Daniel Wahl and Saundra Wahl v. State of Indiana

FILED
May 12 2020, 8:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Russell B. Cate Curtis T. Hill, Jr.
Carmel, Indiana Attorney General of Indiana
Christopher J. Evans Ian A. McLean
Dollard Evans Whalin, LLP Deputy Attorney General
Noblesville, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Wahl and Saundra Wahl, May 12, 2020
Appellants-Defendants, Court of Appeals Case No.
19A-CR-2258
v.
Appeal from the Hamilton
Superior Court
State of Indiana,
The Honorable David K. Najjar,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
29D05-1309-FD-7823 &
29D05-1309-FD-7824
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellants-Defendants, Daniel Wahl (Daniel) and Saundra Wahl (Saundra),
(collectively, the Wahls), appeal their conviction for involuntary manslaughter,
Class D felonies, Ind. Code § 35-42-1-4 (2013).
[2] We affirm.
ISSUES
[3] The Wahls present this court with four issues on appeal, which we consolidate
and restate as the following three issues:
(1) Whether the trial court abused its discretion by admitting certain
evidence;
(2) Whether the State presented sufficient evidence to sustain the Wahls’
involuntary manslaughter conviction; and
(3) Whether the trial court abused its discretion by ordering the Wahls to
pay restitution.
FACTS AND PROCEDURAL HISTORY
[4] In 2003, the Wahls built their home in Fishers, Indiana, with the primary
intention of operating a daycare facility from their basement. In 2006, the
Wahls were licensed and they operated a daycare business under the name,
Home Away from Home Child Care, LLC. Saundra was responsible for
toddlers ranging from five months to two years old, while Daniel was
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responsible for the older children. In the spring of 2011, after touring the
Wahls’ daycare, Danny (Danny) and Jocelyne DiRienzo (collectively, the
DiRienzos), enrolled their minor children, D.D., and A.D. at the Wahls’
daycare.
[5] The Wahls had placed several security gates in their home. In the basement
hallway, there was a white metal security gate—the gate at issue in this cause—
closing off the stairway leading to the first floor. If the gate was open, one had
to pick up the gate and bring it over and place it down into a U-shaped cradle
where it would snap into place. In 2006, Daniel made repairs to the gate’s
hinges “because it [had] started to give way.” (Transcript Vol. II, p. 172).
More specifically, the screws used to secure the gate’s hinges had started pulling
out from the “wood studs in the wall.” (Tr. Vol. II, p. 172). Instead of using
regular screws, Daniel used “some bolts and washers and nuts to hold it in
place.” (Tr. Vol. II, p. 173). To do all of that, he “went behind the wall and
added two additional wood studs, got long bolts, drilled through, put those on
with washers behind it and lock nuts so that they wouldn’t come loose.” (Tr.
Vol. II, p. 173). Then sometime in 2006, Daniel made further improvements to
the gate since a spindle had come loose, and he reattached it with some epoxy
glue. According to Daniel, the Indiana Family and Social Services
Administration (FSSA) had never given any directives or corrective actions to
the Wahls regarding the gate.
[6] In June of 2013, A.D. was a healthy, twenty-month-old toddler. On June 20,
2013, between 8:00 a.m. and 10:00 a.m., Daniel was in the backyard greeting
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parents as they came in with their children. Daniel kept the older children with
him, and he took the younger children to the basement to be cared for by
Saundra. After the older children had lunch outside, Daniel lined them up at
the stairway leading to the basement to go inside for their scheduled naps. At
that moment, Daniel heard Saundra scream for help. After ensuring that all the
children were inside the house, he proceeded to go to the basement. There, he
found Saundra standing over A.D. who was lying motionless on the basement
floor. Immediately, Daniel began performing CPR on A.D. while Saundra
called 9-1-1.
[7] At approximately 12:23 p.m., Officer Ryan Ermel (Officer Ermel) of the Fishers
Police Department was first to arrive at the Wahls’ residence. Officer Ermel
found Daniel administering CPR to A.D. and he assisted with the process.
Shortly thereafter, the EMTs and two other officers arrived. The EMTs took
over the CPR process and A.D. was transported to the Community North
Hospital emergency room. At approximately 12:52 p.m., Detective David Finn
(Detective Finn), arrived at the Wahls’ residence and he began questioning
Daniel as to the daily daycare procedures.
[8] At 12:59 p.m., A.D. was pronounced dead. During Daniel’s narration of the
daily daycare procedures to Detective Finn and another officer, Saundra
emerged from the basement and ran up the stairs to inform Daniel that A.D.
was deceased. Detective Finn stopped questioning Daniel so that Daniel could
give Saundra some comfort. After a few minutes, Detective Finn sat down with
Saundra and Daniel. Saundra was still hysterical, and she was crying about
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“how this wasn’t supposed to happen[,] and this shouldn’t have happened.”
(Appellant’s App. Vol. IV, p. 220). During this time, a chaplain arrived and
met with both Daniel and Saundra and he prayed with them. Detective James
Hawkins (Detective Hawkins) and Detective Doug Baker (Detective Baker)
arrived at the Wahls’ residence. At that point, Detective Finn asked Daniel to
recite the events that took place during the time of the incident. Detective
Hawkins then started processing the scene, while Detective Baker spoke with
Saundra.
[9] During the afternoon, other officers continued to arrive. One officer asked
Daniel for a contact list of the children’s parents. After about 15 to 20 minutes,
Daniel had not found the parents contact list but eventually either Daniel or
Saundra provided the list. The police began contacting the parents of the
children. The Wahls’ residence was taped off, and a canopy was set up close to
their residence so that parents of the other children could retrieve their children
without going inside the house.
[10] As Detective Hawkins took photographs of the interior of the house, he noticed
that the basement hallway gate where A.D. had become lodged opened easily
with “[m]aybe a couple pounds” of pressure: “I mean it was, there wasn’t
much to it. It was just the very tip of that metal and you can kind of see all the
wear marks[,] so it was, there wasn’t a whole lot to it. You just sort of pop it
open.” (Tr. Vol. III, p. 76). Daniel, who was also in the basement at this time,
informed Detective Hawkins that he and Saundra mitigated the issue “by
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placing some furniture on either side of the gate to try to keep the kids from
pushing through it.” (Tr. Vol. III, p. 76).
