ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. PATRICK BIGGS STEVE CARTER
Chief Public Defender Attorney General of Indiana
New Albany, Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RONALD E. BRABANDT, )
vs. ) No. 22A01-0302-CR-64
STATE OF INDIANA, )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard G. Striegel, Judge
Cause No. 22D01-0103-DF-102
October 27, 2003
OPINION - FOR PUBLICATION
Ronald E. Brabandt appeals the revocation of his probation and imposition of his
suspended sentence, raising the following two issues:
I. Whether the failure of a probation officer to administer Miranda warnings prior to
a probationers admission of illegal drug use should exclude such admission from entry
into evidence at the probationers probation revocation hearing.
II. Whether Brabandts confession was involuntary under the Fourteenth Amendment and Fifth Amendment to
the United States Constitution such that its introduction at the probation revocation hearing
constituted fundamental error.
FACTS AND PROCEDURAL HISTORY
On April 3, 2001, Brabandt was charged with invasion of privacy, resisting law
enforcement, criminal mischief, and two counts of battery resulting in bodily injury, as
Class D felonies.
In exchange for Brabandts guilty plea on the two
battery counts, the State dropped the other three charges. The trial court
sentenced Brabandt to one and one-half years on each battery conviction to be
served consecutively. After giving him credit for time served, the trial court
suspended the remaining two years and ten months of his sentence and placed
him on probation.
Brabandts Order of Probation required him to pay court costs and probationers user
fees and contained the following pertinent conditions:
1. Good behavior.
2. You shall make an appointment with the Probation Officer of this Court within
7 days from the sentence or release date. Thereafter, you shall report
to him/her as he/she shall direct.
3. You must not commit another criminal offense.
. . . .
5. You shall promptly notify your Probation Officer of any change in employment or
address and shall answer all reasonable inquiries.
. . . .
13. You shall not use alcohol or drugs (controlled substances) unless prescribed by a
. . . .
15. Urinalysis testing for drugs and alcohol at random intervals for term of probation
. . . .
DISCUSSION AND DECISION
. . . .
17. Special Conditions: Take medication as prescribed by physician and Anger/Stress Management.
Revocation Hearing, States Exhibit 1.
On November 19, 2001, the State filed its first Notice of Probation Violation
in the Floyd Superior Court alleging that Brabandt violated his probation by:
(1) failing to report to his probation officer as directed under term #2;
(2) failing to notify his probation officer of a change in address and
telephone number under term #5; and (3) failing to pay both court costs
and probationers user fees.
Appellants Appendix at 7. The State learned
that Brabandt failed to comply with these terms because he was in the
Harrison County Jail.
On April 24, 2002, the State and Brabandt
agreed to resolve the probation violation by extending his probation for five additional
months and by requiring Brabandt to complete alcohol and drug recommendations, complete an
anger management course, and make an appointment to see his probation officer within
seven days. Appellants Appendix at 13.
Thereafter, Collins received information from two sources that implicated Brabandt in illegal drug
use. Collins confronted Brabandt with these drug-use allegations during Brabandts October 10,
2002 probation appointment. During the same meeting, Collins performed a drug test
on Brabandt, inspected his arms, and noted fresh needle marks.
At the January 22, 2003 probation revocation hearing, Collins testified that, although Brabandt
passed the drug test, he voluntarily signed an affidavit admitting to violating his
probation (Affidavit) by using Oxycontin on October 7, 2002, and further admitting to
the use of alcohol.
Appellants Appendix at 36; Revocation Hearing, States Exhibit
2. He also placed his initials on the Affidavit next to the
statement, I am making this statement of my own free and voluntary will.
Revocation Hearing, States Exhibit 2.
Brabandt testified that, although he took the drug test, he was not immediately
told that he passed the test. Instead, by inspecting his arms and
asking about drug use, Collins led him to believe that he had not
passed the test.
