ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Mark K. Leeman
Attorney General of Indiana                                Leeman Law Office               FILED
                                                           Logansport, Indiana
Ellen H. Meilaender                                                                    Aug 19 2020, 9:14 am

Supervising Deputy Attorney General                                                        CLERK
                                                                                       Indiana Supreme Court
Indianapolis, Indiana                                                                     Court of Appeals
                                                                                            and Tax Court




                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          August 19, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           20A-CR-227
        v.                                                 Interlocutory Appeal from the
                                                           Cass Circuit Court
Axel Domingo Diego,                                        The Honorable Stephen Roger
Appellee-Defendant.                                        Kitts, II, Judge
                                                           The Honorable Leo T. Burns,
                                                           Senior Judge
                                                           Trial Court Cause No.
                                                           09C01-1806-FA-1



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                     Page 1 of 11
                                             Case Summary
[1]   The State of Indiana (“State”) brings this interlocutory appeal of the trial court

      order granting Axel Domingo Diego’s (“Domingo Diego”) motion to suppress

      the recordings of his interrogation by police. The only restated issue on appeal

      is whether Miranda warnings were unnecessary because Domingo Diego was

      not in custody during his interrogation.


[2]   We affirm.



                                 Facts and Procedural History
[3]   On June 26, 2018, following an interrogation of Domingo Diego, the State

      charged him with child molesting, as a Class A felony.1 On March 12, 2019,

      the State filed an amended information charging Domingo Diego with two

      counts of child molesting, as Class A felonies, and one count of child molesting

      as a Class C felony.2 On May 24, Domingo Diego filed a motion to suppress

      his statement to police. The trial court held a hearing on the motion to suppress

      on October 31, 2019. Evidence of the following facts was submitted at that

      hearing.3




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-3(b).
      3
        In accordance with the applicable standard of review, discussed in more detail below, we consider the
      evidence—including conflicting evidence—most favorable to the trial court’s suppression ruling. E.g., State v.
      Ruiz, 123 N.E.3d 675, 679 (Ind. 2019).

      Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                                Page 2 of 11
[4]   In June 2018, officers with the Logansport Police Department called Detective

      Sergeant Troy Munson (“Det. Munson”) with the Seymour Police Department

      (“SPD”) and asked for his assistance in locating and interviewing Domingo

      Diego, who they believed was living in Seymour and who they suspected of

      molesting a child. The Logansport Police Department shared with Det.

      Munson a police report and forensic interview in which a child, “C.,” accused

      Domingo Diego of molesting her. After Det. Munson watched the forensic

      interview, he located Domingo Diego’s address in the SPD computer system.


[5]   On June 19, 2018, an officer from SPD4 arrived at Domingo Diego’s home, and

      Domingo Diego’s long-time girlfriend, Andrea Martin (“Martin”), opened the

      door. The officer was in “uniform,” Tr. V. II at 59, and he was wearing a

      police badge and a gun. The officer asked to speak with Domingo Diego.

      When Domingo Diego arrived at the door, the officer stated that he would like

      to speak with Domingo Diego “about an incident that had occurred in

      Logansport.” Id. at 18. The officer stated that Domingo Diego “needed” to go

      to the police station so that Det. Munson could speak with him. Id. at 47. The

      officer gave Domingo Diego Det. Munson’s business card and a date and time

      to go to Det. Munson’s office at the SPD station. Martin, who speaks Spanish,

      English, and Chuj, translated the officer’s statements for Domingo Diego, who

      speaks Chuj, Spanish, and only a little English.




      4
       Det. Munson testified that he was the SPD officer who went to Domingo Diego’s house that day, but
      Domingo Diego and Andrea Martin testified that it was another, unknown police officer.

      Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                          Page 3 of 11
[6]   On June 21, Domingo Diego and Martin arrived at the SPD police station and

      asked for Det. Munson. SPD personnel opened a secured door for Martin and

      Domingo Diego, and it was shut behind them. No one informed Martin or

      Domingo Diego that they could leave through the secure door without

      assistance. Martin and Domingo Diego were directed to an elevator, which

      they took to the second floor. On the second floor, Det. Munson came out of

      his office into the common area to greet Martin and Domingo Diego. Det.