[11] At around 5:00 p.m., there were no children inside the residence, but there were
multiple officers in the home. Detective Finn asked Saundra to participate in a
video reenacting the events leading to the moment she discovered A.D. stuck in
the gate. Saundra stated that she had left A.D. with another child, who was less
than two years of age, at the far end of the toddler and infant room. Saundra
stated that she walked into the kitchen to feed another young girl who was
seated in a highchair, and after she fed the child in the highchair, she
momentarily faced away from the toddler and infant room and began warming
milk bottles in the sink. Once the bottles were warm, she picked up the child
from the highchair and carried her on her hip along with a bottle back into the
toddler and infant room. Once in the toddler and infant room, she saw A.D.
face down, wedged at the neck between the basement metal security gate and
the wall. Saundra sat the child she was carrying down, and attended to A.D.
After Saundra freed A.D. from the white metal security gate, she noticed that
A.D. was unresponsive and not breathing. Saundra promptly began performing
CPR on A.D. As she was doing that, she saw two older children who had been
out in the backyard, and she requested that they call Daniel. The children did
not comprehend, so Saundra momentarily left A.D. on the floor, rushed to the
base of the stairway, and yelled to Daniel for assistance.
[12] When asked to reposition the furniture that was close to the metal security gate,
she placed a rocking chair facing the infant room with its back against the gate,
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and she placed a swing on the other side of the gate leading to the stairway.
Saundra explained that she needed to do that because if the children shook it
“real hard, they would loosen” the gate. (State’s Exh. 45 at 4:28). Saundra was
then asked to place a doll in the position where she found A.D. stuck in the
gate. Detective Finn observed that the white metal security gate that had
choked A.D. did not latch correctly. Detective Finn also observed that if the
gate was open, there was no line of sight from the kitchen. At the end of the
interview, the officers removed the gate from the residence and took it with
them.
[13] On September 19, 2013, the State filed an Information, charging the Wahls
with involuntary manslaughter, a Class D felony. They were tried jointly and
found guilty by a jury. They appealed separately, arguing that there was
insufficient evidence to sustain their convictions, the trial court erred when it
declined to grant a mistrial due to juror misconduct, their sentences were
inappropriate, and that the trial court erred in ordering restitution. We affirmed
their convictions in separate opinions: Wahl v. State, 36 N.E.3d 1163 (Ind. Ct.
App. 2015) (Daniel’s); and Wahl v. State, 36 N.E.3d 1147 (Ind. Ct. App. 2015)
(Saundra’s). Our supreme court granted transfer and consolidated their cases.
The supreme court consequently found that the Wahls’ motion for mistrial due
to juror misconduct should have been granted, it reversed their convictions, and
it remanded their cases for a new trial. See Wahl v. State, 51 N.E.3d 113 (Ind.
2016).
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[14] The Wahls were tried jointly at another jury trial on August 7 through August
9, 2019. Before their second trial, the Wahls filed their expert witness list,
disclosing Dr. Edward Dragan (Dr. Dragan) as a potential expert witness. In a
deposition before their second trial, Dr. Dragan had testified that his area of
expertise was reading and interpreting regulations that were applicable to
daycares. However, Dr. Dragan stated that his area of expertise did not involve
interpreting regulations affecting daycares for children under the age of three.
Based on Dr. Dragan’s deposition testimony, the State filed a motion in limine,
seeking to exclude Dr. Dragan’s testimony, arguing that Dr. Dragan did not
qualify as an expert under Indiana Rules of Evidence 702 because his expertise
did not involve the care of infants and toddlers under three years of age.
Following a hearing, the trial court issued an order in favor of the State, after
concluding that Dr. Dragan could not be qualified to testify as an expert since
“[a] very small amount of Dr. Dragan’s education and professional experience
involves preschool programs, and none of it involves in-home daycare for
children under three years of age.” (Appellant’s App. Conf. Vol. IV, p. 85).
[15] During the second trial, the Wahls moved to suppress the photographs taken
from inside the residence, an audio recording of the Wahls which was
conducted in the living room, a video recording of Saundra reenacting the
events that occurred before she discovered A.D. stuck in the gate, and the metal
security gate that trapped A.D. A suppression hearing was held outside the
jury’s presence, and the trial court heard testimony from several officers. At the
conclusion of that hearing, the trial court excluded the physical gate from
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evidence, but it determined that the other evidence, including the video
reenactment where Saundra explained the events leading to A.D. being stuck in
the gate, was admissible. After the presentation of all the evidence, the jury
found the Wahls guilty of involuntary manslaughter.
[16] The record shows that at the first sentencing hearing, Danny, A.D.’s father,
testified as to the expenses he incurred, such as A.D.’s hospital and funeral
expenses, therapy for his wife, and his loss of wages, to support a restitution
order against the Wahls. On August 26, 2019, the day before the Wahls’
second sentencing hearing, the State filed a motion, seeking judicial notice of
Danny’s prior testimony to support a restitution claim against the Wahls. The
trial court granted the State’s motion. At the start of the second sentencing
hearing, the trial court additionally stated that for purposes of having a
complete record, it would take judicial notice of the Presentence Investigation
report (PSI) submitted at the first sentencing hearing, the addendum, and the
sentencing order which included a restitution order against the Wahls in the
amount of $22,353.72. The trial court subsequently sentenced the Wahls to 550
days in the Department of Correction, with credit for 550 days served. Also,
the trial court ordered the Wahls to pay restitution to the DiRienzos in the
amount of $22,353.72.
[17] The Wahls now appeal. Additional information will be provided as necessary.
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DISCUSSION AND DECISION
I. Admission of the Evidence
[18] When ruling on the admissibility of evidence, the trial court is afforded broad
discretion, and we will only reverse the ruling upon a showing of abuse of
discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse
of discretion involves a decision that is clearly against the logic and effect of the
facts and circumstances before the court. Id. We consider the evidence most
favorable to the trial court’s ruling and any uncontradicted evidence to the
contrary to determine whether there is sufficient evidence to support the ruling.
