The opinion
BUCHANAN, Chief Judge,
dissenting.
I agree with the majority opinion to the extent it affirms the conviction of Trusley, but must respectfully dissent to the reversing of Mulry’s conviction. I do so on three grounds:
I.There is no allegation of error that Mulry was not given all his Miranda rights.
II. There is evidence to support the conclusion that all the Miranda rights were given.
III. A voluntary waiver occurred before Mulry’s statement was made and there was sufficient evidence to support Mul-ry’s conviction.
I.
The majority raises sua sponte the question of whether these Defendants were given all their Miranda rights. At no point during the trial, in the objection in the motion to correct errors, or on appeal has either defendant complained that he was not given all of his Miranda rights. Thus the majority creates an issue which does not exist in this case.
II.
In my opinion there is evidence or reasonable inferences therefrom that all the Miranda rights were given. The record discloses the following questioning of police officer Fleenor:
PROSECUTOR: Would you tell the court what rights you advised them of?
FLEENOR: I advised them of their Miranda Rights.
Q: And what are those.
A: Your right to counsel before questioning
THE COURT: Anything else?
THE WITNESS: I have a card I usually use that I read off sir.
Q: Did you read that card?
A: Yes I did.
Q: Would you please read that into the record. The card that is commonly put out by the police stations.
A: Yes the card that we have I obtained several from Marion County Sheriff’s Department, which were issued on the back they had an advertisement I think for Bank Americard.
Q: Did you advise the defendants that they had a right to remain silent?
A: Yes
Q: They didn’t have to talk to you.
MR. ALDEN: Your Honor I’ll object to this line of questioning.
*421 MR. NATION: Your Honor I’m trying to establish here the police officer has said that he has advised them of their Miranda Rights. The officer at this point ah I’m just trying to refresh his memory.
THE COURT: The objection is sustained as to the question as phrased. If you want to refresh his memory, there’s a way to do that.
Q: Officer can you look at that and tell me what that is?
A: The rights.
Q: And would you please review that card. Now is that substantially the same rights or is that the same phrasing that you read to him on the night in question?
A: Yes it is.
Q: Would you please look at that and review it. Have you refreshed your memory at this point as to what rights you had given the defendants?
A: Yes
Q: At this time I ask you again what rights did you advise them?
A: I advised them that they had the right to counsel before any questioning, the right to stop answering at any time that they wished, the right to an attorney to be appointed for them by the State if they could not afford one for Court.
Q: Did you advise them of any other rights? You have already stated that you advised them that they had the right to remain silent.
A: I advised them they had the right to stop answering questions or not to answer questions at any time.
Q: After you advised them of these rights, did the defendants make any statements?
A: Not at that time, no.
Q: Did they make any statements at any time after the arrest?
MR. ALDEN: I object to that and ask permission to ask a preliminary question.
THE COURT: You may.
PRELIMINARY QUESTIONS
BY ROBERT F. ALDEN, ESQ.
Q: Did you advise them of anything else regarding what you term Miranda Rights other than what you must testified to? Absolutely none at all. Is that right?
MR. ALDEN: Then I would object. He said yes? They did make a statement.
Q: What was the substance of the statement?
MR. ALDEN: I’ll object to any statement that might have been made to the officer on the grounds that it was not proper.
THE COURT: In what regard, counsel?
MR. ALDEN: Not only do the Miranda warnings statement have to be made to the defendants, but there has to be a showing that the defendants understand what the ah statements mean. And there is case law to the effect not only do they have to waive their rights, state that they want to waive their Miranda rights, but they have to understand their Miranda rights in order to waive them. The officer never mentioned what he just testified to under oath, do you understand these rights and understanding these rights do you want to waive these rights. They were not properly adivsed (sic) of the Miranda warning.
The record indicates to me that the officer informed the defendants of all their Miranda rights from a standard printed card at the time of their arrest. The fact that the officer apparently omitted one right when reciting them from memory does not necessarily mean the defendants were not informed that the statements they might make could be used against them. The officer’s testimony that he read the Miranda rights from a card is sufficient evidence to support the trial court’s finding that the Miranda rights were given. Consequently there is no need to address the question whether the last sentence of Ind. Code 35-5-5-2 dictates a different standard *422 for determining voluntariness than that given in the Miranda decision. 1
III.
