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.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : PATRICIA CARESS MCMATH GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

BOUBACARR MOUSSA, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A05

- 1209

- CR

- 449 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice, Jr., Judge Cause No. 49G02

- 1107

- FB

- 51058

September 9, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION
NAJAM, Judge2 STATEMENT OF THE CASE Boubacarr Moussa appeals his conviction for failure to stop after a n accident causing serious bodily injury , as a C lass B felony , following a jury trial. Moussa raises two issues on appeal:
1. Whether he waived his Miranda rights when he was questioned by police o fficers at the hospital

. 2. W hether he volun tarily consented to a blood draw

. We affirm. FACTS AND PROCEDURAL HISTORY Shortly before 3:30 a.m. on July 19, 2011, Indianapolis Metropolitan Police Department (“IMPD”) Officer Ryan Archer conducted a routine traffic stop. During the stop, Mo ussa drove his truck into the rear of Officer Archer’s patrol car and pushed it into t he car he had originally pulled over . Moussa continued driving, but he was found hiding in some bushes after his car ran off the road three

- quarters of a mile away

. A K

- 9 unit retrieve d Moussa from the bushes , which resulted in some lacerations. Mous sa was taken to a nearby hospital and treated for his injuries , as was Officer Archer, who sustained a concussion and an injury to his leg

. The doctor who treated Moussa allowed IMPD Sergeant Micha el Duke, a DUI Unit Supervisor, to speak to Moussa while th e hospital staff examined him. Sergeant Duke advised Moussa of his Miranda rights and questioned him about the crash. Moussa acknowledged that he understood his rights and he did not request an attorney. Moussa then said that he had been driving home fr om his brother’s house after having consumed3

three beers , and he claimed that he saw another vehicle hit the police cruiser

. Sergeant Duke videotaped the interrogation. Approximately one hour after Sergeant Duke finished his interview, a second officer, IMPD Detective Bruce Wright, a member of the Fatal Alcohol Crash Team , interrogated Moussa and v ideotaped his interrogation

. Detective Wright awoke Moussa to interview him

. Detective Wright advised Moussa of his Miranda rights and Mous sa responded by stating that he understood his rights

. Detective Wright then began to question Moussa about the accid ent and Moussa answered the detective’s questions. Consequently, Detective Wright informed Moussa of Indiana’s implied c onsent law and of fered Moussa a blood test. Moussa agreed to the test. The result of the blood draw showed that Moussa’s blood alcohol content was .23 percent weight per volume , nearly three times the legal limit

. At trial, Moussa filed motions to suppress both his stat ements and the results of the blood test on the ground s that he had not given the statements or consented to the blood draw knowingly and voluntarily. T he cour t denied the motions to suppress, and a jury found Moussa guilty of a Class B felony failure to stop after a n accident causing serious bodily i njury

. This appeal ensued

. DISCUSSION AND DECISION
Moussa contends that the trial court abused i ts discretion when it admitted into evidence his statements to the officers and the results of the blood draw. A trial court has broad discretion in determining the propriety of admission of evidence. Fulton County
Com m ’rs v. Miller , 788 N.E.2d 1284, 1286 (Ind. Ct. App. 2003)

. Reversal of the trial4

court’s ruling is warranted only when the court has abused its d iscretion, and its action is clearly erroneous and against the facts and circumstances before it. Id. We will not reverse the trial court’s admission of evidence absent a showing of prejudice. Id.

Issue One: Waiver of Miranda R ights The Fifth Amendment of the United States Constitution provides a privilege against self

- incrimination during a custodial interrogation. Miranda v. Arizona , 384 U.S. 436, 461 ( 1966). Custodial interrogation is “ ‘ questioning initiated by law enforcement officers aft er a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ’ ” Palilonis v. State , 970 N.E.2d 713, 732 (Ind. Ct. App. 2012) (quoting Zook v. State , 513 N.E.2d 1217, 1220 (Ind. 1987)). Neither party disput es that Moussa was subjected to custodial interrogation by Sergeant Duke and Detective Wright

. “A waiver of one’s Miranda rights occurs when a defendant, after being advised of those rights and acknowledging an understanding of them, proceeds to make a st atement without taking advantage of those rights.” Crain v. State , 736 N.E.2d 1223, 1230 (Ind. 2000). To be admissible, a suspect’s confession must also be voluntarily given. Carter v.
State , 686 N.E.2d 1254, 1258 (Ind. 1997). A confession is voluntary if it is the product of a rational intellect and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant’s free will. Palilonis , 970 N.E.2d at 732. Under the United States Const itution, the State must prove by a preponderance of the evidence that the defendant’s confession was voluntary. Clark v. State , 808 N.E.2d5

