      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Jun 10 2015, 9:51 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                         Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Gary Wright,                                             June 10, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1410-CR-693
              v.                                               Appeal from the Marion Superior
                                                               Court
                                                               The Honorable Lisa Borges, Judge
      State of Indiana,                                        Case No. 49G04-1312-FB-81688
      Appellee-Plaintiff,




      Robb, Judge.



                                 Case Summary and Issue
[1]   Following a jury trial, Gary Wright was convicted of burglary as a Class B

      felony and theft as a Class D felony. The trial court sentenced Wright to an


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015       Page 1 of 9
      aggregate sentence of thirteen years in the Department of Correction. Wright

      appeals, raising the following issue for our review: whether the trial court

      abused its discretion by admitting the statements he made to the police after

      invoking his right to counsel. Concluding Wright reinitiated communication

      with the police and validly waived his right to counsel, we affirm.



                            Facts and Procedural History
[2]   On the morning of December 31, 2013, Amanda Pritchard left her house to go

      to work. Around 2:00 p.m. that day, Leisha Manges, Pritchard’s neighbor,

      called the police to report a possible burglary. Manges saw a white male later

      identified as Wright exiting Pritchard’s house with televisions and other items

      in hand. Wright passed the items across the fence to a black male later

      identified as Laron Garrett. After Manges positively identified Wright and

      Garrett as the men she saw taking items from Pritchard’s house, both men were

      arrested and transported to the police station for questioning.


[3]   Detective Cheryl Anderson interviewed Wright at the police station. Prior to

      any questioning, Detective Anderson advised Wright of his Miranda rights.

      Wright indicated that he understood his rights and signed a written waiver.

      Once Wright signed the waiver, Detective Anderson began questioning him

      about the burglary, and he answered her questions until she asked, “[O]nce you

      went inside what’d you do?” State’s Exhibit 27A at 5. To that question Wright

      responded, “I don’t think I should. I think I should talk to an attorney.” Id.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 2 of 9
[4]   Detective Anderson terminated the interrogation as soon as Wright requested

      an attorney. She said, “OK, all right, good enough,” id., and left the room.

      Less than thirty seconds later, Wright changed his mind, began knocking on the

      door, and shouted, “Hey sergeant come in here I’ll talk. Come in here. I’ll

      talk. Come on, I’ll . . . come in here, I’ll . . . tell you everything.” Id. at 6;

      State’s Exhibit 27. Detective Anderson immediately returned, and the

      following exchange took place:

              [Detective Anderson:] Alright, now Gary don’t be yankin’ my chain
              now.
              [Wright:] I’m not ma’am.
              [Detective Anderson:] I don’t got time for that.
              [Wright:] I’ll tell you everything. . . .
      State’s Ex. 27A at 6.


[5]   First, Wright asked what charges he was facing and whether he was “the only

      one bein’ charged. . . .” Id. Detective Anderson informed Wright of the

      charges and assured him that Garrett would also be charged. Id. at 6-7. Then,

      Wright admitted that he and Garrett took “valuables” from Pritchard’s house.

      Id. at 7. When Detective Anderson asked what kind of valuables, Wright

      refused to answer the question. Id. Detective Anderson accepted that response

      and did not push Wright for an answer. The interview concluded less than a

      minute later, lasting just under eight minutes from start to finish, including the

      initial advisement of rights. Wright told Detective Anderson to “Have a good

      day” as she was exiting the room. Id. at 8.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 3 of 9
[6]   Wright was charged with burglary as a Class B felony, theft as a Class D felony,

      possession of a controlled substance as a Class D felony, and criminal mischief

      as a Class B misdemeanor. Prior to trial, Wright filed a motion to suppress the

      statements he made to Detective Anderson after invoking his right to counsel.

      The trial court denied the motion, and the case proceeded to trial. The State

      moved to dismiss the possession of a controlled substance and criminal mischief

      charges the morning of trial. The trial court granted the State’s motion, and a

      jury found Wright guilty of the remaining charges. The trial court sentenced

      Wright to thirteen years executed in the Department of Correction for burglary,

      to be served concurrently with a two year executed sentence for theft. This

      appeal followed.



