                                                                          FILED
                                                                     Sep 28 2017, 9:00 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Mark K. Leeman
Attorney General of Indiana                                Leeman Law Office and Cass
                                                           County Public Defender
Angela N. Sanchez                                          Logansport, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          September 28, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           66A03-1702-CR-315
        v.                                                 Interlocutory Appeal from the
                                                           Pulaski Circuit Court
Brandon Battering,                                         The Honorable Michael A. Shurn,
Appellee-Defendant.                                        Judge
                                                           Trial Court Cause No.
                                                           66C01-1512-F1-3



Bradford, Judge.




Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017                  Page 1 of 8
                                              Case Summary
[1]   In late 2015, Appellee-Defendant Brandon Battering was accused of sexually

      molesting his then-twelve-year-old step-sister and sending her an explicit

      message on Facebook. The instant interlocutory appeal stems from the trial

      court’s order granting Battering’s motion to suppress certain pre-trial statements

      made by Battering to investigating officers. We affirm.



                               Facts and Procedural History
[2]   According to the allegations supporting the charges filed in the underlying

      criminal case, on November 29, 2015, the Pulaski County Sheriff’s Department

      received a report that Battering had engaged in unlawful sexual behavior with

      and sent a sexually explicit Facebook message to his then-twelve-year-old step-

      sister, B.R.1 On December 3, 2015, Battering voluntarily appeared at the

      Lafayette Police Department and participated in a lengthy interview with

      Pulaski County Sheriff’s Deputy Nicolas Bowyer and Lafayette Police

      Department Detective-Sergeant Robert A. Goldsmith. During the lengthy

      interview with Deputy Bowyer and Detective-Sergeant Goldsmith, Battering

      discussed, among other things, the allegations made by B.R. Battering initially

      denied B.R.’s allegations.




      1
        We remind the reader that given the fact that the instant appeal comes to us as an interlocutory appeal
      from the trial court’s ruling on a pre-trial motion, the allegations levied against Battering remain just that:
      allegations. Battering has yet to be found guilty of any of the alleged criminal acts.

      Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017                           Page 2 of 8
[3]   At one point during the lengthy interview, Battering indicated that he was

      “p[*****] off” and was “done with answering questions right now[.]”

      Appellant’s App. Vol. II–Confidential, pp. 169, 170. Immediately after making

      this statement, Battering told Detective-Sergeant Goldsmith that “You guys

      done p[*****] me off and have me in a bad a[**] mood now.” Appellant’s App.

      Vol. II–Confidential, p. 170. Detective-Sergeant Goldsmith continued to talk to

      Battering after Battering indicated that he did not wish to answer any more

      questions. Eventually, at Detective-Sergeant Goldsmith’s urging and direction,

      Battering continued on with the interview. By the end of the interview,

      Battering made incriminating statements in which he admitted to some, but not

      all, of B.R.’s allegations.


[4]   The next day, on December 4, 2015, Appellant-Plaintiff the State of Indiana

      (“the State”) charged Battering with one count each of Level 1 felony child

      molesting, Level 4 child molesting, and Level 5 felony child solicitation. On

      January 13, 2017, Battering filed a motion to suppress the pre-trial statements

      he made during his interview with Deputy Bowyer and Detective-Sergeant

      Goldsmith. The trial court conducted a hearing on Battering’s motion on

      January 19, 2017. The next day, on January 20, 2017, the trial court issued a

      written order granting Battering’s motion to suppress.


[5]   Also on January 20, 2017, the State moved to have the trial court’s order

      certified for interlocutory appeal. The State’s request was granted that same

      day. The State subsequently requested that this court accept jurisdiction over



      Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017   Page 3 of 8
      the matter, which we did on March 17, 2017. This interlocutory appeal

      follows.



                                 Discussion and Decision
[6]   The State contends that the trial court erred in granting Battering’s motion to

      suppress the statements he made during the December 3, 2015 interview with

      Deputy Bowyer and Detective-Sergeant Goldsmith. It is well-settled that when

      an individual “‘indicates in any manner, at any time prior to or during

      questioning, that he wishes to remain silent, the interrogation must cease.’”

      Washington v. State, 808 N.E.2d 617, 623 (Ind. 2004) (quoting Miranda v.

      Arizona, 384 U.S. 436, 173-74 (1966)). “An assertion of Miranda rights must be

      clear and unequivocal, and in determining whether a person has asserted his or

      her rights, the defendant’s statements are considered as a whole.” Clark v. State,

      808 N.E.2d 1183, 1190 (Ind. 2004). “Although there are no particular words of

      legal magic to cut off questioning, a suspect must do more than express

      reluctance to talk” in order to invoke his right to remain silent. Powell v. State,

      898 N.E.2d 328, 337 (Ind. Ct. App. 2008). Review of whether an individual

      has invoked his right to remain silent is “intensely fact-sensitive.” Id. (citing

      Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997)).


