FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK J. DOVE GREGORY F. ZOELLER Dove & Dillon, P.C. Attorney General of Indiana North Vernon, Indiana KARL M. SCHARNBERG AARON SPOLARICH Deputy Attorneys General Indianapolis, Indiana FILED May 14 2012, 9:12 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
DANA L. LEWIS, JR., ) ) Appellant/Defendant, ) ) vs. ) No. 40A01-1106-CR-276 ) STATE OF INDIANA, ) ) Appellee/Plaintiff. )
APPEAL FROM THE JENNINGS CIRCUIT COURT The Honorable Jon W. Webster, Judge Cause No. 40C01-1004-FA-144
May 14, 2012
OPINION – FOR PUBLICATION
BRADFORD, Judge INTRODUCTION1
Appellant-Defendant Dana L. Lewis, Jr. appeals from the trial court’s denial of his
motion to suppress statements he made to Jennings County Sheriff’s Sergeant Karen
McCoy during a police interview regarding an alleged sex crime. Lewis argues that the
statements were obtained in violation of his Fifth Amendment right to counsel, which he
claims he unequivocally and unambiguously invoked by asking, “Can I get a lawyer?”.
Lewis contends that this question was sufficient, both standing alone and in light of the
totality of the circumstances, to invoke his Fifth Amendment right. The State argues that
Lewis was not entitled the right to counsel because his interview with Sergeant McCoy
did not constitute a custodial interrogation. We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On April 25, 2010, Lewis, then age twenty-two, was invited by Sergeant McCoy
to the Jennings County Sheriff’s Department to be interviewed regarding an alleged sex
crime involving a thirteen-year-old female victim. When Lewis arrived, Sergeant McCoy
informed Lewis that he was not under arrest and that he was free to leave at any time.
The interview took place in a locked room, and Sergeant McCoy also informed Lewis of
his Miranda rights, which Lewis acknowledged understanding. Sergeant McCoy then
began questioning Lewis about the alleged crime, and the following exchange occurred
after approximately ten minutes:
1 We held oral argument in this case on April 30, 2012, at Shortridge High School in Indianapolis. We wish to thank counsel for the quality of their advocacy and the students, faculty, and staff of Shortridge for their assistance and hospitality.
2 [McCoy]: The thing is, is we can, I’ve got certain things that I know that.[] I know she had sex and there’s been, by law I had to do DNA swabbing when this happened. I had to do that. [Lewis]: Yeah. [McCoy]: So, what’s going to happen is and I don’t see, well, she knows that the DNA swabbing, okay she, since you’ve already been here, we already have your, [Lewis]: You’ve already got my DNA. [McCoy]: Right, and she knew when I took that from her, that she knew who’s [sic] DNA [that’s] going to show, so there’s no reason to lie to me. [Lewis]: She knows who it is, you know what I mean. [McCoy]: Right. Okay, so, let me put it to you this way, the testing came back with DNA with your DNA,[2] okay, just hear me out. That’s why I’m saying, let’s not prolong this and make this a, let me finish, let me finish. Let’s not make this into a huge ordeal. [Lewis]: Okay. [McCoy]: The thing that I need to know is whether or not it was consensual or not, whether you forced it. If it was consensual, you know, we just make a day of it.[3] Okay? [McCoy]: Yeah. [McCoy]: That’s why I just want you to be honest with me. That way we’re not here and trying, let’s just make it a done deal and be done with it, everybody just, [our day’s] over. Okay? So, if you had consensual sex because, then this is going to go into a long drawn out thing, okay because, [4] Lewis: Can I [get] a lawyer?
2 Sergeant McCoy acknowledged at the suppression hearing that the State had not, in fact, recovered Lewis’s DNA from the victim. 3 Several times during the interview, Sergeant McCoy made statements that we see as strongly implying that Lewis would not be prosecuted if the alleged sexual contact with the alleged victim had been consensual. For Class A felony child molesting, the consent of the victim is, of course, irrelevant. In our view, Sergeant McCoy’s statements came close to being promises of leniency, which may not be used to extract or induce a confession. “A confession is inadmissible when obtained by a promise of immunity or mitigation of punishment. The relevant inquiry is whether the challenged police conduct induced a confession which was not freely self-determined.” Fowler v. State, 483 N.E.2d 739, 744 (Ind. 1985) (citation omitted). 4 The first part of this passage is drawn from the transcript of the suppression hearing as State’s Exhibit 1, a video recording of the interview, was published. The portion following footnote 4 in the text is drawn from the trial court’s order, which varies slightly from the same passage as it appears in the transcript. In particular, the transcript of the hearing does not have Lewis saying “all right” when told that he could have a lawyer. Based upon our review of the video recording of the interview, we conclude that the partial transcription in the trial court’s order, which the trial court presumably generated following its own review, appears generally to be the more complete and accurate. That said, our review of the video recording also confirms that Lewis very clearly asked if he could “get” a lawyer, not if he could “have” a lawyer, as indicated in the trial court’s order.
