Rodriguez v. State

WOODWARD, J. Jose Luis Rodriguez, appellant, was arrested on June 25, 2006, in connection with two burglaries of Fratelli’s Restaurant in Salisbury, Maryland. On December 7, 2006, a jury trial was held in the Circuit Court for Wicomico County, Maryland, before Judge Donald C. Davis. The jury found appellant guilty of two counts each of burglary in the second degree, burglary in the fourth degree, and theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to an aggregate sentence of 33 years in prison, with all but 17 years suspended, and five years probation.

Appellant was also ordered to pay restitution to the owners of the restaurant. On appeal, appellant presents four issues 1 for our review, which we have condensed into two questions: I. Did the trial court err in denying the motion to suppress appellant’s statement to police?

II

Did the trial court err or abuse its discretion in hmiting appellant’s examination of two witnesses? ²⁰³ For the following reasons, we shall affirm the judgments of the circuit court. BACKGROUND In June 2006, Fratelli’s Restaurant was burglarized twice. The first burglary occurred early in the morning on June 23, 2006. At approximately 2 a.m., Sergeant Brian Waller of the Salisbury University Police Department reported to the restaurant in response to a security alarm, but did not see anything when he arrived.

Nicholas Sakellis, one of the owners of Fratelli’s Restaurant, testified that he discovered the restaurant had been burglarized when he arrived at about 9 a.m. He testified that he found the restaurant’s side-door locked, an office window broken, a crowbar on the desk in the restaurant’s office, and a Fratelli’s bank bag missing. According to Sakellis, the missing bank bag contained seven or eight thousand dollars. He testified that nothing else was taken from the restaurant.

Eugene Peed, a Salisbury University employee, testified that he saw a dark-colored Honda parked in the back of Fratelli’s early in the morning on June 23, 2006. In the early morning hours of June 25, 2006, Fratelli’s was burglarized again. Sergeant Waller responded again, along with Officer Kelly Craven of the Salisbury University Police Department. Sergeant Waller testified that they saw a red Oldsmobile Alero parked in the restaurant’s parking lot, and it was warm to the touch.

He stated that Officer Craven informed him that the car had not been there when she patrolled the area earlier that morning. Both Sergeant Waller and Officer Craven testified that, when they went to inspect Fratelli’s, a man ran out of the restaurant and fled. Sergeant Waller chased him on foot, as did Sergeant Anthony Glenn, another police officer who responded to the scene of the burglary. Sergeant Waller and Officer Glenn lost sight of the suspect, searched the Salisbury University campus for forty-five minutes, but did not locate the man. ²⁰⁴ Sergeant Waller testified that he momentarily got a view of the man’s side profile, and for the most part, only saw the man’s back or his “back side at an angle.” He described the man as six feet tall, slenderly built, light-skinned black or dark-skinned white, and wearing a light colored ball cap and a white t-shirt.

At about 8:30 a.m., on June 25, appellant was arrested in the Fratelli’s parking lot when he arrived in a dark-colored Honda Accord with Corey Clark, Jessica Murphy, and Jose Luis Gonzales Ruperto. Appellant was driving the Honda toward the Alero, which was owned by Clark. Several officers testified that Ruperto was acting “antsy,” “nervous, [and] kind of flighty” as he moved “all over the back of the [Honda]” and reached down “underneath the driver’s seat.” Appellant was described as being out of it, going “in and out of being asleep and awake” while seated in the car. Sergeant Waller testified that at one point, appellant was “laid over the steering wheel making a sound that sounded to me like he was snoring with his eyes shut and drool.” Comparing appellant and Ruperto with the suspect he had chased hours before, Sergeant Waller testified that, although Ruperto was a little taller, he could not exclude either of them.

During a search of the Honda, officers found a handgun under the driver’s seat and tools that matched the color and brand of the crowbar that was left at Fratelli’s following the first burglary. The Alero was also searched; in the glove compartment officers found appellant’s wallet containing his Maryland driver’s license, social security card, and $810 in cash. Officer Bobbie Jo Donoway drove appellant to the Sheriffs Office following his arrest. Officer Donoway testified that, during the transport, Mr. Rodriguez went “from one extreme to the other;” he was “completely enraged” one moment and then “falling] asleep” the next.

