Buchanan v. State

BROWN, Judge

concurring in part and dissenting in part.

I concur with most of the majority's analysis but respectfully dissent as to the majority's conclusions that Buchanan was not in custody prior to his confession to the robbery during the second interview with the police, and that Buchanan's false reporting convictions should be vacated.

The Indiana Supreme Court has held that "Miranda warnings are required only in the context of custodial interrogation." Dye v. State, 717 N.E.2d 5, 14 (Ind.1999) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)), reh'g denied, cert. denied, 531 U.S. 957, 121 S.Ct. 379, 148 L.Ed.2d 292 (2000). The relevant inquiry in determining whether a person was in custody is "whether a reasonable person in the accused's cireumstances would believe that he or she is free to leave." Id. (citing Cliver v. State, 666 N.E.2d 59, 66 (Ind.1996), reh'g demied ). Here, although the officers assured Buchanan that he was not under arrest and Buchanan agreed that the second statement was voluntary, those factors are not determinative. See, e.g., McIntosh v. State, 829 N.E.2d 531, 538 (Ind.Ct.App.2005) (noting that the fact that the police say, "you are free to leave at any time" is not the sole determinative factor of whether a person is in custody), reh'g denied, trans. demied. At the time of the second interview, Buchanan had already confessed to making false bomb threats. I do not believe that a reasonable person under those circumstances would have felt free to leave. See, e.g., Sellmer v. State, 842 N.E.2d 358, 365 (Ind.2006) (holding that, under the totality of the cireumstances, "a reasonable person under the same cireumstances as those in which Sellmer found herself would believe either that she was under arrest or, at least, that she was not free to resist the entreaties of the police"); State v. Linck, 708 N.E.2d 60 (Ind.Ct.App.1999) (holding that, once the defendant admitted to smoking marijuana, *723he was in custody for Miranda purposes), trans. denied.

Indeed, Buchanan felt that he was not free to leave as reflected in his statements made at the end of his confession on the second day. Buchanan said:

I, I mean when you come [sic] to my house last night, you had me dead to rights making the call. You had your suspicions about the bank robbery then. I said I didn't do it and I just couldn't see any way you guys could possibly find that out. But in the state of paranoia um you showing up today right when, you know, the boy is picking up the Sea Do [sic] and that kind of stuff. It just, you guys caught me a little off guard and there's gonna be no way that we was gonna come to any kind of arrangements today other than you guys just taking me to jail. Whether I confessed or not. And when you said that big sigh of relief, yes it is. I just hope that everyone can kind of forgive me for doing something that I thought that I had do [sie] for necessity.

Exhibits at 846 (emphasis added). The dispositive question is whether a reasonable person in Buchanan's position would have felt free to leave prior to making his confession. Clearly Buchanan felt that he was not, making his confession inadmissible without the proper Miranda warnings.

Further, I disagree with the majority's conclusion that the continuing crime doe-trine applies to the false reporting convie-tions. "The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Richie v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005), trans. denied. "[The continuous crime doctrine prevents the State from charging a defendant twice for the same continuous offense." Id. Buchanan phoned in the false bomb threats, went to several stores to buy tape, returned to his home to finish covering his car, took a drive in a different vehicle, returned home to change clothes and retrieve his gun, and drove to the bank in his covered vehicle. I conclude that the false reporting and bank robbery offenses were not so compressed in terms of time, place, singleness of purpose and continuity of action as to constitute a single transaction. Consequently, I do not believe that the false reporting convictions should be vacated. See, e.g., Firestone v. State, 838 N.E.2d 468, 472 (Ind.Ct.App.2005) (holding that the defendant's convictions for rape and criminal deviate conduct did not fall within the continuing erime doctrine).

For these reasons, I would affirm in part, vacate in part, and remand.