ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald H. Hurst Jeffrey A. Modisett
522 West Eighth Street, Suite A Attorney General of Indiana
Anderson, Indiana 46016
Janet Brown Mallet
Deputy Attorney General
Office of Attorney General
Indiana Government Center
South, Fifth Floor
402 West Washington Street
Indianapolis, IN 46204-2770
DUSTIN TROWBRIDGE, ) Appellant (Defendant ) ) Supreme Court No. ) 48S00-9711-CR-00633 v. ) ) STATE OF INDIANA, ) Appellee (Plaintiff ). )
APPEAL FROM THE MADISON SUPERIOR COURT III The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-9609-CF-328
ON DIRECT APPEAL
Dustin Trowbridge (Trowbridge or Defendant) was convicted by a jury of murder, rape, robbery, burglary, criminal confinement, aggravated battery, theft, auto theft, and abuse of a corpse. Trowbridge also pleaded guilty to escape. He was sentenced to a term of one hundred
and ninety-nine (199) years for all of his crimes. Trowbridge was fourteen years old at the time of
the murder, but was waived into adult court.
In this direct appeal, Trowbridge argues that the trial court committed reversible error in not granting Defendant's Motion to Suppress on grounds that his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, § 11 of the Constitution of the State of Indiana were violated by the State. Trowbridge further argues that the evidence and confession were obtained as a result of an unlawful search and should be held inadmissible under the exclusionary rule. Finally, Trowbridge claims his confession was obtained as a result of a faulty waiver of his right to remain silent and violations of Indiana's juvenile waiver statute.See footnote 1 Under Indiana Appellate Rule 4(A)(7), this Court has exclusive jurisdiction over Trowbridge's appeal. We affirm the trial court on all issues raised, but reverse Defendant's rape conviction and reduce Defendant's sentence to a total of ninety-seven (97) years.
woods near his trailer and huffedSee footnote
clear enamel paint. Trowbridge then secretly entered Doris
Swindell's trailer, hid in her bedroom, and watched Swindell through the window while she
watered her lawn. When Swindell came inside Trowbridge beat her, choked her, forced her to the
floor, and ultimately strangled her to death with the swimsuit she was carrying. Trowbridge
moved Swindell to her bed and forced intercourse, though the forensic pathologist could not
determine whether Swindell was dead or alive at the time. When he was done, Trowbridge threw
a blanket over Swindell's body, went home, and took a shower. While Trowbridge was in
Swindell's house, he took jewelry, $155 cash, and car keys.
Trowbridge drove Swindell's car that evening, picked up and visited friends, and used Swindell's money to buy fast food, ice cream, and computer duster fluid to huff with his friends. At the end of the evening, Trowbridge parked the car in a business parking lot near the trailer park and walked home. Upon returning to his trailer, Trowbridge ate a steak dinner and then hid the various items he had taken from Swindell. Trowbridge watched as police began to arrive at Swindell's trailer and listened to his mother's fiancé's scanner to track developments.
Trowbridge lived with his mother, Marlene Frost, his mother's fiancé, Tim Gill, and two younger brothers. Gill was a police officer with the Town of Edgewood Police Department and arrived home from working second shift at around 11:15 p.m. on May 2, 1996. Gill knew there had been a homicide and, still in his police uniform, walked to the crime scene and inquired as to the investigation. Later that night, Trowbridge seemed nervous, questioned why there were so many police officers at the scene, and carried Gill's scanner around. Trowbridge also asked Gill
whether the police could find fingerprints on a body. Gill began to suspect that Trowbridge might
have information regarding the crime.
On the morning of May 3, 1996, Anderson Police Detective Terry Sollars interviewed residents of the mobile home park where Doris Swindell lived. Sollars did not stay long at Trowbridge's trailer, but noticed that Trowbridge became agitated and paced around after Sollars showed Gill, Frost, and Trowbridge photos of Swindell's car. Soon after Sollars left Trowbridge's trailer, Gill walked to where Sollars was standing with other officers and advised Sollars that he should question Trowbridge again and not rule him out as a suspect.
Sollars and three other detectives returned to Trowbridge's mobile home. Trowbridge briefly left the trailer with two detectives because he was uncomfortable responding to the detectives' questions in front of his mother. While Trowbridge was outside telling the detectives that he had been huffing the night before, Gill and Frost told Sollars they were concerned because there was a knife in a tackle box on the patio and Trowbridge had been hovering around the box. Frost was concerned that Trowbridge would become nervous and use the knife against the detectives, though she did not tell Sollars of her specific fear. Sollars, Frost, and Gill went to the tackle box and Gill stated that the tackle box was his. Sollars or Gill then opened the tackle box. Inside the tackle box, Sollars found the knife, as well as a roll of money and keys. Gill and Sollars walked to Swindell's mobile home and confirmed that the keys found in the tackle box fit Swindell's door.