According to Officer Donoway, appellant’s “eyes were extremely red, and he was very upset.” Officer Donoway testified that she asked him a series of questions in an effort “[t]o calm him down and to make sure ²⁰⁵ that he was, in fact, okay.” She testified that, at one point appellant said: “I can’t keep doing this, I’m already in trouble, I’m going to jail, I did it.” At appellant’s trial, on December 7, 2006, Clark and Murphy testified for the State. Clark stated that she had known appellant for a couple months, and they had spent a lot of time together. In the beginning her relationship with appellant was “sexual,” but then they were “just friends.” Clark testified that she would use heroin and crack cocaine with appellant. Clark stated that on the evening of June 24, she and appellant were at “[sjome house over on the west side” with Murphy, Ruperto, and a Puerto Rican man.

According to Clark, she, Murphy, appellant, and Ruperto were all “getting high” over the course of the next 12 hours. Clark testified that appellant left the house around 3 a.m. on June 25 and returned a couple hours later without her car. Clark also testified that she remained in one room the entire night with Murphy and Ruperto, and was “awake that whole time.” Clark also testified that a few days before June 25, she saw a bank bag in appellant’s car and appellant “all of a sudden” was in possession of a large sum of money that he kept in stacks folded in a towel in his closet. Murphy testified that on the evening of June 24, she, Clark, appellant, Ruperto, and some other men were at a house on the west-side.

Murphy admitted that she, Clark, appellant and Ruperto were doing drugs and engaging in sexual activities. Murphy stated that appellant left the house sometime in the early morning for “maybe an hour and 45 minutes.” She only learned that appellant had left when she noticed that Clark’s car was not outside the house. Murphy testified, as did Clark, that later in the morning of June 25, appellant drove her, Clark, and Ruperto to Fratelli’s restaurant to pick up Clark’s car. Appellant testified in his own defense.

According to appellant, on the evening of June 24, 2006, he and Ruperto rode in appellant’s Honda to meet Clark and Murphy in the parking lot of Fratelli’s Restaurant. Appellant testified that Clark and ²⁰⁶ Murphy were in Clark’s Alero, and the four agreed to leave the Alero at Fratelli’s so that they could ride in one car to buy drugs for the night. Appellant testified that they then drove to a house “just to have sex and use some drugs.” Appellant testified that the four left the house in his Honda and returned to Fratelli’s parking lot to pick up Clark’s car. Finally, appellant stated that the cash in his wallet was part of the $2000 that his parents had sent him to rent an apartment.

The defense also called Ruperto to testify. Outside the presence of the jury, Ruperto invoked his Fifth Amendment privilege against self-incrimination when asked about the burglaries. With the jury present, Ruperto was questioned about the gun found under the driver’s seat of appellant’s Honda and invoked his Fifth Amendment privilege. Following Ruperto’s testimony, Deputy Mark Walker took the stand.

Deputy Walker testified that Ruperto admitted to him that the gun was his. Deputy Walker explained that, after Ruperto testified at appellant’s trial, Ruperto was taken to the holding area. At some time thereafter, Ruperto started beating on the holding cell door. Deputy Walker asked him if there was something wrong.

Ruperto responded, in broken English, “gun mine, charges mine, he’s innocent.” At the conclusion of trial on December 7, 2006, the jury returned a verdict, finding appellant guilty of two counts of burglary in the second degree, two counts of burglary in the fourth degree, and two counts of theft over $500, and one count of wearing, carrying or transporting a handgun in a vehicle on public roads. The judge sentenced appellant to 15 years’ in prison with all but seven years suspended on one count of second degree burglary, to a consecutive 15 years’ imprisonment with all but seven years suspended on the other count of second degree burglary, and to a consecutive three years’ incarceration on the hand gun charge. Appellant was placed on five years’ probation upon release from incarceration. The remaining convictions merged for sentencing purposes.

