MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 29 2017, 11:22 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles W. Lahey Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jefferson Mitchell Dean, December 29, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1704-CR-689
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1511-F1-15
Pyle, Judge.
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Statement of the Case
[1] Jefferson Mitchell Dean (“Dean”) appeals his conviction, following a jury trial,
for Level 4 felony child molesting.1 Dean contends that the trial court used an
improper standard of review when the trial court ruled on his motion to
suppress his police statement, and he makes policy arguments regarding the
tactics used by police interrogators.
[2] Because Dean is appealing following a conviction, his challenge to the trial
court’s ruling on his motion to suppress would more appropriately be framed as
whether the trial court properly admitted the evidence of his police statements
at trial. However, Dean waived any admission of evidence argument when he
stipulated at trial to the admissibility of the exhibit that contained his police
statement as part of a defense strategy. Thus, we will not review Dean’s
argument regarding the trial court’s ruling on his motion to suppress. Nor will
we review Dean’s policy arguments as they do not present a reviewable
appellate issue and amount to a request for an advisory opinion.
[3] We affirm.
Issue
Whether Dean waived any appellate challenge relating to the
admissibility of the exhibit containing his police statement by
stipulating at trial to the admissibility of the exhibit.
1
IND. CODE § 35-42-4-3.
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Facts
[4] In August 2015, eight-year-old A.C. told her babysitter that Dean, her
stepfather, had inappropriately touched her vaginal area. The babysitter told
A.C.’s father about the allegations, and he called the police. A.C.’s father also
took her to the hospital for an examination and to the CASIE Center in South
Bend for a forensic interview.
[5] Thereafter, on August 20, 2015, Dean went to the police station and was
interviewed by Detective Lieutenant Brad Haney (“Detective Haney”) of the St.
Joseph County Special Victims Unit. Dean was aware that he had been
accused of inappropriately touching A.C. Detective Haney asked Dean about
his education, and Dean replied that he had finished tenth grade and “read
backwards.” (State’s Ex. 3). The detective carefully explained the Miranda
rights and waiver form, and Dean signed it. During this interview (“Interview
#1”), Dean denied that he had touched A.C. in an inappropriate manner and
suggested that she was lying. At the conclusion of the interview, Dean left the
police station.
[6] Three months later, on November 17, 2015, Detective Haney again interviewed
Dean at the police station (“Interview #2”). Dean came to the interview
knowing that he was going to take a polygraph examination. Detective
Sergeant Scott Bryant (“Detective Bryant”) advised Dean of his rights, and
Dean signed a waiver of rights. Dean also signed a consent to take a polygraph
examination, which was administered by Detective Bryant. After the
polygraph examination, Detective Bryant told Dean that he had failed the
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polygraph examination. Dean later admitted to Detective Bryant that he had
touched the front of A.C.’s pants over her clothing and said he did so in order
to describe to her where she should not let little boys touch her.
[7] After the polygraph examination, Detective Haney questioned Dean. Dean
told the detective that he had caught A.C. with her mother’s vibrator. He said
because of that incident, he had touched the inside of A.C.’s pants at her
waistline to instruct her where little boys should not touch her. Later in the
interview, Dean admitted that he had once touched the inside of A.C.’s vagina
with the tip of his pinky, and he drew on a diagram to show how far he had
inserted his pinky. Dean then stated that he felt bad and wanted to “go through
classes and shit.” (State’s Ex. 5). The detective agreed that Dean probably
needed some help or counseling. Detective Haney told Dean that he should
write an apology letter to A.C. Dean agreed to do so but said he was not “book
smart” or good at writing. (State’s Ex. 5). Dean then dictated a letter for A.C.
to Detective Haney, and he signed the letter. In this letter, Dean stated as
follows:
I’m sorry for what I did and it wasn’t meaning to happen like
that. I love you and your sister to death and if we can get over
this it will never happen again. I’m sorry about touching you on
your private area (vagina), it will never happen again. I would
like to start taking classes. Going through this is hurting your
mom and your little brother. I just [l]ove you and your brother
and sister dearly and [I]’m very sorry for doing it and it will never
happen again.