Appellants Appendix at 57-58. Brabandt further testified that
he was coerced to sign the Affidavit because Collins told him that signing
the Affidavit would allow him to get treatment, while not signing would cause
him to go to jail.
Appellants Appendix at 58. Brabandt signed
the Affidavit and then left the office.
Sometime later, Brabandt met with Collins to report on his progress in treatment.
Brabandt told Collins that he had attended one treatment meeting. Collins
found this was insufficient and informed Brabandt that a second Notice of Probation
Revocation would be filed.
Appellants Appendix at 59-60. On December 3,
2002, the State filed its second Notice of Probation Violation alleging that Brabandt:
(1) failed to abide by the directive of probation to seek treatment
(anger/stress management) and follow their recommendations; (2) failed to pay delinquent probationers user
fees; (3) failed to pay court costs; and (4) used controlled substances not
prescribed by a physician. Appellants Appendix at 14.
At the conclusion of the January 22, 2003 probation revocation hearing, the trial
court revoked Brabandts probation and reimposed his sentence to be served at the
Floyd County Jail. Brabandt now appeals.
I. Standard of Review
Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept
conditions upon his behavior in lieu of imprisonment. Bonner v. State, 776
N.E.2d 1244, 1247 (Ind. Ct. App. 2002), trans. denied (2003) (citing Carswell v.
State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999)). These restrictions are
designed to ensure that the probation serves as a period of genuine rehabilitation
and that the public is not harmed by a probationer living within the
A defendant is not entitled to serve a sentence in a probation program;
rather, such placement is a matter of grace and a conditional liberty that
is a favor, not a right.
Cox v. State, 706 N.E.2d 547,
549 (Ind. 1999); Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App.
2001), trans. denied. Therefore, upon finding that a probationer has violated a
condition of probation, a court may either continue probation, with or without modifying
or enlarging the conditions, extend probation for not more than one year beyond
the original probationary period, or order execution of the initial sentence that was
suspended. IC 35-38-2-3(g).
A probation revocation hearing must be a narrow inquiry with flexible procedures that
allow a court to exercise its inherent power to enforce obedience to its
Cox, 706 N.E.2d at 550. The decision whether to
revoke probation is a matter within the sound discretion of the trial court.
Dawson v. State, 751 N.E.2d 812, 814 (Ind. Ct. App. 2001).
A probation revocation hearing is civil in nature, and the State need only
prove the alleged violations by a preponderance of the evidence. Cox, 706
N.E.2d at 551 (citing Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995));
McKnight v. State, 787 N.E.2d 888, 893 (Ind. Ct. App. 2003). Generally,
violation of a single condition of probation is sufficient to revoke probation.
Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied.
On review, our court considers only the evidence most favorable to the judgment
without reweighing that evidence or judging the credibility of witnesses.
State, 777 N.E.2d 733, 740 (Ind. Ct. App. 2002); Piper v. State, 770
N.E.2d 880, 882 (Ind. Ct. App. 2002), trans. denied. If there is
substantial evidence of probative value to support the trial courts conclusion that a
defendant has violated any terms of probation, we will affirm its decision to
revoke probation. Cox, 706 N.E.2d at 551; Packer, 777 N.E.2d at 740;
Piper, 770 N.E.2d at 882.
II. Miranda Warnings
At the probation revocation hearing, Brabandts Affidavit was admitted into evidence without objection.
Generally, failure to object, and thus properly preserve an issue for appeal,
results in waiver. England v. State, 670 N.E.2d 104, 105 (Ind. Ct.
App. 1996), trans. denied (1997) (citing Randolph v. State, 269 Ind. 31, 34,
378 N.E.2d 828, 831 (1978)). Our court nevertheless remedies an unpreserved error
when a trial court commits fundamental error. Id. Fundamental error is
error such that, if not rectified, would be a denial of fundamental due
process. Bryce v. State, 545 N.E.2d 1094, 1096 (Ind. Ct. App. 1989),
trans. denied (1990) (citing Foster v. State, 484 N.E.2d 965, 967 (Ind. 1985)).
