                                                        Jan 23 2014, 9:59 am
FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                             MATTHEW D. ANGLEMEYER
Attorney General of Indiana                    Marion County Public Defender
                                               Indianapolis, Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )       No. 49A02-1303-CR-235
                                               )
DEANGELO BANKS,                                )
                                               )
       Appellee-Defendant.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Grant W. Hawkins, Judge
                 Cause Nos. 49G05-1012-MR-91655, 49G05-1012-MR-91656



                                    January 23, 2014


                              OPINION - FOR PUBLICATION


BROWN, Judge
      The State appeals the trial court’s grant of DeAngelo Banks’s motion to suppress

his confession of murder. The State raises one issue which we revise and restate as

whether the court erred in granting Banks’s motion to suppress. We affirm.

                         FACTS AND PROCEDURAL HISTORY

      In November 2010, Banks arrived at the New Castle Correctional Facility and was

placed in the psychiatric ward of the facility. He had been previously diagnosed with

schizo affective disorder. On December 7, 2010, Indianapolis Police Detective Michael

Mitchell went to the New Castle Facility to question Banks and to follow up on an

investigation involving a DNA lead. Detective Mitchell had no previous contact with

Banks, was not aware that Banks was in the psychiatric ward or that he was medicated,

and had not spoken with any medical personnel concerning him. Rather, Detective

Mitchell simply made an appointment to speak with Banks, was greeted by security

personnel, and was placed in a room with Banks.

      Detective Mitchell asked the correctional officer to place the handcuffs which

were behind Banks’s back to his front so that he could sign the rights waiver form, but

the correctional officer refused. Banks spelled his name for Detective Mitchell, and the

following exchange then occurred:

      Q.     Okay. Before we get started, I’m gonna read you your rights.

      A.     Alright.

      Q.     And you have the right to remain silent. Anything you say can be
             used against you as evidence in court. You have the right to talk a
             [sic] lawyer before any questions are asked or – you may answer any
             questions. Do you understand that?

      A.     Yes, sir.
                                           2
       Q.     Okay. If you cannot afford a lawyer, one will be appointed before
              you for any further questioning if you stop answering, okay?

       A.     Okay.

       Q.     And if you decide to answer questions now without a lawyer, you
              have the right to stop answering at any time until you talk to a
              lawyer. Do you understand that? You don’t have to talk to me is
              what I’m sayin’.

       A.     Oh, yeah, alright.

       Q.     You have – and if you do talk to me, you have the right to stop any
              time.

       A.     Alright.

       Q.     Okay?

       A.     Yeah.

       Q.     And that’s for you. Do you know Margaret – do you want to talk to
              me today?

       A.     Yes, sir.

       Q.     Okay. I know you can’t sign the rights waiver ‘cause you’re
              handcuffed but –

       A.     Yeah, I agree.

       Q.     – We’ll put that – we’ll put that in the –

       A.     I agree.

State’s Exhibit 2 at 2-3.

       Detective Mitchell then questioned Banks, and Banks indicated that he

remembered the picture of Margaret Russell, that he knew her for about an hour, and that

he was in Oaktree Apartments in September the year before last. Banks then stated: “I

                                              3
was under an influence of cocaine and – she – she was out prostitutin’. And – I don’t

know what happened, man, it’s like – it’s like for some reason, man, I – I seduced her and

it ended up to a murder, right?” Id. at 4. Banks stated that he strangled her with his

hands and explained how he strangled her. When asked whether he had sex with her,

Banks said: “Yea, a dead body, too, right?” Id. Banks stated that he took off her shirt

and wiped his semen and her fluids, and that the whole thing took “[p]robably like –

fifteen minutes” then said “[n]aw, it was longer than that. Because after she was –

spiritually dead – her soul hadn’t left her body yet, though, right?” Id. at 5. He also said

that he killed “some lady on 17th street . . . [and] Ritter” around November of 2009 and

that he strangled her and then had sex with her dead body. Id. at 5-6. When asked “is

there any particular reason you killed these girls,” Banks answered: “Other than I was

under the influence of drugs, man, I – I’ve been – I’ve been psychologically tormented,

right? I don’t know what’s – what the problem is, man. I think I might be insane or

somethin’, right?” Id. at 7. The day after Detective Mitchell spoke with Banks, Dr.