Id.
[19] While presenting similar but slightly different arguments, the Wahls assert that
the trial court abused its discretion when it excluded Dr. Dragan from testifying
as an expert witness. In addition, the Wahls contend that the trial court abused
its discretion by admitting into evidence the video reenactment of Saundra
explaining the events leading to A.D. being stuck in the security gate.
A. Expert Witness
[20] Indiana Evidence Rule 702, the evidentiary rule concerning expert testimony,
provides:
(a) If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise.
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(b) Expert scientific testimony is admissible only if the court is
satisfied that the scientific principles upon which the expert
testimony rests are reliable.
A trial court judge has broad discretion to admit or exclude the testimony of an
expert witness under Rule 702. Carter v. State, 766 N.E.2d 377, 380 (Ind. 2002).
The trial court’s decision will only be reversed for an abuse of that discretion.
Id.
[21] The trial court’s order excluding Dr. Dragan’s testimony, stated in part that
Dr. Dragan has expertise in the area of education, school
supervision and school safety, and expertise in regulations
governing schools. The issues involved in this case, however, do
not involve these topics. Here, the subject matter is the [Wahls’]
supervision of a twenty-month old child in an in-home daycare.
A very small amount of Dr. Dragan’s education and professional
experience involves preschool programs, and none of it involves
in-home daycare for children under three years of age. As he
testified in his deposition, Dr. Dragan has no professional
experience at all with children younger than three years. . .
[The Wahls] argue that the State ignores Dr. Dragan’s six years
of experience running a Head Start program from 1969 to 1975
for children from ages 3 to 5. But the relevant age group here is
children under the age of 3. Dr. Dragan himself acknowledges
that the level of supervision a child requires depends on the age
and abilities of that child. He cannot be qualified to testify as an
expert on the supervision required of children of an age and in a
setting entirely outside his experience.
While Dr. Dragan certainly has expertise, the [c]ourt cannot find
that any of that expertise is within the subject matter on which he
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would be called to testify in this proceeding - the standard of care
for supervision of a twenty-month old child in an in­ home
daycare. . . . because his expertise does not lie within the area of
his testimony, [his] testimony should be excluded.
(Appellant’s App. Conf. Vol. IV, p. 85).
[22] A.D. was twenty-months old at the time of his death. As the trial court
correctly noted, the Wahls’ supervision of a twenty-month-old child in an in-
home daycare was at issue, and Dr. Dragan had limited education and
professional experience as to in-home daycare for children under three years of
age. Thus, Dr. Dragan’s testimony would not have assisted the jury in
understanding the evidence or determine a fact in issue, i.e., whether the Wahls’
provided adequate supervision to A.D. prior to his death. Accordingly, Dr.
Dragan’s testimony was irrelevant, and the trial court acted within its discretion
to exclude his testimony. See Carter, 766 N.E.2d at 380.
[23] Further, we note that at the close of the evidence, the Wahls made an offer of
proof regarding Dr. Dragan’s proposed testimony. See Woods v. State, 892
N.E.2d 637, 641-42 (Ind. 2008) (holding that “[t]he purpose of an offer of proof
is to convey the point of the witness’s testimony and provide the trial [court] the
opportunity to reconsider the evidentiary ruling.”) In pertinent part, the Wahls
claimed that Dr. Dragan would have testified that FSSA was responsible in
overseeing licensing and monitoring home daycare, and because FSSA had
never cited the Wahls for a defective gate, such testimony would have been
helpful in determining if the Wahls were criminally liable. When an expert’s
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testimony is, essentially, an assertion that a party has done no wrong as a
matter of law, that testimony is inadmissible. See Ind. R. Evid. 704(b)
(providing that “witnesses may not testify to opinions concerning intent, guilt,
or innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions”); Schumm v. State, 868
N.E.2d 1202,1204 (Ind. Ct. App. 2007) (defendant was not allowed to call
police officer to testify that defendant’s vehicle was in compliance with
applicable regulations since such testimony would have resulted in the officer
making a legal conclusion). Notwithstanding the Wahls’ claim on appeal, the
trial court could not have properly reconsidered its prior evidentiary ruling of
excluding Dr. Dragan’s testimony. See Woods, 892 N.E.2d at 641-42.
Accordingly, we find no abuse of the trial court’s discretion in excluding his
testimony as an expert witness.
B. Video Reenactment
[24] The Wahls argue that the trial court abused its discretion by denying their
motion to suppress the video reenactment. Because the Wahls appeal after a
completed trial, we review the trial court’s ruling for abuse of discretion.
Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010). In our review, we do
not reweigh the evidence, and we consider conflicting evidence most favorable
to the trial court’s ruling. Id. We also defer to the trial court’s factual
determinations unless clearly erroneous. Id. However, we consider afresh any
legal question of the constitutionality of a search or seizure. Id.
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[25] The Wahls collectively claim that when the video was taken, it violated their
Fourth Amendment rights under the United States Constitution, and Article 1,
Section 11 of the Indiana Constitution. Saundra additionally claims that her
Fifth Amendment rights were violated when she was asked to participate in the
reenactment video absent any Miranda warnings.
1. Fourth Amendment Violation
[26] The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures”
and generally prohibits searches and seizures without a warrant supported by
probable cause. U.S. Const. amend. IV; Clark v. State, 994 N.E.2d 252, 260
(Ind. 2013). As a result, evidence obtained without a warrant is generally
inadmissible unless it falls within one of few well-delineated exceptions. Id.
The State has the burden to show that one of these well-delineated exceptions
was met. Id.
[27] The Wahls concede that exigent circumstances existed after the police
responded to the 9-1-1 call, however, they argue that their continued presence
until 5:00 p.m. which led to the video reenactment, constituted an
impermissible search not falling within any exception. The State argues the
continued police presence in the Wahls’ home and the recording fell under the
exigency exception.
[28] “The warrant requirement becomes inapplicable where the ‘exigencies of the
situation’ make the needs of law enforcement so compelling that the
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warrantless search is objectively reasonable under the Fourth Amendment.’”
