MEMORANDUM DECISION
                                                                Oct 23 2015, 9:14 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren Bedwell                                            Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Hitzel Palafox-Dominguez,                                October 23, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1412-CR-873
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
                                                         Judge
Appellee-Plaintiff
                                                         Cause No. 49G01-1402-FB-5766




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 1 of 12
                                     STATEMENT OF THE CASE

[1]   Appellant-Defendant, Hitzel Palafox-Dominguez1 (Palafox), appeals her

      conviction for Count I, battery, a Class B felony, Ind. Code § 35-42-2-1(a)(4)

      (2014); Count II, neglect of a dependant, a Class B felony, I.C. § 35-46-1-4(a)(1)

      (2014); and Count III, battery, a Class D felony, I.C. § 35-42-2-1(a)(2)(B)

      (2014).


[2]   We affirm.


                                                       ISSUE

[3]   Palafox raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion by admitting her confession at trial.


                            FACTS AND PROCEDURAL HISTORY

[4]   On October 15, 2013, A.L. was born prematurely to Palafox and Omar Lavalle

      (Lavalle). After spending approximately six weeks at the neonatal intensive

      care unit, A.L. was discharged on November 28, 2013, and sent home to live

      with her parents. Because Lavalle worked ten-and-a-half hour days, six to

      seven days per week, Palafox was A.L.’s primary caregiver. On January 30,

      2014, after A.L. had been crying excessively for three days, Palafox took her to

      the emergency room at Eskenazi Hospital. The treating physician noticed that



      1
       The appellate docket and Appellant’s brief reflect Appellant’s last name as Palafox-Domingues. However,
      at trial, Appellant concurred that the final letter of her name should be a “z.” The State moved to amend the
      charging information to reflect Appellant’s last name as Palafox-Dominguez.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015           Page 2 of 12
      A.L. had bruising to her face, thighs, buttocks, and back and referred her to

      Riley Hospital for Children (Riley).


[5]   At Riley, A.L. was examined by Shannon Thompson, M.D. (Dr. Thompson), a

      board certified physician in pediatrics and pediatric child abuse. Upon

      examining A.L., Dr. Thompson discovered that she “had soft tissue injuries or

      bruising to her body in different areas. She had three different broken bones or

      fractures and she had intracranial hemorrhage or bleeding on the brain.”

      (Transcript p. 184). When Dr. Thompson closely examined A.L.’s bruises on

      her left facial cheek and her thighs, she noticed that they “were consistent with

      the shape of a bite mark” and “indicative of injuries that had been inflicted.”

      (Tr. pp. 187, 191). Dr. Thompson opined that those bruises could not have

      been caused accidentally and their infliction would have caused A.L. “extreme

      pain.” (Tr. p. 192). In addition to bruises, A.L. had three fractures: a classic

      lesion in the upper arm bone and a corner fracture in the lower thigh bone on

      both the left and right side. Dr Thompson clarified that

              a corner fracture is typically caused by some type of significant force
              that either is providing – or putting tension or sheer on the end of the –
              end of a long bone that essentially results in the end of that bone being
              ripped off or fractured. The most common mechanisms from abusive
              causes would be violent yanking, pulling, grabbing, twisting or - - and
              it’s also seen when infants are violently shaken if their arms are - -
              arms or legs are flailing.
      (Tr. p. 197). Again, Dr. Thompson added that these fractures would have

      “caused extreme pain” at the time they were inflicted. (Tr. p. 203). Based on




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 3 of 12
      “the constellation of all of [A.L.’s] injuries,” Dr. Thompson declared A.L. to be

      the victim of “child abuse.” (Tr. p. 215).


[6]   On February 3, 2014, Palafox and Lavalle were interviewed by Indianapolis

      Metropolitan Police Detective Justin Hickman (Detective Hickman) at the

      Child Advocacy Center. When Palafox and Lavalle arrived at their

      appointment with Detective Hickman, they were escorted to separate interview

      rooms. Because Palafox speaks little English, an interpreter facilitated

      translations between Palafox and Detective Hickman.