Maguire informed another detective who wanted to speak to Banks that “it might be more

productive to come after his medication had stabilized, because he had been out of it.”

Transcript at 23.

       On December 27, 2010, the State charged Banks with the murder of Russell under

cause number 49G05-1012-MR-91655 (“Cause No. 55”) and the murder of Debra Harper

under cause number 49G05-1012-MR-91656 (“Cause No. 56”). On February 16, 2011,

the State alleged that Banks was an habitual offender under each cause number.



                                             4
       On December 1, 2011, Banks filed a motion to suppress a statement he gave to

Detective Robert Flack on December 18, 2010, and testimony relating thereto in Cause

No. 56.

       On March 23, 2012, Banks filed a motion to suppress his statement to Detective

Mitchell and testimony related thereto in Cause No. 55, and alleged that

       due to the confusing manner in which these rights were stated to him by
       Detective Mitchell and the defendant’s altered and compromised state of
       mind, produced by a combination of psychotropic medications that he had
       been administered during his incarceration at the facility, including
       December 7, 2010, his “waiver” of those [Miranda] rights was not freely
       self-determined and the product of rational intelligent and free will, i.e. the
       statement was not made voluntarily, intelligently and knowingly due to the
       impairment of his mental faculties.

Appellant’s Appendix at 51-52.

       On December 7, 2012, the court held an evidentiary hearing. Dr. Ellen Keris

Maguire, a psychologist working in the psychiatric ward of the New Castle Correctional

Facility, testified that she saw Banks “weekly at the beginning and then it tapered off.”

Transcript at 10.   She testified that he had previously been diagnosed with schizo

affective disorder, which she described as:

       A psychotic disorder that also has some mood systems, so it’s kind of a
       combination of schizophrenia and bi-polar disorder. So there you have
       delusions, hallucinations, and then at the same time you can have periods
       where your mood is extremely euphoric and high and you’re up for several
       days and then you can also have a period of depression.

Id. at 11. According to Dr. Maguire, Banks was significantly worse when he arrived in

November 2010 than later in his confinement. She noted that the day after Detective

Mitchell spoke with Banks, she informed another detective that “it might be more

productive to come after his medication had stabilized, because he had been out of it.”
                                          5
Id. at 23. She testified that her opinion would have been the same the day before. She

further stated that “closer to March or April [Banks] was consistently stable.” Id. at 24.

       Detective Mitchell testified that he introduced himself to Banks, told Banks that he

was there to talk about a case, and Banks told him that he knew why he was there. He

stated that Banks began talking about the murders, and he stopped Banks from talking

and turned on his tape recorder. Banks “seemed to understand” why Detective Mitchell

was there before being told and that it was “indicative of the whole conversation that

[Banks was] understanding what [he was] talking about.” Id. at 51. When asked “[s]o

you didn’t have to in anyway [sic] to I’ll use the term, use any coercive tactics to get him

to talk to you, he wanted to talk to you from the get go,” Detective Mitchell answered,

“Absolutely, yeah.” Id. He acknowledged that the correct statement to Banks should

have been that if he cannot afford a lawyer one would be appointed to him before any

further questioning, and that he did not read the Indianapolis Metropolitan Police Advice

of Rights Waiver verbatim to Banks. He also testified that Banks’s answers during the

interview were appropriate to the questions, that Banks did not laugh inappropriately

during the questioning and did not do anything that seemed “highly . . . inappropriate to

the conversation.” Id. at 48. On re-cross examination, in response to the question, “Now

December 7 of 2010 that the defendant understood his rights and did in fact want to

waive them and talk to you about what occurred” he responded, “Yes, that’s correct.” Id.

at 54-55.

       Banks testified that he was still medicated the day of the evidentiary hearing and

that he understood what was happening at the hearing. He testified that he vaguely

                                             6
remembered the day when Detective Mitchell came to talk to him, and when asked

whether he recalled Detective Mitchell advising him of his rights, answered: “Not really,

no.” Id. at 56. Banks stated that he did not really understand that he had certain rights

that he could invoke so as to not give a statement and he “thought [Detective Mitchell]

was telling [him] something totally different.” Id. at 57. He said that he did not know

that he had the right to talk to a lawyer before he talked to the detective, and that he

interpreted the words “further questions” as Detective Mitchell “telling [him] like I would

get a lawyer like right now like before he asked me questions.” Id. When asked why he

agreed to talk with Detective Mitchell, Banks replied: “I was in restraints. They had me

restrained down. It’s real vague. I was kind of like in and out of it.” Id. at 58. He also

indicated that had he been clearly advised, he would not have given up his rights and

talked to Detective Mitchell.