Appellant was also ordered to pay restitution to the ²⁰⁷ owners of Fratelli’s Restaurant. On December 26, 2006, appellant timely noted this appeal. We will set forth additional facts and proceedings below as necessary to discuss the questions presented. DISCUSSION I. Motions Hearing On December 1, 2006, at a motions hearing, the defense sought to suppress statements made by appellant to Officer Donoway while appellant was being transported to the Sheriffs Office in her patrol vehicle following his arrest.

The defense moved to exclude appellant’s statements, arguing that his statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) and additionally were not voluntarily given. Officer Donoway was the only witness who testified at the suppression hearing. Her testimony is set forth in its entirety: [PROSECUTOR]: State[ ] your name and agency. [WITNESS]: Deputy [ ] Donoway with the Wicomico County Sheriffs Office, currently assigned to the SRO Division. [PROSECUTOR]: On June 25th of 2006 at approximately 9:46 a.m., were you working at the Sheriffs Office? [WITNESS]: Yes, I was. [PROSECUTOR]: What was your assignment at that time? [WITNESS]: I was actually assigned to the airport duty when I was called to a different location to transport a subject for detectives at our agency. [PROSECUTOR]: What location were you called to? [WITNESS]: 306 South Salisbury Boulevard. [PROSECUTOR]: Is that Fratelli’s Restaurant? [WITNESS]: Yes, it is, yes. ²⁰⁸ [PROSECUTOR]: When you went to that location, did you make contact with someone? [WITNESS]: I did. I made contact with First Sergeant Tim Robinson who advised me that I needed to transport a subject for the detectives to the Sheriffs Office. [PROSECUTOR]: Had you had any involvement in the investigation of that case? [WITNESS]: I did not.

I [was] working the airport prior to the transport. [PROSECUTOR]: Did you have any involvement in the investigation after the transport? [WITNESS]: No, I didn’t. [PROSECUTOR]: Who was the subject that Sergeant Robinson asked you to transport? [WITNESS]: He didn’t actually advise me of the subject’s name prior to the transport. I found out later that it was Jose Luis Rodriguez. [PROSECUTOR]: Do you see that person in the courtroom? [WITNESS]: Yes, sitting at the defense table. [PROSECUTOR]: And the record reflect she identified [appellant]. Were you in a marked police car? [WITNESS]: Yes, I was. [PROSECUTOR]: Where did you place [appellant]? [WITNESS]: In the front seat passenger’s side. [PROSECUTOR]: Was he in handcuffs? [WITNESS]: Yes, he was. [PROSECUTOR]: Do you have any information regarding whether he was advised of his Miranda rights prior to transport? [WITNESS]: I do not. [PROSECUTOR]: Did you advise him of Miranda rights before transport?] [WITNESS]: I did not. I did not place him under arrest. ²⁰⁹ [PROSECUTOR]: During the transport, were you intending to interrogate him for investigative purposes? [WITNESS]: No, I was [not], [PROSECUTOR]: Describe what happened during the transport, please. [WITNESS]: Actually, the other officers placed him in my patrol vehicle.

When we were in route back [appellant] became very angry and upset using profanity. He was enraged that he was being taken into custody. He went from moments of complete outrage[ ] to that he seemed like he was going to pass out. I kept asking [appellant], are you okay?

He was mumbling things. Sometimes he used profanity and I couldn’t understand him. One of the things he said to me was I can’t do this anymore, I have to stop this. [Appellant] then slumped down into the seat and his eyes were extremely red, and I was concerned that something was wrong with him. So I asked him, again, are you okay? [Appellant] replied, yes.

I asked [appellant] — what [ ] lead to this was that he was upset. He said that he didn’t do anything, that he was going to go to jail. And I asked [appellant], I said, have you been arrested before because, you know, that’s something to consider if you haven’t been arrested before. I don’t know why you are so upset.

He had made the comment, yes, for taking a car. I can’t keep doing this. I’m already in trouble. I’m going to jail.

