Court of Appeals of Indiana | Memorandum Decision 49A02

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### MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Ellen M. O’Connor Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Gary Wright , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff , June 10, 2015 Court of Appeals Ca se No. 49A02

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- 693 Appeal from the Marion Superior Court The Honorable Lisa Borges, Judge Ca s e No. 49G04

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- FB

- 81688



### Robb , Judge
. 

# Case Summary and Issue

[1] Following a jury trial, Gary Wright was convicted of burglary as a C lass B felony and theft as a C lass D felony. The trial court sentenced Wright to anCourt of Appeals of Indiana | Memorandum Decision 49A02

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aggregate sentence of thirteen years in the Department of Correction. Wright appeals, raising the following issue for our review: whether the trial court abused its discre tion by admitting the statements he made to the police after invoking his right to counsel. Concluding Wright reinitiated communication with the police and validly waived his right to counsel, we affirm.



# Facts and Procedural History

[2] On the morning of De cember 31, 2013, Amanda Pritchard left her house to go to work. Around 2:00 p.m. that day, Leisha Manges, Pritchard’s neighbor , called the police to report a possible burglary. Manges saw a white male later identified as Wright exiting Pritchard’s house with televi sions and other items in hand. Wright passed the items across the fence to a black male later identified as La r on Garrett. After Manges positively identified Wright and Garrett as the men she saw taking items from Pritchard’s house, both men were arrested and transported to the police station for questioning.

[3] Detective Cheryl Anderson interviewed Wright at the police station. Prior to any questioning, Detective Anderson advised Wright of his Miranda rights. Wright indicated that he under stood his rights and signed a written waiver. Once Wright signed the waiver, Detective Anderson began questioning him about the burglary , and h e answered her question s until she asked, “[O]nce you went inside what’d you do?” State’s Exhibit 27A at 5. To that question Wright responded, “I don’t think I should. I think I should talk to an attorney.” Id.Court of Appeals of Indiana | Memorandum Decision 49A02

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[4] Detective Anderson terminated the interrogation as soon as Wright requested an attorney . She said, “OK, all right, good enough,” id. , and left the roo m. Less than thirty seconds later, Wright changed his mind, began knocking on the door, and shouted, “Hey sergeant come in here I’ll talk. Come in here. I’ll talk. Come on, I’ll . . . come in here, I’ll . . . tell you everything. ” Id. at 6; State’s Ex hibit 27. Detective Anderson immediately returned , and the following exchange took place:
[Detective Anderson:] Alright, now Gary don’t be yankin’ my chain
now. [Wright:] I’m not ma’am. [Detective Anderson:] I don’t got time for that. [Wright:] I ’ll tell you everything. . . . State’s Ex. 27A at 6.

[5] First, Wright asked what charges he was facing and whether he was “the only one bein’ charged

. . . . ” Id. Detective Anderson informed Wright of the charges and assured him that Garrett would also be charged. Id. at 6

- 7. Then, Wright admitted that he and Garrett took “valuables” from Pritchard’s house. Id. at 7. When Detective Anderson asked what kind of valuables, Wright refused to answer the question. Id. Detective Anderson accepted that response and did not push Wright for an answer . The interview concluded less than a minute later, lasting just under eight minutes from start to finish , including the initial advisement of rights

. Wright told Detective Anderson to “Have a good day” as sh e was exiting the room. Id. at 8.Court of Appeals of Indiana | Memorandum Decision 49A02

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[6] Wright was charged wi th burglary as a Class B felony, theft as a C lass D felony , possession of a controlled substance as a Class D felony, and criminal mischief as a Class B misdemeanor . Prior to trial, W right filed a motion to suppress the statements he made to Detective Anderson after invoking his right to counsel. The trial court denied the motion, and the case proceeded to t rial. The State moved to dismiss the possession of a controlled substance and criminal misc hief charges the morning of trial. The trial court granted the State’s motion, and a jury found Wright guilty of the remaining charges

. The trial court sentenced Wright to thirteen years executed in the Department of Correction for burglary, to be served concurrently with a two year executed sentence for theft. This appeal followed.



