State of Indiana v. Axel Domingo Diego ( 2020 )

FILED
OPINION ON REHEARING Nov 05 2020, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Mark K. Leeman
Attorney General of Indiana Leeman Law Office
Logansport, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, November 5, 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 on Rehearing 20A-CR-227 | November 5, 2020 Page 1 of 11
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.
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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
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.
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[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:
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(A) the appellant will suffer substantial expense, damage,
or injury if the order is erroneous and the determination
thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the
early determination of which will promote a more orderly
disposition of the case; or
(C) the remedy by appeal after judgment is otherwise
inadequate.
Id.[8] Unless the State asserts otherwise, we presume it appeals an order granting a
motion to suppress because the ultimate effect of the order is to preclude further
prosecution, per subsection 5 of Indiana Code Section 35-38-4-2. See State v.
Aynes, 715 N.E.2d 945, 948 (Ind. Ct. App. 1999) (“[B]y initiating an appeal
from a motion to suppress evidence, the State necessarily represents to the trial
and appellate courts that it cannot prosecute the defendant without the
suppressed evidence.”). Since the State did not state a statutory basis for its
appeal in this case, we correctly presumed in our initial decision that the State
appealed pursuant to subsection 5. Id.[9] If the State intended to appeal the suppression order under subsection 6, it was
required to clearly state as much in its Notice of Appeal. Its failure to do so
made its Notice of Appeal deficient. The State cites State v. Peters, 637 N.E.2d
145, 147 (Ind. Ct. App. 1994), in which we allowed the State to proceed with a
discretionary interlocutory appeal when it cited in support only the appellate
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rule and not the statute. However, Peters did not involve an appeal of a
suppression order to which more than one subsection of the statute could be
applicable. Where more than one subsection of the statute authorizing appeal
may be applicable, the Notice of Appeal must state the specific subsection
under which the State appeals.
[10] The State’s Notice of Appeal also is deficient under Indiana Appellate Rule
14(B)—and subsection 6 of the statute, which tracks the language of Rule
14(B)—regarding discretionary appeals. When seeking permission to bring
such an appeal,
[i]t is not enough to merely parrot the language of the rule;
rather, the motion should set forth in express terms one or two
important questions of law and explain in detail why resolving
these limited questions on appeal now could resolve the entire
case. This is so because discretionary interlocutory appeals are
narrow exceptions to the final judgment rule…. “The obvious
purpose of the final judgment rule and the strict limitation of
interlocutory appeals is to prevent the needless and costly delay
in the trial of lawsuits which would result from limitless
intermediate appeals.” [Thompson v. Thompson, 259 Ind. 266, 269,
286 N.E.2d 657, 659 (1972).] … For this reason, neither the trial
courts nor the appellate courts are inclined to grant discretionary
interlocutory appeals because of the concern of piecemeal
litigation. Thus the potential appeal must be a way to resolve all
or most of a pending litigation.
24 George T. Patton, Jr., Indiana Practice, Appellate Procedure § 5.7 (3d ed.
2019); see also, e.g., Rausch v. Finney, 829 N.E.2d 985, 986 (Ind. Ct. App. 2005)
(denying request for discretionary interlocutory appeal where “the information
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provided to the court by the parties does not make the showing required for
discretionary interlocutory review under Appellate Rule 14(B)”), trans. denied.
[11] Here, the State did not state in express terms a “substantial question of law.”
Ind. Appellate Rule 14(B). It 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,” Motion for Interlocutory
Appeal at 3, but it did not specify any such factual difference, and it did not
explain in any detail why resolving that issue would “promote a more orderly
disposition of the case,” Ind. Appellate Rule 14(B). While the State contended
that a remedy by appeal of a final judgment of acquittal would be inadequate
because, even if the State was successful on that appeal, the doctrine of double
jeopardy would bar it from retrying Domingo Diego, that is true of any appeal
of an acquittal. See Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010) (“Once a
jury acquits a defendant on a criminal charge, the State’s right to appeal is
limited to questions of law, and even if successful in such an appeal, the State is
barred from retrying the defendant on the charge.”). The State also stated that
the excluded incriminating statement was “powerful” and “important” in the
context of a child molestation case to corroborate a child witness, but, again,
that is true in any child molestation case. The State cited no reason why the
excluded evidenced was uniquely important in this particular criminal case.