                                 Discussion and Decision
                                       I. Standard of Review
[7]   Wright claims that the trial court abused its discretion by admitting the

      statements he made to Detective Anderson after invoking his right to counsel.

      The decision to admit a defendant’s statement is within the discretion of the

      trial court and will not be disturbed absent an abuse of that discretion. Ringo v.

      State, 736 N.E.2d 1209, 1211 (Ind. 2000) (citation omitted). When a defendant

      challenges the admissibility of his confession, the State must prove beyond a

      reasonable doubt that the statement was free and voluntary and not induced by

      violence, threats, promises, or improper influences. Jackson v. State, 735 N.E.2d

      1146, 1153 (Ind. 2000). The same test determines whether a defendant’s

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 4 of 9
      Miranda rights were voluntarily waived. Carter v. State, 730 N.E.2d 155, 157

      (Ind. 2000). In reviewing the trial court’s decision to admit a defendant’s

      statement, “we do not reweigh the evidence but instead examine the record for

      substantial probative evidence of voluntariness.” Ringo, 736 N.E.2d at 1211.


                                    II. Admission of Evidence
[8]   The Fifth Amendment, applicable to the states by virtue of the Fourteenth

      Amendment, provides that “[n]o person . . . shall be compelled in any criminal

      case to be a witness against himself. . . .” Hartman v. State, 988 N.E.2d 785, 788

      (Ind. 2013) (quoting U.S. Const. amend. V). To protect the privilege against

      self-incrimination, the U.S. Supreme Court in Miranda v. Arizona held that a

      person must be warned, prior to any questioning, that he has the right to remain

      silent, that he has a right to the presence of an attorney, and that any statement

      he does make may be used as evidence against him. 384 U.S. 436, 444 (1966).

      A defendant waives his Miranda rights when, after being advised of those rights

      and acknowledging an understanding of them, he proceeds to make a statement

      without taking advantage of his Miranda rights. Crain v. State, 736 N.E.2d 1223,

      1230 (Ind. 2000).


[9]   Even if a defendant elects to waive his Miranda rights, the waiver may be

      rescinded at any time. Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010). If a

      defendant asserts the right to counsel during interrogation, the police must

      cease questioning until counsel is present or the defendant reinitiates

      communication and waives the right to counsel. Osborne v. State, 754 N.E.2d


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 5 of 9
       916, 922 (Ind. 2001). Standing alone, the defendant’s initiation of further

       conversation is not sufficient to establish a waiver of the previously asserted

       right to counsel. Id. If a defendant is found to have reinitiated communication

       with the police, the subsequent inquiry is whether there was a valid waiver of

       the right to counsel—that is, whether the purported waiver was knowing,

       voluntary, and intelligent, and found to be so under the totality of the

       circumstances. See id. at 922-23. The “totality of the circumstances” test

       focuses on “the entire interrogation, not on any single act by police or condition

       of the suspect.” Washington v. State, 808 N.E.2d 617, 622 (Ind. 2004).


[10]   In the present case, Wright was fully advised of his rights at the beginning of the

       interview, stated that he understood his Miranda rights, and signed a written

       waiver. After a few minutes of questioning, Wright invoked his right to

       counsel, and Detective Anderson immediately terminated the interview. Less

       than thirty seconds later, however, Wright changed his mind and reinitiated

       communication. He told Detective Anderson to come back and said, multiple

       times, that he wanted to talk and would tell her “everything.” State’s Ex. 27A

       at 6. The second part of the interview began with Detective Anderson

       answering Wright’s questions. And when Wright refused to answer a question

       regarding what sort of valuables were taken, Detective Anderson moved on to a

       different question. After less than eight total minutes of interrogation, the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 6 of 9
       interview concluded with Wright telling Detective Anderson to “[h]ave a good

       day.” Id. at 8.1


[11]   Wright argues that factors such as “the cold room, anemia, head injury, a desire

