King v. State

• Decision Date: 30 December 2005
• Docket Number: No. 49A02-0504-CR-300.,49A02-0504-CR-300.
• Citation: 844 N.E.2d 92
• Parties: Andrew KING, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

844 N.E.2d 92

Andrew KING, Appellant, v. STATE of Indiana, Appellee.

No. 49A02-0504-CR-300.

Court of Appeals of Indiana.

December 30, 2005.

Publication Ordered February 27, 2006.

Joel M. Schumm, Appellate Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, for Appellee.

ORDER

KIRSCH, Chief Judge.

This Court having heretofore handed down its opinion in this appeal on December 30, 2005, marked Memorandum Decision, Not for Publication.

Comes now the Appellant, by counsel, and files herein Motion to Publish, alleging therein that the opinion applies the Supreme Court's recent opinion in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), which clarifies the impropriety of a "question-first, Mirandize-later" technique.

The Court having examined said Motion, having reviewed its opinion in this case and being duly advised, now finds that the same should be granted.

IT IS THEREFORE ORDERED that the Appellant's Motion to Publish opinion is GRANTED, and this Court's opinion heretofore handed down in this cause on December 30, 2005, marked Memorandum Decision, Not for Publication, is now ordered published.

All Panel Judges Concur.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Andrew King ("King") appeals the trial court's denial of his motion to suppress evidence. We reverse.

Issue

King raises two issues on interlocutory appeal, which we consolidate and restate as whether the trial court erred by denying his motion to suppress certain self-incriminating statements under the United States Constitution.

Facts and Procedural History

On July 24, 2004, Agent Michael A. Vergon ("Agent Vergon"), with the Bureau of Alcohol Tobacco Firearms and Explosives, investigated a fire at the Castleview Baptist Church (the "Church") and concluded that it had been intentionally set. At that point, Agent Vergon and other investigators attempted to "track down any potential leads as to how the fire started." Tr. at 9. During the investigation, Agent Vergon discovered that, on the night of the fire, a Marion County Sheriff's deputy had arrested King in the Church parking lot for public intoxication. At the time of the arrest, King was sleeping in his vehicle, which was parked at the Church. Believing that King may have witnessed the arson, Agent Vergon and another detective interviewed King at the Marion County Jail. "The purpose of the interview was just to talk to [King] and find out what he was doing at the [C]hurch after the fire." Id. at 10. The detectives also wanted to know if King had slept in the Church parking lot on other occasions.

During the interview, which was conducted in an interview room on the ground level of the Marion County Jail, King told the detectives about his family background, travels, and work experience. In addition, and in response to the detectives' questioning, King indicated that he was inside the Church at the time of the fire. In particular, King explained that, while he thought it was a dream, he remembers "hopping through a window in the [C]hurch" and seeing a cross on fire. Id. at 12.

After learning that King had been inside the Church during the fire, the detectives temporarily stopped the interview, turned on the tape recorder, and read King his Miranda rights. The following colloquy between Agent Vergon and King ensued:

[Agent Vergon:] Okay, okay just one step at a time here. You have the right to remain silent. Anything you say can be used as evidence against you in court. You have the right to talk to [a] lawyer for advice before you ask questions, and have him with you during questioning. If you can not afford a lawyer and you want one one will be appointed for you by the Court before any questioning. If you decided [sic] to answer questions now without a lawyer present you will still have the right to stop answering at anytime. You have the right to stop answering at anytime until you talk to a lawyer. Do you understand that?

[King:] Yes

[Agent Vergon:] ... it has to be your decision okay. Um we're doing all we can to help you out, but you know that's something that's strictly your decision. We can't. How about we just keep going a long, and um you can stop. If you think you need a lawyer it's your right, but you've been very cooperative so far.

[King:] Yes a lawyer make sure that I can (inaudible)?

[Agent Vergon:] Yes, Yeah and I'll make sure that you don't.

[King:] (inaudible)

[Agent Vergon:] Well I am looking out for your interest. I am.

[Detective:] We're making sure your rights are protected.

[King:] I just don't know. Cause I whatever I say you said that's [sic] it's gonna [sic] be used against me. And since I'm not really in a very good mental state I shouldn't (inaudible).