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(State’s Ex. 8). Dean then told Detective Haney that he was already taking
classes and had more scheduled. Dean asked the detective if he could go home,
and the detective informed him that he could not because he had “made some
admissions” and was in custody. (State’s Ex. 5).
[8] Subsequently, the State charged Dean with Level 1 felony child molesting. In
May 2016, Dean filed a motion to suppress his statements to Detective Haney
during Interview #1 and his statements made to Detective Haney and Detective
Bryan during Interview #2 and the polygraph examination. He contended that
his statements were not voluntarily made and that he had made “a false
confession” because the officers had made “explicit promises” that he would
not be incarcerated but would just receive counseling. (App. Vol. 2 at 182).
[9] In July 2016, the trial court held a hearing on Dean’s suppression motion.
Dean argued that the two police interviews should be suppressed because the
statements were involuntary and induced by the police making “express
promises[.]” (Tr. Vol. 2 at 10). Dean acknowledged that Interview #1 did not
contain a confession. He argued that the video of the polygraph examination
that occurred during Interview #2 should not be shown the jury during the
upcoming trial. The State agreed and indicated that it was not planning on
presenting the video of the polygraph examination at trial and that it was going
to redact any reference to the polygraph from the videotapes. Both parties
agreed that the videos alone were sufficient for the trial court to decide whether
Dean’s police statement was voluntary, and neither party presented witnesses.
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At the end of the hearing, the trial court took the matter under advisement. 2
Thereafter, the trial court issued an order denying Dean’s motion to suppress
and ultimately found that Dean’s “confession [wa]s a product of rational
intellect and not the result of promises or improper influence.” (App. Vol. 2 at
169). Dean did not file appeal the denial of his suppression motion.
[10] The trial court held a four-day jury trial on February 21-24, 2017. On the first
morning of trial, the State informed the trial court that Dean’s counsel intended
to stipulate to the admission of the unredacted videos of his police statements
(Interview #1 and Interview #2). Dean’s counsel confirmed that he “intend[ed]
to ask that the unredacted statement be introduced” and that “obviously by
stipulating to that, I don’t have an objection.” (Tr. Vol. 2 at 25).
[11] Later in the pretrial discussions, when the parties were discussing the
stipulation, Dean’s counsel stated that his “position [wa]s simply that [Dean]
w[ould] stipulate to the State introducing the video of Mr. Dean unredacted in
complete form” and to include the video of the polygraph examination. (Tr.
Vol. 2 at 33, 34). Dean’s counsel also explained that he was planning to ask the
trial court for a limiting instruction to inform the jury that it should not consider
2
During the hearing, the trial court suggested that Dean, not the State, had the burden of showing that his
confession, which he sought to suppress, was involuntary. The trial court suggested that the burden was no
longer on the State because Dean had signed a waiver of rights. When Dean disagreed, the trial court
suggested that Dean had “a great issue for an appeal.” (Tr. Vol. 2 at 9). The State clarified that Dean’s
waiver of rights form weighed in favor of determining that his statement was voluntary but was not the sole
factor in determining the voluntariness. Additionally, the State informed the trial court that it agreed with
Dean that the burden was on the State once Dean had asserted that his statement was involuntary.
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the police officers’ statement that Dean had failed the polygraph as evidence.
Dean’s counsel explained his defense theory for the admission of the
unredacted police statements as follows:
I think that the entire film needs to be shown because we have an
allegation that it was not voluntary and that it was a false
confession and it was induced by a promise. And my client
[Dean] is going to explain that. I don’t see how that point can be
made without showing the entire video warts and all. And the
fact that it contains a polygraph doesn’t bother me as long as the
jury is instructed that they are not [to] consider it, and they’re not
being advised whether he passed it or didn’t pass it, and that
those results would not be reliable and [would] not be admissible
anyway.
(Tr. Vol. 2 at 34).
[12] During opening statements, Dean’s counsel told the jury that it would be seeing
the videotapes of Dean’s police interviews, including the polygraph
examination. His counsel stated that Dean had told the police, during the
interviews, that he had not touched A.C. and that Dean had only later admitted
to touching her because the police had told him that he could get counseling.