Holder v. State, 847 N.E.2d 930, 935 (Ind. 2006) (quoting Mincey v. Arizona, 437
U.S. 393-94, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)). Among the well-known
exigent circumstances that have justified a warrantless search or seizure are
entries (1) to prevent bodily harm or death; (2) to aid a person in need of
assistance; (3) to protect private property; and (4) to prevent actual or imminent
destruction or removal of incriminating evidence before a search warrant may
be obtained. Weis v. State, 800 N.E.2d 209, 213 (Ind. Ct. App. 2003). In
addition, we have found exigent circumstances where police entered to aid or
prevent further injury to victims of violent crime. State v. Straub, 749 N.E.2d
593, 597 (Ind. Ct. App. 2001).
[29] The Wahls’ 9-1-1 call invited police to enter the house and deal with an
emergency. See United States v. Risner, 593 F.3d 692, 694 (7th Cir. 2010) (911
call seeking assistance is an invitation to enter and provide assistance).
Notwithstanding the fact that A.D. had been removed from the home, once
there, the officers found another emergency, namely, several other children in
the daycare who had been present during the incident, it was of extreme
concern for the officers to remove those children from the scene of the incident.
Throughout the afternoon, and in conjunction with the Wahls, the police cared
for the children and reunited them with their parents. While the video was
taken after all the children had presumably been picked up by their parents and
no exigency existed at the time, the State argues that the video was taken with
Saundra’s consent.
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[30] Another well-recognized exception to the warrant requirement is a voluntary
and knowing consent to search. Primus v. State, 813 N.E.2d 370, 374 (Ind. Ct.
App. 2004). The theory underlying the consent exception is that, when an
individual gives the State permission to search either his person or property, the
governmental intrusion is presumably reasonable. Id. A defendant’s consent to
search is valid except where procured by fraud, duress, fear, or intimidation or
where it is merely a submission to the supremacy of the law. Buckley v. State,
797 N.E.2d 845, 849 (Ind. Ct. App. 2003). Because it falls within an
established exception to the Fourth Amendment warrant requirement, the
scope of the authority to search is strictly limited to the consent given, and a
consensual search is reasonable only if it is kept within the bounds of that
consent. Id. The standard for measuring the scope of a suspect’s consent under
the Fourth Amendment is that of objective reasonableness. Id. In addition to
objective reasonableness, the scope of a consensual search is generally
measured by the expressed object to be searched and the subject’s-imposed
limitation. Id. Therefore, the scope of a consent search is factually sensitive
and does not depend solely on the express object to be searched. Id.
[31] Again, throughout the afternoon, the Wahls cooperated with the police in
caring for the children inside their in-home daycare, they voluntarily discussed
what had happened in the living room, and later Saundra agreed to participate
in a video reenactment of the events in the basement. While a few items were
moved during the reenactment, namely, the rocking chair and swing, Saundra
helped the officers place those items in their original position as she narrated
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the events. Furthermore, the record is devoid of any evidence establishing that
Detective Finn’s actions and statements were impermissibly coercive, thereby
overcoming Saundra’s will. See Buckley, 797 N.E.2d at 849. The record
supports that Detective Finn was very polite with his questioning during the
video reenactment. As a result, we conclude that Saundra voluntarily and
knowingly consented to the search of her home which led to the video
reenactment. Accordingly, we find that the Wahls’ rights pursuant to the
Fourth Amendment of the United States Constitution were not violated.
2. Article 1, Section 11 of the Indiana Constitution
[32] Next, we address the Wahls’ claim that law enforcement’s conduct in
performing the reenactment video without a warrant was unreasonable and
therefore violated their rights pursuant to the Article 1, Section 11 of the
Indiana Constitution, which provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
This language tracks the Fourth Amendment verbatim, however, the State of
Indiana has adopted a different form of analysis for claims brought under
Article I, Section 11. See Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005).
Under our state’s constitution, the validity of a search by the government turns
on an evaluation of the reasonableness of the officers’ conduct under the totality
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of the circumstances. Id. Thus, the unique protections provided in the Indiana
Constitution require us to review all the facts and circumstances that are
particular to this case. Bell v. State, 818 N.E.2d 481, 484 (Ind.Ct.App.2004).
[33] In evaluating the totality of the circumstances, and thus the reasonableness of
the search, we consider both the degree of intrusion into the subject’s ordinary
activities and the basis upon which the officer selected the subject of the search
or seizure. Litchfield, 824 N.E.2d at 360. Thus, to determine the reasonableness
of police conduct under the totality of the circumstances, we consider “(1) the
degree of concern, suspicion, or knowledge that the person has violated the law;
(2) the degree of intrusiveness that the search or arrest method imposes on the
person; and (3) the extent of law enforcement needs.” State v. Harmon, 846
N.E.2d 1056, 1058 (Ind. Ct. App. 2006).
[34] Regarding the first factor, the officers’ degree of concern, suspicion, or
knowledge that a violation had occurred, in the instant case, this factor was
essentially non-existent. As we noted above, the officers arrived at the Wahls’
residence to assist with a report of an unconscious child. However, after A.D.
was pronounced dead, the officers were justified in having a reasonably high
degree of concern or suspicion that some sort of criminal activity might have
occurred based on their observation of that the gate that had choked A.D. was
faulty. As for the second factor, the degree of police intrusion on the Wahls’
ordinary activities were not substantial. The Wahls had invited the police
inside their home to help with the unconscious child, and they continued to
cooperate with law enforcement for the remainder of the afternoon to reunite
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the other children with their parents. After all the children had left, Saundra
agreed to take part in the video reenactment. Further, we note that the video
reenactment was limited to the basement, the area where the incident occurred.
And finally, as to the third factor, we find that law enforcement needs were
high. Detective Finn had good reason for investigating the events leading to
A.D.’s death. Moreover, after Saundra consented to participating in the video
enactment, there was no need to obtain a warrant.
[35] Saundra on behalf of Daniel, waived any and all of the Wahls’ search rights
since she agreed to submit to the video reenactment. Thus, given the
reasonably high degree of suspicion of criminal activity, the minimally intrusive
nature of police conduct prior to obtaining Saundra’s consent, and the extent of
law enforcement needs, the Wahls have failed to establish that the video
reenactment, was unreasonable under Article I, Section 11 of the Indiana
Constitution.
