S.D. v. State

• Decision Date: 29 November 2010
• Docket Number: No. 49A02-1004-JV-442.,49A02-1004-JV-442.
• Citation: 937 N.E.2d 425
• Parties: S.D., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

937 N.E.2d 425

S.D., Appellant-Respondent,

v.STATE of Indiana, Appellee-Petitioner.

No. 49A02-1004-JV-442.

Court of Appeals of Indiana.

Nov. 29, 2010.

Ellen F. Hurley, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy AttorneyGeneral, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

S.D. appeals his juvenile delinquency adjudication for what would be Class C felony child molesting if committed by an adult. Before S.D. was interviewed about the child molesting allegation, he and his guardian were given time to consult with each other. However, the consultation took place in a room where video cameras were recording, and S.D. and his guardian were aware of that fact. S.D. contends that the admission of his subsequent confession constitutes fundamental error. We conclude that there is fundamental error because S.D. was in custody when he confessed and was not given meaningful consultation with his guardian as required by Indiana's juvenile waiver of rights statute because the video cameras constituted an improper police presence and infringed on the privacy necessary to any meaningful consultation. We therefore reverse.

Facts and Procedural History

S.D. was born in Kazakhstan and moved to the United States when he was ten or eleven years old. In the late summer of 2009, S.D. was fifteen or sixteen years old and lived in the home of Debbie Spenneberg, his legal guardian. Spenneberg provided daycare in her home for five- or six-year-old J.B. and her younger brother. While in Spenneberg's home, J.B. would remove her clothing, touch her vagina, and ask S.D. and others in the home to look at and rub her "peepee," referring to her vaginal area. Tr. p. 70. When Spenneberg brought these events to J.B.'s mother's attention, J.B.'s mother informed her that she recently discovered that J.B. had been molested by her father.

One day, J.B. told her mother that while she was in Spenneberg's home, S.D. touched her inappropriately. In an interview with the Department of Child Services ("DCS") in September 2009, J.B. said that S.D. had touched her peepee.

In October 2009, the State filed a petition alleging S.D. to be a delinquent child for committing what would be Class C felony child molesting, Ind.Code § 35-42-4-3(b), if committed by an adult. Detective Chris Lawrence began investigating the incident in November 2009. Because the videotape of J.B.'s interview with the DCS could not be produced due to an apparent malfunction, Detective Lawrence requested that the DCS conduct a second interview. During that videotaped interview, J.B. said that her father had touched her peepee. She did not claim that S.D. or anyone else had touched her inappropriately.

Later in November, Spenneberg accompanied S.D. to a videotaped interview at Detective Lawrence's office. The videotapes show that before the interview began, S.D. and Spenneberg sat alone in a twelve-by-twelve-foot interview room and pointed out the cameras in the room. Detective Lawrence entered and asked about general background information for about a half an hour. He then said that J.B. reported that S.D. had touched her in a way that made her uncomfortable. Detective Lawrence told S.D. that he was not under arrest and that he could leave at any time. He advised S.D. and Spenneberg of S.D.'s Miranda rights when reviewing an advisement of rights form with them, which they both signed.

Detective Lawrence then said that he would leave the room to allow S.D. and Spenneberg to discuss whether S.D. would agree to talk and whether Spenneberg would stay in the room. When Spenneberg asked S.D. whether he wanted her inthe room, S.D. responded that it did not matter to him. Detective Lawrence insisted on leaving the room while they discussed the matter and left.

Spenneberg again asked S.D. whether he wanted her in the room during the interview, and S.D. again said that it did not matter to him. After a few minutes, Spenneberg knocked on the door, and Detective Lawrence came back into the room. S.D. remained indifferent to Spenneberg's presence, so Spenneberg decided to leave. After S.D. and Spenneberg signed a waiver of rights form, Spenneberg left the room.

During the substantive interview, Detective Lawrence questioned S.D. about J.B. and her allegation. The videotapes show that Detective Lawrence noted that his job is to handle these cases and that he knows when someone is lying to him. At times he stated that he did not think S.D. was being truthful and that S.D. was being given an opportunity to correct a wrong. Near the end of the interview, Detective Lawrence sat close to S.D. and spoke to him in a low voice.

