                                                                          FILED
                                                                      Dec 09 2019, 9:12 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Curtis T. Hill, Jr.
Bargersville, Indiana                                     Attorney General of Indiana

                                                          Ian McLean
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua Risinger,                                          December 9, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-281
        v.                                                Appeal from the Washington
                                                          Circuit Court
State of Indiana,                                         The Honorable Larry W. Medlock,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          88C01-1703-MR-185



Bradford, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019                           Page 1 of 14
                                           Case Summary                     1




[1]   In March of 2017, Joshua Risinger’s trailer was set on fire and burned, killing

      Jeffrey Charles Givan.2 During the course of three interviews with law

      enforcement, Risinger made incriminating statements. The State charged

      Risinger with murder, felony murder, and Level 4 felony arson. Twice, Risinger

      moved to suppress his statements, claiming that they were given involuntarily

      and in violation of his Miranda rights. The trial court denied both motions. In

      November of 2018, a jury trial was held, after which a jury found Risinger

      guilty but mentally ill of murder and felony murder and guilty of arson. The

      trial court merged the felony murder and arson convictions with the murder

      conviction and sentenced Risinger to sixty years of incarceration. Risinger

      contends, inter alia, that the trial court erroneously admitted the statements he

      made during the three police interviews because (1) they were made

      involuntarily and (2) they were made after detectives failed to scrupulously

      honor his invocation of his Miranda rights. Because we agree that the detectives

      failed to scrupulously honor Risinger’s right to remain silent pursuant to

      Miranda, we reverse.




      1
       We heard oral argument in this matter on October 30, 2019, at Batesville High School. We would like to
      extend our sincerest gratitude to the faculty, staff, and students for their hospitality. We also commend
      counsel for their excellent written and oral advocacy.
      2
       In the statements he made to the detectives, Risinger called Givan “Gilbert”. The two names will be used
      interchangeably throughout this opinion.

      Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019                             Page 2 of 14
                             Facts and Procedural History
[2]   On March 14, 2017, Risinger’s trailer was set on fire and burned, killing Givan.

      As he was leaving the scene of the fire, Risinger was arrested and taken to the

      Washington County Sheriff’s Department. Once at the Sheriff’s Department,

      Indiana State Police Detectives Matt Busick and Brian Busick and Salem Police

      Officer Ronnie May took Risinger into a deputy’s office for an interview.

      Risinger was seated in a chair with his hands cuffed in front of him, his suitcase

      was placed in front of him, and he was given a glass of water. Detective Brian

      Busick read Risinger his Miranda rights, and Risinger stated that he understood

      them. Risinger also signed a form acknowledging that he had read and

      understood his Miranda rights, and his signature contained a “7-5” which

      Risinger explained was always included in his signature. Tr. Vol. II p. 244. The

      detectives asked Risinger about the fire and how it might have started. Risinger

      stated that he did not know how the fire had started but that his trailer did not

      have electricity. Risinger explained that he had left the trailer and had begun

      walking down the highway after seeing black smoke and flames. He also told

      the detectives that a day earlier he had allowed a homeless man named Gilbert

      to stay at his trailer and that Gilbert was in the living room where the fire

      started. Approximately nineteen minutes into the interview, Risinger told the

      detectives “I’m done talking.” Tr. Vol. III p. 12. Detectives Matt and Brian

      Busick, however, continued questioning Risinger. They asked Risinger about

      his family, the fire, how the fire started, and explained to him that they believed

      he was a man who would tell the truth. After agreeing that he was an honest


      Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019        Page 3 of 14
      person, Risinger made numerous incriminating statements. Multiple times

      throughout the portion of the interview where Risinger made incriminating

      statements, he again stated that he was done talking, but the detectives

      continued asking questions until they concluded the interview.


[3]   On March 15, 2017, at approximately 11:00 a.m. and 6:15 p.m., Detective Matt

      Busick conducted a second and third interview with Risinger. During the

      interviews, Risinger made further incriminating statements. The interviews

      lasted approximately twelve and thirty minutes, respectively, and were ceased

      by Detective Busick once Risinger told Detective Busick that he was done

      talking.