C. Custodial Interrogation
[36] Saundra claims that when the video reenactment was taken, the taped
interrogation was custodial in nature and she should have been advised of her
rights under Miranda v. Arizona, 384 U.S. 436, 444 (1966).
In Miranda [] the United States Supreme Court held that the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. These
procedural safeguards include an advisement to the accused that
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 19 of 39
he has the right to remain silent, that anything he says can be
used against him, that he has the right to an attorney, and that if
he cannot afford an attorney one will be appointed for him.
However, these warnings are only required where a suspect is
both in custody and subjected to interrogation.
State v. Necessary, 800 N.E.2d 667, 669-70 (Ind. Ct. App. 2003) (internal citation
marks omitted). A law enforcement officer’s duty to give Miranda warnings
does not attach unless there has been such a restriction on a person’s freedom as
to render him in custody. Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995).
[37] Saundra primarily relies on the presence of several officers in the house during
the afternoon to support her claim that she was subject to a custodial
interrogation. In particular, she contends that at the time the video was taped,
there were no children inside her home, the police had taped off her home to
keep everybody other than law enforcement from entering, and she had been
surrounded by several officers who were “directing her course of action in
recreating the scene of the accident.” (Saundra’s Br. p. 20). She adds that the
police were also “not transparent” about their intentions and that the officers
deceptively led her to believe that the video would only be used to assist the
coroner in determining A.D.’s cause of death, and not for a criminal
investigation. (Saundra’s Br. p. 20). Thus, Saundra maintains that she was in
custody at the time the video was taped, and she should have been advised of
her Miranda rights.
[38] The question of whether a person is in custody for purposes of Miranda is a
mixed question of fact and law. State v. Ruiz, 123 N.E.3d 675, 679 (Ind. 2019).
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 20 of 39
The test for whether a defendant is in custody is not whether a defendant feels
free to go, but rather whether there was a “‘formal arrest or restraint on freedom
of movement’ of the degree associated with a formal arrest.” State v. Brown, 70
N.E.3d 331, 336 (Ind. 2017) (citing Stansbury v. California, 511 U.S. 318, 114
S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). Questioning an individual the police
suspect of a crime does not inherently render the questioning custodial
interrogation. Reid v. State, 113 N.E.3d 290, 300 (Ind. Ct. App. 2018), trans.
denied. Courts look to the “totality of the circumstances” to determine whether
a person was in custody. Brown, 70 N.E.3d at 336; see also Hicks v. State, 5
N.E.3d 424, 429 (Ind. Ct. App. 2014) (“We examine all the circumstances
surrounding an interrogation and are concerned with objective circumstances,
not with the subjective views of the interrogating officers or the suspect.”), trans.
denied.
[39] There is no question in this case that Detective Finn’s questions during the
video reenactment with Saundra constituted an interrogation. The dispositive
issue here is whether Saundra was in custody at that time the video was taped.
The record shows that law enforcement entered the Wahls’ residence to
respond to a 9-1-1 call of an unconscious child. At approximately 12:52 p.m.,
Detective Finn, arrived at the Wahls’ residence and began questioning Daniel
as to the daily procedures at the daycare. At 12:59 p.m., A.D. was pronounced
dead. During Daniel’s narration of the events that had occurred that day,
Saundra emerged from the basement in hysterics and announced to Daniel that
A.D. was dead. Detective Finn stopped questioning Daniel so that Daniel
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 21 of 39
could give Saundra some comfort. The record reveals that Saundra was
emotional and distraught by A.D.’s death. Other officers continued to arrive at
the Wahls’ residence, some in uniform and others in street clothes. Following
the pronouncement of A.D.’s death, the officers, in conjunction with the
Wahls, spent the rest of their afternoon caring for the children and reuniting
them with their parents at the canopy set up outside the Wahls’ residence. The
Wahls were not placed in handcuffs or attended by an officer who monitored
their movements inside their home. It appears that at around 5:00 p.m., after
all the children had presumably left the Wahls’ residence, Detective Finn finally
made a proper inquiry as to the events preceding A.D. being stuck in the gate.
It was at this moment that Saundra was asked to participate in a video
recording demonstrating the events.
[40] Despite spending his afternoon at the Wahls’ residence, Detective Finn was
unaware of the events leading to A.D.’s death. Without more definite
information about the events, Detective Finn conducted “[g]eneral on-the-scene
questioning as to facts surrounding a crime or other general questioning of
citizens in the fact-finding process,” which does not fall within the purview of
Miranda requirements. Miranda, 384 U.S. at 477-78, 86 S. Ct. 1602. Further,
while there were other officers present during the video reenactment, it appears
that only one officer was conducting the questioning. See Gauvin v. State, 878
N.E.2d 515, 520-21 (Ind. Ct. App. 2007) (relying, in part, on fact that three
officers conducted the interview to determine the suspect was in custody)
(citations omitted).
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 22 of 39
[41] Based on the totality of the circumstances, we conclude that Saundra was not in
custody and was not required to have been advised of her Miranda rights at the
time she was asked to narrate the events which were captured in a video.
Accordingly, we hold that the trial court did not abuse its discretion in
admitting the video recording into evidence.
II. Sufficiency of the Evidence
[42] The Wahls argue that the evidence is insufficient to sustain their conviction.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative
value such that a reasonable trier of fact could have concluded the defendant
was guilty beyond a reasonable doubt. Id.
[43] The version of Indiana Code section 35-42-1-4(e) in effect at the time the Wahls
committed their crimes provided that if: (1) a child care provider recklessly
supervises a child; and (2) the child dies as a result of the child care provider’s
reckless supervision; the child care provider commits Class D felony
involuntary manslaughter. Conduct is reckless if the person engaged in that
conduct “in plain, conscious, and unjustifiable disregard of harm that might
result and the disregard involves a substantial deviation from acceptable
standards of conduct.” I.C. § 35-41-2-2(c). As charged, to convict the Wahls of
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 23 of 39
involuntary manslaughter, the State was required to prove that the Wahls
recklessly supervised A.D. and that A.D. died as a result thereof.