S.D. initially told Detective Lawrence that Spenneberg babysat for J.B. but that he had had no interaction with her. S.D. said that his bedroom was downstairs and he stayed there most of the time. He said that he was never in the kitchen with J.B. and denied that anything could have happened that J.B. might have construed as touching her inappropriately.

A little over an hour into the substantive interview, S.D. changed his story and said that J.B. was with him in the kitchen once. Her pants were down, so S.D. pulled them back up.

After speaking alone with Detective Lawrence for about an hour and a half, S.D. changed his story again. He admitted that he touched J.B.'s vagina with his fingers. Detective Lawrence placed S.D. in handcuffs. The entire interview, including the portions when Spenneberg was present, lasted around two and a half hours.

The day after the interview, S.D. appeared at an initial hearing where the juvenile court approved the State's delinquency petition.

At the denial hearing in February 2010, J.B. testified that she was in Spenneberg's kitchen with S.D. and that S.D. removed J.B.'s pants and underwear, lifted her up onto the kitchen counter, and touched her peepee.

Spenneberg testified that on the day of the alleged incident, she found J.B., S.D., and one of her foster daughters in the kitchen. J.B. was sitting on the kitchen counter crying because she had hurt herself, and S.D. was giving her a hug and telling her it would be okay. Spenneberg also testified that she had non-recording video cameras in her house, that S.D. knew which areas were monitored by the cameras and which areas were not, and that J.B.'s position on the kitchen counter was such that a portion of one of her legs would have been picked up by a camera.

During Detective Lawrence's testimony, S.D. moved to suppress his videotaped statement

based upon the proximity and, and physicalness (sic) that the detective had and proximity of him being in that room and length of time that [S.D.] was in that room. And his I guess first language not being of the language that the detective had as being coerced and, and an improper statement.

Tr. p. 89-90. After hearing arguments from both parties, watching the videotaped interview, and hearing S.D.'s testimony regarding the motion, the juvenile court denied the motion to suppress. DetectiveLawrence then testified that S.D. confessed to touching J.B.'s vagina.

S.D. offered and the juvenile court admitted into evidence the recording of the second interview between J.B. and the DCS, during which J.B. claimed that only her father had touched her peepee. It was admitted for impeachment purposes only.

S.D. then testified that he had found J.B. in the kitchen crying. J.B. told him her foot hurt, so he picked her up, put her on the kitchen counter, and gave her a hug to comfort her. S.D. testified that he lied during the interview about touching J.B. because:

I was in there for a long time and I felt closed in and the detective said that if I told him as I think what he wanted to hear and what he was told I guess by other people and the paperwork that he had, that I would go. And I was basically telling him the truth saying that I didn't do it for a long, long time. It didn't seem like he was believing.

Id. at 136-37.

The juvenile court entered a true finding for Class C felony child molesting. S.D. now appeals.

Discussion and Decision

Although S.D. raises several issues on appeal, we find one dispositive and restate it as whether the juvenile court erred by admitting S.D.'s confession when he had not been given meaningful consultation with his guardian as required by Indiana's juvenile waiver of rights statute.

During the denial hearing, S.D. challenged the admission of the confession on grounds that it was coerced. A party generally may not object on one ground at trial and raise a different ground on appeal. N.W. v. State, 834 N.E.2d 159, 162 n. 2 (Ind.Ct.App.2005) (citing White v. State, 772 N.E.2d 408, 411 (Ind.2002)), trans. denied. However, the fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes a procedural default precluding consideration of the issue on appeal. Jewell v. State, 887 N.E.2d 939, 940 n. 1 (Ind.2008). The fundamental error exception is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010), reh'g denied. This exception is available only in egregious circumstances. Id. We thus address whether the admission of S.D.'s confession constitutes fundamental error.

S.D. points to the meaningful consultation requirement of Indiana's juvenile waiver of rights statute and argues that he was not afforded meaningful consultation with Spenneberg because the consultation was videotaped.

The special status accorded juveniles in other areas of the law is fully applicable in the area of criminal procedure....