I did it. After that, I placed [appellant] into a cell at the Sheriffs Department and I let detectives know that he was there, and he was fine, and I let them know some of the comments that he had made because I wasn’t familiar with [appellant] or anything that was going on at Fratelli’s, but obviously, he was upset about something. [PROSECUTOR]: What was your purpose in speaking to [appellant] during the transport? ²¹⁰ [WITNESS]: I was concerned. Like I said, he went from moments of outrage to anger where I was trying to calm him down during the transport to where he acted like he was going to pass out. So I didn’t know if he was okay.

If I needed to take him to the hospital. So I wanted the detectives to also know that he went from one extreme to the other, you know, in case there was an episode with them when they actually came back and spoke to him. [PROSECUTOR]: What was your purpose in asking, have you been arrested before? [WITNESS]: I was trying to calm the subject down. Obviously, he did not want to go to jail. I was trying to make him feel better.

If he didn’t have a record, you know, maybe things would work out better for him. [PROSECUTOR]: Was your purpose in speaking to [appellant] to obtain incriminating information, statements from him? [WITNESS]: No, it was not. [PROSECUTOR]: Did he appear to you to be under the influence of drugs or alcohol? [WITNESS]: I’m not sure if he was under the influence of drugs or alcohol or if he was suffering from sleep deprivation. I’m not sure. He was not acting in his right mind, no. [PROSECUTOR]: Did you make any threats to [appellant] before, during transport? [WITNESS]: No, I did not. [PROSECUTOR]: Did you make any promises to him to get him to speak to you? [WITNESS]: No, I did not. [PROSECUTOR]: Apply any coercion to him whatsoever? [WITNESS]: No, I did not. [PROSECUTOR]: Thank you. Your witness.

CROSS-EXAMINATION ²¹¹ [DEFENSE COUNSEL]: You indicated, and these are my words, you indicated that he was out of it. Is that a fair characterization of what was [going] on? [WITNESS]: Yes. [DEFENSE COUNSEL]: And he was coming back into the ability to converse with you and then he didn’t have the ability to converse with you, is that correct? [WITNESS]: He went from using profanity and cussing me out and every single law enforcement officer out that was at the scene to not talking and acting like he was going to go to sleep. Those are the two extremes that he was going back and forth from. [DEFENSE COUNSEL]: The particular statement that I’m concerned about is the statement where at the end of the statement is, I did it. That was a statement that he made immediately following your question, have you ever been arrested before, is that correct? [WITNESS]: Actually, he made other comments before he said, I did it. [DEFENSE COUNSEL]: I understand that, but the question that you offered to him most recent in time prior to him saying I did it was have you ever been arrested before, is that correct? [WITNESS]: To the best of my knowledge, yes. [DEFENSE COUNSEL]: And when you asked him have you ever been arrested before, he answered the question that he had? [WITNESS]: He didn’t say, yes, I had.

He said, I keep doing this. I’m already in trouble. I’m going to jail. I did it.

He did not say he had actually been in jail, no. [DEFENSE COUNSEL]: Did you record that statement in some way in terms of notes or— [WITNESS]: Yes. Actually when I came back to the Sheriffs Department, I spoke to the detectives, and they asked me to write a supplement in which I did. [DEFENSE COUNSEL]: Okay. ²¹² The questions, are you okay, were those questions that were out to [appellant] before, after, or both before and after the point in time that you asked the question, have you ever been arrested? [WITNESS]: During the entire transport, I kept asking him if he was okay. [DEFENSE COUNSEL]: So you asked him that question after you asked him, have you ever been arrested? [WITNESS]: Yes. I asked him if he was okay when I placed him in the cell. [DEFENSE COUNSEL]: Okay. How many times did you ask him that question? [WITNESS]: I can’t recall. [DEFENSE COUNSEL]: The extent of your interaction with [appellant] lasted just during the period of time of transport in the car? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Then you placed him in a cell? [WITNESS]: Yes, sir. [DEFENSE COUNSEL]: Any other law enforcement officers in the car during the time of transport? [WITNESS]: No, sir. [DEFENSE COUNSEL]: I don’t have any further questions of this witness, Your Honor.