       At the end of the hearing, the court stated:

       Let me outline the problem that I see. Then you folks can tell me your
       thoughts. We might need to get some more scholarship in here. When a
       person has processing difficulty, cognizant difficulty, it takes more care
       rather than less care to make sure the person understands what he or she is
       doing and the consequences of the acts. When you put that in the context
       of a rights waiver, we recognize that the advisement of rights is one factor,
       the waiver of rights is another factor. The waiver can be seen to occur even
       when it’s not expressed. Some cases because the person keeps on
       answering the questions even though the waiver itself might be unclear.
       The fact that he keeps on answering the question suggests strongly that they
       are waiving their rights and they are doing it unknowingly. But when you
       have processing and cognitive issues how do you look at it? We have a
       defendant who was trying to talk to the detective before the detective even
       had his seat warm. The detective took great care to make sure that we do
       this as fairly as we can, under the then known circumstances. But all of the
       then known circumstances, all the existing circumstances were known.
       Didn’t know about the man’s placement in the psychiatric wing, didn’t
       know the kind of treatment he was getting, didn’t know that he had
                                              7
       problems processing and remembering correctly. So can we assume a
       knowing and intelligent waiver under those circumstances when the
       advisement is not totally correct. And the waiver – the express waiver is
       nonexistent, but an implied waiver might exist because he did answer the
       questions. Does that make any sense to you, [prosecutor], my concern?

                                         *****

       I don’t know of any Indiana cases, but there might be several. But I need
       some help with that issue. It’s the State’s burden. If you have a signed
       waiver it’s clear that he’s been advised and there is a knowing waiver. We
       don’t have that here. We don’t even have a complete according to the court
       order – document, advisement, certainly we don’t have a signed waiver. So
       I need something from you to direct me to the conclusion you want me to
       reach.

Id. at 62-63. The court later stated:

       [Detective Mitchell] didn’t knowingly do anything wrong. But probably
       could have read something a little bit better, but he wasn’t in there trying to
       fool anybody. But at the same time he did not know Mr. Banks [sic]
       condition.

                                         *****

       I suspect if [Detective Mitchell] had known he would have had some
       safeguards in the whole process, but he didn’t. Now Mr. Banks goes ahead
       and answers the questions even though the advisement wasn’t necessarily
       as clear as it could have been, certainly not as complete based on the
       documentation usually is, and the waiver was not as expressed as it could
       have been. In spite of those things we have a knowing and voluntary
       waiver such that you can proceed to trial. The greater problem a person
       has, the greater the care you have to take to make sure it’s a knowing and
       voluntary waiver. This person has more deficits than normal, you have to
       take greater care.

Id. at 68-69.

       On January 24, 2013, the State filed a response to Banks’s motion to suppress in

Cause No. 55. On February 14, 2013, Banks filed an answer to the State’s response to

his motion to suppress. He argued that his mental state and the statements by Detective

                                             8
Mitchell led “to an invalid and involuntary waiver” and that Article 1, Section 14 of the

Indiana Constitution required the State to prove beyond a reasonable doubt that his

statement was voluntary. Appellant’s Appendix at 70. He contended that Detective

Mitchell’s failure to simply read the rights form resulting in his incomplete and confusing

recitation of his rights can be characterized as other improper police influences even if

they were not intentional and that it led to the production of an involuntary confession.

        On February 15, 2013, the court held a hearing, found that Banks’s waiver was not

knowing, and granted the motion to suppress. In March 2013, the State filed a motion to

dismiss the charges under each cause number, and the court granted the motions.

                                           DISCUSSION

        The issue is whether the court erred in granting Banks’s motion to suppress his

confession of murder.1 “In reviewing a trial court’s motion to suppress, we determine

whether the record discloses ‘substantial evidence of probative value that supports the

trial court’s decision.’” State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011) (quoting

State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). We do not reweigh the evidence, but

consider conflicting evidence most favorably to the trial court’s ruling. Id. Within this

sufficiency review, we review all issues of law de novo. Hartman v. State, 988 N.E.2d

785, 788 (Ind. 2013). “When the State appeals from a negative judgment, as here, it

‘must show that the trial court’s ruling on the suppression motion was contrary to law.’”

