FOR PUBLICATION                                                     Mar 11 2014, 10:14 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
JOHN P. BRINSON                              GREGORY F. ZOELLER
Evansville, Indiana                          Attorney General of Indiana

                                             JODI KATHRYN STEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

ROBERT E. HICKS,                             )
                                             )
                                             )
      Appellant-Defendant,                   )
                                             )
         vs.                                 )      No. 82A01-1306-CR-256
                                             )
STATE OF INDIANA,                            )
                                             )
                                             )
      Appellee-Plaintiff.                    )

                APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                        The Honorable David D. Kiely, Judge
                          Cause No. 82C01-1207-MR-887


                                   March 11, 2014
                             OPINION – FOR PUBLICATION

MATHIAS, Judge
       Following a jury trial, Robert E. Hicks (“Hicks”) was convicted in Vanderburgh

Circuit Court of murder and sentenced to fifty-five years in the Indiana Department of

Correction.   Hicks appeals and claims that the trial court abused its discretion by

admitting into evidence recorded statements made by Hicks to the police in which he

admitted to killing the victim.

       We affirm.

                              Facts and Procedural History

       In the summer of 2012, Hicks lived with the victim in this case, his long-time

girlfriend Anna Jochum (“Jochum”). The couple often argued about money and Hicks’s

use of alcohol and drugs. On July 2, 2012, Jochum’s niece, C.D., visited her aunt.

Shortly after C.D. left, Hicks and Jochum got into an argument. Jochum grabbed a knife

and threatened to “kick [Hicks’s] ass again,” referring to an earlier altercation in which

Jochum had injured Hicks. Tr. p. 108. Hicks stated, “not this time, honey,” and grabbed

her by the throat and knocked the knife out of her hands. Id. Hicks then grabbed a large

block of wood that the couple used to prop open a bathroom window and hit Jochum in

the head several times. After Hicks struck her in the back of the neck with the block,

Jochum stopped moving. Hicks then picked up the knife Jochum had brandished and

stabbed her repeatedly on the left side of her body. Hicks realized that he had killed

Jochum and placed her body in the bathroom next to the side of the bathtub. He then

threw a mattress on top of the tub. Hicks washed his hands, changed his clothes, and left.

He eventually went across the Ohio River to Henderson, Kentucky and went to the

Harbor House homeless shelter.


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      Jochum’s niece was unable to reach her aunt by telephone and decided to go check

on Jochum on July 8, 2012. When she did, she noticed a foul odor, and her knocks on the

door went unanswered. Then, on July 12, Jochum’s niece and her mother went to the

apartment and asked the maintenance man to open the door. When they entered the

apartment, they found Jochum’s decomposing body in the bathroom.               They then

telephoned the police.

      The police investigation revealed that Jochum had several blunt-force injuries to

her head and neck and that her cause of death was two fractured and displaced vertebrae

in her neck, which lacerated her spinal cord. This injury caused paralysis and a quick

death. She also sustained over fifty stab wounds on her left shoulder, chest, and leg. The

police were also informed that Hicks had been living with Jochum but was missing. The

police decided to locate Hicks to see if he was a victim or knew anything about Jochum’s

death, but there was as of yet no evidence linking him to the crime. The police issued a

bulletin to surrounding jurisdictions indicating that Hicks was a person of interest with

whom they would like to speak. On July 13, 2012, Harbor House contacted local police

to inform them that Hicks was staying there.

      Sergeant Larry Nelson (“Sgt. Nelson”) and Detective Jeffrey Jones (“Detective

Jones”) of the Evansville Police Department went to the Henderson, Kentucky homeless

shelter to speak with Hicks. When they arrived, Hicks was sitting outside near the rear of

the shelter, smoking a cigarette, with a local police officer standing nearby. Sgt. Nelson

told Hicks that Jochum was dead, but Hicks made no response. The officers then asked if

Hicks would be willing to speak with them and gave him the option of speaking with


                                            3
them at the local Henderson Police Department or going back to Indiana to the Evansville

Police Department. Hicks agreed and chose to speak with the officers at the Henderson

Police Department. Hicks was not placed in handcuffs or restrained and was driven by

the police to the police station.   There, he was taken to an interview room which

measured approximately 4' by 8' in size. Because they did not yet consider Hicks to be a

suspect, the police did not advise Hicks of his rights, nor did they record the interview.