      Munson wore plain clothes but carried a gun, and he was accompanied by an

      SPD dispatcher, in plain clothes, who also worked as an English/Spanish

      translator. Det. Munson asked Martin to wait in another room while he

      interviewed Domingo Diego, and he informed Martin and Domingo Diego that

      the SPD English/Spanish translator (“the translator”) would assist with the

      interview.


[7]   Det. Munson, the translator, and Domingo Diego entered Det. Munson’s

      office. Det. Munson closed the door to the office and the blinds to the windows

      between his office and the common area. Det. Munson sat behind his desk,

      Domingo Diego sat in a seat in front of the desk, and the translator sat in the

      seat between Domingo Diego and the door to the office. Det. Munson

      informed Domingo Diego that he was “not under arrest,” and that he was “free

      to leave anytime [he] want[ed] to go.” State’s Ex. 4 at 3. Det. Munson asked

      Domingo Diego if he understood and Domingo Diego nodded his head.




      Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020       Page 4 of 11
      State’s Ex. 3, Part I,5 at 00:46. However, Det. Munson did not tell Domingo

      Diego that he did not have to answer Det. Munson’s questions. Det. Munson

      proceeded to question Domingo Diego, through the translator, for

      approximately forty minutes. Det. Munson did not at any time provide

      Domingo Diego with Miranda warnings.


[8]   At various points throughout the interrogation, Det. Munson stated that he

      believed Domingo Diego had sexual contact with the child, “C.”6 He also

      indicated several times that he believed Domingo Diego’s denials were lies.7

      Det. Munson also made statements stating it was understandable if Domingo

      Diego had sexual contact with C.8 Det. Munson stated that C. was “saying

      with … with pretty great detail about what happened between the two of you.”




      5
        The CD containing the audio-visual recording of the June 21, 2019, interrogation was divided into two
      separate parts.
      6
        For example, Det. Munson stated “something happened between you and [C.]. It may not have been to
      the extreme that Miguel had said [i.e., that Domingo Diego raped C.], but tell me what actually happened
      between you and [C.].” Ex. 4 at 14.
      7
       Det. Munson stated that he had listened to a recording of a conversation in which C.’s father had accused
      Domingo Diego of raping C. and then stated, “[L]ying to me only makes things worse,” Ex. 4 at 14. Det.
      Munson also stated, “Hey look, Axel, you don’t, you don’t need to lie to me. You don’t need to be afraid of
      me for any reason or [sic] whatsoever,” id. at 22.
      8
          For example, Det. Munson stated to Domingo Diego,

                Okay, so we understand that sometimes guys, they get horny. … So, sometimes what happens is …
                is guys just make a mistake and when they make that mistake is, what they do is, there happens to
                be whoever’s there, they end up touching them or whatever they need to do to satisfy themselves,
                but it’s not so much that they want to be with a child, it’s just that they want to release this sexual
                tension. …So, I’m wondering if, if maybe that’s not what happened here, ‘cause I think you’re a
                pretty good guy. But I’m, I’m thinking to myself, you know, did you do something …
      Ex. 4 at 15-16.

      Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                                   Page 5 of 11
      Ex. 4 at 17.9 He informed Domingo Diego, “the evidence in this case … clearly

      shows that you had some type of contact with [C.’s], um … her vaginal area,

      her butt, and her breast area.” Id. at 19. Det. Munson asked Domingo Diego,

      “So you just … basically touched her vagina and touch[ed] her breast area. Is

      that correct?” Id. Det. Munson continued, “[C.] told me[10] about a situation

      where um, your, your penis had been touching, your bare penis had been

      touching her butt. Um, did you actually stick your penis inside of her butt or

      was it just, did you just rub it on the outside of her butt?” Id. Det. Munson

      stated to Domingo Diego, “Uh, and then how many times do you think your

      hand … now, you know as well as I do, it wasn’t when you were just playing

      around,” and then asked, “How, how many times do you think your hands just

      kind of touched her breasts or touched her vagina?” Id. at 24.