Satisfied that there was evidence to support the conclusion that all the Miranda rights were given, I also conclude that the damaging statement made by Mulry occurred after a knowing and intelligent waiver on his part.
Following the giving of these rights, the defendants each made statements. The record discloses that in response to the question “[w]hat was the substance of the statement?” Officer Fleenor responded:
A: The statements were made, the first statement was made by Mr. Mulry in the rear seat of my vehicle along with the other officers, who are not present from another county. We were talking in terms of the damages done there and I asked the questions had they been to the Car-mel Theater location. Mulry said they had just left there and got about three-fourths of the way up there, and was then bumped with the arm by Mr. Trusley.
Q: And what did he say?
A: He told him to be quiet.
Q: And approximately what time of night was this?
A: It was approximately ah 3:45 A.M. at that time.
Q: Now did ah were there any other statements made by Mr. Trusley?
A: He made the statement several times that they had made a mistake and got caught this time. They also made a statement that the next time the building wouldn’t be standing.
Q: Did Mr. Trusley ever make a statement that he was ever in Carmel?
A: Yes
Q: Did he ever make a statement that he even knew where Carmel was?
A: Yes he did.
Q: Did you examine the automobile?
A: Yes I did.
Q: Was there any blood in that car? A: Yes there was.
Q: Where at?
A: On the passenger’s side of the vehicle.
Q: And uh who did you say you observed driving that vehicle?
A: Mr. Mulry was driving the vehicle.
Q: Who was on the passenger’s side?
A: Mr. Trusley.
This evidence indicates these statements were made by both defendants, both voluntarily and in response to questions.
The United States Supreme Court has recently adopted the approach that it is permissible to find waiver even though no explicit affirmative waiver is made. North Carolina v. Butler, 441 U.S. 369 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979). In Butler the Supreme Court explicitly rejected a per se rule that excluded statements of a criminal defendant who made neither a written nor explicit oral waiver of rights.
The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocably said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated, [footnote omitted.]
Id., at 373 , 99 S.Ct. at 1757 .
Instead, the question of waiver is to be determined on “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst (1938), 304 *423 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (as quoted in Butler, 441 U.S. at 374 , 99 S.Ct. at 1758 ).
In United States v. Hayes (1967, 4th Cir.) 385 F.2d 375 , the Federal Court allowed admission of a confession although the defendant made no oral or written statement that he understood his rights and wished to waive them, because the evidence indicated the defendant was mentally alert, was given his Miranda rights, and appeared to comprehend them.
Mulry apparently made no explicit affirmative waiver of these rights, however, I cannot agree that the trial court erred when it concluded that Mulry did receive, comprehend and waive his rights before making his implicating response.
Furthermore, there is sufficient evidence to sustain Mulry’s conviction even if his statement that they had just come from the Woodland theater was not admissible. I disagree with the majority’s conclusion that the evidence totally fails to link Mulry to the Woodland offense. In the excerpt from the transcript quoted above, the officer testified that Trusley made the statement several times “that they had made a mistake and got caught this time.” 2 He further testified, “[t]hey also made a statement that the next time the building wouldn’t be standing.” (emphasis supplied) From this testimony and the fact that both incidents occurred between 3:00 a. m. and 4:00 a. m., the trial court could reasonably infer that they, both defendants, had within the hour participated together in similar destructive activity at'both the Nora and the Woodland theaters. Also, the officer testified that Mulry was the driver of the car that night. As Mulry drove the car into the Nora plaza, he turned the lights off and drove the car from one end of the parking lot to the front of the Nora theater at the other end. Blood was found only on the passenger side of this vehicle. Trusley, with a badly cut hand, rode on the passenger side. From this the trial court could reasonably infer that Mulry had driven Trusley from the location (Woodland Theater) where he had cut his hand and where it had dripped blood. So, exclusive of Mulry’s statement that they had just come from the Woodland Theater, substantial evidence and the reasonable inferences flowing therefrom support the trial court’s conclusion that Mulry was an accomplice to the destruction at the Woodland Theater, as well as at the Nora Theater that night.
Both convictions should be affirmed.
. Miranda v. Arizona (1966), 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 .
. See the majority opinion for the use of a co-defendant’s statements.