3 McCoy: Sure, you can get a lawyer sure absolutely. Lewis: All right. McCoy: But if it’s consensual Dana, you know like I said teenagers make these accusations of force all the time. Lewis: Yeah. McCoy: OK but if you didn’t force her, and she consented to this that’s a whole different ballgame that I can work with. Lewis: I understand. McCoy: That’s.. Lewis: Okay I understand. McCoy: …so if you want to get this cleared up today that’s up to you, I don’t want to drag this out. Lewis: I’m not under arrest or nothing? McCoy: You’re not under arrest at this time. Lewis: It was consensual. McCoy: It was consensual. Lewis: I’m not going to lie to you Karen.
Tr. pp. 16-17; Appellant’s App. pp. 16-17.
Lewis continued to disclose details about the alleged crime for approximately five
minutes; then, Sergeant McCoy and Lewis conversed as follows:
McCoy: And you’re okay talking about this without a lawyer? That’s right, correct? Lewis: As long as I’m not going to get in trouble or anything? McCoy: Well you’re not under arrest right now, we’re talking about it. You [k]now what I mean. Lewis: Well am I going to be under arrest. McCoy: That’s not up to me but if it’s consensual I have to make a call but many times I have to deal with this consensual stuff..and
Appellant’s App. p. 17.5
Lewis was arrested two days later and charged with Class A Felony Child
Molesting.6 On August 5, 2010, Lewis filed a motion to suppress his interview
5 For the same reasons mentioned in footnote 3, this passage is drawn from the partial transcription contained in the trial court’s order. 6 Ind. Code. § 35-42-4-3 (2009).
4 statements to Sergeant McCoy, arguing that they were obtained in violation of his Fifth
Amendment right to counsel. A suppression hearing was held on the issue, where both
parties stipulated that “Lewis reasonably believed that he was in a custodial interrogation
and was not free to leave.” Appellant’s App. p. 33. Sergeant McCoy testified that the
inflection in Lewis’s voice when he asked, “Can I get a lawyer?” made his question
“seem[] like he was trying to clarify if he was allowed to have an attorney.” Appellant’s
App. p. 36.
The trial court reviewed the videotaped interview and found that Sergeant McCoy
“answered [Lewis’s question] honestly, but before addressing it any further … she
proceeded to hurriedly extract a confession[.]” Appellant’s App. p. 18. The trial court
also accepted the parties’ stipulation that Lewis “reasonably believed he was in custody
at the time he was at the Jennings County Sheriff’s Department … as he was in a locked
secure room … and not free to leave.” Appellant’s App. p. 16. Ultimately, the trial court
denied Lewis’s motion: “Taken as a whole, this Court cannot say that Defendant’s
question, ‘Can I have a lawyer?’ was an unambiguous or unequivocal request or demand
for an attorney.” Appellant’s App. p. 18. The trial court’s denial is now before this court
on Lewis’s interlocutory appeal.
DISCUSSION AND DECISION
Whether the Trial Court Erred in Denying Lewis’s Motion to Suppress the Statement He Made to Sergeant McCoy
We review the denial of a motion to suppress “in a manner similar to other
sufficiency matters. We do not reweigh the evidence, and we consider conflicting
5 evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we
will consider not only the evidence favorable to the ruling but also the uncontested
evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App.
2011).
“The right to have counsel present during [custodial] interrogation ‘is
indispensible’ to the protection of the Fifth Amendment privilege against self-
incrimination.” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (quoting Miranda v.
