Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                            May 28 2013, 9:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER                            GREGORY F. ZOELLER
Clark County Chief Public Defender                Attorney General of Indiana
Jeffersonville, Indiana
                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LOUIS MOREIRA,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 10A01-1208-CR-351
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Vicki L. Carmichael, Judge
                              Cause No. 10C04-1109-FB-142



                                         May 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Louis Moreira appeals his two convictions for burglary, each as a Class B felony,

following a jury trial. Moreira raises a single issue for our review, namely, whether the

trial court abused its discretion when it admitted into evidence statements Moreira made

to police during a custodial interrogation. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 2, 2011, officers of the Clark County Sheriff’s Department arrested

Moreira in connection with recent burglaries at the homes of Lawrence Lyons and

Allyson Dean. When officers arrested Moreira, they found him in possession of items

belonging to Lyons and Jim and Myra Titus, who owned Dean’s residence.

       Detective Chris Proctor twice interrogated Moreira at the Clark County police

department. Detective Proctor began the first interview by reading Moreira his Miranda

rights. Detective Proctor then handed Moreira a form labeled, “Advice of Rights—

Interrogation.” State’s Exh. 34. That form stated, in relevant part, as follows:

                                     YOUR RIGHTS

       Before we ask you any questions, you must understand your rights.
       You have the right to remain silent.
       Anything you say can be used against you in court.
       You have the right to talk to a lawyer for advice before we ask you any
       questions and to have him with you during questioning if you wish.
       If you cannot afford a lawyer, one will be appointed for you before
       questioning if you wish.
       If you decide to answer questions now without a lawyer present, you will
       still have the right to stop answering at any time[.] You also have the right
       to stop answering at any time until you talk to a lawyer.

                                           ***

                                  WAIVER OF RIGHTS
                                             2
                                                ***

        I have read this statement of my rights and I understand what my rights are.
        I am willing to make a statement and answer questions. I do not want a
        lawyer at this time. I understand and know what I am doing. No promises
        or threats have been made to me and no pressure or coercion of any kind
        has been used against me.

Id. (emphasis added).

        When Detective Proctor handed the form to Moreira, the detective asked, “Do you

understand what I just said?” State’s Exh. 38 at 12:08:00.1 When Moreira did not

promptly reply, the detective said: “This ain’t giving up your rights. It just says that I

explained it to you.” Id. at 12:08:07 to :10. Moreira then studied the form silently for

fourteen seconds and then briefly shook his head. He then read aloud the “Waiver of

Rights” language on the form. Detective Proctor followed that by repeating: “You can

stop talking to me at any time.” Id. at 12:08:42 to :43. Moreira then signed the advice-

of-rights form. During the ensuing interrogation, which lasted a total of fifteen minutes,

Moreira made incriminating statements about his involvement in the burglary of Lyons’

home.

        About three hours later, Detective Proctor began a second interrogation of

Moreira.    The detective reread Moreira his Miranda rights at the beginning of the

interrogation.     Over the course of the next thirty-one minutes, Moreira made

incriminating statements regarding the burglaries at both Dean’s residence and Lyons’

home.



        1
           The contents of the recorded interrogations are not reflected in the transcript of the trial
although they were played in open court for the jury.
                                                  3
       The State charged Moreira with two counts of burglary, each as a Class B felony.

Over Moreira’s objection, the trial court admitted into evidence his two interrogations

with Detective Proctor. The jury found Moreira guilty as charged, and the trial court

entered its judgment of conviction and sentence accordingly. This appeal ensued.

                            DISCUSSION AND DECISION

       Moreira contends that he did not voluntarily and intelligently waive his Miranda

rights and, as such, the trial court abused its discretion when it admitted into evidence his

recorded confessions. As our supreme court has explained:

       Several standards govern our review. First, the State bears the burden of
       proving beyond a reasonable doubt that the defendant voluntarily and
       intelligently waived his rights, and that the defendant’s confession was
       voluntarily given. Second, where that standard has been met, [t]he decision
       whether to admit a confession is within the discretion of the trial judge and
       will not be reversed absent an abuse of that discretion. And third, when
       reviewing a challenge to the trial court’s decision to admit a confession, we
       do not reweigh the evidence but instead examine the record for substantial
       probative evidence of voluntariness.

Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000) (alteration original; citations omitted).

Further:

       A waiver of one’s Miranda rights occurs when the defendant, after being
       advised of those rights and acknowledging that he understands them,
       proceeds to make a statement without taking advantage of those rights. The
       admissibility of a confession is controlled by determining from the totality
       of the circumstances whether the confession was made voluntarily and was
       not induced by violence, threats, or other improper influences that
       overcame the defendant’s free will. The same test determines whether
       Miranda rights were voluntarily waived. Thus, the voluntariness of a
       defendant’s waiver of rights is judged by the totality of the circumstances.
       A signed waiver form is one item of evidence showing the accused was
       aware of and understood his rights. When challenged, the State may need
       to show additional evidence tending to prove that Defendant’s waiver and
       decision to speak were voluntary.


                                             4
Id. at 1211-12 (citations omitted).

        In evaluating a claim that a statement was not given voluntarily, the trial court is to

consider the totality of the circumstances, including: “the crucial element of police

coercion, the length of the interrogation, its location, its continuity, the defendant’s

maturity, education, physical condition, and mental health.” Pruitt v. State, 834 N.E.2d

90, 115 (Ind. 2005) (quotation omitted). On appeal, we do not reweigh the evidence but

instead “examine the record for substantial, probative evidence of voluntariness.” Id.