(Emphasis added). In denying defense counsel’s motion to suppress, the trial court stated: Well, here, I agree with [defense counsel] at least in part. There, obviously, is no question that [appellant] was in custody at the time of these particular statements, and it’s clear also that there was interrogation in the sense that there was a question asked. But, and in the sense that any question, I guess, could be by definition an interrogation, but within the context here, interrogation refers to either expressed questioning or its functional equivalent or anything else, any other actions or ²¹³ words on the part of law enforcement that the police should know are reasonably likely to elicit an incriminating response from a defendant.

In this particular case because [appellant] was acting in what the officer determined to be an — I will describe it — as a strange way, having personality swings from being enraged and cursing to then seeming to go to sleep or perhaps be on the threshold of passing out, she asked the defendant on several oecasion[s] if he was all right, and at least a number of those occasions would indicate, would respond not necessarily, as I understand it with saying he was all right, but rather talking about his situation that he can’t do this anymore, things of that sort, and there came a time when in what the officer determined to be a, would be perhaps a question that might permit her to calm [appellant] down asked if he had been arrested before. And if that’s obviously a question. Is it a question that either this officer or a reasonable officer would ha[ve] reason to believe or know was reasonably likely to elicit an incriminating response? Well, if saying, Yes, I have been arrested, I have been arrested before would be incriminating, then certainly it’s interrogation within the meaning of these rules.

But whether or not he has been arrested before, it would seem to me is irrelevant to and is certainly not inculpatory so far as this particular case is concerned because what is inculpatory here relates to the circumstances and facts of this case, not some other case which may have — for which he may have been arrested. And for [appellant] to respond to that, yes, I did it, I’m going to jail referring to this case is not a response that I think a reasonable officer or this officer would have occasion to reasonably expect, so whether or not he had been given Miranda warnings, I think, is immaterial with respect to the question of whether or not there was interrogation within the Supreme Court and Maryland decisions relating to interrogation without the benefit of Miranda. ²¹⁴ As to whether or not the statement was voluntary, of course, that decision is made based on the totality of the circumstances. It is the State’s burden of proof to establish beyond a reasonable doubt, but I think it’s perhaps — there is Judge Moylan indicated that when the issue is voluntariness, the failure of the defendant to testify almost forecloses any chance of prevailing. And under the officer[’s] testimony, clearly, she considered [appellant] to be acting in a strange way because of mood swings and was concerned enough with that, that she asked him on a number of occasions if he was all right.

On the other hand, it’s obvious that she was satisfied with his responses to that extent, because at least from the evidence, she took him on to the Sheriffs Department or to the Detention Center, placed him in lockup there rather than taking him to the hospital which she made those inquiries, she said, to determine whether or not she should divert to the hospital. No evidence of threats, promises, coercion and anything else, and based on the totality of the circumstances, I’m satisfied that the statement was voluntary as well, so I will deny the motion. (Emphasis added). A. Standard of Review When reviewing a circuit court’s disposition of a motion to suppress evidence, we “consider only the facts and information contained in the record of the suppression hearing.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007). “ ‘[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,”’ in this case, the State.

Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007) (quoting State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003)). We defer to the trial court’s factual findings and ²¹⁵ uphold them unless they are shown to be clearly erroneous. Owens, 399 Md. at 403 , 924 A.2d 1072 . We also make our “ ‘own independent constitutional appraisal,’ ” by reviewing the relevant law and applying it to the facts and circumstances of this particular case.

Longshore, 399 Md. at 499 , 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996)). B. Miranda Appellant first argues that the trial court erred by not granting defense counsel’s motion to suppress the statements Officer Donoway obtained from appellant. Specifically, appellant contends that Officer Donoway’s questioning of appellant constituted custodial interrogation and was not subject to an exception from Miranda for questions relating to routine booking or public safety, “as it did not occur during routine booking and was not justified by an emergency.” Further, appellant argues that Officer Donoway’s questions were the functional equivalent of custodial interrogation, because she should have known that her questions were likely to elicit an incriminating statement from appellant. Finally, appellant contends that the trial court improperly interpreted Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), when it based its decision “on whether a direct response to the question ‘Have you ever been arrested before?’ would be incriminating.” The proper inquiry under Innis , appellant asserts, was “whether, under the totality of the circumstances, Officer Donoway’s questions were reasonably likely to elicit an incriminating response, not whether a direct response to her questions would have been incriminating.” (Emphasis in original).