During this “pre-interview,” the police asked Hicks for general information about Jochum

and precisely when he had gone to Kentucky. Hicks told the police that he left because

he and Jochum had argued and that she had kicked him out of the apartment.

      At this point, Sgt. Nelson began to suspect Hicks in the murder and decided to do

a more in-depth interrogation of Hicks. He therefore read Hicks his Miranda rights and

began to record the interview. Hicks signed a waiver of his Miranda rights and again told

the police that he and Jochum had gotten into an argument. This time, however, he added

that Jochum had threatened him and that the two had gotten into a physical altercation,

which ended in the bathroom when Hicks struck Jochum on the head with a block of

wood. Hicks claimed, however, that he did not know that Jochum was dead. He simply

shut the bathroom door and left. Hicks did not mention stabbing Jochum, and at this

time, the police were apparently unaware that Jochum had been stabbed. The police then

arrested Hicks for Jochum’s murder, and he waived extradition to Indiana.

      The following day, Sgt. Nelson was given information from Jochum’s autopsy

which indicated that she had sustained multiple stab wounds. Sgt. Nelson decided to

confront Hicks with this information and asked if Hicks would speak to him again. Hicks


                                            4
agreed and was again advised of his Miranda rights and signed a written waiver of these

rights. This interrogation was also recorded. Hicks again admitted to striking Jochum

with the wooden block. But this time, he also admitted to stabbing her several times,

then dragging her body into the bathroom.

       On July 13, 2012, the State charged Hicks with murder. On January 29, 2013,

Hicks filed a motion to suppress the statements he had given to the police. On March 13,

2013, the trial court held a suppression hearing. On April 1, 2013, the trial court granted

the motion with regard to the first “pre-interview,” but denied it as to the two recorded

interviews where Hicks had been advised of and waived his Miranda rights. On April 29,

2013, a jury trial commenced. At the conclusion of the trial, the jury found Hicks guilty

as charged. At the conclusion of a sentencing hearing held on May 28, 2013, the trial

court sentenced Hicks to the advisory term of fifty-five years. Hicks now appeals.

                                   Standard of Review

       Because Hicks appeals following his conviction, the question before us is whether

the trial court abused its discretion in the admission of the evidence in question. Shell v.

State, 927 N.E.2d 413, 418 (Ind. Ct. App. 2010). The trial court has broad discretion in

ruling on the admissibility of evidence, and we will reverse the trial court’s ruling only

when the trial court abuses that discretion. Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind.

Ct. App. 2013), trans. denied. The trial court abuses its discretion only if its decision

regarding the admission of evidence is clearly against the logic and effect of the facts and

circumstances before it, or if the court has misinterpreted the law. Id. Regardless of

whether the challenge is made through a pretrial motion to suppress or by an objection at


                                             5
trial, our review of rulings on the admissibility of evidence is essentially the same: we do

not reweigh the evidence, and we consider conflicting evidence in a light most favorable

to the trial court’s ruling, but we may also consider any undisputed evidence that is

favorable to the defendant. Id. Additionally, we may consider foundational evidence

introduced at trial in conjunction with any evidence from a suppression hearing that is not

in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct.

App. 2005).

                                  Discussion and Decision

       On appeal, Hicks claims that the trial court abused its discretion in admitting into

evidence the two recorded interviews wherein he admitted to striking and then stabbing

Jochum. He presents several arguments to support his claim that the trial court should

have suppressed his statements.

       A. Request for Counsel

       First, Hicks argues that he was in custody and requested counsel and that therefore

the police should have immediately stopped the interrogation. When a suspect who is

subject to custodial interrogation requests the assistance of counsel, all questioning must

immediately cease and interrogation can be resumed only when the suspect initiates a

communication with police, and when it is apparent that he knowingly and intelligently

waived his right to counsel. Mendoza-Vargas v. State, 974 N.E.2d 590, 594 (Ind. Ct.