Arizona, 384 U.S. 436, 469 (1966)). “When a suspect asserts his right to counsel during
custodial questioning, the police must stop until counsel is present or the suspect
reinitiates communication with the police and waives his right to counsel.” Id. at 492
(citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). Importantly, “the prosecution
may not use statements stemming from that interrogation unless it demonstrates the use
of procedural safeguards effective to secure [the suspect’s] privilege[.]” Davies v. State,
730 N.E.2d 726, 733 (Ind. Ct. App. 2000) (citing Miranda, 384 U.S. at 444), trans.
denied.
A. Whether Lewis was in Custody
As an issue preliminary to Lewis’s appellate claims, the State asserts an alternative
basis for the trial court’s denial of Lewis’s motion to suppress. “The Court of Appeals
may affirm the trial court’s ruling if it is sustainable on any legal basis in the record, even
though it was not the reason enunciated by the trial court.” Scott v. State, 883 N.E.2d
147, 152 (Ind. Ct. App. 2008). The State argues that Lewis was not entitled to counsel
because he was not “in custody” when he made his statements to Sergeant McCoy.
6 Therefore, Lewis’s question, “Can I get a lawyer?” even if unambiguous and
unequivocal, did not require that Sergeant McCoy cease her questioning.
“Miranda and its progeny have ruled that the [Fifth Amendment] right to counsel
… accrues upon ‘custodial interrogation.’” Zook v. State, 513 N.E.2d 1217, 1220 (Ind.
1987) (quoting Miranda, 384 U.S. at 444). This is because the right is “meant to
overcome [that] inherently coercive and police dominated atmosphere[.]” Davies, 730
N.E.2d at 733 (citing Miranda, 384 U.S. at 444). “‘Custodial interrogation’” has been
explained to mean “‘questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way.’” Zook, 513 N.E.2d at 1220 (quoting Miranda, 384 U.S. at 444). “A defendant is
in custody if he is formally arrested or is subjected to restraints on his freedom such that a
reasonable person in defendant’s position would believe he is not free to leave.” Davies,
730 N.E.2d at 733. “[T]he only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442
(1984).
The State argues that its stipulation that “Lewis reasonably believed that he was in
a custodial interrogation” does not address the objective standard of what a reasonable
man in the suspect’s position would have understood. Appellant’s App. p. 16; see Miller
v. State, 846 N.E.2d 1077, 1081 (Ind. Ct. App. 2006) (“Whether an individual is
determined to be ‘in custody’ requires application of an objective test that asks whether a
reasonable person under the same circumstances would believe that he was under arrest
7 or not free to resist the police.”), trans. denied. Therefore, the State argues, the
stipulation as to Lewis’s subjective belief has no bearing on this issue. We cannot agree.
We conclude that the stipulation below now binds the State on the question of
whether Lewis was in custody. First, we note that the stipulation was not that Lewis
subjectively believed himself to be in custody, but that he reasonably believed himself to
be in custody. In our view, given that the standard is one of reasonable belief, the use of
the word “reasonably” sufficiently invokes the proper objective standard. Moreover, it
seems abundantly clear that the State intended to stipulate that Lewis was in custody,
regardless of the wording of the stipulation. Finally, it is entirely possible that Lewis (or
indeed, the State) could have come forward with additional evidence touching on the
issue of custody, but did not do so due to the stipulation. It could potentially be
extremely unfair to one party or the other to now address the issue on the merits. We
conclude that the stipulation that Lewis reasonably believed himself to be in custody
forecloses evaluation of the custody issue on appeal.
B. Invocation of Right to Counsel
Lewis argues that his question, “Can I get a lawyer?” was an invocation of his
Fifth Amendment right to counsel and required Sergeant McCoy to cease her
questioning. “Invocation of the Miranda right to counsel requires, at a minimum,
some statement that can reasonably be construed to be an expression of a desire for
the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994).
“[W]hile the suspect need not invoke any magic words,” Jolley, 684 N.E.2d at 492
(citing Davis 512 U.S. at 459), “[t]he cessation of police questioning is not required
8 ‘if a suspect makes a reference to an attorney that is ambiguous or equivocal[.]’”
Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010) (quoting Davis 512 U.S. at 459). A
statement is considered ambiguous or equivocal when “‘a reasonable officer in light
of the circumstances would have understood only that the suspect might be invoking
the right to counsel.’” Id. (quoting Davis 512 U.S. at 459).
