Bond v. State

989 N.E.2d 383

McLynnerd BOND, Jr., Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1205–CR–212.

Court of Appeals of Indiana.

May 31, 2013.

Appeal from the Lake Superior Court; The Honorable Diane Ross Boswell, Judge; Cause No. 45G03–1102–MR–2.

Thomas W. Vanes, Merrillville, IN, Mark A. Bates, Crown Point, IN, Attorneys for Appellant.

Gregory F. Zoeller, Indiana Attorney General of Indiana, Ian McClean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION–NOT FOR PUBLICATION

ROBB, Chief Judge.

Case Summary and Issue

McLynnerd Bond, Jr., was charged with murder. He now brings this interlocutory appeal from the trial court's denial of his motion to suppress. The sole issue for our review is whether the confession Bond made to police was voluntary and, therefore, admissible. Concluding his confession was voluntary, we affirm the trial court's denial of his motion to suppress.

Facts and Procedural History¹

In 2011, Detective Edward Gonzalez of the Gary Police Department was the lead investigator in the 2007 murder of Kadmiel Mahone. The case was considered a “cold case” at that point. Transcript at 5. Detective Gonzalez had been informed that Bond may have been the perpetrator in the murder of Mahone.

In the evening of February 12, 2011, Bond was arrested on an unrelated matter. At about 11:00 the following morning, Detective Gonzalez advised Bond of his Miranda rights and began questioning him with regard to the murder. Bond's uncle, Detective James Bond of the Gary Police Department, was also present for the first part of the interrogation. Initially, Bond repeatedly denied killing Mahone. Detective Gonzalez was not convinced and used various techniques to try to induce Bond to confess to the murder. About one hour into the interrogation, he began to repeatedly promise Bond that he could see his family, including his “girl” and kids, if he told him what happened. Brief of Appellant at 5. ² Detective Gonzalez also suggested that confessing would help Bond. He explained that a charge can be dropped to a lower charge, and told him that even though he was being charged with murder, if Bond took “ownership of what happened, we can change that 100%. You hear me. If you say what happened, we can change that whole thing. It's about lessening what happened.” Id. at 7. He also told him the State “will do something for [him]” if he cooperated. Id at 6. A little after two hours into the interrogation, Detective Gonzalez stated the following:

Don't let twelve people who are from Schererville, Crown Point, white people, Hispanic people, other people that aren't from Gary, from your part of the hood, judge you. Because they're not gonna put people on there who are from your neck of the woods. You know that. They're not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that. All they're gonna see is, oh, look at this, another young motherfucker who didn't give a fuck. Don't let them see that.... You want to take a chance and roll the dice and let twelve people who don't know you, don't know what the fuck you're about, or where you're from, or what (unintelligible) knows about, judge you and say “I believe what they're [the other witnesses] saying, I don't believe shit what he's saying”....

Amended Brief of Appellee at 4. At some point after this comment, Bond noted that he could not afford a lawyer. However, Detective Gonzalez told him that he should not worry about that because there are public defenders. Almost three hours into the questioning, Bond admitted he shot Mahone. The interrogation lasted close to three-and-one-half hours.

Bond was charged with murder. Prior to trial, he brought a motion to suppress the interview in its entirety, contending that his confession was made involuntarily. The trial court conducted two hearings on the matter. Detective Gonzalez testified that he knew that there may or may not be African–Americans on the jury and that it was not up to him to decide, but that he wanted Bond to know that “[p]eople from other communities don't understand what it is to live and have to deal with certain situations in Gary.” Tr. at 40–41. Bond testified that he had ingested one pill of ecstasy prior to being arrested and, as a result of its effect, had not slept at all that night. He also testified that he had not eaten since being arrested.³

After both sides submitted memoranda on the issue, the trial court denied the motion to suppress in an order stating the following:

The suggestion by the detective that the defendant could not receive a fair and impartial jury due to the location of the Courthouse causes great concern to the court, and is strongly discouraged. However, there is no caselaw that the Court is aware of that holds that this type of persuasion renders the confession involuntary. Therefore, after consideration of the evidence and arguments presented on the defendant's motion to suppress, and upon the recommendation of the magistrate, the previously filed motion to suppress is denied.