[4]   On March 15, 2017, the State charged Risinger with murder. On March 29,

      2017, the State also charged Risinger with felony murder and Level 4 felony

      arson. Prior to trial, Risinger twice moved to suppress the statements he made

      in the three police interviews, both of which motions were denied by the trial

      court. Between November 26 and November 30, 2018, a jury trial was held. On

      November 30, 2018, the jury found Risinger guilty but mentally ill of murder

      and felony murder and guilty of arson. On January 8, 2019, the trial court

      merged the felony murder and arson convictions with the murder conviction

      and sentenced Risinger to sixty years of incarceration.



                                 Discussion and Decision


      Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019        Page 4 of 14
[5]   Risinger contends that the trial court erroneously allowed the admission of his

      statements made during the three police interviews. We review the trial court’s

      decision to admit evidence for an abuse of discretion. Ware v. State, 816 N.E.2d

      1167, 1175 (Ind. Ct. App. 2004). The trial court’s decision is an abuse of

      discretion if it is clearly against the logic and effect of the facts and

      circumstances before the court. Id. Pursuant to the United State Supreme

      Court’s decision in Miranda v. Arizona, a person who is subjected to a custodial

      interrogation must first be warned that “he has the right to remain silent, that

      anything he says can be used against him in a court of law, that he has the right

      to the presence of an attorney, and that if he cannot afford an attorney one will

      be appointed for him prior to any questioning[,]” should he so desire. 384 U.S.

      436, 479 (1966). Statements made to police by a person in police custody in

      response to police interrogation are inadmissible at trial, unless the State proves

      beyond a reasonable doubt that they were preceded by a knowing and voluntary

      waiver of the privilege against self-incrimination and were themselves

      voluntarily given. Johnson v. State, 584 N.E.2d 1092, 1098–99 (Ind. 1992).

      Specifically, Risinger contends that (1) the waivers of his Miranda rights and

      statements were given involuntarily, and (2) the detectives failed to

      scrupulously honor his invocation of his Miranda rights.


                                            I. Voluntariness
[6]   Risinger contends that the trial court erred in admitting the statements he made

      during three police interviews because the statements and waivers were

      involuntarily given. We review the trial court’s determination of voluntariness

      Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019         Page 5 of 14
as any other sufficiency matter. Wilkes v. State, 917 N.E.2d 675, 680 (Ind. 2009).

We will not reweigh the evidence and will affirm the trial court’s finding if it is

supported by substantial evidence. Id. Regarding a voluntary waiver of Miranda

rights,


          such a waiver occurs when a defendant, after being advised of
          those rights and acknowledging an understanding of them,
          proceeds to make a statement without taking advantage of those
          rights. In judging the voluntariness of a defendant’s waiver of
          rights, we will look to the totality of the circumstances to ensure
          that a defendant’s self-incriminating statement was not induced
          by violence, threats, or other improper influences that overcame
          the defendant’s free-will. The State bears the burden of proving
          beyond a reasonable doubt that the defendant voluntarily waived
          his rights.


State v. Banks, 2 N.E.3d 71, 80 (Ind. Ct. App. 2014) (internal citations omitted).

Regarding Risinger’s contention that his statements were involuntary,


          Unlike the Federal Constitution, Indiana law imposes on the
          State the burden of proving beyond a reasonable doubt that a
          confession is voluntary. Lego v. Twomey, 404 U.S. 477, 488–89,
          92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Pruitt v. State, 834 N.E.2d
          90, 114–15 (Ind. 2005) (plurality); Miller v. State, 770 N.E.2d 763,
          767 (Ind. 2002); Owens v. State, 427 N.E.2d 880, 884 (Ind. 1981).
          In evaluating a claim that a statement was not given voluntarily,
          the trial court is to consider the “totality of the circumstances,”
          including any element of police coercion; the length, location,
          and continuity of the interrogation; and the maturity, education,
          physical condition, and mental health of the defendant. Miller,
          770 N.E.2d at 767. To determine that a statement was given
          voluntarily, the court must conclude that inducement, threats,
          violence, or other improper influences did not overcome the

Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019          Page 6 of 14
              defendant’s free will. Clark v. State, 808 N.E.2d 1183, 1191 (Ind.
              2004).


