Diego v. State, 22A-CR-331

• Citation: 22A-CR-331
• Case Date: August 31, 2022
• Court: Court of Appeals of Indiana

Axel Domingo Diego, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

No. 22A-CR-331

Court of Appeals of Indiana

August 31, 2022

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.

Appeal from the Cass Circuit Court Trial Court Cause No. 09C01-1806-FA-1 The Honorable Stephen R. Kitts, II, Judge

Attorney for Appellant Mark K. Leeman Leeman Law Office Logansport, Indiana

Attorneys for Appellee Theodore E. Rokita Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Vaidik, Judge.

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Case Summary

[¶1] After making incriminating statements to a detective, Axel Domingo Diego was charged with three child-molesting offenses. He moved to suppress those statements, arguing he was subject to custodial interrogation without being given Miranda warnings. The trial court agreed and suppressed the statements. After the State brought an interlocutory appeal and this Court affirmed, our Supreme Court granted transfer and reversed, holding Domingo Diego was not subjected to custodial interrogation and thus the statements should not have been suppressed.

[¶2] On remand, the trial court admitted the statements and a jury convicted Domingo Diego of Class A felony child molesting and Class C felony child molesting. He now appeals, again arguing his statements are inadmissible because he was subject to custodial interrogation without being given Miranda warnings. Because our Supreme Court has already addressed this argument, we apply the law-of-the-case doctrine and affirm.

Facts and Procedural History

[¶3] Our Supreme Court set forth the following facts in its decision on interlocutory appeal:

During the investigation of a possible incident involving child molestation, the Logansport Police Department ("LPD") contacted Detective Sergeant Troy Munson of the Seymour Police Department ("SPD") because LPD believed a suspect was

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located in SPD's community. After reviewing LPD's interview of the alleged victim, Detective Munson searched SPD's database to locate the home address of the suspect Axel Domingo Diego. A uniformed officer went to the residence and spoke to Domingo Diego's English-speaking girlfriend Andrea Martin, who prompted Domingo Diego to come speak with the officer.

Martin translated the conversation with the officer because Chuj was Domingo Diego's primary language. Domingo Diego also spoke some Spanish and English. The officer gave the couple Detective Munson's business card and told Domingo Diego that he needed to go to the police department to find "Mr. Troy."

Domingo Diego and Martin arrived at SPD a few days later- perhaps by appointment. Upon entry into SPD's front lobby, an officer opened a door from the lobby to the rest of the police station and, after the couple moved through the open door, it was shut behind them. The door was secure from the lobby, meaning a person would have to be buzzed through to enter the rest of the police station. A person could freely exit the door to the lobby without assistance, but nobody explained this to Domingo Diego or Martin.

The couple boarded an elevator to the second floor. At some point, Detective Munson met the couple. Detective Munson wore his police badge and carried a gun on his person. Despite Martin's warning that Domingo Diego didn't speak Spanish clearly, Detective Munson told Martin to have a seat outside the room because he had the assistance of a Spanish/English translator.

The interview took place inside Detective Munson's personal office which had two exterior windows and was adorned with family pictures. Munson shut the door and closed the blinds on a window overlooking the rest of the detective division at SPD.

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The door was unlocked, but Domingo Diego was seemingly unaware of this. Through the translator, Domingo Diego was advised that he was not under arrest and that he was free to leave anytime. Domingo Diego indicated that he understood and later testified he felt that he could have left in the middle of the interview but chose not to because he was with a police officer. Munson did not read Domingo Diego any Miranda warnings.

During the course of the approximately forty to forty-five minute interview, Detective Munson asked Domingo Diego questions about the incident in Logansport. Detective Munson told Domingo Diego he had listened to a recording of the victim's father confronting him about an alleged sexual interaction with the victim and that lying to the detective would make things worse. Though he had only reviewed LPD's interview, the detective also implied to Domingo Diego he had spoken directly with the victim. Thereafter, the detective pressed Domingo Diego on what exactly occurred with the victim and Domingo Diego made several potentially incriminating statements. At the end of the interview, Detective Munson asked if Domingo Diego wanted to write an apology letter to the victim but did not require him to do so. After the interview, Detective Munson wished Domingo Diego and Martin a good day and the couple left the building unaccompanied.

Domingo Diego was charged with Count I, Child Molesting, a Class A Felony, Count II, Child Molesting, a Class A Felony, and Count III, Child Molesting, a Class C Felony. Thereafter, Domingo Diego moved to

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