Renzulli, 958 N.E.2d at 1146 (quoting State v. Washington, 898 N.E.2d 1200, 1203 (Ind.

2008), reh’g denied).

        1
          Pursuant to Ind. Code § 35-38-4-2(5), the State appeals from the suppression of evidence which
effectively precludes further prosecution.
                                                   9
       The State argues that (A) Detective Mitchell sufficiently advised Banks of his

rights; and (B) that Banks waived his rights and voluntarily confessed. We will address

each issue separately.

A.     Advisement of Miranda Rights

       The Fifth Amendment grants to individuals, among other rights, the right to be

free from self-incrimination. U.S. CONST. amend. V (“No person . . . shall be compelled

in any criminal case to be a witness against himself . . . .”). This provision applies to the

states by virtue of the Fourteenth Amendment. Hartman, 988 N.E.2d at 788 (citing

Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L.Ed.2d 653, 658 (1964)). The

United States Supreme Court has held that “when an individual is taken into custody or

otherwise deprived of his freedom by the authorities in any significant way and is

subjected to questioning, the privilege against self-incrimination is jeopardized.”

Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966). The Supreme Court

held that “the right to have counsel present at the interrogation is indispensable to the

protection of the Fifth Amendment privilege under the system we delineate today.” Id. at

469, 86 S. Ct. at 1625. The Court also held that “an individual held for interrogation

must be clearly informed that he has the right to consult with a lawyer and to have the

lawyer with him during interrogation . . . .” Id. at 471, 86 S. Ct. at 1626. Procedural

safeguards must be employed to protect the privilege, and unless other fully effective

means are adopted to notify the person of his right of silence and to assure that the

exercise of the right will be scrupulously honored, the following measures are required.

Id. at 478-479, 86 S. Ct. at 1630. The person must be warned prior to any questioning

                                             10
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 if he so desires.

Id. at 479, 86 S. Ct. at 1630. After such warnings have been given, and such opportunity

afforded him, the individual may knowingly and intelligently waive these rights and

agree to answer questions or make a statement. Id. But unless and until such warnings

and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result

of interrogation can be used against him. Id.

       In determining whether police officers adequately conveyed the four warnings,

reviewing courts are not required to examine the words employed as if construing a will

or defining the terms of an easement. Florida v. Powell, 559 U.S. 50, 60, 130 S. Ct.

1195, 1204 (2010).     Rather, the inquiry is simply whether the warnings reasonably

convey to a suspect his rights as required by Miranda.         Id.   “There is no formal

requirement for how the State must meet its burden of advising an individual consistent

with Miranda, so this court examines the issue in light of the totality of the

circumstances.” State v. Keller, 845 N.E.2d 154, 161 (Ind. Ct. App. 2006).

       The State argues that the trial court did not identify any specific error, omission,

or mistake in the Miranda advisement given to Banks, but found generally that “the

advisement wasn’t necessarily as clear as it could have been, certainly not as complete

based on the documentation usually is.” Appellant’s Brief at 13 (quoting Transcript at

69). The State contends that Detective Mitchell informed Banks in a straightforward

manner of all of the advisements required by Miranda.

                                            11
       Banks concedes that Detective Mitchell advised him about his right to remain

silent and that anything he said could be used against him, but argues that the advice

regarding the right to the presence of counsel was “highly abstruse” and that the words

used by Detective Mitchell were very confusing. Appellee’s Brief at 11. Banks focuses

on the following statement made by Detective Mitchell: “If you cannot afford a lawyer,

one will be appointed before you for any further questioning if you stop answering,

okay?” State’s Exhibit 2 at 2. Banks emphasizes the words “if you stop answering” in

his brief and argues that “[t]he most logical interpretation of these words is that Mitchell

told Banks a lawyer would be appointed for him only if he began answering Mitchell’s

questions and then stopped.” Appellee’s Brief at 11. He points out that Detective