      Id. Specifically, Risinger contends that because he was suffering from a mental

      illness and detectives continued to question him after he told them he was done

      talking, his statements were not a product of his free will.


[7]   We conclude that Risinger’s waivers of his Miranda rights were voluntary.

      Before each interview Detective Busick read Risinger’s Miranda rights to him.

      Risinger acknowledged verbally or through a thumbs up that he understood

      those rights and was willing to talk to Detective Busick. Risinger also read and

      signed a form acknowledging and waiving his rights.


[8]   We also conclude that Risinger’s statements to the detectives were voluntary.

      While it is true Risinger was suffering from a mental illness, that is only one of

      the numerous factors to be considered by the trial court in determining

      voluntariness. See Banks, 2 N.E.3d at 81 (noting that mental illness is only a

      factor to be considered by the trier of fact in determining whether a statement

      was voluntary). The three interviews were not lengthy, lasting approximately

      ninety minutes, twelve minutes, and thirty minutes, respectively, and conducted

      over the course of two days. The interviews all occurred in a deputy’s office,

      with Risinger sitting in a chair with his hands cuffed in the front of his body.

      While Risinger notes that, on the day of the first interview he remained

      handcuffed for nearly three-and-one-half hours throughout the interview

      process, we cannot say this is unreasonable considering that he was a suspected

      murderer and arsonist. In the first interview, he was given water to drink and
      Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019          Page 7 of 14
       his possessions were sitting by his feet in front of him. The detectives used the

       Reid3 and cognitive interviewing techniques; although Risinger characterizes

       these techniques as deceptive, these are standard interviewing techniques

       routinely used by law enforcement. The trial court agreed with Dr. Parker’s

       determination that Risinger was sane at the time he committed the offense and

       that his delusional disorder did not manifest throughout the interview and only

       appeared near the end of the first interview. Given the totality of the

       circumstances, the trial court did not abuse its discretion in concluding that

       Risinger made his waivers and statements voluntarily.


                                                   II. Miranda
[9]    Risinger contends that the trial court abused its discretion by admitting the

       majority of the statements he made during police interviews because they were

       obtained in violation of his right to remain silent pursuant to Miranda.

       Specifically, Risinger contends that his rights were violated when the detectives

       continued to question him after he had stated “I’m done talking.” Tr. Vol. III p.

       12.


[10]            An assertion of the Miranda right to remain silent must be clear
                and unequivocal. In determining whether a defendant has



       3
        “Our court has explained the Reid technique before: ‘the first phase of the Reid Technique consists of
       nonaccusatory questioning. The interview then shifts to the second phase, where the questioner does most of
       the talking and claims that the investigation clearly shows that the suspect committed the crime. A questioner
       using the Reid Technique introduces different minimizing themes, in essence excuses or justifications, to
       make it easier and more comfortable for the suspect to admit to the crime.’” Shelby v. State, 986 N.E.2d 345,
       365 n.11 (Ind. 2013) (quoting Malloch v. State, 980 N.E.2d 997, 893 (Ind. Ct. App. 2012) (internal quotations
       omitted)).

       Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019                              Page 8 of 14
        asserted this right, the statements are considered as a whole.
        Mere expressions of reluctance to talk do not invoke the right to
        remain silent. This Court has held several times that raising
        doubts or expressing concern about continuing followed by
        continued dialogue do not unambiguously assert the right to
        remain silent.


Wilkes, 917 N.E.2d at 682 (internal citations omitted). In Miranda, the United

States Supreme Court concluded that “[o]nce warnings have been given the

subsequent procedure is clear. If the individual indicates in any manner, at any

time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.” 384 U.S. at 473. This conclusion, however, is not a

per se prohibition against all further questioning of an individual who has

indicated that he wishes to remain silent, as the Court later stated “Clearly,

therefore, neither this passage nor any other passage in the Miranda opinion can

sensibly be read to create a per se proscription of indefinite duration upon any

further questioning by any police officer on any subject, once the person in

custody has indicated a desire to remain silent.” Mich. v. Mosely, 423 U.S. 96,

102 (1975). Rather, when a suspect has only invoked his right to remain silent


        there is not a per se rule prohibiting the authorities from ever
        initiating a discussion or further questioning the individual on the
        subject. Rather, it must be shown on a case by case basis that the
        authorities “scrupulously honored” the defendant’s right to cut
        off questioning at any time, and that he knew and understood
        these rights and voluntarily waived them.


