State of Indiana v. Axel Domingo Diego

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.

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 2 of 11

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.

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 3 of 11

[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:

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 4 of 11

(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

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 5 of 11

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

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 6 of 11

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

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 7 of 11

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.

Court of Appeals of Indiana | Opinion on Rehearing 20A-CR-227 | November 5, 2020 Page 11 of 11