Smith v. State, 48A02-9010-CR-00611

• Decision Date: 29 October 1991
• Docket Number: No. 48A02-9010-CR-00611,48A02-9010-CR-00611
• Citation: 580 N.E.2d 298
• Parties: Derek S. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 298

580 N.E.2d 298

Derek S. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 48A02-9010-CR-00611.

Court of Appeals of Indiana Second District.

Oct. 29, 1991.

Transfer Denied Jan. 27, 1992.

William Byer, Jr., Byer & Byer, Anderson, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Appellant Derek S. Smith was convicted of Robbery as a Class B felony under I.C. 35-42-5-1 (Burns Code Ed.1985). Smith presents three issues upon appeal:

1) Whether the trial court properly admitted the confession of Smith, a juvenile, in accordance with the juvenile waiver of rights provisions of I.C. 31-6-7-3;

2) Whether the trial court properly admitted a line-up photograph depicting Smith in prison clothing; and

3) Whether the trial court improperly considered defendant's use of an unloaded, malfunctioning gun to be an aggravating circumstance in sentencing.

We affirm.

On the evening of July 6, 1989, appellant Smith and Djuan Lewis, both juveniles, overpowered Robert A. Garcia, closing shift manager at a Sizzler Restaurant in Anderson, as he left the restaurant. Smith and Lewis forced Garcia to open the doors to the restaurant and proceeded to take money from the safe after forcing Garcia to open it. The two beat Garcia throughout the robbery, using their fists, the butts of two guns they possessed, and a wine bottle. As a result of the attacks, Garcia received 45 stitches in the head, and suffered black eyes and headaches. Shortly after the incident, the two boys were apprehended in a taxicab headed towards Indianapolis.

I.

Smith was placed under arrest and taken to the Anderson Police Station. Police Detective Sumner contacted Smith's mother, who came to the station. He advised her in private that her son was under arrest for robbery. An unidentified police officer advised her that her son had not been identified as a participant in the robbery but was apprehended with a boy who had. Sumner took Mrs. Smith to see Smith and advised the two of their rights. The Smiths signed a waiver of their rights. Then, Sumner allowed the Smiths to confer in private for approximately twenty minutes. After the conference, Sumner again advised the Smiths of their rights. At this point, the Smiths orally waived their rights. Smith then confessed his involvement in the robbery, and both he and Mrs. Smith signed a confession which included a standard juvenile waiver. After the confession, the Smiths signed yet another waiver of their rights.

At trial, the prosecution attempted to enter the two signed waivers and the confession into evidence. Smith moved to suppress the evidence on grounds that it was obtained in violation of I.C. 31-6-7-3 (Burns Code Ed.1987). The trial court denied the motion. Smith now appeals that ruling, asserting that he was denied a meaningful consultation with his mother and that the confession was not a knowing and voluntary waiver of his rights.

Smith asserts that the police misled his mother by telling her that Smith had not been positively identified as a participant in the crime. In essence, Smith appears to argue 1) that the police told Mrs. Smith that her son had not been identified; 2) that she did not understand the ramifications of this fact, presumably thinking that her son was not in criminal jeopardy; and 3) that based upon this misrepresentation, she advised her son to tell the police everything they wanted to know. On this basis, Smith concludes that his parent-child consultation was tainted and that his confession was involuntary.

Smith was 16 years old when he committed the robbery and 17 at the time of trial. Thus, Smith is entitled to the procedural protections of I.C. 31-6-7-3. That statute provides that a juvenile's rights may be waived if the custodial parent knowingly and voluntarily waives the right after meaningful consultation with the child and the child knowingly and voluntarily joins in the waiver. I.C. 31-6-7-3(a)(2).

A.

Several cases have dealt with the meaningful consultation requirement. In Fowler v. State (1985) Ind., 483 N.E.2d 739, the police allowed a juvenile and his mother to consult in a laboratory reception room, which was a separate section of the police post not accessible to the general public. A police officer stood on the opposite side of a sliding glass door. The juvenile argued that the consultation was inadequate because too many people were coming and going through the reception area to allow him to talk freely with his mother. The Supreme Court held that these conditions were sufficient to permit free discussion of the waiver which the juvenile subsequently signed. 483 N.E.2d at 743. In Chandler v. State (1981), 275 Ind. 624, 419 N.E.2d 142, 147, the Supreme Court held that a ten-minute consultation was sufficient to meet the requirement. ¹

In the present case, the Smiths were allowed to consult in private for approximately twenty minutes. This consultation was clearly adequate to meet the requirements of I.C. 31-6-7-3(a)(2)(C).