Mitchell told him that a lawyer would be appointed “before you,” and argues “[w]hat

appointing a lawyer ‘before you’ means, and what Banks took it to mean, cannot be

determined.” Id. at 11-12. He asserts that “[w]hen and for how long Banks had a right to

an attorney was not made clear” and that he “could not have understood from these

advisements that he could exercise his right to an attorney while the interrogation was

underway” or that “he could choose to talk only with Counsel present.” Id. at 12. He

also contends that Detective Mitchell’s statement was “too convoluted to inform Banks

that he had a right to an attorney before any questioning,” and that the detective’s

statement to him that he had “the right to talk to a lawyer before any questions are asked

or – you answer any questions” did not inform him he had a right to an appointed

attorney before any questioning. Id.



                                            12
      The record reveals that Detective Mitchell’s advisement did not inform Banks that

he had the right to have counsel present during the questioning at issue and thus failed to

properly advise Banks of his Miranda rights. See Franklin v. State, 262 Ind. 261, 264,

314 N.E.2d 742, 744 (1974) (“[T]he Miranda case requires that the precautionary

warnings clearly express that an individual has the right to consult with a lawyer and to

have the lawyer with him during interrogation.”) (emphasis added); United States v.

Wysinger, 683 F.3d 784, 799 (7th Cir. 2012) (concluding that the “agent’s divergence

from the familiar script would put a suspect to a false choice between talking to a lawyer

before questioning or having a lawyer present during questioning, when Miranda clearly

requires that a suspect be advised that he has the right to an attorney both before and

during questioning”).

B.    Waiver of Miranda Rights and Confession

      The State argues that Banks never demonstrated confusion, that he verbally

indicated that he understood the advisements recited by the detective, and he validly

waived his rights. The State points to the court’s statement that the confession would

have been admissible if Detective Mitchell would have taken more care with Banks given

his mental condition but that “this standard far exceeded that which the State was

required to show in order to establish a valid waiver and statement.” Appellant’s Brief at

16. The State also posits that “the trial court’s concerns are relevant for the parties to

argue before the jury when addressing the evidentiary weight of the statement and are not

relevant on the question of admissibility of the statement itself.” Id. The State further

contends that the “signs Dr. Maguire identified that could indicate whether Banks was not

                                            13
coherent or oriented during the statement were not exhibited during the statement such as

inappropriate laughter or bizarre behavior” and notes that Banks was familiar with the

criminal justice system as evidenced by his incarceration for a rape conviction at the time

of the statement. Id. at 19. The State describes the conversation between Detective

Mitchell and Banks as “cordial, short, and to the point,” and maintains that Detective

Mitchell had no knowledge of Banks’s diagnosis or his placement in the psychiatric ward

of the jail and there is nothing showing that he attempted to take advantage of it. Id. at

20.

       Banks concedes that it is clear that under the United States Constitution a person’s

mental or physical condition alone will not render a person’s confession involuntary and

that coercive police activity is a necessary prerequisite to a finding that the confession is

involuntary, but argues that the Indiana Constitution does not require police coercion in

order to show involuntariness. He cites Hurt v. State, 694 N.E.2d 1212 (Ind. Ct. App.

1998), trans. denied, cert. denied, 525 U.S. 1008, 119 S. Ct. 525 (1998), and argues that

“Hurt quoted with approval Justice DeBruler’s concurring opinion in Linthicum v. State,

511 N.E.2d 1026, 1031 (Ind. 1987), in which Justice DeBruler noted that the Indiana

Constitution, unlike the federal constitution, does not require proof of police coercion to

render a defendant’s confession involuntary.” Appellee’s Brief at 14. Banks argues that

Dr. Maguire indicated that he had poor insight, judgment, reasoning, and impulse control,

as well as paranoia and delusions which militate against a voluntary statement. He also

contends that the police report cited by the State to suggest his familiarity with the



                                             14
criminal justice system was never introduced into evidence at any hearing and it should

not be a part of the analysis.

       In its reply brief, the State argues that coercive police activity is a necessary

prerequisite to establish a violation of the Fifth Amendment of the United States

Constitution and Article 1, Section 14 of the Indiana Constitution. The State asserts that

nowhere in Hurt did the court state that proof of police coercion is not required under the

Indiana Constitution.     The State posits that Banks’s reliance on Justice DeBruler’s

concurring opinion in Linthicum is misguided because it is only a concurring opinion that

was never adopted by the Indiana Supreme Court, and the Court’s opinion in Ajabu v.

