State v. Diego, Court of Appeals Case No. 20A-CR-227

• Docket Nº: Court of Appeals Case No. 20A-CR-227
• Citation: 150 N.E.3d 715
• Case Date: August 19, 2020
• Court: Court of Appeals of Indiana

150 N.E.3d 715

STATE of Indiana, Appellant-Plaintiff,
v.
Axel DOMINGO DIEGO, Appellee-Defendant.

Court of Appeals Case No. 20A-CR-227

Court of Appeals of Indiana.

FILED August 19, 2020

Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

Attorney for Appellee: Mark K. Leeman, Leeman Law Office, Logansport, Indiana

Bailey, Judge.

150 N.E.3d 717

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

[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.

[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

[150 N.E.3d 718

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. 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." Ex. 4 at 17.⁹ He informed

[150 N.E.3d 719

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...