1183, 1191 (Ind. 2004). Under the Indiana Constitution , when the defendant challenges the admissibility of a confes sion, the State must show voluntariness beyond a reasonable doubt. Id. The voluntariness of a defendant’s confession is determined from the totality
of the circumstances. Washington v. State , 808 N.E.2d 617, 622 (Ind. 2004).
There is no evidence to support the suggestion that Moussa talked to police because of coercion, threat, or improper influence. Instead, Moussa argues that he could not have knowingly, voluntarily, and intelligently w aived his Fifth Amendment right s because he did not understand his rights due to his injuries, the distractions o f the hospital staff, and having been awakened immediately before the second interview . We will address each argument in turn

. In Palilonis , the court held that the defendant’s statements to police were admissible despite recently sustaining injuries from being beaten up. 970 N.E.2d at 733. The court reasoned that the defendant incurred only superficial scratches and bruises and did not suffer any head trauma that would have affected his decision making

. Id. As stated above, each of Moussa’s interviews was recorded. The video

- tape s show that Moussa was in discomfort during the interviews. He had sustained bite wounds and other puncture wounds, and he was wearing a C

- collar

. Nevertheless , nothing in the record ing suggests Moussa had suffered any head trauma that would have affected his awareness of the interview or his decision making. The injuries Moussa sustained did not prevent him from hearing , understanding the interrogators , and cooperating wit h the questioning. The parties agree that Moussa was likely on some type of pain medication during the interviews. But o ur supreme c ourt has consistently held that statements are not6

inadmissible per se when a suspect is intoxicated; they are only inadmi ssible because of intoxication when the suspect is so intoxicated that he is unaware of what he is saying or the intoxication has produced a state of mania in the suspect. See e.g. , Wilkes v. State , 736 N.E.2d 227, 231 (Ind. 2000); Luckhart v. State , 736 N.E.2d 227, 2331 (Ind. 2000). Here, our review of the video recordings do not suggest that Moussa was in a stat e of mania or that h e was so intoxicated that he was unaware of what he was saying. Moussa responded to his interviewers often by taking a few seconds to think through and formulat e his answers. He even corrected misstatements made by himself and the officers during the interviews. Thus, Moussa ’s statements are not inadmissible due to his injuries or intoxication. Concerning the commotio n in the hospital room, we first note that Moussa does not demonstrate how a busy room might rise to the level of a coercive envi ronment and negate an otherwise valid waiver of one’s Miranda rights. As such, he has waived this argument. Further, Sergeant Duke asked and received permission from the hospital staff to speak to Moussa. At one point in the video recording, a nurse asked Sergeant Duke to interview Moussa on the other side of his bed so that she would not interfere with the interview. Thus, th ere is no indication that the medical personnel working with Moussa believe d that their work would interfere with the interview, and t he video evidence shows that Moussa was able to concentrate during the interrogation despite the activity in the hospital room and the medical treatment being administered to him. Finally, the fact that Moussa was aroused from sleep before the second interview does not negate the voluntariness of his statements. For example, in Powell v. State , 4377

N.E.2d 969 , 971 (Ind. 1982), our supreme court held that a confession was voluntary even though the defendant had been awakened and then interrogated

. Powell is controlling here. The video shows that Moussa was alert during the interview and able to answer questions coherentl y. Thus, under the totality of the circumstanc es Moussa’s statements were voluntarily made, and the trial court did not abuse its discretion when it admitted his statements into evidence.
Issue Two : Blood Draw
Moussa also cont ends that the trial court e rred when it admitted into evidence the result of his blood draw because Moussa did not voluntarily give his consent to the bloo d draw

. A blood draw under our implied consent laws is a search for purposes of the Fourth Amendment. Copas v . State , 891 N.E.2d 663, 664 ( Ind. Ct. App. 2009)

. In general, the Fourth Amendment prohibits warrantless searches. Hannoy , 789 N.E.2d at 982. Searches conducted without a warrant are per se unreasonable subject to a few well

delineated exceptions. Id. One r ecognized exception to the warrant requirement is a voluntary and knowing consent to search. 1 Meyers v. State , 790 N.E.2d 169, 172 (Ind. Ct. App. 2003); Krise v. State , 746 N.E.2d 957, 961 (Ind. 2001).