Mendoza-Vargas v. State, 974 N.E.2d 590, 595 (Ind. Ct. App. 2012) (quoting

Moore v. State, 498 N.E.2d 1, 9 (Ind. 1986)), trans. denied. See also Berghuis v.

Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019         Page 9 of 14
Thompkins, 560 U.S. 370, 405 (2010) (stating that “the admissibility of

statements obtained after the person in custody has decided to remain silent

depends under Miranda on whether his ‘right to cut off questioning’ was

‘scrupulously honored.’”).


        It is the State’s burden to prove that the suspect’s right to remain
        silent was scrupulously honored. There are several non-exclusive
        factors used to determine whether interrogation was properly
        resumed, including: the amount of time that lapsed between
        interrogations; the scope of the second interrogation; whether
        new Miranda warnings were given; and the degree to which
        police officers pursued further interrogation once the suspect has
        invoked his right to silence.


Mendoza-Vargas, 974 N.E.2d at 595. In this case, the relevant portion of the first

interview is as follows:


        [BRIAN BUSICK]: Where did you see [Gilbert] the first time?
        Where did you see him the first time yesterday? Yesterday?

        [RISINGER]: Just outside walking.

        [BRIAN BUSICK]: Where at?

        [RISINGER]: Around about.

        [BRIAN BUSICK]: Around where?

        [RISINGER]: In town you know.

        [BRIAN BUSICK]: You’re walking and he’s walking.

        [RISINGER]: I don’t remember each detail that I do every single
        day you know what I mean.



Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019       Page 10 of 14
        [BRIAN BUSICK]: Well I mean the first time that you lay eyes
        on someone you’ve never met before were you walking and he
        was walking in town that’s how you saw each other.

        [RISINGER]: He just he was crippled and walking with a cane
        and he looked like he needed a place to stay so I offered it to him.

        [BRIAN BUSICK]: In Salem?

        [RISINGER]: Yes. Salem, yes.

        [MATT BUSICK]: He was walking and he’s crippled.

        [RISINGER]: I mean

        [MATT BUSICK]: He’s walking with uh he’s older so how did
        he get from Salem back to your place a couple miles out of town,
        if you don’t have a car?

        [RISINGER]: I’m done talking.

        [MATT BUSICK]: Why’s that?

        [RISINGER]: Just because I feel like I’m getting pestered you
        know what I mean?

        [MATT BUSICK]: No, we are just trying to figure it out.

        [RISINGER]: I know but I don’t even know what’s going on you
        know what I mean? I don’t even know.

        [MATT BUSICK]: We don’t either like I said I’m just trying to
        figure out. I’m thinking okay we need to talk to Gilbert, did
        Gilbert set your place, is Gilbert there, is Gilbert walking, maybe
        we need to talk to Gilbert, maybe he knows what happened. Was
        there anybody else there hanging out with Gilbert? Um is I’ll let
        you know now the damage didn’t go the other trailers or nothing
        like that so you’re okay there. We have stuff we like to answer for
        the neighbors because you know heat like that sometimes it will



Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019       Page 11 of 14
               warp like the uh vinyl siding on places. So, we have to get to the
               whole thing in so we can.


       Tr. Vol. III p. 11–12.


[11]   Here, Risinger unequivocally invoked his Miranda rights by stating “I’m done

       talking.” Under these circumstances, we conclude that “I’m done talking” was

       Risinger’s expressed desire to remain silent. While Risinger could have been

       clearer in expressing his desire by stating something such as “I’m invoking my

       right to remain silent,” such a formal declaration is not what the law requires.