Lewis contends that his question, “Can I get a lawyer?” constituted an
unequivocal invocation of his Fifth Amendment right to counsel. We agree. Lewis
relies primarily on United States v. Lee, in which the United States Court of Appeals
for the Seventh Circuit determined a suspect’s question, “Can I have a lawyer?” to be
“similar to [other] statements recognized by th[e] court as proper invocations of the
right to an attorney.” 7 413 F.3d 622, 626 (7th Cir. 2005). The Lee court concluded,
“unless the police obtained further clarification from [the suspect] that this was
actually an unequivocal request for an attorney, they should have halted the
interrogation.” Id. We see no reason to depart from the Lee court’s holding in this
case, which involves an essentially identical question posed by the defendant. Much
as the question, “Can I get the car tonight?” would be universally understood as a
request to borrow the car tonight, and not as a theoretical question regarding one’s
ability to borrow the car tonight, we have little trouble concluding that Lewis’s
7 The comparative statements in Lee were first recognized in Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994). There, they were cited from Eleventh and Ninth Circuit cases and included the following: “I think I should call my lawyer”; “I have to get me a good lawyer, man. Can I make a phone call?”; “Can I talk to a lawyer? At this point, I think maybe you’re looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?” Lee, 413 F.3d at 626 (citing Lord, 29 F.3d at 1221).
9 question would be understood by any reasonable police officer as an unequivocal
request for counsel.
The State relies on Powell v. State, 898 N.E.2d 328 (Ind. Ct. App. 2008), trans.
denied, in arguing that Lewis’s question, “Can I get a lawyer?” was ambiguous. In
Powell, a man arrested for drug possession asked, “Could I see about getting a lawyer
or something man?” during custodial interrogation. Id. at 332. This court concluded
that the wording of this question was “ambiguous and not sufficiently clear as to
constitute a request for an attorney.” Id. at 337. Powell, however, is distinguishable.
First, a great deal of the ambiguity of the suspect’s question in Powell stems from the
use of the verb “could.” 898 N.E.2d at 332. “Can means ‘to be able to’ and expresses
certainty…. Could is better for a sense of uncertainty or a conditional statement.”
THE CHICAGO MANUAL OF STYLE sec 5.220, at 270 (16th ed. 2010) (emphases added).
The use of “could” by the suspect in Powell, therefore, may be interpreted as an
expression of doubt regarding the suspect’s intent to request an attorney, whereas
Lewis’s use of “can” in asking, “Can I get a lawyer?” is more reasonably interpreted
as an intentional request for such. See Taylor v. State, 689 N.E.2d 699, 703 (Ind.
1997) (finding the statement, “I guess I really want a lawyer, but, I mean, I’ve never
done this before so I don’t know,” to be an expression of doubt, not a request); see
also Davis, 512 U.S. at 462 (finding the statement, “Maybe I should talk to a lawyer”
to be an ambiguous request for counsel). Furthermore, the uncertainty of the
suspect’s question in Powell seems to be emphasized by the question’s closing phrase,
10 “or something.” 898 N.E.2d at 332. This additional factor is not present in Lewis’s
question. The State’s reliance on Powell is unavailing.8
CONCLUSION
Pursuant to the stipulation entered into by the parties below that Lewis reasonably
believed that he was in custody, we will not revisit the issue on appeal. Moreover, the
trial court erred in denying Lewis’s motion to suppress the statements he made to
Sergeant McCoy because Lewis unambiguously and unequivocally invoked his Fifth
Amendment right to counsel by asking, “Can I get a lawyer?” We therefore remand with
instructions to grant Lewis’s motion to suppress statements made during the interview
with Sergeant McCoy and for further proceedings.
The judgment of the trial court is reversed and remanded with instructions.
ROBB, C.J., and FRIEDLANDER, J., concur.
8 We need not address Lewis’s argument that Sergeant McCoy should have asked Lewis to clarify whether his allegedly ambiguous and equivocal question was intended as an invocation of his Fifth Amendment right to counsel. Lewis concedes that the law currently does not require clarifying questions. However, he asserts that the Indiana Supreme Court has adopted the U.S. Supreme Court’s position concerning good police practice and the use of clarifying questions, see Jolley, 684 N.E.2d at 492 (citing Davis 512 U.S. at 461), and he urges this court to declare the practice mandatory on public policy grounds. Having concluded that Lewis’s question was an unequivocal request for counsel, we need not address this argument but merely observe, as the United States Supreme Court has, that “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461.