Dean’s counsel contended that Dean’s admission was a “false confession
induced by trickery.” (Tr. Vol. 2 at 53). Additionally, Dean’s counsel told the
jury that it would hear testimony from A.C. and from Dean and suggested that
the jury would have to make its final determination based upon their
testimonies.
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[13] During the trial, A.C. testified that Dean, who watched her while her mother
worked nights, had touched her vagina with his hands while her clothes were
still on her and that he had “move[d] around” his hands while doing so. (Tr.
Vol.3 at 18). She testified that he had touched her on the outside of her clothes
and had also put his hands in her pants and underwear and had touched her
“private part.” (Tr. Vol. 3 at 16). A.C. testified that Dean touched her “[o]n
the outside” of her vagina and not the inside. (Tr. Vol. 3 at 20). Additionally,
she testified that Dean told her not to tell anyone what he had done.
[14] On the second day of the jury trial, before Detective Haney’s testimony, the
State informed the trial court that the parties had reached an agreement on the
stipulation for the admissibility of the videos of Dean’s two police interviews.
Interview #1 was State’s Exhibit 3, and Interview #2 was State’s Exhibit 5.
When the State moved to admit State’s Exhibit 3 into evidence during
Detective Haney’s testimony, Dean’s counsel stated, “No objection, your
Honor.” (Tr. Vol. 3 at 100). The trial court then read to the jury the parties’
stipulation, which provided as follows:
Comes now the State of Indiana . . . and the Defendant by
counsel . . . and hereby stipulate and agree as follows:
1. That the Defendant, Jefferson Dean, submitted to a polygraph
examination on November 17, 2015.
2. Detective Sergeant Scott Bryant administered the polygraph
examination.
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3. Detective Sergeant Scott Bryant advised the Defendant of his
Miranda rights prior to administering the polygraph
examination.
4. The Defendant hereby waives his objection to the admission of
evidence relating to his submission to the polygraph
examination, the questions contained in the examination, the
answers he gave to said questions, and the results of the
examination.
5. The polygraph examination was audio and video-recorded on
November 17, 2015.
6. The Defendant acknowledges his right to objection to the
admission of this recording and specifically waives any objections to
the contents of the recording being admitted, or that a proper
foundation must be laid for the recording and stipulates to the
admissibility of the recording.
7. The Defendant reserves the right to argue the voluntariness of
his waiver of rights to participate in the polygraph examination
to the jury as raised in his Motion to Suppress. Defendant
acknowledges that the results of the polygraph will be admitted
as part of the video recording and does not wish to have it
redacted. The Defendant will supply an instruction to the Court
indicating that the jury should not consider the polygrapher’s
opinion of the test results as substantive evidence and the jury is
to determine the truthfulness of the statements.
8. The Defendant further acknowledges and makes a record of
the fact that there is a strategical trial tactic for agreeing to the
admission and stipulation of the evidence related to the
polygraph examination and wishes to have it presented to the
jury in total.
(Tr. Vol. 3 at 100-02) (emphases added). After reading the stipulation, the trial
court added, “That is the stipulation. So they’ve agreed that all this stuff is
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admitted. What you do with that evidence is strictly up to you.” (Tr. Vol. 3 at
102).
[15] The State then played State’s Exhibit 3, the video of Interview #1, for the jury.
Dean’s counsel then thoroughly cross-examined Detective Haney about
Interview #1. Dean’s counsel questioned the detective about his interrogation
techniques, including the use of deception, that he had used during Interview
#1. Counsel also asked the detective multiple times whether Dean had been
free to leave the interview room, and the detective replied that he had been.
[16] On the beginning of the third day of trial, Dean—despite having stipulated to
the admissibility of the recording of his police interviews—filed a “Renewal of
Objection to Evidence and Motion for Instruction to Jury.” (App. Vol. 2 at 82).