According to appellant, a correct application of Innis would have led the court to the conclusion that, “[gjiven [appellant’s] impaired mental condition, his emotional volatility, and his demonstrated tendency to ramble in response to the officer’s initial questions, Officer Donoway should have known that continued question ²¹⁶ ing was likely to elicit an incriminating response.” We disagree and explain. In Miranda , the 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.” 384 U.S. at 444 , 86 S.Ct. 1602 . Custodial interrogation refers to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. When a suspect is in custody, “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id.

A person may waive the effectuation of his or her Miranda rights, “provided the waiver is made voluntarily, knowingly and intelligently.” Id. It is well established that Miranda warnings are not required in the absence of interrogation. Innis, 446 U.S. at 300 , 100 S.Ct. 1682 (“It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”); see also Ashford v. State, 147 Md.App. 1, 37 , 807 A.2d 732 (2002). In Innis , the Supreme Court stated that the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. 446 U.S. at 301 , 100 S.Ct. 1682 (footnote omitted).

In other words, custodial interrogation involves “either express questioning or its functional equivalent.” Id. at 300-01 , 100 S.Ct. 1682 . ²¹⁷ Appellant’s initial argument focuses on the phrase “express questioning” in Innis . Appellant puts forth a two-part analysis. First, appellant contends that Officer Donoway’s questioning of appellant constituted “express questioning,” because she directly questioned appellant when appellant was in custody. Second, appellant argues that the only exceptions to the “express questioning” test of Innis are where the officer’s questions relate to routine booking or public safety.

Appellant, in effect, contends that any question posed by a law enforcement officer to a suspect in custody, other than a question relating to routine booking or public safety, constitutes “express questioning,” under Innis and thus is violative of Miranda . The legal basis for appellant’s argument was rejected by the Court of Appeals in the recent case of Prioleau v. State, 411 Md. 629 , 984 A.2d 851 (2009). In Prioleau , undercover detectives observed the petitioner enter a home at 1610 Regester Street, emerge with a bag of suspected cocaine, and hand the bag to Keith Evans, who strolled back and forth on Regester Street engaging in “hand to hand transactions” with individuals who approached. Id. at 633 , 984 A.2d 851 .

The police then arrested Evans and escorted him into the house at 1610 Regester Street, where numerous torn clear plastic bags were found on the floor, indicating drug activity in the house. Id. at 634 , 984 A.2d 851 . The petitioner was also arrested, driven to 1610 Regester Street, and was walked up to the entrance of the house by the arresting officer. Id.

When the petitioner reached the front door, a detective was standing there. Id. The detective said to the petitioner: ‘What’s up, Maurice?” Id. The petitioner then said: “I’m not going in that house.

I’ve never been in that house.” Id. The Court of Appeals held that the above statements by the petitioner were not the product of either actual interrogation or its functional equivalent. Id. at 639 , 984 A.2d 851 . The Court began its analysis by observing that it is clear that (1) Petitioner was “in custody” when he made the inculpatory statement, and (2) none of the exceptions to the requirements of Miranda v. Arizona are applicable. ²¹⁸ Petitioner was therefore entitled to suppression of the statement at issue if that statement resulted from either actual interrogation or the functional equivalent of interrogation.

Prioleau, 411 Md. at 638-39 , 984 A.2d 851 (emphasis in original) (footnotes omitted). In addressing the issue of whether “What’s up, Maurice?” constituted “actual interrogation,” the Court stated that “it is very well settled that not every question constitutes ‘interrogation’ of a suspect who is in custody when the question is asked.” Id. at 639 , 984 A.2d 851 . The Court quoted with approval the case of Johnson v. State, 269 Ind. 370 , 380 N.E.2d 1236, 1240 (1978), wherein the Supreme Court of Indiana stated: “The term ‘interrogation’ has been defined as a process of questioning by law enforcement officials which lends itself to obtaining incriminating statements. Not every statement uttered by a police officer which is punctuated with a question mark will