App. 2012) (citing Moore v. State, 498 N.E.2d 1, 8 (Ind. 1986); Oregon v. Bradshaw, 462

U.S. 1039, 1044 (1983)).




                                             6
       At the suppression hearing, Hicks testified that he told the investigating officers, “I

th[ink] I should talk to an attorney.” Suppression Hearing Tr. p. 72. Because neither of

the officers testified directly contrary to this, Hicks claims that his request for counsel

must be treated as an established fact. We disagree. While our standard of review

permits us to consider uncontroverted evidence favorable to the defendant, see Fuqua,

984 N.E.2d at 714, we do not take this to mean that any testimony by the defendant that

is not directly contradicted must be accepted as true by the trial court or this court. To

hold otherwise would be to deny the trial court, acting as the trier of fact in such matters,

the right to judge the credibility of witnesses. See Griffin v. State, 493 N.E.2d 439, 443

(Ind. 1986) (noting that jury, as the trier of fact, had the right to discredit the defendant’s

uncontroverted alibi evidence); Morphew v. Morphew, 419 N.E.2d 770, 777 (Ind. Ct.

App. 1981) (noting that uncontroverted evidence is not necessarily binding on the trier of

fact and may be disbelieved and given no weight), superseded by statute on other

grounds as noted in Indiana-American Water Co. v. Ind. Office of Util. Consumer

Counselor, 844 N.E.2d 106, 119 (Ind. Ct. App. 2006).

       Here, it is apparent that the trial court simply did not credit Hicks’s self-serving

testimony that he requested counsel; otherwise the court would not have admitted any of

Hicks’s statements. See Thurman v. State, 793 N.E.2d 318, 321 (Ind. Ct. App. 2003)

(noting that appellate court will presume that trial courts know and follow the applicable

law). Therefore, we reject Hicks’s claim that the trial court abused its discretion in the




                                              7
admission of all of his statements to the police solely because of his uncontroverted,

alleged request for counsel.1

        B. Custodial Interrogation

        Hicks also claims that he was subject to custodial interrogation. The State claims

that Hicks was never handcuffed and that his interview with the police was, at least

initially, non-custodial. The police are required to advise a suspect of his Miranda rights

only if the suspect is subjected to custodial interrogation. Luna v. State, 788 N.E.2d 832,

833 (Ind. 2003) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).2 Accordingly,

Miranda warnings do not need to be given when the person questioned has not been

placed in custody. State v. Hicks, 882 N.E.2d 238, 241 (Ind. Ct. App. 2008). In

determining whether a person was in custody or deprived of freedom such that Miranda

warnings are required, our ultimate inquiry is whether there is a formal arrest or a

restraint of the freedom of movement of the degree associated with a formal arrest. Id.

1
  Moreover, we do not think that Hicks’s statement of “I thought I should talk to an attorney” was, as he
claims, necessarily a clear and unequivocal request for counsel. See United States v. Delaney, 443 F.
App’x 122, 130 (6th Cir. 2011) (concluding that defendant’s statement of “I think I should talk to a
lawyer, what do you think?” used the equivocal language of “I think” and did not constitute an
unambiguous request for counsel); Clark v. Murphy, 331 F.3d 1062, 1069-72 (9th Cir. 2003) (holding
that “I think I would like to talk to a lawyer” was not an unequivocal request for counsel), overruled in
part on other grounds, Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Burket v. Angelone, 208 F.3d 172,
198 (4th Cir. 2000) (holding that “I think I need a lawyer” was not an unequivocal request for counsel);
State v. Eastlack, 883 P.2d 999, 1006-07 (Ariz. 1994) (noting that defendant’s statement of “I think I
better talk to a lawyer first” used the equivocal language of “I think” and did not constitute an
unambiguous request for counsel). But see Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998) (defendant’s
statement that “I think it would be in my best interest to talk to an attorney” was an unequivocal request
for counsel); State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999) (holding that defendant’s statement of
“I think I’d rather talk to a lawyer,” was sufficiently clear as to be understood as a request for counsel).
2
  Hicks also presents a claim under the Indiana Constitution. But on this issue, under either the federal
Constitution or the Indiana Constitution, our analysis is the same. See Malinski v. State, 794 N.E.2d
1071, 1077 (Ind. 2003) (holding that privilege against self-incrimination in Indiana Constitution does not
afford custodial suspects any more protection that the federal Fifth Amendment).



