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FOR PUBLICATION

ATTORNEY FOR APPELLANT: JOEL M. SCHUMM Appellate Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANDREW KING, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0504-CR-300

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge Cause No. 49G01-0407-FA-138429

December 30, 2005

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary Appellant-Defendant Andrew King ("King") appeals the trial court's denial of his motion to suppress evidence. We reverse.
Issue

King raises two issues on interlocutory appeal, which we consolidate and restate as whether the trial court erred by denying his motion to suppress certain self-incriminating statements under the United States Constitution. Facts and Procedural History On July 24, 2004, Agent Michael A. Vergon ("Agent Vergon"), with the Bureau of Alcohol Tobacco Firearms and Explosives, investigated a fire at the Castleview Baptist Church (the "Church") and concluded that it had been intentionally set. At that point, Agent Vergon and other investigators attempted to "track down any potential leads as to how the fire started." Tr. at 9. During the investigation, Agent Vergon discovered that, on the night of the fire, a Marion County Sheriff's deputy had arrested King in the Church parking lot for public intoxication. At the time of the arrest, King was sleeping in his vehicle, which was parked at the Church. Believing that King may have witnessed the arson, Agent Vergon and another detective interviewed King at the Marion County Jail. "The purpose of the interview was just to talk to [King] and find out what he was doing at the [C]hurch after the fire." Id. at 10. The detectives also wanted to know if King had slept in the Church parking lot on other occasions. During the interview, which was conducted in an interview room on the ground level 2

of the Marion County Jail, King told the detectives about his family background, travels, and work experience. In addition, and in response to the detectives' questioning, King indicated that he was inside the Church at the time of the fire. In particular, King explained that, while he thought it was a dream, he remembers "hopping through a window in the [C]hurch" and seeing a cross on fire. Id. at 12. After learning that King had been inside the Church during the fire, the detectives temporarily stopped the interview, turned on the tape recorder, and read King his Miranda rights. The following colloquy between Agent Vergon and King ensued: [Agent Vergon:] Okay, okay just one step at a time here. You have the right to remain silent. Anything you say can be used as evidence against you in court. You have the right to talk to [a] lawyer for advice before you ask questions, and have him with you during questioning. If you can not afford a lawyer and you want one, one will be appointed for you by the Court before any questioning. If you decided [sic] to answer questions now without a lawyer present you will still have the right to stop answering at anytime. You have the right to stop answering at anytime until you talk to a lawyer. Do you understand that? Yes . . . it has to be your decision okay. Um we're doing all we can to help you out, but you know that's something that's strictly your decision. We can't. How about we just keep going a long, and um you can stop. If you think you need a lawyer it's your right, but you've been very cooperative so far. Yes a lawyer make sure that I can (inaudible)? Yes, Yeah and I'll make sure that you don't.

[King:] [Agent Vergon:]

[King:] [Agent Vergon:]

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[King:] [Agent Vergon:] [Detective:] [King:]

(inaudible) Well I am looking out for your interest. I am. We're making sure your rights are protected. I just don't know. Cause I whatever I say you said that's [sic] it's gonna [sic] be used against me. And since I'm not really in a very good mental state I shouldn't (inaudible).

State's Ex. A (certain capitalization omitted). Agent Vergon also assured King that he would make sure that King got an attorney and some help. Further, during the tape-recorded portion of the interview, Agent Vergon summarized what King had disclosed about the events of the fire, prior to his being Mirandized. King responded in the affirmative. Throughout the remainder of the interview, King acted confused, informing the detectives that: (1) he wanted to see a doctor; (2) he was in dream; (3) he was still in New Orleans; and (4) he had been in jail for thirty, as opposed to a couple of, days. After the interview, the detectives obtained a search warrant for King's vehicle. On July 30, 2004, the State charged King with two counts of arson, one as a Class A felony and the other as a Class B felony. 1 On November 30, 2004, King filed a motion to suppress "any and all oral and written communications, confessions, statements, admissions or tests, alleged to have been made by [King] prior to, at the time of, or subsequent to his arrest in this cause." Appellant's App. at 33. On February 22, 2005, after conducting a hearing, the trial court denied King's motion to suppress. In so doing, the trial court determined that, because the officers did not consider King a suspect at the time of the initial,
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Ind. Code

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