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

• Docket Nº: Court of Appeals Case No. 20A-CR-227
• Citation: 159 N.E.3d 629
• Case Date: November 05, 2020
• Court: Court of Appeals of Indiana

159 N.E.3d 629

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 November 5, 2020

OPINION ON REHEARING

Bailey, Judge.

Case Summary

1] The State seeks rehearing of our decision in State v. Domingo Diego , 150 N.E.3d 715 (Ind. Ct. App. 2020). In that opinion, we affirmed the trial court's order granting Axel Domingo Diego's ("Domingo Diego") motion to suppress his statement to the police because the statement was obtained during custodial interrogation without Miranda warnings. 150 N.E.3d at 721. In the course of so holding, we stated in a footnote:

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 .

Id. at 719 n.12.

[2] The only issue the State raises in its request for rehearing is whether we incorrectly presumed that it brought this appeal of the order suppressing Domingo Diego's statement pursuant to subsection 5 of Indiana Code Section 35-38-4-2 rather than subsection 6, which allows discretionary interlocutory appeals.

[3] We grant the motion for rehearing in order to clarify the basis for the State's appeal, we affirm our initial opinion in all other respects, and we remand to the trial court for any further proceedings in conformity with this opinion.

Facts and Procedural History

[4] The trial court granted the State's request to certify for appeal its order granting the motion to suppress. In that request and in its Notice of Appeal and motion seeking this Court's acceptance of its interlocutory appeal, the State did not

[159 N.E.3d 631

specify any statutory basis for the appeal; rather, the State asserted that it appealed "from an interlocutory order, accepted by discretion pursuant to Appellate Rule 14(B)(3)."

5] In support of its motion seeking this court's permission to appeal, the State maintained that its interlocutory appeal "should be granted in this case because the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; the State will suffer substantial injury if the order is erroneous; and because the State's remedy by appeal is indisputably inadequate." Motion for Interlocutory Appeal at 2. The State asserted that there are "critical factual differences between this case and the case of State v. Ruiz , 123 N.E.3d 675 (Ind. 2019), ... rendering the trial court's reliance on Ruiz incorrect," but it did not specify any such factual differences. Id . at 3. The State also asserted that a defendant's incriminating statements are "particularly important in the context of a child molestation case, where the charges rest primarily on the testimony of a child witness with little other corroborating evidence available." Id. And the State asserted that an appeal following an acquittal would be inadequate because "the doctrine of double jeopardy will prevent the State from being able to re-try [the defendant] even if the appellate courts hold that the evidence was wrongly excluded." Id.

[6] In its petition for rehearing, the State now asserts that it brings this appeal as an interlocutory appeal under subsection 6 of Indiana Code Section 35-48-4-2, rather than under subsection 5 as we presumed in footnote 12 of our initial opinion. The State asserts that the suppression of the defendant's statement "does not constitute a judicial admission that the State cannot prosecute further without the suppressed statement, and this Court's opinion affirming the suppression order does not prevent the State from moving forward with its prosecution when jurisdiction reverts back to the trial court." Pet. for Reh'g. at 7-8.

Discussion and Decision

[7] It is well-settled that the State may only appeal in a criminal case when the legislature has granted it specific statutory authority to do so. E.g., State v. Brunner , 947 N.E.2d 411 (Ind. 2011) ("Indiana has a strict historic precedent that criminal appeals by the State are statutorily defined."). The legislature has expressly enumerated the criminal appeals the State may take in Indiana Code Section 35-38-4-2. Id. Subsection 5 of that statute provides that the State may appeal "

[f]rom an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an information or indictment." Ind. Code § 35-38-4-2. Subsection 6 of the statute authorizes the State to appeal

(6) [f]rom any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(A) the

...