To avoid waiver, Brabandt argues that the trial court committed constitutional error
that denied him fundamental due process.
Brabandt first contends that his statement in the Affidavit was taken in violation
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), and should not have been admitted into evidence or
considered for any purpose at the probation revocation hearing. The State counters
that Brabandt was not subjected to a custodial interrogation, and, therefore, the protections
of Miranda could not be invoked.
The Fifth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, provides that no person shall be compelled in any
criminal case to be a witness against himself.
Grubb v. State, 734
N.E.2d 589, 591 (Ind. Ct. App. 2000), trans. denied (citing U.S. Const. amend.
V). In order to protect the privilege against self-incrimination, the United States
Supreme Court held in Miranda v. Arizona that incriminating statements made while the
defendant is in custody and subject to interrogation may not be admitted into
evidence unless the defendant waives his Fifth Amendment privilege after being warned of
his right to remain silent and the consequences of his failure to do
so. Id. (citing Miranda, 384 U.S. at 467-69, 475-77, 86 S. Ct.
at 1624-25, 1628-29). Statements elicited in violation of Miranda are generally inadmissible
in a criminal trial and subject to a motion to suppress. Wright
v. State, 766 N.E.2d 1223, 1229 (Ind. Ct. App. 2002) (citing Loving v.
State, 647 N.E.2d 1123, 1125 (Ind. 1995)).
Recognizing that law enforcement officers are not required to give a defendant
warnings unless the defendant is both in custody and subject to interrogation in
connection with the investigation of a crime, Green v. State, 753 N.E.2d 52,
58 (Ind. Ct. App. 2001), trans. denied, Brabandt argues, as he must, that
his required attendance at the probation meeting constituted custody. He further asserts,
it is clear that the probation officer was not supervising [Brabandts] probation, but
was conducting a criminal investigation. Appellants Brief at 8.
Thus, the initial
Miranda inquiry is whether the defendant was in custody at
the time of questioning.
Morales v. State, 749 N.E.2d 1260, 1265 (Ind.
Ct. App. 2001). A criminal defendant is deemed in custody if a
reasonable person in the same circumstances would not feel free to leave.
Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (citing Cliver v. State,
666 N.E.2d 59, 66 (Ind. 1996)); Morales, 749 N.E.2d at 1265. Whether
a person was in custody depends upon objective circumstances, not upon the subjective
views of the interrogating officers or the subject being questioned. Loving, 647
N.E.2d at 1125 (citing Stansbury v. California, 511 U.S. 318, 322, 114 S.
Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994) (per curiam)); Morales,
749 N.E.2d at 1265.
Luna, our supreme court recently addressed the issue of what constitutes custody
for the purposes of Miranda. Luna, who was suspected of child molest,
drove himself to the police station, at the polices request, to give his
side of the story. Luna, 788 N.E.2d at 833. The police
did not read him his Miranda rights but told him that he was
not under arrest and could leave at any time. Luna was questioned
in an area that required a punch code to enter, but no punch
code to exit. The first part of the questioning lasted thirty-five minutes
and was not recorded. The police questioned whether Luna was being honest,
and he finally confessed. The trial court denied his pretrial motion to
suppress the confession, and he was convicted of child molesting. Our court
reversed Lunas conviction finding that he was in custody and that his statements
made without Miranda warnings should have been suppressed. The supreme court, reversing
our court, affirmed Lunas conviction concluding that, under the objective test, a reasonable
person in Lunas shoes would not have believed himself under arrest or not
free to resist the entreaties of the police. Luna, 788 N.E.2d at
834 (quoting Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996)).
We recognize that
Luna did not involve an issue of probation revocation, and,
unlike Luna, Brabandt was not being questioned for a new criminal charge.