[9]   After asking Domingo Diego if he knew that what happened with C. was

      “wrong” and whether Domingo Diego felt “sorry about doing it,” Det. Munson

      asked Domingo Diego if he “would like to write [C.] an apology” that Det.

      Munson could give to her. Id. at 30. When Domingo Diego hesitated, Det.

      Munson stated, “Well, what I’m just saying, it may help, it may let this little

      girl know that, ‘Hey, I was wrong and I’m sorry’ and then she can put [it]

      behind her.” Id. at 31. Det. Munson stated to the translator, “Hey, he doesn’t




      9
       We note that the written transcript with translation of the June 21 interrogation, State’s Exhibit 4,
      sometimes mislabels who is speaking, as compared to the audio-visual recording in State’s Exhibit 3.
      10
           Det. Munson did not talk to C. directly; rather, he reviewed the recording of her interview with police.


      Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                                  Page 6 of 11
       have to, I’m just saying I think it’d be a good idea.” Id. At the conclusion of

       the interrogation, Det. Munson told Domingo Diego, “You’re free to go” but

       “[d]on’t have any more contact with that family.” Id. at 33.


[10]   Following the hearing on Domingo Diego’s motion to suppress his statement to

       police, the trial court issued its December 20, 2019, order granting the motion.

       After noting that the parties did not request findings and conclusions pursuant

       to Indiana Trial Rule 52, the court noted, “The facts in this case regarding

       defendant’s statement to police are similar to the facts considered by the

       [Indiana] Supreme Court in State of Indiana v. Ernesto Ruiz.[11]” Appellant’s

       App. V. 2 at 40. The trial court concluded that the Ruiz case “controls this

       case” and Domingo Diego’s statement cannot be used against him. Id. The

       State now brings this interlocutory appeal.12



                                    Discussion and Decision
                                           Standard of Review
[11]   The State is appealing a negative judgment, i.e., the order suppressing Domingo

       Diego’s statement. When the State appeals from a negative judgment, it




       11
            123 N.E.3d 675 (Ind. 2019).
       12
           The State may appeal the grant of a motion to suppress evidence in a criminal case “if the ultimate effect
       of the order is to preclude further prosecution of one (1) or more counts of an information or indictment.”
       I.C. § 35-38-4-2(5). Although the State has not alleged that it cannot further prosecute Domingo Diego
       without his statement to police, it apparently made that determination, and “it is not within our purview to
       second-guess” it. State v. Wroe, 16 N.E.3d 462, 465 (Ind. Ct. App. 2014), trans. denied.

       Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020                                 Page 7 of 11
               must show that the trial court’s grant of the motion was contrary
               to law. We will reverse a negative judgment only when the
               evidence is without conflict and all reasonable inferences lead to
               a conclusion opposite that of the trial court. We will not reweigh
               the evidence nor judge witnesses’ credibility and will consider
               only the evidence most favorable to the trial court’s ruling.


       State v. Janes, 102 N.E.3d 314, 317 (Ind. Ct. App. 2018) (citations omitted). We

       will not reverse the trial court’s ruling on suppression if it is supported by

       substantial evidence of probative value. Id.


                                      Custodial Interrogation
[12]   Suspects under custodial interrogation must be given Miranda warnings; that is,

       pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966), individuals in

       custodial interrogation must be told that they have “a right to remain silent, that

       any statement [they do] make may be used as evidence against [them], and that

       [they have] a right to the presence of an attorney.” See also State v. Ruiz, 123

       N.E.3d 675, 677 (Ind. 2019). However, when an individual is not in police

       custody, he or she is not entitled to Miranda warnings before police questioning.

       Id.


