Robert L. Dillinger, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION ON REHEARING

Tavitas, Judge.

[1] Robert Dillinger petitions for rehearing and challenges our holding that Dillinger did not unequivocally invoke his right to an attorney during his interview with law enforcement and that his statements from the interview, thus, were admissible. Dillinger argues that this holding relies on a “misstatement” of the record. Pet. for Reh'g. at 4. We grant rehearing for the sole purpose of clarifying that no such misstatement exists.

[2] In our opinion, we quoted Dillinger as saying, during his interview with law enforcement, that he “might have to get an attorney or something.” Dillinger v. State, No. 23A-CR-01559, slip. op. p. 10, (Ind. Ct. App. April 10, 2024) (emphasis added). We transcribed this quotation based on our first-hand viewing of the video of Dillinger's interview. Dillinger argues that we misstated the record because, according to a transcript of the video, Dillinger said he was “gonna have to get an attorney or something.” Pet. for Reh'g. at 4.

[3] We grant rehearing to clarify that the transcript upon which Dillinger relies is incorrect. We again viewed the video of the interview, and Dillinger clearly used the word “might” not “gonna.” State's Ex. 71 34:57. Accordingly, we affirm our holding that Dillinger did not unequivocally invoke his right to an attorney.

[4] Moreover, we further held in our opinion, “even if Dillinger had unequivocally invoked his right to an attorney, his Fifth Amendment challenge would fail because Dillinger's subsequent statements were voluntary and not the product of interrogation.” Dillinger, No. 23A-CR-01559, slip. op. p. 10. Dillinger does not challenge this portion of our opinion. Accordingly, we grant Dillinger's petition for rehearing, but we affirm our original opinion in all respects.

Memorandum Decision on Rehearing by Judge Tavitas

Judges Mathias and Weissmann concur. Mathias, J., and Weissmann, J., concur.