ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
James B. Martin
Deputy Attorney General
SUPREME COURT OF INDIANA
ALFRED L. STEWART, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0010-CR-587
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9812-CF-191462
ON DIRECT APPEAL
August 29, 2001
Alfred Stewart, a juvenile, was convicted of felony murder and robbery. In
this direct appeal, Stewart contends that the trial court should have suppressed his
confession to the police because it was taken in violation of Indiana Code
section 31-32-5-1. We reverse the conviction and remand for a new trial.
Factual and Procedural Background
At some point on December 4, 1998, Damon Forte, Stewarts cousin, suggested that,
because he and Stewart were out of cash, they should rob someone.
The pair had been sitting at the Bigfoot Gas Station parking lot on
East 38th Street for about four hours when Johnnie Smith and Ralph Moore
arrived after dark to refuel Smiths car. As Moore slept in the
car, Smith decided to make a call on an outdoor payphone near the
lot. Stewart and Forte approached Smith. Smith struck up a conversation
with the pair, but turned to walk away when he saw that Forte
had a rifle. Stewart then grabbed Smith and demanded his money.
When he refused, Smith was shot in the foot, beaten with the rifle,
punched repeatedly, and finally shot in the chest. Smith collapsed and died
at the scene. Forte and Stewart grabbed Smiths cash and fled in
different directions. Later, they split the money, with Stewart taking about $300.
The pair then went to see Ashley Rice, Fortes girlfriend. Forte
asked Rice to keep $200 until he could collect it later.
Detective Ken Martinezs investigation led him to Stewart and Forte. Martinez and
another officer found the pair at an East 38th Street address near the
Bigfoot station. As Martinez approached, Stewart immediately volunteered that his cousin was
getting him locked up for something that he got him into. Asked
whether he was talking about what happened at the Bigfoot parking lot, Stewart
replied, Yes. Martinez then asked Stewart and Forte how old they were.
When both replied that they were seventeen years old, he immediately stopped
asking questions, put the two into separate cars, and transported them to the
At the station, Martinez unsuccessfully attempted to contact Stewarts mother, then located Stewarts
father. The father, upon arriving at the station, told Martinez that he
was Stewarts biological father, but that Stewart did not live with him.
Martinez provided Stewart and his father with a copy of a juvenile form
that, in essence, contains the basic Miranda warnings as well as the statements,
You have the right to have one or both parents present, and, The
juvenile and his parents are entitled to a conference.
Martinez waited outside the room while Stewart and his father talked for fifteen
to thirty minutes. Stewart and his father then signed the waiver of
rights at the bottom of the form and Martinez audiotaped Stewarts confession.
Stewart was charged with felony murder and robbery as a Class A felony.
A jury found him guilty on both counts. The trial court
vacated the robbery conviction, and sentenced Stewart to fifty-five years imprisonment for felony
I. Admissibility of Juvenile Confession
Stewart contends the trial court erred in admitting his audiotaped confession. Stewart
filed a motion to suppress the confession, which the trial court denied.
Indiana Code section 31-32-5-1 provides, in relevant part, that the state and federal
constitutional rights of an unemancipated person under eighteen years of age may be
(2) by the childs 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.
Ind. Code § 31-32-5-1(2) (1998) (originally enacted as Indiana Code section 31-6-7-3 (1978)).
The statute represents the legislatures agreement with this Courts conclusions in
v. State, 259 Ind. 431, 439, 288 N.E.2d 138, 142 (Ind. 1972), that
extra protections are necessary when juveniles are faced with the prospect of waiving
their constitutional rights. The statute requires the participation of a custodial parent
and prohibits a unilateral waiver of rights by the child. Whipple v.
State, 523 N.E.2d 1363,
1370 n.2 (Ind. 1988)
The burden is on
the State to show that such a
waiver occurred beyond a reasonable doubt.
Garrett v. State, 265 Ind. 63, 65, 351 N.E.2d 30, 32 (1976).
II. Harmless Error
An adults waiver of Miranda rights is analyzed in terms of whether it
is voluntarily, knowingly, and intelligently given.
Miranda v. Arizona, 384 U.S. 436,
444 (1966); see also Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000).
In stating its reasons for overruling Stewarts motion to suppress his confession,
the trial court focused on whether Stewart voluntarily waived his rights. Indiana
Code section 31-32-5-4 provides trial courts with a non-exclusive list of factors, particular
to juveniles, to aid in the determination of voluntariness. However, section 31-32-5-1
imposes additional safeguards where a juveniles waiver of Miranda rights is concerned.
Before a court reaches the question of whether a juveniles waiver is voluntary,
it must determine whether the proper parties gave the waiver. Section 31-32-5-1
makes it clear that no unemancipated juvenile may unilaterally waive his or her
Miranda rights; rather, any waiver of a juveniles constitutional rights is ineffective unless
joined by one of the parties named in the section. This requirement
is in addition to, and independent of, the inquiry into whether the waiver
was voluntarily, knowingly, and intelligently given.
If section 31-32-5-1 is violated, the introduction in evidence of a statement made
by a person under eighteen years of age is forbidden.
State, 608 N.E.2d 699, 700 (Ind. 1993). Thus, the principal issue is
whether Stewarts biological father qualifies as one of those necessary parties, namely a
custodial parent. The undisputed facts are: (1) Stewart was born out of
wedlock; (2) a court award of custody neither appears in the record nor
is claimed to exist by either the State or Stewart; and (3) Stewart
did not live with his biological father. In light of the foregoing,
we conclude that Stewarts father does not qualify as a custodial parent.
