ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL J. SPENCER KAREN M. FREEMAN-WILSON
Monroe County Public Defender Attorney General of Indiana
THOMAS D. PERKINS
Deputy Attorney General
BILLY JACK GRUBB, ) ) Appellant-Defendant, ) ) vs. ) No. 53A05-9912-CR-545 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
whether the trial court improperly admitted the videotaped statements of two children at
his probation revocation hearing.
The facts most favorable to the judgment follow. Pursuant to a plea agreement, Grubb was convicted of burglary as a class C felony. See footnote On April 17, 1997, the trial court sentenced Grubb to a term of eight years imprisonment, with five years suspended and four years probation. Grubb was given credit for 165 days for time already served. On June 18, 1998, Grubb completed his executed sentence and was placed on probation. As a condition of his probation, Grubb was ordered not to consume alcohol or engage in any criminal activity while on probation.
On August 12, 1998, Sergeant Roger Kelly received information about a possible fight and went to investigate. When he arrived at the scene, Sergeant Kelly spoke with Grubb, who smelled of alcohol, and Grubb admitted that he had been drinking. After discovering that Grubb was under twenty-one years of age, Sergeant Kelly administered a portable breathalyzer test. The test confirmed that Grubb had consumed alcohol.
Sometime in September 1998, the Bloomington Police Department received a report alleging that Grubb had molested two different children, both of whom were three years old. The next day, Officer Daniel Harrell and Sherry Susnick, a caseworker from Child Protective Services, went to Grubbs home and asked him to come to the police department because they needed to ask him some questions. Grubb and his mother agreed and went to the police station that day. Upon Grubbs arrival, Officer Harrell thanked Grubb for coming down to talk to them and informed him that he was not under arrest and that he was free to leave after their conversation. Officer Harrell then left the room and Susnick conducted an interview with Grubb, which was videotaped. During the interview, Grubb admitted molesting both children during June or July of 1998. Following the interview, Grubb left the police department.
On September 16, 1998, the State filed a petition to revoke Grubbs suspended sentence based on the two allegations of child molestation, the allegation of consuming alcohol as a minor, and the allegation of consuming alcohol while on probation. The trial court held a hearing on the petition on March 29, 1999. During the hearing, the State entered into evidence the videotaped interviews of the two child victims over Grubbs hearsay objection. The State also entered into evidence, over Grubbs objection, Grubbs videotaped interview. Following the hearing, the trial judge found that Grubb had violated the terms of his probation and revoked the five year suspended sentence.
Our standard of review of an appeal from the revocation of probation is well settled. We consider only the evidence most favorable to the judgment and we will not reweigh the evidence or judge the credibility of witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999), rehg denied. We will affirm the trial courts decision to revoke probation if there is substantial evidence of probative value to the support the conclusion that the defendant violated any terms of probation. Id.
Id. at 364, 118 S Ct. at 2020. The Court further stated
that [t]he costs of excluding reliable, probative evidence are particularly high in the
context of parole revocation proceedings because it permits the parolee, who is more
likely to commit future criminal offenses than an average citizen, to avoid the
consequences of his noncompliance. Id. at 365, 118 S. Ct. at 2020.
Therefore, because of the substantial costs and minimal deterrence effect, the Court
concluded that the exclusionary rule does not bar the introduction of evidence seized
in violation of a parolees Fourth Amendment rights at a parole revocation hearing.
Id. at 364, 118 S. Ct. 2020.
Although Scott dealt with the exclusionary rule in the context of a Fourth Amendment violation, we think the principles applied there are equally applicable to the alleged Fifth Amendment violation in the present case. As in Scott, the costs associated with excluding Grubbs statement are high while the deterrence effect on police misconduct of excluding the statement is minimal given the fact that the statement cannot be admitted against Grubb at a criminal trial on molestation charges. See footnote
We find further support for our conclusion in Murphy, a case dealing with whether a statement made by a probationer to his probation officer without Miranda warnings is admissible in a subsequent criminal proceeding. Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136 (1984). In Murphy, the United States Supreme Court stated,
A defendant does not lose [the Fifth Amendments] protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes the incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted.
Id. at 426, 104 S. Ct. at 1141-1142 (emphasis added). Although Murphy
did not involve the issue presented here, we nevertheless construe such language as
clearly contemplating admission of a statement taken in violation of the Fifth Amendment
in a probation revocation proceeding. Therefore, we hold that Grubbs statements obtained
in violation of Miranda were properly admitted at his probation revocation proceeding.
In his reply brief, Grubb asserts,
In a case such as this where the officer knows the defendant is on probation facing a substantial penalty, the officer can logically determine that getting a statement from the suspect at any cost will be beneficial because it can be used to revoke probation even if it means losing the new allegation of criminal activity.
Reply Brief, p. 4. Any abuses that that such a rule could
promote are not present in this case. First, Susnicks focus, as a
caseworker for Child Protection Services, was not on ensuring compliance with parole conditions
or obtaining evidence for Grubbs revocation hearing. The same is true for
Officer Harrell. See Scott, 524 U.S. 357, 368, 118 S. Ct. at
2022 (noting that because a police officer is not focused upon ensuring compliance
with parole conditions or obtaining evidence for introduction at administrative proceedings, but upon
obtaining convictions of those who commit crime, the officer will be deterred from
violating Fourth Amendment rights by the application of the exclusionary rule to criminal
trials). Moreover, other than making a statement that he was aggressively interrogated
even after making repeated denials, a statement which we cannot verify because Grubb
failed to include a transcript of the videotaped interview in the record, Grubb
makes no claim that he was questioned for the purpose of discovering a
probation violation or that knowledge of his probationary status somehow affected the manner
in which Susnick and Officer Harrell investigated the molestation charge. Appellants Brief,
p. 12. Finally, other than noting that he was not read his
Miranda rights, Grubb does not argue that his statement is untrustworthy because it
was coerced or otherwise the product overborne will. Therefore, in the absence
of any evidence of rampant abuse of the rule in this case as
suggested by Grubb, we hold that Grubbs confession was properly admitted into evidence.