Sollars returned to Trowbridge's home and placed Trowbridge in custody. Sollars then told Frost that Trowbridge was a suspect in Swindell's murder. Sollars requested and received a search warrant from a local judge and found additional evidence in Trowbridge's bedroom. The
investigation also uncovered Trowbridge's fingerprints in Swindell's car and a statistically
significant DNA match between Trowbridge and the semen in Swindell's body
We will recite below additional facts pertinent to this decision.
(Ind. 1987) (citations omitted).
Trowbridge argues he had a privacy interest in the tackle box that was violated when Gill (1) improperly consented to a search of Trowbridge's personal property in Trowbridge's absence, and (2) acted as a law enforcement officer in the Anderson Police Department's investigation of Swindell's murder. With respect to Trowbridge's asserted privacy interest, Gill lived in the trailer with Frost and her children and, at the time of the search, Gill told Sollars that the tackle box belonged to him, not to Trowbridge. In addition, the tackle box was located outside, on the patio, in a common area. The tackle box was not in a place, such as Trowbridge's bedroom, where the officer might have suspected a privacy interest on Trowbridge's behalf. Gill requested the search of the tackle box at Frost's urging. Frost and Gill, as the adults of the household, observed the search of the tackle box.
'[ T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person' who shares the authority. Brames v. State, 406 N.E.2d 252, 255 (Ind. 1980) (quoting Bruce v. State, 268 Ind. 180, 236, 375 N.E.2d 1042, 1072 (1978) (citations omitted)). Common authority depends on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection . . . . Perry v. State, 638 N.E.2d at 1241 (citing Stallings v. State, 508 N.E.2d at 552). Even if the third party who consents to a search does not have common authority over, or the requisite relationship to, the premises, the warrantless search is still valid if the officers reasonably believed the third party had common authority or the requisite relationship. See Canaan v. State, 683 N.E.2d 227, 231-32 (Ind. 1997) (citing Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S. Ct. 2793, 2796, 111 L. Ed. 2d
148, 155 (1990)); Perry v. State, 638 N.E.2d at 1241 (citation omitted).
reasonably believed that Gill had authority over the tackle box and could consent to its search
Defendant's suggestion that Gill was acting as an agent of the government, and therefore the search of the tackle box violated Trowbridge's right to be free from a warrantless state search, is without merit. Gill had no official role in the Anderson Police Department's investigation of Swindell's murder. Gill's actions were not an extension of his occupation as a police officer for the Town of Edgewood Police Department. Gill's only involvement was that of a concerned, supervising adult in Trowbridge's home. Gill had lived with Trowbridge for over three years and was father to Trowbridge's stepbrother. He had a personal relationship with Trowbridge which, though strained at times, resulted in Gill knowing Trowbridge's character and juvenile history. Gill came to suspect, on his own accord and through conversations with Frost, that Trowbridge had information regarding the murder. Gill was off-duty and out of uniform the day of the tackle box search. The fact that Gill was wearing a police academy sweatshirt is immaterial. Gill's suggestions to Detective Sollars that he further question Trowbridge and view the contents of the tackle box, and Gill's accompanying Sollars to test the keys on Swindell's trailer do not exceed actions to be expected of a concerned, supervising adult and responsible citizen.
Under the Indiana Constitution, the State must show that a search was reasonable in light of the totality of circumstances. See Brown v. State, 653 N.E.2d 77, 79-80 (Ind. 1995). For the reasons cited above in our federal Fourth Amendment analysis, the search of the tackle box was reasonable in view of the surrounding circumstances.
Because the search of the tackle box and seizure of its contents was legal under both the Indiana and United States Constitutions, the derivative evidence and confession that flowed
therefrom are not fruits of the poisonous tree subject to the exclusionary rule. The trial court
properly admitted the evidence.
Trowbridge that they were going to leave the room and give Trowbridge a break with his mom,
an opportunity to speak to her in confidence, before they started questioning him. (R. at 213,
1594.) Trowbridge and Frost were in the room together for four and one-half minutes when
Frost left the room and the consultation was over. Trowbridge then gave a full confession to the
murder of Doris Swindell.
Trowbridge argues that the waivers did not conform to Indiana's statutory requirements. At the time of Trowbridge's confession, Indiana Code § 31-6-7-3 (1995) set out specific requirements for a valid waiver by a juvenile of Indiana state or federal constitutional rights. The statute provided in pertinent part as follows:
(a) Any rights guaranteed to the child under the Constitution of the United States, the Constitution of Indiana, or any other law may be waived only:
(1) by counsel retained or appointed to represent the child, if the child knowingly and
voluntarily joins with the waiver;
(2) by the child's 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; or. . . .