[44] During her initial questioning, Saundra informed Detective Finn that she
walked into the kitchen to feed another child who was seated in a highchair.
After she fed the child in the highchair, she faced away from the toddler and
infant room where A.D. was and began warming milk bottles. Once the bottles
were warm, she picked up the child from the highchair and carried her on her
hip along with a bottle and walked back into the toddler and infant room. Once
she entered that room, Saundra saw A.D. face down, wedged at the neck
between the basement baby gate and the wall.
[45] At trial, Detective Finn testified that when the white metal security gate was
open, there was no line of sight from the kitchen. Detective Finn added that the
white metal security gate did not latch correctly. In addition, Detective
Hawkins, who arrived shortly after Detective Finn, observed that when the
white metal security was “in the closed position[,] there was really . . . no lock
locking it in” and when he “put a couple fingers on it,” he “was able to push the
gate open without any problem at all.” (Tr. Vol. III, pp. 75-76). While
Detective Hawkins was manipulating the gate, Daniel informed him that to
mitigate that problem, the Wahls placed “some furniture on either side of the
gate to try to keep the kids from pushing through it.” (Tr. Vol. III, p. 76).
[46] In arguing that the evidence is insufficient to sustain his involuntary
manslaughter conviction, Daniel attempts to detach himself from the events of
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 24 of 39
June 20, 2013, by solely passing the blame onto Saundra. Daniel distances
himself from A.D.’s death by arguing that he “was not present at the time A.D.
was fatally injured. He did not know how long A.D. had been left without
supervision, [or] what activities A.D. or [Saundra] were engaged in.” (Daniel’s
Br. p. 40). Thus, Daniel argues that the evidence presented allowed the jury
only to infer that Saundra may have recklessly supervised A.D. and, “therefore,
[he] cannot be held vicariously criminally liable for [Saundra’s] actions.”
(Daniel’s Br. p. 40). Daniel’s attempt to distance himself from A.D.’s death
must fail since he installed and maintained the security gate that trapped and
killed A.D. In proving its case against Daniel, the State offered evidence that
Daniel was aware that the gate did not latch properly. In fact, several months
after the incident, Daniel informed Detective Finn that A.D. could “bulldoze
through” that gate. (Tr. Vol. III, p. 125).
[47] As for Saundra, she contends that A.D.’s interaction with the gate was the
proximate cause of his death. She equally distances herself from the events
leading to A.D.’s death, and she claims that Daniel is to blame since Daniel
was responsible for ensuring that the gate was installed properly and functioned
well. Notwithstanding her contentions, at the second trial, Danny described his
son as a healthy and happy baby. He testified that approximately a month or
two prior to A.D.’s death, he was in the Wahls’ kitchen either during drop off
or pick up and he and Saundra were discussing A.D.’s progress. During the
conversation, Saundra stated that A.D. was “able to push his way through the
baby gate downstairs.” (Tr. Vol. II, pp. 165-66).
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 25 of 39
[48] An act is reckless if it is undertaken in plain, conscious, and unjustifiable
disregard of harm that might result and the disregard involves a substantial
deviation from acceptable standards of conduct. See I.C. § 35-41-2-2 (2013). It
is undisputed that the Wahls jointly owned and operated the daycare, they
recklessly failed to ensure that the gate functioned properly, and they were aware
that A.D. could push through the gate. While there were several metal security
gates installed in the Wahls’ residence, two months prior to A.D.’s death,
Saundra informed A.D.’s father that A.D. could push open a baby gate that was
in the basement. Daniel also informed Detective Hawkins that the gate did not
latch properly and that to mitigate the problem, they used a rocking chair and
swing on both sides of the gate to prevent the children from opening the gate.
Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to sustain the Class D felony involuntary
manslaughter convictions against the Wahls.
III. Restitution.
[49] The Wahls argue that the evidence submitted at their sentencing hearing
concerning the DiRienzos’ loss was insufficient to support the trial court’s
restitution order of $22,353.72.
[50] The purpose of a restitution order is to impress upon the criminal defendant the
magnitude of the loss he has caused and to defray costs to the victims caused by
the offense. Henderson v. State, 848 N.E.2d 341, 346 (Ind. Ct. App. 2006). It is
within the trial court’s discretion to order restitution, and we will reverse only
for an abuse of that discretion. Id. An abuse of discretion occurs if the trial
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 26 of 39
court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or if the trial court misinterprets or misapplies the law.
Id.
[51] Indiana Code section 35-50-5-3(a) provides that, in addition to any sentence
imposed for a felony or misdemeanor, a court may order the payment of
restitution to the victim of the crime. When such an order is entered, it must be
based upon a consideration of:
(1) property damages of the victim incurred as a result of the
crime, based on the actual cost of repair (or replacement if repair
is inappropriate);
(2) medical and hospital costs incurred by the victim (before the
date of sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the crime
has caused the victim to contract a disease or other medical
condition;
(4) earnings lost by the victim (before the date of sentencing) as a
result of the crime including earnings lost while the victim was
hospitalized or participating in the investigation or trial of the
crime; and
(5) funeral, burial, or cremation costs incurred by the family or
estate of a homicide victim as a result of the crime.
Id. A restitution order must reflect a loss sustained by the victim as a direct and
immediate result of the defendant’s criminal acts, and the trial court may
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 27 of 39
consider only expenses incurred by the victim prior to the date of sentencing.
Rich v. State, 890 N.E.2d 44, 51 (Ind. Ct. App. 2008), trans. denied. “Evidence
supporting a restitution order is sufficient ‘if it affords a reasonable basis for
estimating loss and does not subject the trier of fact to mere speculation or
conjecture.’” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (quoting
M.L. v. State, 838 N.E.2d 525, 528 (Ind. Ct. App. 2005), trans. denied).
[52] Ahead of the sentencing hearing, the State successfully filed a motion seeking
judicial notice of A.D.’s father testimony, which was offered at the Wahls’ first
sentencing hearing. That transcript was admitted into evidence. Indiana Rule
of Evidence 201 permits courts to take judicial notice of certain material,
including facts “not subject to reasonable dispute” and facts “readily
determined from sources whose accuracy cannot reasonably be questioned.”