       Rather than honoring Risinger’s assertion of his right to remain silent, the

       detectives continued to question him. This failure to scrupulously honor

       Risinger’s invocation of his Miranda rights led to the detectives obtaining

       incriminating statements from Risinger. Thus, we conclude that the statements

       made by Risinger during the first interview should not have been admitted at

       trial, with the exception of those made prior to Risinger’s invocation of his

       Miranda rights approximately nineteen minutes into the interview.


[12]   Regarding the second and third interviews, we also conclude that these

       interviews should not have been admitted at trial. While it is true that they were

       conducted the following day and Risinger was Mirandized again, this

       amounted to nothing more than shutting the barn doors long after the cows had

       bolted. By the time the second and third interviews were conducted, Risinger

       had already confessed to starting the fire and killing Givan in the first interview.

       The second interview regarded the identity of Givan, and the third regarded


       Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019       Page 12 of 14
       Risinger’s motive for killing Givan. These subsequent interviews clearly built

       upon the confession which was unconstitutionally obtained by detectives after

       they failed to scrupulously honor Risinger’s invocation of his right to remain

       silent during the first interview.


[13]   In arguing that Risinger did not unequivocally assert his right to remain silent,

       the States relies on Wilkes v. State, 917 N.E.2d 675 (Ind. 2009), Griffith v. State,

       788 N.E.2d 835 (Ind. 2003), and Haviland v. State, 677 N.E.2d 509 (Ind. 1997),

       in which the Indiana Supreme Court concluded that the defendants’ statements

       did not amount to an assertion of their right to remain silent. Those cases,

       however, are distinguishable from Risinger’s case. In Wilkes, the defendant

       pointed to his statements “Well, I have, I’m still high and you’re going to go

       away,” “No I can end this today with me, and I don’t have to know [s***],”

       and “I don’t want to talk about it no more. I don’t want to think about it. Cause

       right now I’m still high,” as unequivocal assertions of his right to remain silent.

       917 N.E.2d at 682. In concluding that they were not, the Court reasoned,


               This Court has held several times that raising doubts or
               expressing concern about continuing followed by continued
               dialogue do not unambiguously assert the right to remain silent.
               [Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004)]; Griffith v.
               State, 788 N.E.2d 835, 842 (Ind. 2003) (“I might as well not say
               anything more,” followed by disclosure of information, did not
               invoke the right to remain silent); Haviland v. State, 677 N.E.2d
               509, 514 (Ind. 1997) (“I’m through with this,” followed by
               continued dialogue did not unambiguously assert the right to
               remain silent). Here, after each of Wilkes’s purported attempts to
               end the interrogation, he continued to speak with the detective.


       Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019         Page 13 of 14
       Id. at 682–83. Unlike those cases cited by the State, Risinger’s statement was

       neither raising doubts nor expressing concern about continuing. Risinger’s

       statement “I’m done talking,” was an unequivocal assertion of his desire to

       remain silent, and upon hearing it the detectives’ questioning should have

       ceased.



                                                  Conclusion
[14]   We conclude that Risinger’s waivers of his Miranda rights and statements were

       voluntary. His statement, however, “I’m done talking,” was an unequivocal

       invocation of his right to remain silent pursuant to Miranda, and the detectives’

       continuation of questioning thereafter was a failure to scrupulously honor that

       right. Therefore, the trial court abused its discretion by admitting at trial the

       statements made by Risinger during the first interview after he had asserted his

       Miranda rights (at approximately minute nineteen), and the statements he made

       during the second and third interviews.4


[15]   The judgment of the trial court is reversed.


       Najam, J., and Bailey, J., concur.




       4
         Risinger also claims that the trial court committed fundamental error by allowing a court-appointed
       psychiatrist to testify that legal wrongfulness was the proper standard regarding “the wrongfulness of the
       conduct” under Indiana’s insanity statute. Given our disposition above, we need not address this contention,
       but note that our General Assembly has chosen not to define the wrongfulness standard in the insanity
       statute and that juries should be instructed in accordance with said statute. See Ind. Code § 35-41-3-6(a) (“[A]
       person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect,
       he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”).

       Court of Appeals of Indiana | Opinion 19A-CR-281 | December 9, 2019                               Page 14 of 14