(quotation omitted). We examine the evidence most favorable to the State, together with

the reasonable inferences that can be drawn therefrom.                  Id.    If there is substantial

evidence to support the trial court's conclusion, it will not be set aside. Id.

        Again, Moreira asserts that his purported waiver of his Miranda rights was not

made voluntarily and intelligently.2 In particular, Moreira complains that, “[i]mmediately

after the detective’s hurried oral advisements[,] he asked Moreira to sign the waiver,

telling him he was just acknowledging he understood what the detective had said.”

Appellant’s Br. at 12. Moreira continues:

        at no point did the detective make any effort to ascertain whether Moreira
        understood the Miranda warnings and indeed misled him by suggesting that
        signing the waiver form did not mean he was giving up any of his rights,
        but [Moreira] was simply agreeing that the officer had explained those
        rights.

Id.



        2
           Throughout his brief, Moreira conflates language regarding whether his confession was
voluntary with language regarding whether his waiver of his rights was voluntary. These are two separate
questions. Nonetheless, it is clear from the substance of Moreira’s argument that he is challenging the
legitimacy of his purported waiver of his rights and not his subsequent confession. We restrict our review
accordingly. See Ind. Appellate Rule 46(A)(8)(a).
                                                    5
       In support of his position, Moreira states that “[t]he facts of this case are

alarmingly similar to the facts in Dickerson v. State,” 257 Ind. 562, 276 N.E.2d 845

(1972), overruled on other grounds as acknowledged in Luna v. State, 788 N.E.2d 832,

834-35 (Ind. 2003) (discussing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).

Appellant’s Br. at 11. In Dickerson, the interrogating officer handed the defendant a

written rights form, without explanation or comment, which the defendant then signed

before he made incriminating statements. Our supreme court held that the State did not

demonstrate that the defendant had knowingly and intelligently waived his constitutional

rights. Id. at 849. In particular, the court noted that “[a] signed waiver is not conclusive”

and the interrogating officer should have orally informed the defendant, who might not

have been able to read, “that he would be signing a waiver of his rights and that he should

sign it only if he desired to answer questions at that time without the presence or advice

of an attorney.” Id. at 849-50.

       Dickerson is factually distinguishable.     Here, unlike in Dickerson, Detective

Proctor orally reviewed Moreira’s rights before handing Moreira the written advice-of-

rights form. Detective Proctor asked Moreira if Moreira understood what Detective

Proctor had just said. Moreira then read the written form out loud, demonstrating that he

was capable of reading the form and understanding it. The concerns that were present in

Dickerson are not present here.

       However, when Moreira did not immediately respond to Detective Proctor,

Detective Proctor told Moreira that signing the form was not “giving up your rights.”

State’s Exh. 38 at 12:08:07 to :10.        The prosecutor described Detective Proctor’s


                                             6
statement as “[not] technically incorrect,” transcript at 8, because Moreira could re-

invoke his Miranda rights at any time after signing the form. See Miranda v. Arizona,

384 U.S. 436, 473-74 (1966) (“Once warnings have been given . . . [i]f the individual

indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.”). But Detective Proctor’s comment was a

misleading half-truth. To waive means to give up, to surrender. Moreira did in fact

“giv[e] up [his] rights” when he executed the written form and decided to speak. While

we do not attribute an intent to deceive to Detective Proctor, that Moreira could later re-

invoke his rights is not equivalent to saying that he would not be waiving those rights

when he executed the form.

      Nonetheless, Moreira is not a stranger to the justice system, and it is well

established that, in reviewing the totality of the circumstances surrounding a defendant’s

purported waiver of his Miranda rights, the defendant’s “extensive criminal record” is

entitled to “[s]ome weight.” Allen v. State, 686 N.E.2d 760, 773 & n.10 (Ind. 1997).

Since July of 2003, Moreira has been charged with numerous crimes in three states. In

particular, between July of 2003 and the instant offenses, Moreira had been charged with

the following Indiana offenses: operating while intoxicated, as a Class A misdemeanor;

possession of marijuana in an amount exceeding thirty grams, as a Class D felony;

possession of paraphernalia, as a Class A misdemeanor; and burglary, as a Class B

felony. He has also been charged in other states with the following offenses: possession

of a firearm, trespass, trafficking in cocaine (on two different occasions), possession of




                                            7
paraphernalia, possession of marijuana (on two different occasions), and receiving stolen

property.

       Accordingly, based on Moreira’s extensive criminal history, to the extent

Detective Proctor’s oral statements could have been misleading to an unsophisticated

defendant we cannot say that they were misleading to Moreira. Further, after Detective

Proctor’s misleading comment, Moreira re-read the written waiver form, which clearly

stated: “If you decide to answer questions now without a lawyer present, you will still

have the right to stop answering at any time[.] You also have the right to stop answering

at any time until you talk to a lawyer.” State’s Exh. at 34.

       In light of our standard of review and the totality of the circumstances, we cannot

say that the trial court abused its discretion when it concluded that Moreira voluntarily

and intelligently waived his Miranda rights and, subsequently, admitted Moreira’s

recorded statements into evidence. Accordingly, we affirm Moreira’s convictions.

       Affirmed.

ROBB, C.J., and MAY, J., concur.




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