State's Ex. A (certain capitalization omitted). Agent Vergon also assured King that he would make sure that King got an attorney and some help.

Further, during the tape-recorded portion of the interview, Agent Vergon summarized what King had disclosed about the events of the fire, prior to his being Mirandized. King responded in the affirmative. Throughout the remainder of the interview, King acted confused, informing the detectives that: (1) he wanted to see a doctor; (2) he was in dream; (3) he was still in New Orleans; and (4) he had been in jail for thirty, as opposed to a couple of, days. After the interview, the detectives obtained a search warrant for King's vehicle.

On July 30, 2004, the State charged King with two counts of arson, one as a Class A felony and the other as a Class B felony.¹ On November 30, 2004, King filed a motion to suppress "any and all oral and written communications, confessions, statements, admissions or tests, alleged to have been made by [King] prior to, at the time of, or subsequent to his arrest in this cause." Appellant's App. at 33. On February 22, 2005, after conducting a hearing, the trial court denied King's motion to suppress. In so doing, the trial court determined that, because the officers did not consider King a suspect at the time of the initial, un-Mirandized, interrogation, he was not in custody. The trial court also concluded that King voluntarily waived his Miranda rights and that Detective Vergon was not deceitful when he promised King a doctor and counsel after the interview. At King's request, the trial court certified the order for interlocutory appeal, and we accepted jurisdiction pursuant to Indiana Appellate Rule 14(B) on May 16, 2005.

Discussion and Decision

I. Standard of Review

On appeal, King argues that the trial court erred by denying his motion to suppress. We review the denial of a motion to suppress evidence in a manner similar to allegations of insufficient evidence. McIntosh v. State, 829 N.E.2d 531, 536 (Ind.Ct.App.2005), reh'g denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Faust v. State, 804 N.E.2d 1242, 1244 (Ind.Ct.App.2004), trans. denied. However, unlike the typical sufficiency of the evidence case where only the evidence favorable to the judgment is considered, when reviewing a denial of a motion to suppress, we also consider the uncontested evidence most favorable to the defendant. Id.

II. Analysis

King challenges the trial court's denial of his motion to suppress on two separate grounds. First, he contends that any statements made prior to the Miranda warning, which were unrecorded, should have been suppressed because they resulted from a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In this vein, the State counters that King was not "in custody" at the time of the pre-Miranda statements and, therefore, the protections of Miranda could not be invoked. Second, King argues that any statements made after receiving the Miranda warning, i.e., the recorded statements, should have been suppressed because they were not knowingly and voluntarily made. We separately address these contentions.

A. Pre-Miranda Statements

The Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that no person shall be compelled in any criminal case to be a witness against himself. U.S. CONST. amend. V; see also Grubb v. State, 734 N.E.2d 589, 591 (Ind.Ct.App.2000), trans. denied. To protect the privilege against self-incrimination, in Miranda, 384 U.S. at 444, 86 S.Ct. 1602, the United States Supreme Court held that a person who has been "taken into custody or otherwise deprived of his [or her] freedom of action in any significant way" must, before being subjected to interrogation by law enforcement officers, be advised of his or her rights to remain silent, to have an attorney present, and to be warned that any statement the person makes may be used as evidence against him or her. Statements elicited in violation of this rule are generally inadmissible in a criminal trial. Id. The law enforcement officer's duty to give Miranda warnings, however, does not attach unless a defendant has been subjected to custodial interrogation. Hurt v. State, 694 N.E.2d 1212, 1217 (Ind.Ct.App.1998), trans. denied, cert. denied, 525 U.S. 1008, 119 S.Ct. 525, 142 L.Ed.2d 435 (1998).

Here, the parties do not contest that King was interrogated during the interview and, thus, our analysis will focus on whether King was "in custody" during such interrogation. To be in custody for purposes of Miranda, the defendant need not be placed under formal arrest. Thompson v. State, 692 N.E.2d 474, 476 (Ind.Ct.App.1998). Rather, the custody determination turns upon whether the individual's freedom has been deprived in a significant way or if a reasonable person in the person's circumstances would believe that he or she is not free to leave. Id. As such, the determination involves an examination of all the objective circumstances...