State, 693 N.E.2d 921 (Ind. 1998), suggests otherwise. The State argues that Banks is

asking this court to essentially find that a showing of a pre-existing mental or physical

condition, absent all other factors, would be sufficient to render a confession involuntary

and that “[t]his would imply that any defendant who can show he has some kind of

mental condition could never ‘voluntarily’ give a confession to the police.” Appellant’s

Reply Brief at 10.

       With respect to a 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. Treadway

v. State, 924 N.E.2d 621, 635 (Ind. 2010); Crain v. State, 736 N.E.2d 1223, 1230 (Ind.

2000). 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

                                            15
defendant’s free will. Crain, 736 N.E.2d at 1230. The State bears the burden of proving

beyond a reasonable doubt that the defendant voluntarily waived his rights. Pruitt v.

State, 834 N.E.2d 90, 114-115 (Ind. 2005), reh’g denied, cert. denied, 548 U.S. 910, 126

S. Ct. 2936 (2006).2

        To the extent that Banks argued in his motion to suppress that his confession was

not voluntary, we observe that Article 1, Section 14 of the Indiana Constitution provides

that “[n]o person, in any criminal prosecution, shall be compelled to testify against

himself.”      In addition to the required Miranda advisement, a defendant’s self-

incriminating statement must also be voluntarily given. Crain, 736 N.E.2d at 1230 (citing

Gregory v. State, 540 N.E.2d 585, 592 (Ind. 1989); Dickerson v. United States, 530 U.S.

428, 120 S. Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) (“The requirement that Miranda

warnings be given does not, of course, dispense with the voluntariness inquiry.”)). The

trial court’s decision regarding admissibility of a confession or incriminating statement is

controlled by determining from the totality of the circumstances whether the statement

was given voluntarily, rather than through coercion or other improper influence so as to

overcome the free will of the accused.              Hartman, 988 N.E.2d at 787-788; see also

Treadway, 924 N.E.2d at 635 (holding that the admissibility of a statement is controlled

by determining from the totality of the circumstances whether it was made voluntarily

and not induced by violence, threats, or other improper influences that overcame the


        2
           In Pruitt, the Court held that “[a] defendant must show specific instances where his impaired
abilities have an effect on voluntariness in order for a defendant to prevail on a claim that his mental
condition prevented him from knowingly waiving his Miranda rights.” 834 N.E.2d at 115. However, in
Pruitt, the trial court denied the defendant’s motion to suppress, and it was the defendant’s burden on
appeal to show that the trial court had erred. The trial court here granted Banks’s motion to suppress, and
Banks has no such burden on appeal.
                                                    16
defendant’s free will); Griffith v. State, 788 N.E.2d 835, 841 (Ind. 2003) (holding that

admissibility of a confession is governed by determining from the totality of the

circumstances whether or not it was made voluntarily).                     Standard indicators for

voluntariness include whether the confession was freely self-determined, the product of a

rational intellect and free will, without compulsion or inducement of any sort, and

whether the accused’s will was overborne. Griffith, 788 N.E.2d at 841. “The mere fact a

statement is made by the defendant while under the influence of drugs, or that the

defendant is mentally ill, does not render it inadmissible per se.” Pruitt, 834 N.E.2d at

115 (citing Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995)). “Intoxication, drug use

and mental illness are only factors to be considered by the trier of fact in determining

whether a statement was voluntary.” Id. The State also bears the burden of proving

beyond a reasonable doubt that the defendant’s confession was voluntarily given. 3 Pruitt,

834 N.E.2d at 114-115.

        We initially address the parties’ disagreement regarding whether coercive police

activity is a necessary prerequisite to establish a violation of Article 1, Section 14 of the

        3
            In Pruitt, the Indiana Supreme Court observed:

        If a defendant challenges the voluntariness of a confession under the United States
        Constitution, the state must prove the statement was voluntarily given by a
        preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 167-69, 107 S. Ct.
        515, 93 L.Ed.2d 473 (1986) (voluntariness of waiver of Miranda rights); Lego v.
        Twomey, 404 U.S. 477, 488-89, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972) (voluntariness of a
        confession). Thus, a federal constitutional claim that a confession was not voluntarily
        given is governed by a preponderance of the evidence standard. Henry v. State, 738
        N.E.2d 663, 664 n.1 (Ind. 2000). However, the Indiana Constitution requires the state to
        prove “beyond a reasonable doubt that the defendant voluntarily waived his rights, and
        that the defendant’s confession was voluntarily given.” Miller v. State, 770 N.E.2d 763,
        767 (Ind. 2002) (quoting Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000)).

