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Court throws out statements in Upper Deck murder

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By KEVIN NEVERS

The Indiana Appeals Court has suppressed all statements made by accused murderer Christopher Dillard--including Dillard’s taped admission to his girlfriend, that “I killed that girl”--after he first requested counsel, during his interrogation by Chesterton Police Chief Dave Cincoski April 19-20, 2017.

Dillard is charged with the murder of Nicole Gland, an Upper Deck bartender whose body was found on the morning of April 19, 2017, in her car behind the offices of the Chesterton Tribune. A forensic autopsy later determined that she’d been stabbed 24 times in the torso, neck, and head.

Dillard was charged chiefly on the strength of his admission to his girlfriend, in a recorded interview room at the CPD station, one day after the murder, following a lengthy interrogation by Cincoski, in the course of which Dillard requested counsel several times.

In November 2017 a motion to suppress that self-incriminating statement, filed by Dillard’s attorney, Bob Harper, was rejected by Judge Pro Tem Thomas Webber Sr., who ruled that Dillard was aware that the interview room was being recorded on audio and video when he said the following to his girlfriend:

Dillard: “I destroyed my life.”

Girlfriend: “What did you do?”

Dillard: “I killed that girl.”

Girlfriend: “You did?”

Dillard: “You know I did.”

The Interrogation

In its decision, released this morning, the Appeals Court begins by noting the following: that at 11:57 p.m. April 19, 87 minutes after the interrogation began, Dillard made his first request for counsel:

Dillard: “I want to just do this lawyer thing.”

Cincoski: “Why is that?”

Dillard: “Because I’m done talking now.”

Cincoski: “Okay. You don’t want to answer any more questions?”

Dillard: “No. Because it just keeps going and going.”

Nevertheless, the interrogation continued, until at some point Dillard requested his diabetes medication, located at the home he shared with his girlfriend. Cincoski replied, “Well that, I can’t help you with.” Dillard requested his medication two more times, the Appeals Court noted, and Cincoski again replied that there were no diabetes pills at the CPD, although he did provide Dillard with pizza.

Then, at 1:28 a.m. April 20, the interrogation continued, with Cincoski questioning Dillard “while (Dillard was lying face down on the floor, for the next 20 minutes,” the Appeals Court noted. Then, at approximately 1:48 a.m., Dillard made his second request for counsel:

Cincoski: “I have caught you in way--

Dillard: “Get me a lawyer.”

Cincoski: “--too many lies. I’ve caught you in too many lies.”

Dillard: “You can’t talk. I just asked for a lawyer.”

A few minutes after this exchange Cincoski left the room for a few minutes, then returned, the Appeals Court noted. The following exchange then began at 1:54 a.m.

Cincoski: “Do you understand your rights?”

Dillard: (Nods affirmatively).

Cincoski: What do you wish to do at this time?”

Dillard: “I don’t know. What am I supposed to say to that?”

Cincoski: “So what is your answer?”

Dillard: “Yeah, just give me a lawyer then.”

Cincoski: Final answer?”

Dillard: “Yeah I want to go to sleep.”

Cincoski then left the room and from 2:02 a.m. until 5:42 a.m. Dillard was mostly left alone in the interview room, the Appeals Court noted. “He spent some time sleeping in the chair, with his feet propped up on a second chair, and other times Dillard lay across two chairs. He also walked around the room and sat at the desk with his head down on the table.”

At 5:42 a.m. Cincoski took several photographs of Dillard, asked him to remove his clothing, and provided him with replacements. Another officer brought Dillard a blanket. And from 5:51 a.m. until 9:05 a.m. Dillard spent most of his time alone sleeping, the Appeals Court noted.

At 9:05 a.m. Cincoski re-entered the room and in the course of a conversation about breakfast Dillard asked whether Cincoski could “get a hold of” his girlfriend, at which time he told Cincoski that she knows where his medication is:

Dillard: “Yeah, she knows where it’s at. The--I just want to have a talk with her. Quit (expletive) around and I’m going to talk with you in a minute.”

Cincoski: “Pardon?”

Dillard: “I’m going to talk with you. Can you give me five minutes with (my girlfriend)? Then, I, you know, I’m going to talk with you.”