For years, Rule 201 did not permit a trial court to take judicial notice of court
records, even if they were “its own records in another case previously before the
court on a related subject with related parties.” Gray v. State, 871 N.E.2d 408,
413 (Ind. Ct. App. 2007) trans. denied. Effective January 1, 2010, amended Rule
201(b)(5) now permits courts to take judicial notice of “records of a court of this
state,” precisely as the trial court did here.
[53] The Wahls complain that the trial court simply rubber-stamped the previous
restitution amount without considering any evidence at all. Contrary to the
Wahls’ assertion, the trial court took judicial notice of Danny’s sworn
testimony, which he offered at the sentencing hearing. That portion of
transcript was admitted into evidence. The transcript shows that in support of
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 28 of 39
the DiRienzos’ restitution claim against the Wahls, A.D.’s father testified he
was entitled to the reimbursement of daycare fees pertaining to A.D., his wife’s
therapy expenses, A.D.’s funeral expenses, and his lost wages, all amounting to
$22,353.72.
[54] Although Danny did not again testify as to those amounts at the Wahls’ second
sentencing hearing, the trial court took judicial notice of Danny’s prior sworn
testimony as given at the Wahls’ first sentencing hearing while reaching the
restitution amount at the Wahls’ second sentencing hearing. See Rich, 890
N.E.2d at 51 (holding that the trial court may consider only expenses incurred
by the victim prior to the date of sentencing). As such, we hold that the
restitution amount of $22,353.72 is supported by the evidence, and the trial
court did not abuse its discretion in awarding that amount.
CONCLUSION
[55] In light of the foregoing, we hold that the trial court did not abuse its discretion
in excluding expert testimony, admitting the video reenactment, or issuing a
restitution order. In addition, we hold that the State presented sufficient
evidence beyond a reasonable doubt to sustain the Wahls’ involuntary
manslaughter conviction.
[56] Affirmed.
[57] Tavitas, J. concurs with separate opinion
[58] Mathias, J. dissents with separate opinion
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 29 of 39
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 30 of 39
IN THE
COURT OF APPEALS OF INDIANA
Daniel Wahl and Saundra Wahl, Court of Appeals Case No.
19A-CR-2258
Appellants-Defendants,
v.
State of Indiana,
Appellee-Plaintiff.
Tavitas, Judge concurring
[59] I respectfully concur, but I write separately to emphasize relevant statutory
provisions, which I believe further support the conclusion that Miranda
warnings were not required prior to Saundra’s participation in the video
reenactment. Indiana Code Section 36-2-14-6 1 provides:
Whenever the coroner is notified that a person in the county:
1
The cited version of Indiana Code Section 36-2-14-6 was in effect in 2013 when the investigation occurred.
The language of the current version differs slightly.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 31 of 39
(1) has died from violence;
(2) has died by casualty;
(3) has died when apparently in good health;
(4) has died in an apparently suspicious, unusual, or
unnatural manner; or
(5) has been found dead;
the coroner shall, before the scene of the death is disturbed,
notify a law enforcement agency having jurisdiction in that area.
The agency shall assist the coroner in conducting an investigation of how
the person died and a medical investigation of the cause of death. The
coroner may hold the remains of the decedent until the
investigation of how the person died and the medical
investigation of the cause of death are concluded.
(emphasis added). The specific facts of this case demonstrate that the detectives
were fulfilling their duty to assist the coroner in his investigation, and Saundra
was not subjected to a custodial interrogation. 2
[60] Law enforcement was dispatched to the Wahls’ daycare business on June 20,
2013. When the first officer arrived at 12:23 p.m. after the Wahls called 911,
the officer’s primary focus was saving A.D.’s life. The officers subsequently
turned their attention to gathering the other children’s belongings and
2
As the majority notes, we need only consider if Saundra is in custody.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 32 of 39
contacting parents to ensure the other children’s safety. This process took the
“bulk of the afternoon[.]” Tr. Vol. III p. 16.
[61] After the children were removed from the Wahls’ daycare, detectives were able
to investigate the cause of A.D.’s death. Detectives advised Saundra that the
purpose of the video reenactment was to assist the coroner in determining the
cause and manner of death. The coroner and the coroner’s aide were also
present. Detective Hawkins operated the video camera while Detective Finn
narrated and asked questions regarding the reenactment.
[62] As Detective Hawkins explained, the doll reenactment is “standard procedure”
following infant and child deaths. Id. at 34. The coroner’s office “expect[s]”
law enforcement to “have that documentation to help them out.” Id. Similarly,
Detective Finn testified that a doll reenactment was “best practice” in any child
or infant death case to assist the coroner’s office. Id. at 112. At the end of the
video reenactment, Detective Finn told Saundra that Saundra needed to place
the doll where A.D. was found in order for detectives to take a photograph for
the coroner’s office. See State’s Ex. 45. The coroner used the doll reenactment
in making findings with regard to A.D.’s death.
[63] While the detectives did not tell Saundra that she was free to leave or free to ask
the detectives to leave, Detective Finn communicated the Wahls were “not
under arrest or otherwise detained.” Tr. Vol. III p. 23. At no point did the
Wahls object to law enforcement’s presence in the house. The Wahls were
cooperative and free to move about the home throughout the day. Moreover,
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 33 of 39
as can be seen in the video, when Saundra became upset recalling the day’s
events, she was permitted to walk away to calm down. See State’s Ex. 45.
When detectives left the Wahls’ home on June 20, 2013, detectives did not
consider the Wahls to be “suspects of criminal activity.” 3 Tr. Vol. III p. 131.
[64] As evidenced by the above facts, law enforcement was conducting a general on-
scene investigation pursuant to Indiana Code Section’s 36-2-14-6’s mandate
that law enforcement “shall assist the coroner”, and Saundra was not in
custody. Thus, the warnings described in Miranda were unnecessary prior to
the reenactment video, as Miranda does not affect “[g]eneral on-the-scene
questioning as to facts surrounding a crime or other general questioning of
citizens in the fact-finding process[.]” See Miranda, 384 U.S. at 477, 86 S. Ct. at
1629.