                                                     8
(citing California v. Beheler, 463 U.S. 1121, 1125 (1983)). We make this determination

by examining whether a reasonable person in similar circumstances would believe he is

not free to leave. Id. We examine all the circumstances surrounding an interrogation,

and are concerned with objective circumstances, not upon the subjective views of the

interrogating officers or the suspect.         Id. If the police, by means of physical force or

show of authority in some way restrained the liberty of the suspect, we will conclude that

the suspect was seized and in custody.

        Here, the evidence shows that when the Evansville police officers arrived at the

Henderson, Kentucky homeless shelter Hicks was staying in, Hicks was sitting outside,

smoking a cigarette, with a Henderson police officer standing nearby. The Evansville

police asked Hicks if he would speak to them about Jochum’s death, and he agreed to go

to the local, Henderson police station to speak with the police.3 The officers did not

restrain Hicks, nor did they order him to go to the station.

        Once at the station, the officers took Hicks to a small interview room and began to

interview him. They did not inform him that he was free to leave, see tr. p. 70, and the

interview room was in an area that was accessible only through a locked door. From this,

the trial court could have reasonably concluded that Hicks was not free to leave and was

therefore in custody. Indeed, the trial court did suppress the statements Hicks made prior

to his being advised of his Miranda rights. See King v. State, 844 N.E.2d 92, 97 (Ind. Ct.

3
   Hicks claims that the police gave him only the choice to go to the Kentucky or the Evansville police
stations to speak. However, in context, the testimony of the officers indicates that Hicks agreed to go
with them to speak, not that they ordered him to do so. See Suppression Hearing Tr. p. 8 (indicating that
Sgt. Nelson asked Hicks if he would go to the police department and that “[Hicks] agreed to this.”); id. at
20 (“[Hicks] agreed to go with us to [the Henderson Police Department].”).



                                                    9
App. 2005) (concluding that statements made during custodial interrogation but prior to

suspect being advised of his Miranda rights should have been suppressed). But even if

we assume arguendo that Hicks was in custody, this does not mean that the trial court

should have suppressed Hicks’s statements.

       Once the interrogating officers discovered that Hicks had been in an argument

with Jochum before he left the apartment, they clearly read him his Miranda rights and

Hicks signed a waiver of these rights. Hicks does not deny this. Instead, Hicks claims

that the police engaged in the sort of “question-first, Mirandize-later” approach that was

condemned by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600

(2004). In that case, the Court disapproved of an interrogation technique in which

interrogating officers purposefully withhold Miranda warnings until after a suspect has

confessed, and thereafter, give Miranda warnings and secure a waiver before obtaining a

second, similar confession. Id. at 611-14; see also King, 844 N.E.2d at 98 (summarizing

the Seibert holding).

       As the Court in Seibert explained:

       Upon hearing warnings only in the aftermath of interrogation and just after
       making a confession, a suspect would hardly think he had a genuine right to
       remain silent, let alone persist in so believing once the police began to lead
       him over the same ground again. A more likely reaction on a suspect’s part
       would be perplexity about the reason for discussing rights at that point,
       bewilderment being an unpromising frame of mind for knowledgeable
       decision. What is worse, telling a suspect that “anything you say can and
       will be used against you,” without expressly excepting the statement just
       given, could lead to an entirely reasonable inference that what he has just
       said will be used, with subsequent silence being of no avail. Thus, when
       Miranda warnings are inserted in the midst of coordinated and continuing
       interrogation, they are likely to mislead and “depriv[e] a defendant of
       knowledge essential to his ability to understand the nature of his rights and


                                             10
       the consequences of abandoning them.” By the same token, it would
       ordinarily be unrealistic to treat two spates of integrated and proximately
       conducted questioning as independent interrogations subject to independent
       evaluation simply because Miranda warnings formally punctuate them in
       the middle.

