APPEAL from the Circuit Court of Rock Island County; the Hon.
GENE McWHORTER, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
On February 20, 1981, in Rock Island County, the People filed a delinquency petition against S.D.S., age 15, who was already a delinquent and on probation for theft, charging him with solicitation and conspiracy to commit murder. The minor was further adjudicated delinquent. After a dispositional hearing, he was committed to the Department of Corrections.
Defendant raises three issues in his appeal. First, that his confession was not voluntary in that his Miranda rights were not waived. Second, that his confession was not corroborated. And third, that the defendant cannot stand convicted of both solicitation to commit murder and conspiracy to commit murder since solicitation is a lesser-included offense of conspiracy.
When the alleged offenses occurred, S.D.S. was in the temporary custody of the Moline Group Boys Home. Previously, he was made a ward of the Court and placed on probation for stealing a motorcycle. On January 14, 1981, a petition to revoke probation was filed against S.D.S. for burglary. The burglary incident resulted in the defendant being placed in the temporary custody of the Moline Group Boys Home, which was his custodial home at the time of the instant offense. The burglary charge is not before this court.
However, at the adjudicatory hearing as to the revocation petition involving the offenses of solicitation and conspiracy to commit murder, the victim, Linda Young, testified that she was the housemother at the Boys Home on February 19, 1981. On that day, while working in the kitchen, Michael Burch stabbed her in the back with a knife. Mrs. Young was hospitalized because of her wound. Burch and S.D.S. were roommates at the home. S.D.S. was not in the house at the time of the stabbing. The People moved into evidence the minor's confession as to the solicitation and conspiracy and then rested. S.D.S. presented no witnesses. The trial court found S.D.S. guilty of both offenses.
Insasmuch as the defendant was not present at the stabbing, the cornerstone and, indeed, the only direct evidence of his guilt of solicitation and conspiracy was his confession. The defendant filed a pretrial motion to suppress this confession on the grounds that it was not voluntary. The pretrial suppression motion was denied and, as already indicated, the confession was received in evidence at trial. The hearing on the motion to suppress the confession proceeded as follows.
Officer Brockway was the first witness. Before S.D.S. appeared at the police station on February 19, 1981, Officer Brockway spoke with the minor's father, Ernest Smith, who was present at the station. S.D.S. then arrived in a police vehicle. He was read his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, from a form which he signed. His acknowledgment at the bottom of the Miranda form which was read to him was as follows:
"* * * I, [S.D.S.] have had 8 years of education, and I understand the above rights.
No force or threats were used against the defendant. At this juncture, however, it should be noted that the above acknowledgment is something short of a waiver of rights. Waiver of one's rights goes a step further than merely knowing one's rights. Officer Brockway testified that S.D.S. seemed to understand his rights. Before questioning the minor, Brockway said, S.D.S. conferred with his father. However, Ernest Smith was not present in the room where Officer Brockway questioned S.D.S. The presence of an attorney or the father was not specifically requested by S.D.S. or his father. Nor did S.D.S. expressly waive his Miranda rights, orally or in writing.
The next witness was the father, Mr. Smith. He stated that although he and his son sat next to each other in the police station, he did not talk with his son prior to any police questioning. He said he had no reason to say anything to his son.
The confession consists of three typewritten pages. It was taken at two different times over a period of roughly 40 minutes. In it, S.D.S. said he, Lonny Stark, and Michael Burch had a discussion about assaulting Mrs. Young. The purpose was to steal her car and money and flee the jurisdiction. The initial plan was to hit Mrs. Young on the head with a frying pan and tie her up. S.D.S. said it was his idea to stab the victim. This discussion took place on February 19, 1981, at 7 a.m. The three boys had discussed the matter for about four days previous to the day of the stabbing.
At the conclusion of the suppression hearing the trial judge ruled the confession was voluntary. The minor contends this was error.
Since the police did not obtain an express written or oral waiver of the minor's Miranda rights, S.D.S. contends, his confession was involuntary. Moreover, he submits, we should adopt a per se rule which excludes a juvenile's confession, unless the minor was accorded the opportunity to consult with his parents, a guardian, or an adult friend before deciding to talk with police. Indiana adheres to this rule (Lewis v. State (1972), 259 Ind. 431, 439, 288 N.E.2d 138, 142.) The People respond that the issue of S.D.S.'s express waiver of his Miranda rights was not specifically raised in the trial court, and ...