       for credit time, lack of understanding criminal charges, or a desire to be

       unchained influenced the voluntariness of his statement.” Brief of Appellant at

       12. Wright does not explain how these factors influenced the voluntariness of

       his waiver, and presumably all of these factors existed, to the extent they did

       exist, during the first part of the interview. Because Wright does not dispute the

       voluntariness of his initial Miranda waiver, and we look to the “entire

       interrogation” in evaluating voluntariness, we are not persuaded that these

       factors rendered his subsequent waiver involuntary. See Washington, 808 N.E.2d

       at 622. Furthermore, other than Wright’s brief remarks at the beginning of his

       interview with Detective Anderson, there is no evidence to establish that the

       interrogation room was unreasonably cold, that Wright was in fact anemic, or

       that Wright had an incapacitating head injury.2 As to a desire for credit time,



       1
        Both this conduct and the subsequent conduct of Detective Anderson in her continuing interrogation of
       Wright were exemplary.
       2
           At the beginning of the interview, the following exchange took place:

                  [Detective Anderson:] Alright Gary get your feet down off my table.
                  [Wright:] Oh I’m sorry. I’m, I’m freezing and I’m, I’m anemic.
                  [Detective Anderson:] I realize it’s cool in here.
                  [Wright:] Huh?
                  [Detective Anderson:] I know it’s cool in here.
                  [Wright:] Cool? It ain’t cool.
                  [Detective Anderson:] Uhh huh. What happened to your head[?]

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015            Page 7 of 9
       Detective Anderson never suggested that Wright would get good time credit if

       he waived his right to counsel. Regarding his purported lack of understanding

       regarding the charges, Detective Anderson answered Wright’s questions and

       explained the charges. Finally, Wright asked Detective Anderson to remove

       the leg irons as she was exiting the interrogation room, after the interview was

       over. Detective Anderson never suggested that the leg irons would be removed

       if he answered her questions.


[12]   Based on the totality of the circumstances, Wright knowingly, voluntarily, and

       intelligently waived his right to counsel following his request for an attorney.

       There is no evidence that Wright lacked the capacity to understand his rights,

       and at no point did Detective Anderson threaten, intimidate, deceive, or make

       promises in order induce Wright to continue the interview. See Jackson, 735

       N.E.2d at 1153-54. Almost immediately after requesting an attorney, Wright

       unequivocally expressed his desire to resume the interview and tell Detective

       Anderson “everything.” State’s Ex. 27A at 6. Likewise, the decision to waive

       his right to counsel was an informed one. Wright had been fully advised of his

       rights just minutes before, and there was no need to reiterate the rights that he




               [Wright:] Got beat up.
               [Detective Anderson:] Oh ok, who beat you up?
               [Wright:] Somebody.
       State’s Ex. 27A at 2. There is no evidence that the “head injury” was recent or affected Wright’s mental
       capacity. But even if the injury did affect his mental capacity, our supreme court has stated that “[a]
       defendant’s mental condition alone does not render a confession involuntary.” Rhodes v. State, 698 N.E.2d
       304, 308 (Ind. 1998). Rather, a defendant must also allege police misconduct. Id. Here, Wright does not
       allege any police misconduct.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015              Page 8 of 9
       would be waiving by answering questions without an attorney present. Cf. Ogle

       v. State, 698 N.E.2d 1146, 1148-49 (Ind. 1998) (concluding that a second

       Miranda warning was not required where the police stopped the interrogation

       and questioning resumed less than an hour later). We therefore conclude the

       trial court did not abuse its discretion by admitting the statements Wright made

       to the police after invoking his right to counsel.



                                               Conclusion
[13]   Wright reinitiated communication with the police after requesting an attorney,

       and based on the totality of the circumstances, knowingly, voluntarily, and

       intelligently waived his right to counsel. For these reasons, the trial court did

       not abuse its discretion by admitting the statements Wright made to Detective

       Anderson. We therefore affirm his convictions.


[14]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-693 | June 10, 2015   Page 9 of 9