542 U.S. at 613-14 (internal citations omitted) (emphases supplied).

       Indiana courts have applied Seibert to those situations in which a defendant was

interrogated and confessed without a Miranda advisement and was then given a Miranda

advisement and repeated the confession. See Kelly v. State, 997 N.E.2d 1045, 1054-55

(Ind. 2013) (defendant given Miranda advisement only after making specific,

incriminating statements that were then used to prod the defendant to make further

incriminating statements following Miranda advisement); Morris v. State, 871 N.E.2d

1011, 1018-19 (Ind. Ct. App. 2007) (police began interview before advising defendant of

her Miranda rights and gave advisement only after defendant implicated herself in

victim’s death, after which she again repeated her statement); Payne v. State, 854 N.E.2d

7, 15 (Ind. Ct. App. 2006) (officers waited to advise defendant of her Miranda rights until

after she had made incriminating statements, after which defendant was read advisement

and again confessed); Drummond v. State, 831 N.E.2d 781, 784 (Ind. Ct. App. 2005)

(defendant was given Miranda advisement only after he had made incriminating

statements); King, 844 N.E.2d at 98 (defendant given Miranda advisement and police

only recorded statement after defendant had made incriminating statements). But this is

not what happened here.

       According to the interrogating officers, they simply asked Hicks basic questions

during the initial “pre-interview,” and Hicks did not admit to killing or harming Jochum.


                                            11
He instead simply stated that he had gotten into a verbal argument with her. Although

Hicks contested this at the suppression hearing, and claims on appeal that the officers

were untruthful, we cannot judge the credibility of witnesses or reweigh evidence on

appeal. Fuqua, 984 N.E.2d at 713. Thus, the facts of the present case are unlike those in

Seibert, and the Indiana cases cited above, where the police obtained a second, post-

Miranda-warning confession immediately after first obtaining a pre-Miranda-warning

confession.

        Instead, this situation is more like that in Maxwell v. State, 839 N.E.2d 1285, 1288

(Ind. Ct. App. 2005), where the defendant did not confess to committing the crime prior

the officers advising him of his Miranda rights. On appeal, this court declined to extend

the holding in Seibert to prohibit any pre-Miranda warning conversations with the police.

Id. Therefore, we cannot agree with Hicks that the incriminating statements he made to

the police after he had been read and waived his Miranda rights should have been

suppressed.4

                                              Conclusion

        The trial court did not have to credit Hicks’s testimony that he requested the

assistance of counsel prior to waiving his Miranda rights. And even if Hicks was in

4
  Moreover, even if the entirety of the first interview should have been suppressed, this does not
necessarily mean that the second interview—conducted the following day and at which Hicks was again
advised of and waived his Miranda rights—should also have been suppressed. See State v. Keller, 845
N.E.2d 154, 167 (Ind. Ct. App. 2006) (concluding that, despite lack of knowing waiver of Miranda rights
during first interview during which defendant made incriminating statements, statements made by the
defendant during second interview conducted the following day in which a knowing waiver was obtained
was admissible because such a situation bore little resemblance to the situation in Seibert where the police
purposefully withheld Miranda warnings until confession was obtained). And it was in this second
interview that Hicks made a more detailed confession in which he admitted to stabbing Jochum.



                                                    12
custody during the interrogations, by the time of his second interview, which was a day

after his first interviews, he was advised of, and waived, his Miranda rights. Because

Hicks did not confess prior to being read his Miranda rights, Seibert is inapplicable.

Therefore, we conclude that the trial court did not abuse its discretion in admitting into

evidence the two recorded statements Hicks made to the police after he had been advised

of, and waived, his Miranda rights.

      Affirmed.

BRADFORD, J., and PYLE, J., concur.




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