In his motion, Dean stated that he was “renew[ing] his objection to the
introduction of videotapes of [his] interrogation by [O]fficers Haney and Bryant
on the grounds that the statement taken from [Dean] was not voluntary and
that it was induced by implicit promises of leniency.” (App. Vol. 2 at 82). The
trial court discussed Dean’s motion with the parties outside the presence of the
jury. The trial court, noting that Dean’s motion was the same “argument [he
had] made for suppressing the statement in the first place[,]” denied Dean’s
motion “based on [its] previous ruling.” (Tr. Vol. 4 at 4). The trial court,
however, agreed that it would give Dean’s proposed limiting instruction, which
provided that Dean’s statements in the videotape were admissible evidence and
that the statements by the detectives were not to be considered as evidence.
Dean’s counsel acknowledged that the trial court was finding that the police
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statements were admissible, but he suggested that he was going to make an
argument to the jury regarding the voluntariness of the police statements so that
the jury could determine “the level of believability they treat the evidence.” (Tr.
Vol. 4 at 5). The trial court agreed that Dean could argue about the weight of
the police statements.
[17] Also that morning, while still outside the presence of the jury, the State, in an
effort to “make a record[,]” reminded the trial court that the parties had entered
a stipulation regarding the admissibility of State’s Exhibit 5, which contained
Interview #2 and the polygraph examination. Dean’s counsel stated that he
had “[n]o objection.” (Tr. Vol. 4 at 9). The trial court admitted State’s Exhibit
5, stating that “Exhibit 5 [wa]s in.” (Tr. Vol. 4 at 9). Thereafter, Dean’s
counsel stated, “Oh, wait. Except, of course, subject to my original objection
about voluntariness.” (Tr. Vol. 4 at 9). The trial court reminded counsel that it
had denied that objection and then stated: “There’s a new rule you don’t have
to continue making objections. Do you know that? I’ve made a definitive
ruling on that. It’s during trial. You don’t need to make another objection. I
denied your motion.” (Tr. Vol. 4 at 9).3
[18] Thereafter, the State called Detective Bryant as a witness. The detective
testified that he had administered a polygraph examination to Dean during his
3
The “new rule” mentioned by the trial court would have been Indiana Evidence Rule 103(b), which
provides that “[o]nce the court rules definitively on the record at trial a party need not renew an objection . . .
to preserve a claim of error for appeal.” This rule became effective January 1, 2014.
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second interview with the police. When the State was ready to publish State’s
Exhibit 5, the video of the polygraph examination from Interview #2, the State
stated, “pursuant to the stipulation, your Honor, the State would move to
publish the previously admitted State’s Exhibit No. 5.” (Tr. Vol. 4 at 19). The
trial court then stated, “Mr. Lahey [Dean’s counsel], no objection I take it?”
(Tr. Vol. 4 at 19). Dean’s counsel responded, “No objection.” (Tr. Vol. 4 at
19). Before playing the video for the jury, the trial court gave Dean’s proposed
limiting instruction, which provided as follows:
You are about to be shown a videotape of an
interrogation of Jefferson Dean by Detectives Haney
and Bryant of the Special Victims Unit. What Jefferson
Dean says in this videotape is admissible evidence and you
may consider it like all other evidence you have heard in this
trial. Statements by the Police Officers, however, were
not given under oath, were not subject to cross
examination and are not evidence. You may not
consider those statements as evidence.
Specifically, you will hear Officer Bryant tell Mr. Dean
that Officer Bryant determined that the polygraph
indicated deception by Jefferson Dean in some of his
answers. The fact that Jefferson Dean submitted to the
Polygraph Examination is evidence and may be
considered by you. However, Detective Bryant will not
be permitted to testify in court about the results of this
examination or whether they indicated deception or
not. You may not consider any statements made by
him in the videotape as evidence in this case. This
includes any statement by Detective Bryant about his
interpretation of polygraph results.
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(App. Vol. 2 at 82) (emphasis added). The trial court then played the polygraph
examination portion of the video from State’s Exhibit 5.
[19] When Detective Haney testified, the State then moved to publish the portion of
the video from State’s Exhibit 5 that contained Dean’s interview with Detective
Haney. Prior to playing the video, the State told the trial court, “Your Honor,
pursuant to the previous stipulation, we’ll go ahead and just start the video.”