Smith appears to argue, however, that the consultation was inadequate because Mrs. Smith misapprehended the situation confronting her son. I.C. 31-6-7-3(d)(2) treats a parent's misunderstanding of the consequences of the child's statement as a factor affecting the voluntariness of the confession. We will do the same.

B.

Smith asserts that his confession was involuntary because his mother misapprehended the danger to Smith due to the police's statement that Smith had not been identified. Upon appeal, we will review the trial court's determination of voluntariness with regard to the "totality of the circumstances" and will consider only the evidence most favorable to the State. Yates v. State (1978) 267 Ind. 604, 372 N.E.2d 461, 463. In determining whether a juvenile's waiver of rights is voluntary, the trial court is to consider the factors set forth in I.C. 31-6-7-3(d), including

"(1) The child's physical, mental, and emotional maturity;

(2) Whether the child or his parent ... understood the consequences of his statement;

(3) Whether the child and his parent ... had been informed of the delinquent act with which the child was charged or of which he was suspected;

* * * * * *

(5) Whether there was any coercion, force, or inducement; and

(6) Whether the child and his parent ... had been advised of the child's right to remain silent and to the appointment of counsel."

In Jackson v. State (1978) 269 Ind. 256, 379 N.E.2d 975, a fifteen year old boy admitted to murder under the erroneous belief that he would be tried in juvenile court. Neither the boy nor his parents were advised that the offense of first degree murder was outside the jurisdiction of the juvenile court. The court recognized that an accused must be aware of the probable consequences of his act, but concluded that not every misapprehension concerning the extent and nature of the criminal liability to which a confession may expose the accused vitiates the voluntariness of the confession. 379 N.E.2d at 977. The court held that absent any implication that the boy would be tried in juvenile court, the confession could not be considered involuntary. Id.

Mrs. Smith was accurately informed of the circumstances leading to her son's arrest. The record is devoid of any evidence of coercion, force, or inducement on the part of the police. As a sixteen year-old high school student entering his senior year, Smith was relatively mature as a juvenile. The Smiths were advised of Smith's right to remain silent and his right to an attorney. Those rights were effectively waived. Thus, the only factor weighing against the voluntariness of the confession is Mrs. Smith's own failure to appreciate the fact that her son was in jeopardy of prosecution even though he had not been identified. The trial court was well within its discretion to find this factor standing alone insufficient to render the confession involuntary. Jackson, supra.

In any event, it strains credulity to say that the police's statement that Smith had not been identified and their request for cooperation lulled Mrs. Smith into thinking that Smith's full confession would not prejudice his case. The trial court did not abuse its discretion in finding the confession voluntary. ²

II.

The State introduced two photographs into evidence, which together depicted a line-up in which Smith appeared shortly after the crime. The victim was unable to identify Smith in the line-up. The photos depicted Smith, his accomplice, and four others in plain blue prison clothing. Smith asserts that the trial court abused its discretion in admitting the photos, likening the photos to mug shots and reasoning that the prejudicial impact of showing the photos to the jury greatly outweighed any probative value the photos may have had.

Admission of photographs into evidence is within the sound discretion of the trial court. Morrison v. State (1984) Ind., 462 N.E.2d 72, 75. Mug shots, while not favored as evidence, are not per se inadmissible and may be allowed if 1) they are not unduly prejudicial, and 2) they have substantial independent probative value. Andrews v. State (1989) Ind., 536 N.E.2d 507, 509. The potential prejudice in showing mug shots arises from the implication advanced that a defendant has a prior criminal record. Dziepak v. State (1985) Ind., 483 N.E.2d 449, 451. However, there is no prejudice when other evidence establishes that the photo was taken incident to defendant's arrest, thus negating the implication of a prior criminal record. Dziepak, supra, at 452.

Line-up photographs are not equivalent to mug shots because they do not have the numbers and symbols readily associated with law enforcement agencies. Nevertheless, the depiction of all six subjects in identical plain blue clothing could arguably lead the jury to identify the clothing as prison garb. Thus, we will assume arguendo that...