Gary Wright v. State of Indiana (mem. dec.) ( 2015 )


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  •       MEMORANDUM DECISION
          Pursuant to Ind. Appellate Rule 65(D), this                        Jun 10 2015, 9:51 am
          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
          Ellen M. O’Connor                                         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
    
          Gary Wright,                                             June 10, 2015
    
          Appellant-Defendant,                                     Court of Appeals Case No.
                                                                   49A02-1410-CR-693
                  v.                                               Appeal from the Marion Superior
                                                                   Court
                                                                   The Honorable Lisa Borges, Judge
          State of Indiana,                                        Case No. 49G04-1312-FB-81688
          Appellee-Plaintiff,
    
    
    
    
          Robb, Judge.
    
    
    
                                     Case Summary and Issue
    [1]   Following a jury trial, Gary Wright was convicted of burglary as a Class B
    
          felony and theft as a Class D felony. The trial court sentenced Wright to an
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015       Page 1 of 9
          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 discretion 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 December 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 televisions and other items
    
          in hand. Wright passed the items across the fence to a black male later
    
          identified as Laron 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 understood his rights and signed a written waiver.
    
          Once Wright signed the waiver, Detective Anderson began questioning him
    
          about the burglary, and he answered her questions 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 49A02-1410-CR-693 | June 10, 2015   Page 2 of 9
    [4]   Detective Anderson terminated the interrogation as soon as Wright requested
    
          an attorney. She said, “OK, all right, good enough,” id., and left the room.
    
          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 Exhibit 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 she was exiting the room. Id. at 8.
    
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 3 of 9
    [6]   Wright was charged with burglary as a Class B felony, theft as a Class D felony,
    
          possession of a controlled substance as a Class D felony, and criminal mischief
    
          as a Class B misdemeanor. Prior to trial, Wright 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 trial. The State
    
          moved to dismiss the possession of a controlled substance and criminal mischief
    
          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 invoking 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
    
          challenges 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
    , 1153 (Ind. 2000). The same test determines whether a defendant’s
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 4 of 9
          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 evidence 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 Fourteenth
    
          Amendment, provides that “[n]o person . . . 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-incrimination, the U.S. Supreme Court in Miranda 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 used 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 questioning until counsel is present or the defendant reinitiates
    
          communication and waives the right to counsel. Osborne v. State, 754 N.E.2d
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 5 of 9
           916, 922 (Ind. 2001). Standing alone, the defendant’s initiation of further
    
           conversation is not sufficient to establish 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 waiver of
    
           the right to counsel—that is, whether the purported waiver was knowing,
    
           voluntary, and intelligent, and found to be so under the totality of the
    
           circumstances. See id. at 922-23. The “totality of the circumstances” test
    
           focuses on “the entire interrogation, not on any single act by police or condition
    
           of the suspect.” Washington v. State, 
    808 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 minutes 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 when Wright refused to answer a question
    
           regarding what sort of valuables were taken, Detective Anderson moved on to a
    
           different question. After less than eight total minutes of interrogation, the
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 6 of 9
           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 understanding 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
    
           his waiver, and presumably all of these factors existed, 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, other than Wright’s brief remarks at the beginning of his
    
           interview with Detective Anderson, there is no evidence to establish that the
    
           interrogation 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 huh. What happened to your head[?]
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015            Page 7 of 9
           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, after 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 at 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 1153-54. 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 right 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 affected 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 must also allege police misconduct. Id. Here, Wright does not
           allege any police misconduct.
    
           Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015              Page 8 of 9
           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 the
    
           trial court did not abuse its discretion by admitting 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.
    
    
    
    
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