[7]   At the commencement of the interview, Detective Hickman advised Palafox of

      her Miranda rights. She was also given a Spanish-language written advisement

      form. At the end of the advisement, Palafox asked several clarifying questions

      about these rights and whether she was detained and should have an attorney

      present. Detective Hickman responded that she was not detained “at this time”

      and explained that this advisement was “standard procedure” to “make sure

      [she] was willing to talk to [him].” (State’s Exh. 48, p. 5). Palafox assured him

      that she could talk to him “because [she] was sure that [she] have done [sic]

      nothing to [her] daughter.” (State’s Exh. 48, p. 6).


[8]   The first twenty-eight minutes of the interview were consumed by Palafox’

      monologue, talking about the hospital care she and A.L. had received upon

      A.L.’s premature birth. Thereafter, Palafox told Detective Hickman that even

      though A.L. had been crying more than usual on the previous Tuesday,

      January 28, 2014, she waited to take A.L. to the emergency room until Friday


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 4 of 12
      because of her fussiness when eating and constipation. She advised Detective

      Hickman that this was the first time she noticed the bruising on A.L.’s body.

      Detective Hickman showed Palafox photos of the bruises and informed her that

      the bruises were consistent with bite marks; using a doll, he pointed to A.L.’s

      fractures. Palafox confirmed that while she is A.L.’s primary care giver, she

      had never seen anyone bite or harm her daughter. Shortly thereafter, Detective

      Hickman told Palafox that if he “can’t figure out what happened to [A.L.],” it

      will “be the [D]epartment of [C]hild [S]ervices (DCS) and the police

      department’s recommendation that [A.L.] stays in foster care.” (State’s Exh.

      48, p. 49). After this exchange, Detective Hickman and the interpreter left the

      room and Palafox requested to use the restroom.


[9]   About two minutes later, Palafox returned to the interview room. After the

      door closed behind her, she discovered that the door was locked.

      Approximately ten minutes later, Detective Hickman returned to the room with

      peanut butter crackers and water. When Detective Hickman entered the room,

      Palafox asked him whether she was detained and should be getting a lawyer.

      Detective Hickman assured her that she was “free to go if [she] wish[ed] to go”

      and that it was “totally up to [her]” to get an attorney. (State’s Exh. 48, p. 53).

      When she raised a concern about the locked door, Detective Hickman

      explained that the doors lock automatically, and if a person is in one of the

      rooms alone, it was standard procedure to keep the doors closed because

      employees’ desks containing both personal items and firearms were nearby.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 5 of 12
       Detective Hickman left again, to “get [Lavalle] situated.” (State’s Exh. 48, p.

       55).


[10]   After approximately forty-five minutes, Detective Hickman and the interpreter

       returned. During the continuation of the interview, Palafox raised several

       possible explanations for A.L.’s injuries, such as a “cleanse”, a cultural massage

       therapist consulted to make A.L. less “scared,” and repeatedly denied her own

       involvement. (State’s Exh. 48, p. 56). After consulting with Dr. Thompson,

       Detective Hickman rejected the massage as the source of the fractures and

       bruises. He encouraged Palafox that “if you got upset, if you got frustrated and

       something happened that you didn’t mean to hurt her but something happened

       then now is the time to talk[,] tell us about that because . . . once you go to

       court tomorrow . . . DCS is going to make their recommendation for where the

       baby’s placed.” (State’s Exh. 48, p. 70).


[11]   When Palafox continued to deny any involvement with A.L.’s injuries,

       Detective Hickman advised Palafox that he could “get a warrant and take

       measurements of [her] mouth and [her] teeth and compare them to the injury

       on [A.L.].” (State’s Exh. 48, p. 80). He informed her that “now is the time to

       tell the truth because when you leave here you’re not going to have another

       opportunity to talk to me and tell me the truth. . . . But if you leave here today

       and don’t tell me, look I did this, I’m sorry for it, I didn’t mean to. . . . and I go

       and get a warrant and we take our measurement and we match it to that bite . .

       . you’re not going to get your baby back . . . ever.” (State’s Exh. 48, pp. 81-82).

       After another denial, Detective Hickman told her that if he has “somebody

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 6 of 12
       sitting across from” him who could not admit that they had injured their child

       when both of them knew that she had, then “how could [he] or the court trust

       [Palafox] with [her] baby.” (State’s Exh. 48, p. 84). He immediately added that

       he did not want her to admit to something she did not do, but she should take

       responsibility if she had caused A.L.’s injuries.