Cincoski did then call Dillard’s girlfriend to ask whether she would be willing to bring his medication to the CPD. “Cincoski also asked (Dillard’s girlfriend) if she would do him a favor and speak with Dillard because he had ‘shut down’ during the night,” the Appeals Court noted. “But he explained the decision was entirely up to her.”

At 10:13 a.m. Dillard’s girlfriend arrived on station, at which time Cincoski told Dillard that he could speak with his girlfriend alone in the interview room. But he warned Dillard that the room was recorded and he could have no expectation of privacy.

Dillard subsequently made the incriminating statements to his girlfriend.

At 10:32 a.m. Cincoski re-entered the room and “Dillard acknowledged that he wanted to confess, at which point Cincoski stopped him,” the Appeals Court noted. “Cincoski then filled out a waiver of rights form, handed it to Dillard, and then re-advised Dillard of his Miranda rights.” An exchange then followed, in the course of which Dillard asked Cincoski about how an attorney would be appointed to him. Cincoski explained and this exchange followed:

Dillard: “Gosh--a big decision, because you’re going to do what we did all over again last night, right?”

Cincoski: “Do we have to do it all over again?”

Dillard: “Well, we have to figure out where this was and that was, and who, what, and the other said.”

Cincoski: “Do we have to go through every single thing we went through last night? I will be honest with you, no.”

Dillard: “Because I don’t want to--you know, I will end up being here another 24 hours.”

Decision

In its decision the Appeals Court, quoting the Miranda court, reiterated that when a person “states that he wants an attorney, the interrogation must cease until the attorney is present. At that time, the individual must have an opportunity to confer with his attorney and to have him present during any subsequent questioning.”

That is, the Appeals Court declared, “law enforcement must cease questioning an individual until he has the opportunity to consult with his counsel.”

The Appeals Court then rejected the state’s argument that Dillard’s statements to his girlfriend and subsequent ones made to Cincoski, should be admissible “because Dillard voluntarily initiated the conversation with (his girlfriend) and then freely made statements to Cincoski.”

The Appeals Court continued by enumerating three reasons why it was rejecting the state’s argument: “First, before Dillard spoke with (his girlfriend), he had already requested an attorney on three separate occasions during his interrogation, and Cincoski never honored any of them. Second, it is evident that Dillard wanted Cincoski to contact (his girlfriend) to retrieve his diabetes and cholesterol medication . . . . Dillard requested (his girlfriend), as she knew the pills he needed and had them in their shared home. Third, Cincoski allowed Dillard to speak to (his girlfriend) only after Dillard had been in the interview room for nearly 11 hours, and only after Dillard notified Cincoski that he would speak to him after he was able to speak to (his girlfriend).”

The Appeals Court also made particular note of Cincoski’s prior word with Dillard’s girlfriend, when he asked her for a “favor”: “Thus, the conversation between (his girlfriend) and Dillard became the ‘functional equivalent of interrogation’ because Cincoski’s words and actions demonstrate that he knew, or should have known, that the conversation was ‘reasonably likely to evoke an incriminating response.’”

The Appeals Court concluded the following: “Although the conversation initiated that morning by Cincoski was not at the outset directly related to the case, its alleged innocuousness is more than offset by the fact that: (1) Dillard’s three requests for counsel had thus far been ignored; (2) Dillard had been kept in a small interrogation room, without access to anyone other than law enforcement, for almost 11 hours; (3) Dillard’s requests for his medication had been denied three times; and (4) part of Dillard’s questioning had taken place with him lying face down on the floor of the room, trying to rest. Even if we were to conclude that he initiated further communication leading to his incriminating statements, Dillard never knowingly or voluntarily waived his right to counsel based on the jarring totality of the circumstances above.”

The Appeals Court accordingly ordered all statements made by Dillard--from his first request for counsel at 11:57 p.m. April 19, through the end of his interrogation on April 20, “including all statements made to (his girlfriend)”--suppressed.

Gensel Comments

Porter County Prosecuting Attorney Brian Gensel signaled his intention today to pursue the matter to the Indiana Supreme Court.

“After reviewing the Court of Appeals decision, we have spoken with the Indiana Attorney General’s Office and have requested that they petition the Indiana Supreme Court to further review that matter,” Gensel said in a statement released just before deadline.

 

 

 

Posted 9/7/2018

 
 
 
 

 

 

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