[65] Indiana law follows Miranda’s directive that these warnings are not required
prior to general on-the-scene questioning or general fact investigations. See
Bishop v. State, 700 N.E.2d 473, 476 (Ind. Ct. App. 1998) (declining to find
Bishop was in custody during general on-the-scene questioning “in a
noncoercive atmosphere”); Lucas v. State, 413 N.E.2d 578 (Ind. 1980) (declining
to find custodial interrogation occurred during questioning regarding an
3
Suspecting an individual of committing a crime is not determinative in deciding whether that individual is
in custody. See Reid v. State, 113 N.E.3d 290 (Ind. Ct. App. 2018) (“Questioning an individual the police
suspect of a crime does not inherently render the questioning custodial interrogation.”). Nonetheless, this
fact is further evidence that law enforcement was functioning as an investigator for the coroner during the
reenactment video.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 34 of 39
automobile accident prior to law enforcement’s discovery that a crime had been
committed); Dillon v. State, 275 N.E.2d 312 (Ind. 1971) (declining to find
custodial interrogation occurred when police were “merely investigating a
possible crime” (internal quotations omitted)); Wissman v. State, 540 N.E.2d
1209, 1212 (Ind. 1989) (declining to find custodial interrogation occurred when
officers asked Wissman what happened while he was lying on the floor, injured,
and unable to move, because it was “for information, not a question used to
elicit a confession”).
[66] The events on June 20, 2013, were tragic, and there is no positive outcome
here. Nonetheless, I am compelled to conclude law enforcement was
conducting a general on-the-scene investigation to assist the coroner, and
Saundra was not subjected to a custodial interrogation during the reenactment
video. As such, I concur.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 35 of 39
IN THE
COURT OF APPEALS OF INDIANA
Daniel Wahl and Saundra Wahl, Court of Appeals Case No.
19A-CR-2258
Appellants-Defendants,
v.
State of Indiana,
Appellee-Plaintiff
Mathias, J., dissenting
[67] Because I believe that the admission of the video reenactment violated
Saundra’s Miranda rights, I respectfully dissent.
[68] As correctly noted by the majority, an officer is required to give Miranda
warnings only when a defendant is both (1) in custody and (2) subject to
interrogation. Furnish v. State, 779 N.E.2d 576, 578–79 (Ind. Ct. App. 2002),
trans. denied. I agree with the majority that Detective Finn’s questions during the
video reenactment constituted interrogation. See Slip op. at 21 (“There is no
question in this case that Detective Finn’s questions during the video
reenactment with Saundra constituted an interrogation.”). Accordingly, the
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 36 of 39
only issue on which I differ from the majority is whether Saundra was in
custody for purposes of Miranda. The majority concludes that she was not; I
believe that she was.
[69] As our supreme court stated in State v. Ruiz, 123 N.E.3d 675, 680 (Ind. 2019):
Under Miranda, freedom of movement is curtailed when a
reasonable person would feel not free to terminate the
interrogation and leave. This freedom-of-movement inquiry
requires a court to examine the totality of objective circumstances
surrounding the interrogation—such as the location, duration,
and character of the questioning; statements made during the
questioning; the number of law-enforcement officers present; the
extent of police control over the environment; the degree of
physical restraint; and how the interview begins and ends.
State v. Ruiz, 123 N.E.3d 675, 680 (Ind. 2019) (citing Howes v. Fields, 565 U.S.
499, 509 (2012)). 4 We have also identified a similar list of factors as significant
in determining whether a person is in custody, including: whether and to what
extent the person has been made aware that he is free to refrain from answering
questions; whether there has been prolonged coercive, and accusatory
questioning, or whether police have employed subterfuge in order to induce
self-incrimination; the degree of police control over the environment in which
4
The majority cites State v. Brown, 70 N.E.3d 331, 336 (Ind. 2017), which stated that “[t]he test of whether a
defendant is in custody is not whether a defendant feels free to go, but rather whether there was a formal
arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (emphasis added,
internal quotation marks omitted) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). However, in Ruiz,
our supreme court held that “freedom of movement is curtailed when a reasonable person would feel not
free to terminate the interrogation and leave.”) (emphasis added) (citing Howes, 565 U.S. at 509). To the
extent there is any conflict between these two statements, I follow the more recent case.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 37 of 39
the interrogation takes place, and in particular whether the suspect’s freedom of
movement is physically restrained or otherwise significantly curtailed; and
whether the suspect could reasonably believe that he has the right to interrupt
prolonged questioning by leaving the scene. Gauvin v. State, 878 N.E.2d 515,
521 (Ind. Ct. App. 2007) (quoting Sprosty v. Buchler, 79 F.3d 635, 641 (7th Cir.
1996)).
[70] I believe that the totality of the circumstances in the present case demonstrates
that Saundra was in custody, i.e., her freedom of action was deprived in a
significant way such that a reasonable person in her position would not have
felt free to end the interrogation and leave. There was no indication that the
police ever informed Saundra that she was free to not answer questions. And
although Saundra called 911, thereby seeking the aid of the police, the police
remained in the house for several hours after A.D. was taken to the hospital and
after all of the other children were removed from the house. The police even
told Saundra that they wanted her to recreate the scene of A.D.’s tragic death in
order to help the police assist the coroner. But this was objectively not the only,
or even the primary, purpose of the reenactment. Instead, the police were
encouraging Saundra to incriminate herself. And even though the questioning
took place in the Wahls’s home, the police had a large degree of control over
the environment: the police had taped off the house to keep others out, and
there were multiple police officers in the home. Indeed, the police collected
evidence from the scene. The police also directed Saundra as she reenacted the
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 38 of 39
events that led to A.D.’s death. In other words, the police were in control of the
scene, not Saundra.
[71] Under the totality of these facts and circumstances, I believe that Saundra’s
freedom of action and movement were deprived in a significant way, i.e., she
was in custody for purposes of Miranda. Because Saundra was subject to
custodial interrogation, the police were required to advise her of her Miranda
rights. The failure to so advise Saundra of her Miranda rights means that the
trial court should have excluded the video reenactment from evidence, and I
respectfully dissent from the majority’s conclusion otherwise.
Court of Appeals of Indiana | Opinion 19A-CR-2258 | May 12, 2020 Page 39 of 39