Several statutory definitions would exclude Stewarts father from the status of custodial parent,
but none is controlling here. The term custodial parent is not defined
by section 31-32-5-1. It is defined in Indiana Code section 31-9-2-30 as
the parent who has been awarded physical custody of a child by a
court. However, that definition is not dispositive here because, by its terms,
the definition applies only to certain listed statutes, and section 31-32-5-1 is not
In addition, Indiana Code section 31-14-13-1, a part of the
laws addressing Establishment of Paternity, states, A biological mother of a child born
out of wedlock has sole legal custody of the child, unless a statute
or court order provides otherwise. However, that statute makes no mention of
its potential application to section 31-32-5-1. By contrast, the definition of custodian
in section 31-9-2-31, a person with whom a child resides, is to be
used for purposes of the juvenile law and presumably applies to all of
Title 31, Family Law and Juvenile Law. Though none of these provides
a direct answer to the present issue, all three statutes point toward the
conclusion that a custodial
parent is understood to mean either a person who
has been adjudicated by a court to have legal custody of the child,
or a parent who actually resides with the unemancipated juvenile.
The conclusion that this definition is appropriate for section 31-32-5-1 is reinforced by
our holding in
Graham v. State, 464 N.E.2d 1 (Ind. 1984). In
Graham, this Court held that even though a juvenile was a legal ward
of the Howard County Welfare Department, his father was a custodial parent under
section 31-32-5-1 because the juvenile actually resided with his grandmother and father.
Id. at 4. Thus, Graham implied that, for the purposes of section
31-32-5-1, custodial parent means either a parent who has legal custody, or a
parent with whom the juvenile resides at the time of the interrogation.
Because of their biological relationship, the State contends that Stewarts father satisfied the
requirements of section 31-32-5-1. However, the State offers no explanation of how
Stewarts father is a custodial parent in the face of these statutory definitions,
the case law, and the language of section 31-32-5-1. Rather, the State
merely claims that the statute requires only that his parent join in Stewarts
waiver. This contention plainly reads custodial out of the statute. It
seems clear that the statute contemplates consultation and waiver by a person in
the close relationship afforded by either formal custody or actual residence, in addition
to a biological or adoptive relationship. Stewarts father meets neither test.
We think the statute and applicable case law are clear that it was
error to admit Stewarts statement given in custody despite his purported waiver of
Errors in the admission or exclusion of evidence are to be disregarded as
harmless error unless they affect the substantial rights of a party. Fleener
v. State, 656 N.E.2d 1140, 1141 (Ind. 1995) (citing Ind. Trial Rule 61).
[A]n error will be found harmless if its probable impact on the
jury, in light of all of the evidence in the case, is sufficiently
minor so as not to affect the substantial rights of the parties.
Id. at 1142. Therefore, we must assess the probable impact of Stewarts
confession on the jury, in light of all the other evidence the State
presented at trial.
In addition to Stewarts confession, the State presented the witness testimony of Ashley
Rice, Fortes girlfriend. Rice testified that she knew Stewart and that he
went by the nickname Man. She testified that Forte and Stewart met
her on a street corner near her house and Forte gave her $200
that he later returned to collect. She also overheard Stewart tell Forte,
I think hes dead, man. You hit him too hard. She
could not remember Stewart saying anything else.
The State also presented the witness testimony of Detective Martinez. Martinez testified
that, in the course of his investigation, he learned that the two possible
individuals involved in this had the nickname of Man and the first name
of Damon. Martinez obtained a physical description of the person nicknamed Man,
and an address where he could locate Forte. Martinez also spoke with
Rice and discovered that Forte was Rices boyfriend. Eventually, Martinez found Forte
Martinez testified that, when he encountered Forte and Stewart, Stewart immediately volunteered the
statement that his cousin was getting him locked up for something that he
got him into. Stewart acknowledged that he was talking about something to
do with what happened on the Bigfoot
parking lot. Stewart made
no other statements to Martinez other than his confession. Finally, the gun
used to kill Smith was found in the area where Forte and Stewart
But for Stewarts confession, the State presented no evidence directly placing Stewart at
the scene of Smiths murder. We do not discount the significance of
the States other evidence; however, we are unwilling to say that, in comparison
to the probable impact of Stewarts confession, the trial courts error did not
affect Stewarts substantial rights. The confession definitively established Stewarts role in the
commission of the robbery and murder of Smith. The jury did not
have to piece together Stewarts culpability from the collage of what Rice overheard
Stewart say to Forte, Stewarts spontaneous statement to Martinez, and where the gun
was found. The jury had Stewart, on tape, admitting his guilt.
The probable impact of this evidence on the jury, in light of the
other evidence, is not sufficiently minor so as not to affect Stewarts substantial
rights. Therefore, the trial courts error in admitting Stewarts confession was not
harmless. Double jeopardy does not bar a retrial. Robinette v. State,
741 N.E.2d 1162, 1167-68 (Ind. 2001); Smith v. State, 721 N.E.2d 213, 220
We reverse the conviction and remand for a new trial.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
It is not clear when the trial court first ruled on Stewarts
motion to suppress, although it appears that the ruling took place just before
trial. In the middle of trial, the court allowed Stewart to object
to the admissibility of the confession and present the testimony of Stewarts father
in support. The court then stated its reasons for denying Stewarts motion
on the record.
Footnote: Section 31-9-2-30 states that the definition of custodial parent is given for
purposes of IC 31-14-13-8 [Custody Modification Proceeding; Violation of Injunction or Temporary Restraining
Order as Factor], IC 31-14-15 [Temporary Restraining Orders and Permanent Injunctions Against Custodial
Parents], IC 31-17-2-22 [Custodial Parents Violation of Injunction or Temporary Restraining Order; Considered
in Custody Modification], and IC 31-17-4 [Visitation Rights of Noncustodial Parent].