Appellant's Appendix at 52. Bond sought and was granted certification of the trial court's order, and this court accepted jurisdiction of his interlocutory appeal. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

We generally review the denial of a motion to suppress for an abuse of discretion. Griffith v. State, 788 N.E.2d 835, 839 (Ind.2003). The trial court's determination of the voluntariness of a confession is reviewed as are other sufficiency matters. Id. at 841. We do not reweigh the evidence, but rather determine whether there was substantial probative evidence to support the trial court's determination.⁴Id. at 841–42. However, when our review involves a question of law, we review the trial court's ruling de novo. See id. at 839.

II. Voluntariness of Confession

When the defendant challenges the admissibility of his confession, the State must prove that the confession was given voluntarily. Pruitt v. State, 834 N.E.2d 90, 114 (Ind.2005), cert. denied,548 U.S. 910 (2006).⁵ “A confession is voluntary if, in light of the totality of the circumstances, the confession is the product of a rational intellect and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant's free will. The critical inquiry is whether the defendant's statements were induced by violence, threats, promises, or other improper influence.” Ringo v. State, 736 N.E.2d 1209, 1212–13 (Ind.2000) (citations omitted). When considering the totality of the circumstances, the trial court must consider the element of police coercion; the length of the interrogation, its location, and its continuity; and the defendant's maturity, education, physical condition and mental health. Pruitt, 834 N.E.2d at 115 (quoting Miller v. State, 770 N.E.2d 763, 767 (Ind.2002)).

Bond contends his confession was involuntary and therefore inadmissible. He relies primarily on promises made by Detective Gonzalez to help Bond, and on the deceitful comment made regarding the unlikelihood of having anyone from his “part of the hood” on the jury. See Br. of Appellant at 6.

As Bond acknowledges, vague or indefinite promises made during an interrogation do not render a subsequent confession involuntary, while specific promises of immunity or mitigation of punishment do. Compare Harrison v. State, 269 Ind. 677, 683–84, 382 N.E.2d 920, 924 (1978) (holding that a prosecutor's comment to a defendant that his cooperation “could be of benefit to him, but not necessarily” was vague and ambiguous and did not render the confession involuntary), cert. denied,441 U.S. 912 (1979), with Ashby v. State, 265 Ind. 316, 321–22, 354 N.E.2d 192, 196 (1976) (holding that an officer's representation to a defendant that he would receive a “ten flat” sentence instead of a life sentence rendered his confession involuntary). Bond claims that the comments made by Detective Gonzalez that “they will do something for you” and “we can change that 100%” were specific promises that rendered his confession involuntary. See Br. of Appellant at 11. He points to the case of Hart v. Attorney Gen. of the State of Fla., 323 F.3d 884, 895 (11th Cir.2003), cert. denied,540 U.S. 1069 (2003), in which the Eleventh Circuit Court of Appeals held that the appellant's decision to waive his rights and confess was not voluntary because it was a product of deception. In Hart, after signing a form waiving his Miranda rights, the appellant asked to speak to a detective he knew and trusted. Id. at 894. When he asked the detective about the pros and cons of having an attorney, she told him, in part, that “I'm going to want to ask you questions and he's going to tell you you can't answer me.” Id. The court reasoned that the reason for requiring a lawyer during a custodial interrogation is to protect a person's privilege against self-incrimination, and yet, the detective stated that this was, in effect, the disadvantage of a lawyer. Id. The court also pointed to the detective's comment that “honesty wouldn't hurt him” and found this comment to contradict the Miranda warning that anything he said could be used against him in court. Id. The court based its decision on the totality of the circumstances, including the appellant's trust of the detective and her statements contradicting the Miranda warnings, and found that the appellant “did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it.” Id. at 895.

Bond argues that Detective Gonzalez's comments similarly undermined the Miranda warnings and indicated that not only would a confession not hurt Bond, but that it would help him. Bond's reliance on Hart is misplaced. In Hart, the appellant had asked about the pros and cons of hiring an attorney and was considering asking for an attorney...