(Tr. Vol. 4 at 28). The trial court replied, “Okay,” and Dean’s counsel made no
comment. (Tr. Vol. 4 at 28). Then the State published the portion of the video
where Dean had admitted to Detective Haney that he had touched A.C.’s
private area. Thereafter, the State moved to admit State’s Exhibit 8, the
dictated apology letter in which Dean admitted that he had touched A.C.’s
vagina, and Dean’s counsel stated, “No objection.” (Tr. Vol. 4 at 29).
[20] Dean testified on his own behalf and denied that he had molested A.C. He
acknowledged that he had told Detective Haney that he had touched A.C. but
claimed that he had done so because he “was scared of the outcome of what
would happen if [he] didn’t admit to something that [he] didn’t do.” (Tr. Vol. 4
at 74). Dean also testified that he had admitted touching A.C. only because he
thought that he would just have to go to counseling. He believed that he would
go to prison if he did not admit to touching her.
[21] On cross-examination, Dean acknowledged that he had voluntarily talked to
the police during Interview #1 and Interview #2. He also testified that he had
voluntarily taken the polygraph examination. The State also had Dean clarify
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that the police had never told him that he would get counseling without jail
time if he admitted to his crime.
[22] During closing arguments, Dean’s counsel reminded the jury of the limiting
instruction that explained that Dean’s statements to police, which were
contained in State’s Exhibit 5, were “admissible evidence[,]” but counsel argued
that Dean’s confession to the police was a “false confession.” (Tr. Vol. 4 at
112, 113, 116). Counsel also argued that the jury should not view Dean’s
admission as a confession because he was “induced by promises” and subjected
to “very aggressive” interrogation tactics. (Tr. Vol. 4 at 114, 116). Dean’s
counsel suggested that Dean’s “claim that his confession was false” should
“raise a reasonable doubt about whether [the jury] should accept his confession
as true[.]” (Tr. Vol. 4 at 113). Additionally, his counsel asserted that the jury
should find credibility in Dean’s testimony that he had “confessed only because
. . . [he] thought that’s what [he] had to do and not because [he] had done it.”
(Tr. Vol. 4 at 129).
[23] As part of the final instructions given to the jury, the trial court gave
instructions for the lesser-included offenses of Level 4 felony child molesting
and Level 6 battery. The trial court also gave the two jury instructions
regarding Dean’s argument about the voluntariness of his police statement.
The jury found Dean guilty of the lesser-included offense of Level 4 felony child
molesting. The trial court imposed a six (6) year sentence, with two (2) years
executed and four (4) years suspended to probation. Dean now appeals.
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Decision
[24] On appeal, Dean does not challenge the actual admissibility of State’s Exhibit
5, which included Dean’s statements to police and the polygraph examination
from Interview #2. Indeed, he cannot do so because he stipulated to the
admissibility of the exhibit as part of his defense strategy. Instead, he makes
arguments that are tangential to the admission of State’s Exhibit 5. Specifically,
he contends that the trial court used an improper standard of review when it
ruled on his motion to suppress, and he makes general policy arguments
regarding the propriety of deceptive tactics used by police interrogators.
[25] Because Dean is appealing following a conviction, we note that Dean’s first
challenge regarding the trial court’s ruling on his motion to suppress would
more appropriately be framed as whether the trial court properly admitted the
evidence at trial. See Fry v. State, 25 N.E.3d 237, 241 (Ind. Ct. App. 2015), trans.
denied. The admission and exclusion of evidence falls within the sound
discretion of the trial court, and we review the admission of evidence only for
an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002).
[26] However, as noted above, Dean stipulated to the admissibility of State’s Exhibit
5 for defense strategy reasons. Indeed, Dean acknowledges that “the recording
of [his] interrogation” was “admitted without objection” at trial and states that
admission was “a matter of Defense trial tactics” as explained in the
“stipulation presented to the jury.” (Dean’s Br. 8). In the parties’ stipulation,
Dean “waive[d] any objection to the contents of the recording being admitted”
and “stipulate[d] to the admissibility of the recording.” (Tr. Vol. 3 at 101).