1 The presence of exigent circumstances is similarly a well

- established exc eption to the warrant requirement. The reasonableness of a warrantless search under the exigent circumstances exception is evaluated based up on the totality of the circumstances. Missouri v. McNeely , 133 S. Ct. 1552, 1557 (2013). The State has the burde n to prove exigent circumstances justify a warrantless search. Id. at 1567 In Schmerber v. California , 384 U.S. 757 , 771 (1966), the Court recognized that the human body’s natural metabolic process , which causes the dissipation of alcohol in the blood ov er time , is an exige nt circumstance for the purpose of warrantless search es . The Court went on to find that the dissipation of alcohol , combined with the defendant being involved in a serious acci den t and needing to be taken to a hospital for treatment , and the time needed for police to investigate the scene of the crash , established exigent circumstances necessary for a warrantless search

. Id. As in Schmerber , Moussa was involved in a serious accident. The police had to investigate the scene of the c rash and secure the scene where Moussa’s vehicle went off the road. Further, Moussa required medical c are and was transported to the hospital and treated for injuries before he could be interviewed

. Nonetheless, because Moussa consented to the search, we need not decide this issue.8

When the State seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was freely and voluntarily given. The voluntariness of this consent to search is a question of fact to be determined from the totality of the circumstances. A consent to search is valid unless it is procured by fraud, duress, fear, or intimidation, or where it is merely a submission to the supremacy of the law. To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or pr ivilege. Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license the person knows may be freely and effectively withheld. Knowledge of the right to refuse a search is one factor that indicates voluntariness. Meyers v. State , 790 N.E.2d 169, 172 (Ind. 2003). The totality of the circumstances from which the voluntariness of a detainee’s consent is to be determined includes, but is not limited to, the following considerations: 1 ) whether the defendant was advised of his Miranda rights prior to the request to search; 2) the defendant’s education and intelligence; 3) whether the defendant was advised of his right not to consent; 4) whether the defendant has had previous encounters with law enforcement; 5) whether the officer claimed authority to search without consent; 6) whether the officer was en gaged in any illegal action prior to the request; 7) whether the defendant was cooperative previously; and 8) whether the officer was deceptive as to his true identity or the purpose of the search. Id. Under Indiana Code Section 9

- 30

- 6

- 2, a law enforcem ent officer with probable cause to believe that a person h as operated a vehicle while intoxicated shall offer a chemical test to that person, and the person must submit to that test to comply with the law. Similarly, under Indiana Code Section 9

- 30

- 7

- 3, a n officer shall offer a chemical test to any person who the officer has reason to believe operated a vehicle involved in a fatal or serious bodily injury accident, and the person must submit to that t est to comply with the law. Under either version of the implied consent law, the person retains the right to refuse consent, but doing so carries with it the civil penalty of a license suspension for one year or, in some cases, two years. See Ind. Code §§ 9

- 30

- 6

- 7; 9

- 30

- 7

- 5.9

Here , Detective Wright had probab le cause to offer Moussa the blood test under the implied consent law. Detective Wright testified that “the odor of an alcoholic beverage was extremely strong” in the trauma room where Moussa was being treated. Tr

. at 224. This testimony, coupled with M oussa’s im paired driving , gave the Detective reason to believe Moussa had operated his vehicle under the influence of alcohol. Moussa asserts that his consent to the blood test was involuntary because “[a]t the time he was advised of the implied consent law he had just been admitted to the hospital with serious dog bite injuries, was on pain medication, had been woken from sleep,” and simply did not understand the implied consent law. Appellant’s Br. at 8. For the same reasons that we find Moussa did, i n fact, waive his Miranda rights, we also find that Moussa’s injuries, possibl e intoxication, and having been awakened from s leep did not prohibit his voluntary consent to the blood draw.
F urther , th e seven - factor test stated in Meyers demonstrates the vo luntariness of Moussa’s consent

. The video recordings show that Detective Wright properly read the implied consent law to Moussa. T he recordings show that Moussa was fully aware of the interview taking place and agreed to th e offer of a blood draw from D etective Wright

. Detective Wright even repeated the implied consent law advisement so that Moussa would hear it all the way through without in terruption. Moussa grew up in Niger and completed the equival ent of a high school education.
H e was sel f employed and denied ever having been fired from a job

. Moussa has been arrested multiple times and he has one prior conviction

. T hus , Moussa has had previous interaction with law enforcement officers. The rec ord does not indicate that Detective10

Wright m ade any express or implied claims of authority to search without Mouss a’s
consent, was engaged in any illegal action prior to the request, or was deceptive as to his true identity or the purpose of the search. The video

- tape shows that Moussa was cooperat ive during the encounter. Thus, under t he totality of the circumstances , Moussa’s consent to the blood draw was voluntary and uncoerced. Conclusion Moussa voluntarily made statements to the officers and consented to the blood draw. We hold that the trial court did not err when it admitted the evidence at trial

. Affirmed. MATHIAS, J., and BROWN, J., concur.