Nevertheless, our supreme courts analysis of custody for purposes of Miranda mandates our
conclusion that, under the facts of this case, Brabandt was not in custody.
Brabandt had participated in probation programs and faced revocation proceedings in both
Floyd and Harrison Counties and was familiar with probation offices and their procedures.
Brabandts presence at the probation meeting was a prerequisite to his conditional
liberty. Here, although Collins failed to assure Brabandt that he was not
under arrest, Brabandt had arrived at the office on his own, unaccompanied by
any government official. The record before us contains no evidence that Brabandt
was behind locked doors or restrained in any fashion while attending his probation
meeting. Furthermore, when the meeting was over, Brabandt left the office and
remained free for two more months until he was arrested on December 17,
2002 for probation violations.
Here, Brabandt was neither in formal custody nor was his freedom of action
limited in any significant way when he made his confession at the probation
meeting. A reasonable person in Brabandts shoes would not have believed himself
under arrest or not free to resist the entreaties of the probation officer.
Luna, 788 N.E.2d at 833.
We therefore find that Brabandts confession
to his probation officer was not taken in violation of Miranda.
III. Constitutional Voluntariness of Brabandts Confession
Brabandt also argues that with or without a Miranda warning, the Fourteenth and
Fifth Amendments to the United States Constitution prevent a confession from being admitted
into evidence unless it is voluntary. Brabandt asserts that his confession was
not voluntary because Collins used deceit to obtain it and did not tell
Brabandt that it could be used against him in a probation revocation hearing.
Further, he argues that, because there was no objection, the trial judge
could not evaluate the voluntariness of the confession.
The admissibility of an incriminating statement is not determined solely by application of
Miranda rules. Where, as here, the defendant was not in custody,
an admission may be excluded because it was made involuntarily. A.A. v.
State, 706 N.E.2d 259, 262 (Ind. Ct. App. 1999). The Fourteenth Amendment
to the United States Constitution incorporates the Fifth Amendment privilege against self-incrimination.
Garmon v. State, 775 N.E.2d 1217, 1219 (Ind. Ct. App. 2002) (citing Withrow
v. Williams, 507 U.S. 680, 113 S. Ct. 1745, 123 L. Ed. 2d
407 (1993)). Therefore, to be admissible consistent with these provisions, a suspects
statement must be voluntarily given. Garmon, 775 N.E.2d at 1219-20. A
confession is voluntary if, in light of the totality of the circumstances, the
confession is the product of a rational intellect and not the result of
physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendants
free will. A.A., 706 N.E.2d at 262. The critical inquiry is
whether the defendants statements were induced by violence, threats, promises, or other improper
influence. Id. Stated differently, the relevant inquiry is whether the challenged
police conduct induced a confession which was not freely self-determined. Id.
Here, Brabandt argues that his compulsion was the threat that he would be
put in jail if he did not sign the Affidavit. At the
revocation hearing Brabandt was asked if Collins told him what the alternative was
to signing the paper. First Brabandt answered that Collins threatened jail.
He immediately clarified by saying, No I dont think he did. I
cant remember. He said something about trying to . . . .
Appellants Appendix at 58. This equivocation fails to support an assertion
The general obligation to appear and answer questions truthfully does not convert otherwise
voluntary statements into compelled statements.
State v. Shepherd, 569 N.E.2d 683, 686
(Ind. Ct. App. 1991) (citing Minnesota v. Murphy, 465 U.S. 420, 427,
104 S. Ct. 1136, 1142-43, 79 L. Ed. 2d 409 (1984)). The
Fifth Amendment speaks of compulsion; it does not preclude a witness from testifying
voluntarily in matters that may incriminate him. Id. Therefore, if a
witness under compulsion to testify makes disclosures instead of claiming the [Fifth Amendment]
privilege, the government has not compelled him to incriminate himself. Id.