# Discussion and Decision

I . Standard of Review

[7] Wright claims that the trial court abused its discretion by admitting the statements he made to Detective Anderson after invokin g his right to counsel. The decision to admit a defendant’s statement is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Ringo v.
State , 736 N.E.2d 1209, 1211 (Ind. 2000) (citation omitted)

. When a defendant

c hallenges the admissibility of his confession, the State must prove beyond a reasonable doubt that the statement was free and voluntary and not induced by violence, threats, promises , or improper influences

. Jackson v. State , 735 N.E.2d 1146, 1 153 (Ind. 2000). The same test determines whether a defendant’sCourt of Appeals of Indiana | Memorandum Decision 49A02

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Miranda rights were voluntarily waived. Carter v. State , 730 N.E.2d 155, 157 (Ind. 2000). In reviewing the trial court’s decision to admit a defendant’s

statement , “we do not reweigh the ev idence but instead examine the record for substantial probative evidence of voluntariness.” Ringo , 736 N.E.2d at 1211.



### II . Admission of Evidence

[8] The Fifth Amendment, applicable to the states by virtue of the Fourt eenth Amendment, provides that “[ n ] o per son
. . . shall be compelled in any criminal case to be a witness against himself. . . .” Hartman v. State , 988 N.E.2d 785, 788 (Ind. 2013) (quoting U.S. Const. amend. V). To protect the privilege against self

- incrimina tion, the U.S. Supreme Court in Mir anda v. Arizona held that a person must be warned, prior to any questioning, that he has the right to remain silent, that he has a right to the presence of an attorney, and that any statement he does make may be u sed as evidence against him

. 384 U.S. 436, 444 (1966)

. A defendant waives his Miranda rights when , after being advised of those rights and acknowledging an understanding of them, he proceeds to make a statement without taking advantage of his Miranda rights

. Crain v. State , 736 N.E.2d 1223,
1230 (Ind. 2000).

[9] Even if a defendant elects to waive his Miranda rights, the waiver may be rescinded at any time. Carr v. State , 934 N.E.2d 1096, 1102 (Ind. 2010). If a defendant asserts the right to counsel during interrogation, the police must
cease que stioning until counsel is present or the defendant reinitiates communication and waives the right to counsel. Osborne v. State , 754 N.E.2dCourt of Appeals of Indiana | Memorandum Decision 49A02

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916, 922 (Ind. 2001). Standing alone, the defendant’s initiation of further conversation is not sufficient to estab lish a waiver of the previously asserted right to counsel. Id. If a defendant is found to have reinitiated communication with the police, the subsequent inquiry is whether there was a valid w aiver of the right to counsel

— that is, whether the purported wa iver was knowing , voluntary, and intelligent , and found to be so under the totality of the circumstances. See i

d. at 922

- 23. The “totality of the circumstances” test focuses on “the entire interrogation, not on any single act by police or condition of th e suspect.” Washington v. State , 8 08 N.E.2d 617, 622 (Ind. 2004).

[10] In the present case, Wright was fully advised of his rights at the beginning of the interview, stated that he understood his Miranda rights, and signed a written waiver . After a few minu tes of questioning, Wright invoked his right to counsel, and Detective Anderson immediately terminated the interview. Less than thirty seconds later, however, Wright changed his mind and reinitiated communication . He told Detective Anderson to come back and said, multiple times, that he wanted to talk and would tell her “everything.” State’ s Ex. 27A at 6. The second part of the interview began with Detective Anderson answering Wright’ s questions. And w hen Wright refused to answer a question regarding what sort of valuables were taken, Detective Anderson moved on t o a different question. After less than eight total minutes of interrogation, theCourt of Appeals of Indiana | Memorandum Decision 49A02

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interview concluded with Wright telling Detective Anderson to “[h]ave a good day.” Id. at 8. 1