Pruitt, 834 N.E.2d at 114-115. As noted, Banks raised an issue under Article 1, Section 14 of the Indiana
Constitution.
                                                     17
Indiana Constitution. In Linthicum v. State, 511 N.E.2d 1026, 1027 (Ind. 1987), the

Court addressed whether the statement of Philip Linthicum to police was voluntarily

given. Linthicum argued that he was intoxicated and under the influence of drugs at the

time of his statement and that the Fifth and Fourteenth Amendments to the United States

Constitution required exclusion of his statement. 511 N.E.2d at 1030. The Court held

that Linthicum’s argument did not address the main concern of due process analysis in

this area: coercive police conduct. Id. The Court discussed Colorado v. Connelly, 479

U.S. 157, 107 S. Ct. 515 (1986), and held that “[a]bsent evidence of oppressive police

conduct, the Fifth Amendment does not require suppression of Linthicum’s statement.”

Id. In an opinion in which Justice DeBruler concurred in result, he wrote:

              It is also appropriate at this initial visitation with Connelly to express
       the opinion that the case does not bind this court in applying the protections
       of the Indiana Constitution, applicable in the police interrogation area. The
       constitutional test of voluntariness under the Indiana Constitution requires a
       confession be freely self-determined and the product of a rational intellect
       and a free will. Robbins v. State (1968), 250 Ind. 219, 235 N.E.2d 199.
       Even in the absence of coercion on the part of the interrogating officers, a
       confession may be involuntary where for example the accused’s will, by
       reason of borderline feeblemindedness, was easily overborne by
       experienced interrogating officers. Robbins, id.

Id. at 1032.

       In Hurt v. State, 694 N.E.2d 1212 (Ind. Ct. App. 1998), trans. denied, cert. denied,

525 U.S. 1008, 119 S. Ct. 525 (1998), William Hurt argued that the State failed to show

that his waiver of Miranda rights and subsequent confession were voluntary. Hurt also

argued that his waiver and confession were not the product of a rational intellect and free

will because he was diagnosed as a schizophrenic, had been judicially determined to be

mentally disabled upon being admitted to the hospital, and was required to ingest drugs
                                          18
and told to confess as part of his treatment. 694 N.E.2d at 1217. The court concluded

that the trial court properly found that Hurt’s confession and waiver were voluntary under

the circumstances. Id. at 1218. The court then addressed Hurt’s argument that the State

was required to show that his confession was voluntary under the Indiana Constitution

and that such a showing requires a confession to be the product of a free will and rational

intellect. Id. The court discussed Justice DeBruler’s concurring opinion in Linthicum

and held that, even applying the standard and burden of proof which Hurt proposes, the

result does not change. Id.

       The State cites Ajabu v. State, 693 N.E.2d 921 (Ind. 1998), for the proposition that

the Indiana Supreme Court reaffirmed “the necessary prerequisite of police coercion or

compulsion in for [sic] a defendant to establish that a confession was obtained in

violation of Article 1, Section 14.” Appellant’s Reply Brief at 8. Specifically, the State

cites the following portion from Ajabu:

       The decisional law as far back as 1860 has focused on the prerequisite of
       compulsion: “[The right] exempts no one from the consequences of a crime
       which he may have committed, but only from the necessity of himself
       producing the evidence to establish it.” Wilkins v. Malone, 14 Ind. 153,
       156 (1860). Stated concisely, our cases establish that there is a right not to
       be forced to speak, but there is no right to bar a confession freely given
       after appropriate warnings and waivers. See also Corder v. State, 467
       N.E.2d 409, 415 (Ind. 1984) (defendant who spoke freely to court-
       appointed psychiatrists was not denied his rights under Section 14 or the
       Fifth Amendment); Ross v. State, 204 Ind. 281, 293, 182 N.E. 865, 869
       (1932) (“The essence of the privilege is freedom from testimonial
       compulsion.”); cf. State ex rel. Keller v. Criminal Court of Marion County,
       262 Ind. 420, 428, 317 N.E.2d 433, 438 (1974) (“The Fifth Amendment is
       not a bar to any conviction resting on self-incrimination. It prohibits only
       compelled self-incrimination.”).



