasley, when he initially requested her by telephone to bring appellant to the police station to be interviewed, told her that "I can get his fingerprints if you don't cooperate. I can get his fingerprints," and that subsequently at the station, when she asked Detective Beasley how many parents of the children he had sought to fingerprint had cooperated, "he said most of them did, but it didn't make any difference anyway, he could get a court order." She testified that...