[11] Wright argues that factors such as “the cold room, anemia, head injury, a desire for credit time, lack of und erstanding criminal charges, or a desire to be unchained influenced the voluntariness of his statement.” Brief of Appellant at 12. Wright does not explain how these factors influenced the voluntariness of hi s waiver, and presumably all of these factors e xisted, to the extent they did exist, during the first part of the interview. Because Wright does not dispute the voluntariness of his initial Miranda waiver, and we look to the “entire interrogation” in evaluating voluntariness, we are not persuaded that these factors rendered his subsequent waiver involuntary. See Washington , 808 N.E.2d at 622. Furthermore, o ther than Wright’s brief remarks at the beginning of his interview with Detective Anderson, there is no evidence to establish that the interrogatio n room was unreasonably cold, that Wright was in fact anemic, or that Wright had an incapacitating head injury. 2 As to a desire for credit time,

1 Both this conduct and the subsequent conduct of Detective Anderson in her continuing interrogation of Wright were exemplary.
2 At the beginning of the interview, the following exchange took place: [Detective Anderson:] Alright Gary get your feet down off my table. [Wright:] Oh I’m sorry. I’m, I’m freezing and I’m, I’m anemic. [Detective Anderson:] I realize it’s cool in here. [Wright:] Huh? [Detective Anderson:] I know it’s cool in here. [Wright:] Cool? It ain’t cool. [Detective Anderson:] Uhh h uh. What happened to your head[?]Court of Appeals of Indiana | Memorandum Decision 49A02

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Detective Anderson never suggested that Wright would get good time credit if he waived his right to counsel. Regarding his purported lack of understanding regarding the charges, Detective Anderson answered Wright’s questions and explained the charges. Finally, Wright asked Detective Anderson to remove the leg irons as she was exiting the interrogation room, afte r the interview was

over
. Detective Anderson never suggested that the leg irons would be removed if he answered her questions.

[12] Based on the totality of the circumstances, Wright knowingly, voluntarily, and intelligently waived his right to counsel following his request for an attorney

. There is no evidence that Wright lacked the capacity to understand his rights, and a t no point did Detective Anderson threaten , intimidate, deceive, or make promises in order induce Wright to continue the interview

. See Jackson , 735 N.E.2d at 1153

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. Almost immediately after requesting an attorney, Wright unequivocally expressed his desire to resume the interview and tell Detective Anderson “everything.” State’s Ex. 27A at 6. Likewise, the decision to waive his r ight to counsel was an informed one. Wright had been fully advised of his rights just minutes before , and there was no need to reiterate the rights that he

[Wright:] Got beat up. [Detective Anderson:] Oh ok, who beat you up? [Wright:] Somebody. State’s Ex. 27A at 2. There is no evidence that the “head injury ” was recent or af fected Wright’s mental capacity. But even if the injury did affect his mental capacity , our supreme court has stated that “[a] defendant’s mental condition alone does not render a confession involuntary.” Rhodes v. State , 698 N.E.2d 304, 308 (Ind. 1998). Rather, a defendant m ust also allege police misconduct. Id. Here, Wright does not allege any police misconduct.Court of Appeals of Indiana | Memorandum Decision 49A02

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would be waiving by answering questions without an attorney present. Cf. Ogle
v. State , 698 N.E.2d 1146, 1148

- 49 (Ind. 1998) ( concluding that a second Miranda warning was not required where the police stopped the interrogation and questioning resumed less than an hour later ). We therefore conclude t he trial court did not abuse its discretion by admitti ng the statements Wright made

to the police after invoking his right to counsel.



# Conclusion

[13] Wright reinitiated communication with the police after requesting an attorney, and based on the totality of the circumstances, knowingly, voluntarily, and intelligently waived his right to counsel. For these reasons, the trial court did not abuse its discretion by admitting the statements Wright made to Detective Anderson . We therefore affirm his convictions

.

[14] Affirmed.

May, J., and Mathias, J., concur

.