Posso v. State
| Decision Date | 30 November 2021 |
| Docket Number | Court of Appeals Case No. 21A-CR-369 |
| Citation | 180 N.E.3d 326 |
| Parties | Luis POSSO, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Justin D. Roddye, Kyle K. Dugger, Monroe County Public Defender's Office, Bloomington, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Luis Posso, Jr., drove to the emergency room with his badly bruised, emaciated son, who was pronounced dead a short time later. Posso was questioned by law enforcement officers at the hospital and at the sheriff's office, and he signed consent forms authorizing them to search his motel room, van, and cell phone. Posso was arrested and charged with murder, level 1 felony neglect of a dependent, level 5 felony neglect of a dependent, level 5 felony criminal confinement, and level 5 felony battery. Posso filed a motion to suppress the evidence seized during the searches, arguing that under the Indiana Constitution, he was entitled to the presence and advice of counsel before he made the decision to sign the consent forms, and he was not advised of this right. Posso also moved to suppress his statements to the officers, arguing that he was subjected to an impermissible "question-first" interrogation in violation of the United States Constitution. The trial court denied Posso's motion.
[2] In this interlocutory appeal, Posso argues that the trial court erred in denying his motion to suppress. Finding a state constitutional violation but not a federal constitutional violation, we affirm in part, reverse in part, and remand for further proceedings.
[3] On May 24, 2019, Posso drove his twelve-year-old son, E.P., to a Bloomington hospital. Posso parked his van outside the emergency room entrance and carried E.P. inside at 2:42 a.m. E.P. was unconscious and not breathing, and Posso's shirt was stained with E.P.’s vomit. At 3:05 a.m., E.P. was pronounced dead. His body was emaciated and covered in bruises, pressure ulcers
, and other injuries. Hospital staff contacted the coroner and law enforcement.
[4] Bloomington Police Department Officer Elliott Jordan was the first officer to respond. Officer Jordan's time-stamped bodycam video, which started at 3:33 a.m.,1 shows the officer and a hospital security guard standing outside the open door of an examination room, where Posso sat in a chair against the far wall next to the bed, facing the door. The guard asked Posso if his wife was on her way to the hospital, and Posso responded that she did not have a vehicle because he took it. The guard left the doorway, and Officer Jordan entered the room. The officer asked Posso for his name and said, "Tell me what happened, bub." State's Ex. 1 at 00:00:26. Posso replied that he was sleeping, was awakened by a choking sound, and went to check on E.P., who was gagging. Posso said that he picked up E.P., who vomited on him, and took him to the emergency room. Officer Jordan asked if E.P. had any health issues.
Posso said no. The officer asked if E.P. had "been complaining about anything else that was wrong, not feeling well?" Id. at 00:01:34. Posso stated that his wife had told him that E.P. "had a little bit of a headache about five days ago, but that went away, and then today he fell in the shower in the morning[.]" Id. at 00:01:40. Posso claimed that he gave E.P. an aspirin
, and E.P. was "perfectly fine all day, ate, everything." Id. at 00:01:52. They went to sleep "five hours ago[,]" and then Posso "heard [E.P. gagging] in the middle of the night[.]" Id. at 00:02:00. Officer Jordan asked where Posso was staying, and he replied that he was staying in a motel "near the speedway[.]" Id. at 00:02:10. The officer asked where Posso was from and how long he had been in the area. Posso replied that he was from Florida and had been in the area four days. Officer Jordan told Posso, "[H]ang tight, okay, [...] obviously we gotta talk to you a little more, okay?" Id. at 00:02:26. Posso asked if he could see E.P., and he was told that he needed to wait until the coroner completed his investigation. Officer Jordan left the room, and a hospital staff member went in to ask Posso some questions. The officer's bodycam video shows two security guards standing down the hall from Posso's room and ends at 3:36 a.m.
[5] Additional law enforcement officers began arriving at the hospital. Officer Jordan briefed Monroe County Sheriff's Office (MCSO) Deputy Sergeant Stephen Hale, who then briefed MCSO Deputy Cole Chitwood. Sergeant Hale's time-stamped bodycam video shows him following Deputy Chitwood into Posso's room at 3:47 a.m. State's Ex. 2 at 00:05:42.2 Deputy Chitwood approached Posso and advised him of his constitutional right to remain silent and right to counsel pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), while Sergeant Hale stood near the doorway with another deputy. Deputy Chitwood asked if Posso understood those rights, and Posso nodded and gave a thumbs-up gesture. Deputy Chitwood then asked if Posso would talk "just a little bit about what's been going on tonight[,]" and Posso nodded. State's Ex. 2 at 00:06:26. Sergeant Hale asked Posso for his motel room number and asked if anyone was still there. Posso gave his room number and stated that his wife and their other children were at the motel.3 The sergeant informed Posso that detectives were "on the way" to the motel, id. at 00:07:10, told him to talk with Deputy Chitwood, and left the room at 3:49 a.m.
[6] Deputy Chitwood sat in a chair at the foot of the bed, facing Posso, and asked him about his wife and their surviving children. Posso used his cell phone to inform his family that officers would be coming to their motel room. Deputy Chitwood asked Posso what happened with E.P., and Posso gave a more detailed version of the story that he had given to Officer Jordan. The other deputy in the room told Posso, "Just hang tight, detectives will be here in a second." State's Ex. 3 at 00:06:54. The deputy asked if Posso had the keys to his van and extended his hand toward Posso, who gave the keys to him. Deputy Chitwood and the other deputy left Posso's room at 3:54 a.m.4 The two deputies and Sergeant Hale convened in a room down the hall where E.P.’s body was located, and they conferred with hospital staff and MCSO Detective Andrew Rushing. The detective and the others left that room at 4:24 a.m. and immediately went to Posso's room. Id. at 00:38:08.
[7] Detective Rushing sat in the chair that Deputy Chitwood had used, introduced himself to Posso, and said, "You know you don't have to talk to me without an attorney, right?" State's Ex. 5 at 00:00:21.5 Posso replied, "Yes, sir." Id. at 00:00:25. The detective placed his bodycam on the bed facing Posso and stated, Id. at 00:00:40. Posso stated that he distributes advertisements for a circus, and he basically repeated the story that he had told the other officers. Detective Rushing asked if there was "any blood in the shower" or on E.P. after E.P. fell. Id. at 00:03:35. Posso said "[y]es" and that E.P. "banged his head a little bit[,]" which he had not mentioned earlier. Id. at 00:03:38. Posso claimed that he "cleaned it up" with cotton tissues and that E.P. was "fine" and "wasn't dizzy." Id. at 00:03:45. He also stated that he gave E.P. an ibuprofen—not an aspirin
, as he had stated earlier—"just in case." Id. at 00:03:56. The detective then questioned Posso about E.P.’s eating habits, which Posso claimed were unremarkable. Detective Rushing told Posso, Id. at 00:05:05. He further stated that the authorities were going to have Posso's wife and children come to the hospital so that they could talk to them.
[8] The following exchange then occurred:
Id. at 00:05:56. The detective then questioned Posso about E.P.’s eating habits, the family's sleeping arrangements, E.P.’s fall in the shower, and E.P.’s medical history. The detective also...
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