Indiana Code § 31-6-1-9 (1995) defined child as a person under eighteen years of age. Trowbridge was fourteen years of age at the time of the confession. Pursuant to Indiana Code
§ 31-6-1-9, Trowbridge was a child at the time of the confession and entitled to the juvenile code protections.
Trowbridge challenges the admissibility of his statements on four grounds. First, he contends that Frost did not knowingly and voluntarily waive the right because no one told her that Trowbridge was a suspect in Swindell's murder, she was ill and unable to think clearly, and she
was compelled to cooperate and consent because she would be subject to a contempt of court
citation for failing to comply with Trowbridge's house arrest order. Second, Trowbridge
contends that Frost's interests were adverse to Trowbridge's by virtue of the house arrest order
requiring Frost to report any violation to the authorities. Third, Trowbridge asserts that he did
not knowingly or voluntarily join in Frost's waiver because the officers ignored Trowbridge when
he indicated a desire to stop the interrogation. Finally, Trowbridge argues that he was denied an
opportunity for meaningful consultation with his mother. The trial court denied Trowbridge's
pretrial motion to suppress his confession.
A. Knowing and Voluntary Waiver by Mother
When determining whether a waiver of rights during interrogation was made knowingly and voluntarily, the court considers all of the circumstances of the waiver including: the child's physical, mental, and emotional maturity; whether the child or his parent understood the consequences of his statements; whether the child and his parent had been informed of the act with which the child was charged or of which he was suspected; the length of time he was held in custody before consulting with his parent; whether there was any coercion, force, or inducement; and whether the child and his parent had been advised of the child's right to remain silent and to appointment of counsel. See Ind. Code § 31-6-7-3(d) (1995). The appellate standard for reviewing a trial court's ruling on the voluntariness of a waiver is to consider only uncontested evidence and evidence favorable to the state in light of the totality of circumstances. See Carter v. State, 686 N.E.2d 1254, 1257 (Ind. 1997) (citing Tingle v. State, 632 N.E.2d 345, 352 (Ind. 1994)).
juvenile waiver statute because her waiver was coerced. Frost had signed a house arrest contract
on February 23, 1996 pursuant to Trowbridge's release from secure care to house arrest
following prior unrelated delinquency proceedings. Under the contract, Frost agreed to supervise
Trowbridge's adherence to the conditions of his probation and to report any violation by
Trowbridge to Juvenile Probation. Failure to notify Juvenile Probation of violations would have
subjected Frost to a contempt of court citation. Trowbridge argues that the threat of a severe
penalty for not complying with the house arrest contract compelled Frost to waive involuntarily
Trowbridge's rights. However,
the house arrest contract had expired in April, 1996 and Frost
allowed Trowbridge to leave the house on the day of the murder because she knew the contract
Even if the document could be found to give rise to the argued compulsion during
its pendency, it did not do so after the contract expired and Frost knew of the expiration. Frost
was not compelled by the house arrest contract to waive Trowbridge's rights.
B. Adverse Interests
Defendant next argues that Frost was an adverse party to his interests and could therefore not serve as the adult who waives his rights under the juvenile waiver statute. Trowbridge cites Borum v. State to support his argument that Frost was an adverse party. 434 N.E.2d 581, 583-84 (Ind. Ct. App. 1982). We disagree that Borum controls. In Borum, the waiver was defective because the child's legal guardian who joined in the waiver was an employee of the state Department of Public Welfare, she initiated the proceedings against the child, and the Department of Public Welfare was represented by an attorney who served as the prosecuting agent for the state. See id. at 583. Frost was not an employee of the state. In contrast, in M.R. v. State, we
did not find an adverse interest where a mother who waived her child's constitutional rights had
brought the child to the police after he ran away in violation of probation. 605 N.E.2d 204, 207
(Ind. Ct. App. 1992).See footnote
The fact that Frost notified authorities regarding her concern about
Trowbridge's involvement in the Swindell murder is insufficient to render her interests adverse.
We find, under the totality of circumstances, that Frost's obligations under the house arrest
contract did not render her adverse to Trowbridge's interests and her waiver was voluntary.
C. Meaningful Consultation and Knowing and Voluntary Waiver by Defendant
Trowbridge next claims that he did not knowingly or voluntarily join in the waiver of his rights because he indicated to Detective Hay that he wished to stop the interrogation. Trowbridge cites United States v. Pena, 897 F.2d 1075, 1082 (11th Cir. 1990), which held that when a defendant indicates, even ambiguously, that he desires not to cooperate or that he desires to remain silent, officers must stop questioning and clarify the uncertainty. Trowbridge's query regarding his mother's waiver did not amount to an indication that he wanted to stop questioning. Nevertheless, Detective Collins did cease the questioning at that point and gave Trowbridge and Frost an unsolicited opportunity to consult privately in spite of their earlier rejection of the offer. After the brief consultation, Trowbridge began his confession and never indicated a desire to terminate the session.
expected, to force substantive communication between children and their parents.