An individual may lose the benefit of the privilege without making a knowing
and intelligent waiver. Id. (citing Garner v. United States, 424 U.S. 648,
654, n.9, 96 S. Ct. 1178, 1182, n. 9, 47 L. Ed. 2d
370 (1976)). Here, as a probationer reporting on his progress, Brabandt
was compelled to tell the truth. Choosing to sign the Affidavit instead
of claiming his Fifth Amendment right did not, without more, make Brabandts statement
involuntary. See also McKnight, 787 N.E.2d at 891 (while a probationer may
invoke his Fifth Amendment privilege against self-incrimination with regard to any questions that
may incriminate him in a subsequent criminal prosecution, he is not entitled to
invoke the privilege with regard to basic identifying information and any disclosures that
are necessary to effectively monitor his probation).
Brabandt was neither in custody nor coerced to admit that he used illegal
drugs in violation of the terms of his probation. Finding no error,
fundamental or otherwise, in the trial courts use of the confession, we affirm
the revocation of Brabandts probation.
BAKER, J., and RILEY, J., concur.
We heard oral argument in this case in Jeffersonville, Indiana on
September 18, 2003, before the Sherman Minton American Inn of Court. We
thank our hosts for their gracious reception and commend counsel on the quality
of their written and oral advocacy.
See IC 35-42-2-1(a). It is not stated in the information,
but testimony at the revocation hearing indicates that police officers were the victims
of both batteries. Appellants Appendix at 66.
Although the testimony was somewhat unclear about Brabandts Harrison County conviction,
it appears that he pled guilty to intimidation and invasion of privacy sometime
in 1999 and was placed on probation. Brabandts guilty plea in this
case caused his Harrison County probation to be revoked and sentence reimposed,
Appendix at 53, thus requiring Brabandt to serve the Harrison County sentence after
Floyd County released him on probation in this case.
Although Brabandt asserts that Collins told him that if he did
not sign the Affidavit he was going to jail, the following reflects the
direct questioning at the probation revocation hearing:
Q Okay. Did [Collins] give youdid he tell you what the
alternative would be to you signing that paper.
A Well, jail, I mean.
Q Did he tell you what the alternative would be?
A No, I dont think he did. I cant remember.
He said something about trying to . . .
Q Do you recall having another meeting with your probation officer where
you reported to him about having done something to take care of the
recommendation that he made
Q because of your signing the piece of paper thats State Exhibit
A Yeah. I told him that I did go for my
Appellants Appendix at 58-59. Collins, when questioned as to whether he threatened
to revoke Brabandts probation if he did not sign the Affidavit, or whether
he gave Brabandt the impression that he had failed the drug test to
induce a confession, denied both allegations. Appellants Appendix at 44-45.
Alspach v. State, 440 N.E.2d 502, 505 (Ind. Ct. App.
1982), our court held:
Miranda warnings need not be given by probation officers legitimately engaged in the
supervision of probationers when a) the probationer is not in custody, b) the
interrogation is reasonably related to the officers duty to supervise the probationer, and,
c) the questioning is reasonable under all the circumstances, including the length of
time and hour of the day or night it is conducted, the manner
in which it is conducted, the persons present during questioning, and the place
where it is conducted.
Because the issue of whether Brabandt was in custody is dispositive, we do
not reach the questions whether conditions (b) and (c) were met.
At oral argument, Brabandts counsel argued that a probation officer is
an agent of the state who must give
Miranda warnings under any conditions
akin to custodial interrogation. Concluding that Brabandt was not in custody, we
do not reach the question of whether Collins was, in this case, a
law enforcement officer under the meaning of Miranda.
We note that Brabandt initialed a statement on the Affidavit verifying
that his confession was being made voluntarily. Furthermore, contrary to Brabandts assertions,
the trial court did judge the voluntariness of his statement. Finding that
Brabandt had violated his probation, the trial court concluded, You did sign a
document, although youre denying it today, you signed it, and I dont believe
theres any coercion of that at all.
Appellants Appendix at 77.