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Dean reserved his right to “argue the voluntariness” of his statements contained
within the exhibit so that the “jury [could] determine the truthfulness of the
statements.” (Tr. Vol. 3 at 101, 102). Dean’s counsel argued to the jury that
they should put no weight into the credibility of Dean’s police statements and
should disregard them because they were not voluntarily made. The jury made
its credibility determination, and we will not review or reweigh such a jury
decision. See Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Because Dean is
appealing following a conviction, his argument regarding the trial court’s ruling
on his motion to suppress is misplaced. Furthermore, he has waived any
admission of evidence argument when he stipulated at trial to the admissibility
of the exhibit that contained his police statement as part of a defense strategy.
[27] Waiver notwithstanding, even if we were to construe Dean’s appellate
arguments as a challenge to the admissibility of his statements in State’s Exhibit
5 and he had not stipulated to the admissibility of the exhibit, any potential
error in the admission of the statements would be harmless error because they
were merely cumulative of other admitted evidence, including A.C.’s testimony
and State’s Exhibit 8 (Dean’s apology letter in which he admitted that he had
touched A.C.’s vagina). See Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011)
(holding that an improper admission of evidence is harmless error where the
conviction is supported by “substantial independent evidence of guilt satisfying
the reviewing court there is no substantial likelihood the challenged evidence
contributed to the conviction”); King v. State, 985 N.E.2d 755, 759 n.4 (Ind. Ct.
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App. 2013) (explaining that any error in the admission of evidence that is
merely cumulative of other evidence admitted is harmless), trans. denied.
[28] We also note that Dean’s arguments regarding the propriety of deceptive tactics
used by police interrogators merely equate to policy arguments and do not raise
reviewable appellate issues. More specifically, Dean cites to Henry v. State, 738
N.E.2d 663 (Ind. 2000), a case in which our Indiana Supreme Court stated that
it did not condone deceptive police interrogation tactics, but it specifically
refused to hold that such tactics would automatically render a confession
inadmissible. Henry, 738 N.E.2d at 664. Instead, the Henry Court explained
that such tactics “weigh[ed] heavily against the voluntariness of [a] defendant’s
confession” and would be viewed as one of the factors under the “‘totality of
the circumstances’ test” for determining the voluntariness of a confession. Id. at
665. Dean also refers to Detective Haney’s cross-examination testimony that
police officers are allowed to use deceit in a police interrogation and that
caselaw had permitted such a practice. Dean contends that the detective’s
testimony was “a crude and prejudicially misleading oversimplification[.]”
(Dean’s Br. 10).
[29] Dean does not challenge the admission of the detective’s testimony, nor could
he, since the testimony was specifically elicited during Dean’s cross-
examination of the detective. See Thacker v. State, 578 N.E.2d 784, 786 (Ind. Ct.
App. 1991) (explaining that it is invited error for an appellant to elicit testimony
from a witness on cross-examination and then claim error in the admission of
the testimony on appeal); Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995)
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(holding that “[i]nvited errors are not subject to appellate review”), reh’g denied.
Instead, he “asserts that lies by police interrogators must be subjected to special
analytical treatment, because they weigh heavily against the voluntariness of a
confession, as held in the widely-ignored Henry v. State, 738 N.E.2d 663, 665
(Ind. 2000).” (Dean’s Br. 6). Dean also suggests that the police, in general,
have disregarded the Indiana Supreme Court’s holding in Henry, and he asserts
that this disregard has caused “a conflict between Judicial and Executive
branches of government[,]” resulting in “a subject worthy of scholarly
analysis[.]”). (Dean’s Br. 15). He further contends that Henry “should have a
practical application to the tactics of police interrogators” and that “[t]he
disregard of one arm of governance for the edicts of a powerful competing
appendage” is “a subject begging review” and “is now presented to the Court
for desperately-needed clarification.” (Dean’s Br. 6, 15). We decline Dean’s
request to clarify or comment on the policy issues he has raised because we do
“not render advisory opinions.” Reed v. State, 796 N.E.2d 771, 775 (Ind. Ct.
App. 2003).
[30] Affirmed.
Riley, J., and Robb, J., concur.
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