There is no evidence in the record that Trowbridge and Frost were coerced, forced, or otherwise induced to waive their rights and enter a confession. We find that under the totality of circumstances, the trial court properly determined that both Trowbridge and his mother knowingly and voluntarily waived Trowbridge's rights in full compliance with statutory requirements.
prosecution's argument that Swindell was alive when Trowbridge had intercourse with her.
Trowbridge's confession presents evidence that Swindell was in fact dead when he had
intercourse with her. In view of the elements of Count II of the Information, Rape,See footnote
IX of the Information, Abuse of a Corpse,See footnote
respectively, convicting Trowbridge of both crimes
appears to punish him twice for the same act. We therefore reverse Trowbridge's conviction on
the rape charge.
Trowbridge received the maximum aggravated sentence for all ten of his convictions. Indiana's Constitution requires that a sentence be proportional to both the nature of the offense and the character of the offender. Gambill v. State, 675 N.E.2d 668, 678 (Ind. 1996). In addition, the penal code must be founded on the principles of reformation, and not of vindictive justice. Ind. Const. art. 1, § 18. When examining Trowbridge's sentences for the remaining convictions, we review trial court sentencing decisions only for abuse of discretion, including the trial court's decision to run the sentences concurrently or consecutively, and increase or decrease
the presumptive sentence because of aggravating or mitigating circumstances. See Archer v.
State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996),
Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996), and Mott v. State, 402 N.E.2d 986, 988
). To deviate from the statutorily proscribed presumptive sentence, the trial court
must (1) identify all of the significant mitigating and aggravating circumstances, (2) state the
specific reason why each circumstance is considered to be mitigating or aggravating, and (3)
articulate the court's evaluation and balancing of the circumstances to determine if the mitigating
circumstances offset the aggravating ones. Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)
(citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)).
Trowbridge offered his age, the fact that he was under the influence of a substance that can promote violent behavior, the difficulty he will experience in the prison system, and his remorsefulness and letters of apology to Swindell's family as mitigating circumstances to be considered in his sentencing. The trial court rejected all of these possible mitigators. We only address age as a mitigating circumstance. The trial court judge has primary responsibility for weighing aggravating and mitigating circumstances at sentencing. See Ross v. State, 676 N.E.2d 339, 347 (Ind. 1996) (quoting Smith v. State, 580 N.E.2d 298, 303 (Ind. Ct. App. 1991), trans. denied). However, the trial court is not obligated to credit or weigh a possible mitigating circumstance as defendant suggests it should be credited or weighed. Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997) (citations omitted). We will find that the trial court failed to identify or properly weigh a mitigating factor only where we are persuaded that the mitigating evidence is both significant and clearly supported by the record. Carter, 711 N.E.2d at 838 (citations omitted).
mitigating that the maximum sentence for each of his convictions is manifestly unreasonable.
Id. at 843.
The constitutional requirement that a sentence be proportionate to the offense does not require us to compare sentences among those convicted of the same or similar crimes. See Willoughby v. State, 660 N.E.2d 570, 584 (Ind. 1996) (citations omitted). However, we are not precluded from doing so. We find the enhanced sentences excessive in light of Trowbridge's age and comparisons to the sentences of other juveniles convicted of the same or similar crimes.See footnote 8 We therefore reduce Trowbridge's sentences on all counts to the presumptive sentence (i.e., murder at fifty years; robbery and burglary at thirty years each; aggravated battery and criminal confinement at ten years each; escape at four years; and abuse of a corpse, theft and auto theft at one and one-half years each).See footnote 9 We affirm the trial court's decisions regarding concurrent and
consecutive service of these sentences. Trowbridge's combined sentence is therefore reduced to a
total of ninety-seven (97) years.
SHEPARD, C.J., and DICKSON, SULLIVAN, and BOEHM, J.J., concur.
be treated differently in our judicial and correctional systems than one who is sixteen or older. Carter, 711 N.E.2d at 843. Therefore, juvenile sentences must be consistent with our statutory schema and reflect credit for age as a mitigating circumstance where it is a significant mitigator and clearly supported by the record.
charge and that aggravated battery is a lesser included offense of the murder charge. While Defendant was sentenced to three years for the theft conviction and twenty years for the burglary conviction, the trial court sentenced Defendant to serve the theft sentence concurrent to the burglary sentence and the burglary sentence concurrent to the fifty year robbery sentence. In addition, Defendant was sentenced to twenty years for his aggravated battery conviction to be served concurrent to his sixty-five year sentence for murder.
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