[13]   In the instant case, it is undisputed that the SPD did not give Domingo Diego

       Miranda warnings before interrogating him on June 21, 2019; therefore, whether

       Domingo Diego’s statement are admissible at his criminal trial depends upon

       whether Domingo Diego was in “custody” during the police interrogation. The

       custody inquiry is a mixed question of fact and law: the circumstances

       surrounding the interrogation are matters of fact that we review with deference,
       Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020          Page 8 of 11
       and whether those facts amount to Miranda-type custody is a question of law

       that we review de novo. Ruiz, 123 N.E.3d at 679.


[14]   An individual is in police “custody” when two factors are met: (1) the person’s

       freedom of movement is curtailed to the degree associated with a normal arrest,

       and (2) the person undergoes the same inherently coercive pressures as the type

       of station-house-questioning at issue in the Miranda case. Id. at 680.

       Ultimately, we must determine whether “[t]he totality of objective

       circumstances surrounding the interrogation would make a reasonable person

       feel not free to end the questioning and leave.” Id. In making that

       determination, the court may consider such circumstances as “the location,

       duration, and character of the questioning; statements made during the

       questioning; the number of law-enforcement officers present;… and how the

       interview begins and ends.” Id. The court may also consider such factors as:


               whether and to what extent the person has been made aware that
               he is free to refrain from answering questions; whether there has
               been prolonged, coercive, and accusatory questioning, or
               whether police have employed subterfuge in order to induce self-
               incrimination; the degree of police control over the environment
               in which the interrogation takes place, and in particular whether
               the suspect’s freedom of movement is physically restrained or
               otherwise significantly curtailed; and whether the suspect could
               reasonably believe that he has the right to interrupt prolonged
               questioning by leaving the scene.


       State v. O.E.W., 133 N.E.3d 144, 154 (Ind. Ct. App. 2019), trans. denied.




       Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020          Page 9 of 11
[15]   Applying the above factors to this case, it is clear that the trial court’s order

       suppressing Domingo Diego’s statement to police is supported by substantial

       evidence of probative value. Domingo Diego’s freedom of movement was

       curtailed to the degree associated with an arrest, and he was subjected to

       inherently coercive pressures such as those at issue in Miranda. The police

       determined and controlled the environment in which the interrogation took

       place, i.e., Domingo Diego was removed from his girlfriend and placed in a

       closed room in a police station with an SPD employee sitting between

       Domingo Diego and the closed door. Although Domingo Diego was told he

       was not under arrest and was free to leave, he was also told that he “needed” to

       be there to answer Det. Munson’s questions. Tr. V. II at 47. He was never told

       that he was free to refuse to answer Det. Munson’s questions, nor was he told

       that he could leave through the secured police station door without police

       assistance.


[16]   Furthermore, Domingo Diego was subjected to prolonged questioning that

       lasted approximately forty minutes; the questioning was “sustained and drawn

       out” as compared to brief “roadside traffic-stop questioning.” Ruiz, 123 N.E.3d

       at 681. And Det. Munson’s questioning was persistent and accusatory: he

       repeatedly stated as fact that Domingo Diego had engaged in sexual contact

       with C., he repeatedly accused Domingo Diego of lying when Domingo Diego

       denied such activity, and he repeatedly asked questions that “focused on

       encouraging [Domingo Diego] to admit to [Det. Munson’s] description of the

       wrong-doing.” Id. at 682. Det. Munson even went so far as to attempt to get


       Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020         Page 10 of 11
       Domingo Diego to write out a confession, in the guise of a letter apologizing to

       C. for having sexual contact with her.


[17]   The trial court did not err in finding that the facts in this case, like those in Ruiz,

       supported an order suppressing the defendant’s statement. The State asks that

       we credit Det. Munson’s conflicting testimony; however, that is simply a

       request that we reweigh evidence and witness credibility, which we may not do.

       Janes, 102 N.E.3d at 317; see also Ruiz, 123 N.E.3d at 679.



                                                Conclusion
[18]   The trial court did not err when it granted Domingo Diego’s motion to suppress

       his statement to police because the statement was obtained during custodial

       interrogation without Miranda warnings.


[19]   Affirmed.


       Vaidik, J., and Baker, S.J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-227 | August 19, 2020          Page 11 of 11
