dissenting.
In reversing, the majority characterizes Detective Cole’s statement as, at the very least, an implied promise not to prosecute McGhee. I am not convinced that Detective Cole’s statement qualified as an implied promise, or for that matter, a direct promise, or that it clearly rendered McGhee’s confession involuntary such that the trial court’s finding of voluntariness must be reversed. First of all, Detective Cole’s misstatement of the law of incest does not, in my view, rise to the level of a promise not to prosecute. While Detective Cole’s comments suggested that the law did not criminalize certain acts, I am unable to conclude that this constituted a sort of quid pro quo, prompting McGhee’s confession in response and rendering it involuntary.
Secondly, even if Detective Cole’s statement were construed to be an implied promise, I am unable to conclude that it rendered McGhee’s confession involuntary. As the majority points out, the Indiana Supreme Court stated in Ashby v. State, 265 Ind. 316, 320-21, 354 N.E.2d 192, 195 (1976) that a confession obtained by any direct or implied promises is not free and voluntary. Since Ashby, however, the Supreme Court has held that implied promises are too indefinite to render a confession involuntary. See Gary v. State, 471 N.E.2d 695, 698 (Ind.1984) (upholding admissibility of defendant’s confession where officers offered to help him and speak to prosecutor, suggesting implied promise that confession would result in defendant’s freedom); see also Collins v. State, 509 N.E.2d 827, 830 (Ind.1987) (citing Gary proposition that implied promises are too indefinite to render a confession involuntary). In my view, any promise of freedom from prosecution which McGhee inferred from Detective Cole’s misstatement of the law is too indefinite to constitute the type of inducement rendering his confession involuntary. See Gary, 471 N.E.2d at 698.
Given the nature of the statement at issue, in my view the trial court was fully justified in concluding that it did not constitute a direct promise of immunity or leniency. To the extent the statement constituted an indirect promise to that effect, I am unpersuaded that it rendered McGhee’s confession involuntary. I would affirm the judgment of the trial court.