[12]   Palafox explained that she had post-partum depression and stated that “maybe

       [she] was the one that did it . . . but [she] [was] not certain that [she] did do

       that.” (State’s Exh. 48, p. 86). While assuring that he did not want her to

       confess to something she did not do, Detective Hickman advised Palafox that

       she was still not taking responsibility and that “now was the time to be truthful

       and honest and accept responsibility . . . because once [she] walk[ed] out the

       door” she would not get another chance. (State’s Exh. 48, p. 87). Palafox

       admitted, “okay, I did it.” (State’s Exh. 48, p. 87). She recounted an incident

       which happened the previous Tuesday, when A.L. was crying so forcefully she

       was almost choking. She placed A.L. in her crib where she calmed down a

       little. Palafox explained that she got close to A.L.’s legs and she “didn’t do it

       like with being mad with the intention of hurting her but [she] kinda bit her.”

       (State’s Exh. 48, p. 88). Palafox clarified that A.L.’s leg might have gotten

       fractured when she gave the infant a bath, and grabbed one of A.L.’s legs that

       had gone out of the bathtub.


[13]   On February 6, 2014, the State filed an Information, charging Palafox with

       Count I, battery, a Class B felony; Count II, neglect of a dependent, a Class B

       felony; and Count III, battery, a Class D felony. On June 19, 2014, Palafox

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 7 of 12
       filed a motion to suppress her confession, asserting it was unconstitutionally

       coerced from her in violation of her rights under both the federal and state

       constitutions. After a hearing, the trial court denied the motion, holding that

       “[n]either the timing nor the manner in which the interviews were conducted

       were improper and [Palafox’s] substantive rights were not violated by virtue of

       the investigating detective’s actions.” (Appellant’s App. p. 91).


[14]   On October 20 through 22, 2014, the trial court conducted a jury trial. Palafox

       renewed her motion to exclude her confession, arguing its coercive nature and

       the violation of her constitutional rights. The trial court repeated its denial. At

       the close of the evidence, the jury found Palafox guilty of all charges. On

       January 5, 2015, the trial court sentenced Palafox to fifteen years executed on

       Count I, with seven years suspended and two years of probation. The trial

       court reduced Count II to a Class D felony due to double jeopardy concerns

       and imposed a sentence of 545 days. The court also sentenced Palafox to 545

       days on Count III. The trial court declared all sentences to run concurrent, for

       an aggregate sentence of fifteen years.


[15]   Palafox now appeals. Additional facts will be provided as necessary


                                   DISCUSSION AND DECISION

[16]   Palafox contends that the trial court abused its discretion by admitting her

       involuntary and coerced confession in violation of her federal due process rights

       under the Fourteenth Amendment. When a defendant challenges the

       voluntariness of his or her confession under the U.S. Constitution, the State

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 8 of 12
       must prove the statement was voluntarily given by a preponderance of the

       evidence. Bond v. State, 9 N.E.3d 134, 137 (Ind. 2014).2 We examine the

       totality of the circumstances as presented by the record, and are guided by

       several factors including police coercion; the length, location and continuity of

       the interrogation; and the defendant’s maturity, education, physical condition,

       and mental health. Miller v. State, 770 N.E.2d 763, 767-68 (Ind. 2002). “The

       critical inquiry is whether the defendant’s statements were induced by violence,

       threats, promises or other improper influence.” Ringo v. State, 736 N.E.2d 1209-

       1212-13 (Ind. 2000).


[17]   The Fourteenth Amendment forbids the use of involuntary confessions not only

       because of the probable unreliability of confessions that are obtained in a

       manner deemed coercive, but also because of the “strongly felt attitude of our

       society that important human values are sacrificed where an agency of the

       government, in the course of securing a conviction, wrings a confession out of

       an accused against his will.” Bond, 9 N.E.3d at 137 (citing Jackson v. Denno, 378