[7]   Approximately half way through Battering’s lengthy interview with Deputy

      Bowyer and Detective-Sergeant Goldsmith, Battering stated “Honestly, I’m

      done with answering questions right now, honestly.” Appellant’s App. Vol. II–

      Confidential, p. 170. After Detective-Sergeant Goldsmith responded “Okay,”

      Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017   Page 4 of 8
Battering went on to say “You guys done p[*****] me off and have me in a bad

a[**] mood now.” Appellant’s App. Vol. II–Confidential, p. 170. Detective-

Sergeant Goldsmith continued, stating the following:


        [Det.-Sgt. Goldsmith]:     Okay. You understand it’s nothing
        personal. They’re just doing an investigation. I was watching
        the interview. I’m seeing some things, and I wanted to ask some
        questions. I’ve interviewed a lot of people in these situations just
        like yours. It doesn’t mean the person’s a monster. It doesn’t
        mean they’re mean. It just -- I’m just telling you. Sometimes
        people make mistakes and when -- and watching this, I wondered
        based on what little information I had is if you made a mistake. I
        really did, and that’s why I wanted to come in and talk to you --

        [Battering]:                       Okay.

        [Det.-Sgt. Goldsmith]:     -- because I’ve talked to other people
        before, and they said and I’m just -- I understand you’re saying
        you’re frustrated and you’re irritated. I get it but I see your lip
        quiver. I see your hands shake. I see your shirt shake. I can see
        your heartbeat. Your chest is a little tight, and your shoulders are
        tight, and I’ve seen people like that before.

        I’ve seen people like that before when they’ve been accused, and
        I’ve seen people like that before when they’ve done those things,
        and I’ve watched them talk about it after the fact because they’ve,
        you know, they want to say, “I’m not a monster. I’m not this
        bad guy. I, I did this once, and I’m sorry for it. I, I screwed up,”
        and then you can watch them {indicating} relax, and then they
        tell the story.

        They work with people, and they get some help. I heard you
        mention you’re already talking to a counselor about some
        relationship issues and stuff. I get it. You don’t want to dive into
        relationships, and you can do that. You want to be loved. You

Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017   Page 5 of 8
        want to feel loved. One of the --

        [Battering]:                       Well, honestly, I want to have fricking
        a life and a house --

        [Det.-Sgt. Goldsmith]:             I know you do.

        [Battering]:                       -- and a car and be able to take care of
        my kids --

        [Det.-Sgt. Goldsmith]:             I would too.

        [Battering]:                       -- and actually be successful for once.

        [Det.-Sgt. Goldsmith]:             I know what --

        [Battering]:                       That’s what I want.

        [Det.-Sgt. Goldsmith]:             You want that --

        [Battering]:                       But it never happens.

        [Det.-Sgt. Goldsmith]:             It could, Brandon. It could. It
        absolutely could.

        [Battering]:                       No. It never does.

        [Det.-Sgt. Goldsmith]:     Yeah. It can. It can. You know why?
        Look at me a second. Get a Kleenex and wipe your eyes.
        There’s nothing wrong with crying. That’s happened a few times
        in here today. There’s nothing wrong with it, Brandon, but, but
        some things have to happen for you to get there. You’ve got to
        come to grips with some things that happened, get those things
        out there, be honest with yourself, be honest with your family,
        and move on. That, that’s what, that’s what has to happen, and
        you can talk to a counselor, and you can work on those
        relationship things and any other feelings you have. If, if you

Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017          Page 6 of 8
               have these feelings where you’re attracted to whatever woman,
               young lady is showing you affection, there’s nothing wrong with
               that. You just got to learn how to control those feelings, and
               that’s, that’s why no one watching you and watching this and
               your demeanor and things are changing, I think you want help.

               I don’t think you’re a monster. I think you’re a person that made
               a mistake. I really do. I don’t think you're a bad person, and you
               can start right here today coming to grips with some things and
               go down this road of getting some help. I really do, and I think
               you want to do that, but it’s hard.


      Appellant’s App. Vol. II–Confidential, pp. 170-72.


[8]   Review of the transcript of the interview demonstrates that while Battering

      eventually re-engaged in the interview, he did so at Detective-Sergeant

      Goldsmith’s urging and direction and only after Detective-Sergeant Goldsmith

      continued to talk to him in a manner that was unquestionably designed to pull

      him back into the conversation. Neither Detective-Sergeant Goldsmith nor

      Deputy Bowyer reminded Battering of his right to remain silent before

      continuing on with the interview.


[9]   Given the specific facts and circumstances surrounding Battering’s statement

      that he was “done with answering questions right now,” we conclude that

      Battering’s statement demonstrated an unequivocal invocation of the Fifth

      Amendment right to remain silent. As such, we further conclude that the trial

      court properly suppressed Battering’s statement to Deputy Bowyer and

      Detective-Sergeant Goldsmith. We therefore affirm the decision of the trial

      court.

      Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017   Page 7 of 8
[10]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 66A03-1702-CR-315 | September 28, 2017   Page 8 of 8