                                            19
693 N.E.2d at 930. The Court stated: “our cases establish that there is a right not to be

forced to speak, but there is no right to bar a confession freely given after appropriate

warnings and waivers.” (Emphasis added). We also observe that the Court in Ajabu

later quoted Justice Byron White’s observations in his concurring opinion in Michigan v.

Mosley, 423 U.S. 96, 108-109, 96 S. Ct. 321, 328-329 (1975), in which he stated: “There

is little support in the law or in common sense for the proposition that an informed waiver

of a right may be ineffective even where voluntarily made. . . . Unless an individual is

incompetent, we have in the past rejected any paternalistic rule protecting a defendant

from his intelligent and voluntary decisions about his own criminal case. To do so would

be to imprison a man in his privileges. . . .” Id. at 933 (emphases added). We cannot say

that Ajabu holds that coercive police activity is a necessary prerequisite to establish a

violation of Article 1, Section 14 of the Indiana Constitution.

       The evidence favoring the trial court’s decision reveals that Banks had been

diagnosed with schizo affective disorder which Dr. Maguire described as:

       A psychotic disorder that also has some mood systems, so it’s kind of a
       combination of schizophrenia and bi-polar disorder. So there you have
       delusions, hallucinations, and then at the same time you can have periods
       where your mood is extremely euphoric and high and you’re up for several
       days and then you can also have a period of depression.

Transcript at 11. The day after Detective Mitchell spoke with Banks, Dr. Maguire

informed another detective that “it might be more productive to come after his

medication had stabilized, because he had been out of it.” Id. at 23. She testified that her

opinion would have been the same the day before. She also testified that during the

three-week period involving the interview by Detective Mitchell her opinion was that

                                             20
Banks “had difficulty understanding anything that [she] talked to him about.” Id. at 19.

In a report dated days after the interview, Dr. Maguire stated that Banks had poor insight,

judgment, and reasoning. At the hearing, Banks testified that he vaguely remembered the

day when Detective Mitchell came to talk to him, and when asked whether he recalled

Detective Mitchell advising him of his rights, Banks answered: “Not really, no.” Id. at

56. He indicated that he did not really understand that he had certain rights that he could

invoke so as to not give a statement and he “thought [Detective Mitchell] was telling

[him] something totally different.” Id. at 57. He said he did not know that he had the

right to talk to a lawyer before he talked to Detective Mitchell, and that he interpreted the

words “further questions” as Detective Mitchell “telling [him] like I would get a lawyer

like right now like before he asked me questions.” Id. When asked why he agreed to talk

with Detective Mitchell, Banks replied: “I was in restraints. They had me restrained

down. It’s real vague. I was kind of like in and out of it.” Id. at 58. He also indicated

that had he been clearly advised, he would not have given up his rights and talked to

Detective Mitchell.

       As noted, the mere fact that a defendant is mentally ill does not render his

statement inadmissible per se; instead, such is only one of the factors to be considered by

the trier of fact, the trial court, in determining the voluntariness of a statement. Pruitt,

834 N.E.2d at 115. Here, the trial court considered the evidence presented of Banks’s

mental illness, heard Banks’s own testimony and came to the conclusion that his

statement was not voluntary, and under our standard of review, we are bound to give this

determination deference.

                                             21
      We are therefore confronted with an inadequate Miranda warning to an undeniably

and seriously mentally ill suspect who was in the area of the Newcastle Correctional

Facility where the mentally ill are housed apart from the general prison population, who

was involuntarily medicated at the time and in restraints even during the interrogation at

issue. Yet, despite these compelling and compromising facts and circumstances, the

State chose to interview Banks, and secured the confession we now review.

      There is substantial evidence supporting the trial court’s decision, and its decision

is not contrary to law. Given our deferential standard of review, we affirm the trial

court’s determination that Banks’s confession should be suppressed.

      For the foregoing reasons, we affirm the court’s grant of Banks’s motion to

suppress.

      Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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