[12] Since the State’s Notice of Appeal was deficient because it failed to cite a
specific statutory basis for its appeal and failed to make the required showing
for a discretionary interlocutory appeal under Ind. Appellate Rule 14(B) and
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Indiana Code Section 35-38-4-2(6), the motions panel arguably erred when it
granted the motion for interlocutory appeal. However, while “[i]t is well-
established that we may reconsider a ruling by our motions panel,” we are
reluctant to overrule the motions panel except in rare circumstances. Wise v.
State, 997 N.E.2d 411, 413 (Ind. Ct. App. 2013); see also Estate of Mayer v. Lax,
Inc., 998 N.E.2d 238, 245 (Ind.Ct.App.2013), trans. denied. We decline to do so
here. However, we admonish the State in future criminal appeals to state the
specific statutory basis for its appeal, including statutory subsections if
applicable, and provide a detailed explanation of what makes the particular case
at issue appropriate for a discretionary appeal, including any relevant facts.
[13] We grant the motion for rehearing in order to clarify that the State’s appeal is a
discretionary interlocutory appeal brought pursuant to subsection 6 of Indiana
Code Section 35-38-4-2. We affirm our initial opinion in all other respects, and
we remand to the trial court for further proceedings in conformity with this
opinion.
Baker, Sr. J., concurs.
Vaidik, J., concurs in result with separate opinion.
Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 8 of 11
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, Court of Appeals Case No.
20A-CR-227
Appellant-Plaintiff,
v.
Axel Domingo Diego,
Appellee-Defendant.
Vaidik, Judge, concurring in result.
[14] I concur in the majority’s decision to grant rehearing and remand for trial. I
write separately to address Domingo Diego’s argument that the State should
not be allowed to appeal a suppression order under Indiana Code section 35-38-
4-2(6). We have never explicitly addressed this issue, but the language of
subsection (6) is clear: the State may appeal “any interlocutory order”—
including a suppression order—if it can satisfy the requirements of Indiana
Appellate Rule 14(B) (which are incorporated in subsection (6)). It does not say
“any interlocutory order other than a suppression order.” Therefore, if the State
can satisfy the requirements of Appellate Rule 14(B), it can appeal a
Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 9 of 11
suppression order under subsection (6). The State properly followed this
procedure here.1
[15] Domingo Diego argues “all orders appealable under Subsection (5) would
necessarily qualify for appeal under Subsection (6)” and therefore allowing the
State to appeal suppression orders under subsection (6) would render subsection
(5) “meaningless.” Appellee’s Opp. to Reh’g p. 7. There are two problems with
this argument. First, subsection (5) gives the State an absolute right to appeal if
it is willing to make a judicial admission that the suppression order precludes
further prosecution. Subsection (6), on the other hand, only allows the State to
appeal if it gets permission from both the trial court and the appellate court.
Either court could deny that permission. As such, no suppression order would
“necessarily qualify for appeal” under subsection (6). Only subsection (5)
guarantees the State an appeal, so the provision retains independent
significance.
[16] Second, Domingo Diego seems to assume that the State could use the
subsection (6) procedure to avoid making a judicial admission that a
suppression order precludes further prosecution. That is, Domingo Diego
apparently believes that if the State represents in a motion under subsection (6)
1
It is true that the State did not cite subsection (6) in either its motion to the trial court or its motion to this
Court. However, both motions discussed the grounds for appeal set forth in subsection (6) and Appellate
Rule 14(B). Moreover, the fact that the State requested permission to appeal at all was a clear indication it
was proceeding under subsection (6), not subsection (5), since the State does not need court approval to
appeal under subsection (5). That said, when the State decides to proceed under subsection (6), the better
practice is to expressly invoke that provision in its motions to the trial court and the appellate court.
Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 10 of 11
that the suppression order precludes further prosecution, that representation
would not be a binding judicial admission, as it would be in an appeal under
subsection (5). That belief is mistaken. Whether made in an appeal under
subsection (5) or in a motion under subsection (6), a representation by the State
that a suppression order precludes further prosecution would constitute a
judicial admission. To be clear, I highly doubt the State will make such a
representation in motions under subsection (6), given its right to appeal under
subsection (5). But if the State does so, gets permission to appeal, and then loses
the appeal, it will be bound by that representation, and the charges at issue will
have to be dismissed, just as when it loses an appeal under subsection (5).
[17] For these reasons, I concur in the result reached by the majority.
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