       U.S. 369, 385-86, 84 S. Ct. 1174, 12 L.Ed.2d 908 (1964)). Additionally, there is

       a “deep-rooted feeling that the police must obey the law while enforcing the

       law; that in the end, life and liberty can be as much endangered from illegal

       methods used to convict those thought to be criminals as from the actual




       2
         Palafox does not articulate a distinct argument under the Indiana Constitution, which would have required
       the State to meet the higher hurdle of proving voluntariness beyond a reasonable doubt. See Pruitt v. State,
       834 N.E.2d 90, 114-15 (Ind. 2005).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015          Page 9 of 12
       criminals themselves.” Id. (quoting Spano v. New York, 360 U.S. 315, 320-21, 79

       S. Ct. 1202, 3 L.Ed.2d 1265 (1959)).


[18]   Turning to her confession, Palafox asserts that it was rendered involuntary and

       uttered against her free will because Detective Hickman made “the threat that

       she would lose custody of her baby.” (Appellant’s Br. p. 19). Specifically,

       Palafox points to the Detective’s statements that if he could not figure out what

       had happened to A.L., it would be DCS’s recommendation that A.L. remain in

       foster care. However, Detective Hickman’s statement cannot be categorized as

       a threat; rather it amounts to a statement as to DCS’s standard procedure in

       investigations of child abuse and imposed upon Palafox the seriousness of the

       interview and its likely consequences.


[19]   Likewise, we reach a similar result with respect to Detective Hickman’s

       statement that

               now is the time to tell the truth because when you leave here you’re
               not going to have another opportunity to talk to me and tell me the
               truth. . . . But if you leave here today and don’t tell me, look I did this,
               I’m sorry for it, I didn’t mean to. . . . and I go and get a warrant and
               we take our measurement and we match it to that bite . . . you’re not
               going to get your baby back . . . ever.
       (State’s Exh. 48, pp. 81-82). “A detective’s statements implying that a

       confession would aid” Palafox’s case do not in and of themselves render that

       confession involuntary. Bond, 9 N.E.3d at 137. This is “neither a coercive

       police tactic nor an unexpected one, and we do not view it as having overcome”

       Palafox’s free will. Id. Even though Detective Hickman stated that if A.L.’s

       bite marks matched Palafox’s teeth, she would never get A.L. back might be
       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 10 of 12
       considered borderline coercive, “[s]tatements by police . . . explaining the

       crimes and penalties that are possible results are not specific enough to

       constitute either promises or threats.” See Massey v. State, 473 N.E.2d 146, 148

       (Ind. 1985).


[20]   With respect to Detective Hickman’s actions of locking Palafox in the room

       and responding to her questions of being detained and needing legal

       representation, we find no error. Detective Hickman explained the reasoning

       behind the locked door to Palafox and even left the door open at her request so

       she could use the restroom. Besides reading her Miranda rights and handing her

       a Spanish-language written advisement form, Detective Hickman repeatedly

       assured her that she was free to go if she wished to do so and that it was her

       decision to retain an attorney.


[21]   Palafox also challenges as unduly coercive Detective Hickman’s repeated

       requests to take responsibility and be truthful because once she left she would

       not get another opportunity to speak with him. On several occasions, we have

       rejected similar arguments as it is permissive for police officers to express “a

       desire that a suspect cooperates[.]” See, e.g., Kahlenbeck v. State, 719 N.E.2d

       1213, 1217 (Ind. 1999). Furthermore, even though the request for cooperation

       and the truth was reinforced several times, Detective Hickman always reassured

       Palafox that he did not want her to confess to something she had not done.


[22]   In sum, Palafox was invited to an interview at the Child Advocacy Center, a

       less coercive setting than a police department’s interrogation room. She was


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015   Page 11 of 12
       provided with an interpreter and voluntarily signed a waiver of rights.

       Detective Hickman responded appropriately to all her legal questions. She was

       provided with restroom breaks, food, and water. Detective Hickman gave

       Palafox time to present her version of the injuries and offer alternative

       scenarios, which he countered by impressing upon her the seriousness of A.L.’s

       harm. Detective Hickman did not threaten Palafox, nor did he coerce her into

       a confession. Rather, he presented her with the gravity of the situation and its

       likely consequences. After the interview, Palafox was escorted to the lobby and

       free to go. Based on the totality of the circumstances, we cannot conclude that

       Palafox’ confession was involuntarily rendered in violation of the Fourteenth

       Amendment.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude the trial court properly admitted Palafox’

       confession at trial.


[24]   Affirmed.


[25]   Brown, J. and Altice, J. concur




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