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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has reaffirmed its previous ruling that upheld suppression of statements made to police in a child molesting case after granting a request for rehearing by the state.
In the case of State of Indiana v. Axel Domingo Diego, 20A-CR-00227, the state sought a rehearing of the appellate court’s prior decision in which it affirmed a trial court’s order granting Axel Domingo Diego’s motion to suppress his statement to the police. The COA found that the statement was obtained during custodial interrogation without Miranda warnings.
In its request, the state questioned whether the COA incorrectly presumed that the state brought the 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.
“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,” Judge L. Mark Bailey wrote for the appellate court. “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 appellate court likewise found that since the state’s notice of appeal was deficient for failure to cite a specific statutory basis for its appeal and to make the required showing for a discretionary interlocutory appeal under Ind. Appellate Rule 14(B) and 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. 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,” the appellate court wrote.
Affirming its initial opinion in all other respects, the appellate court remanded to the trial court for further proceedings.
Concurring in result, Judge Nancy Vaidik wrote 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).
First, the concurring judge noted that if the state can satisfy the requirements of Appellate Rule 14(B), it can appeal a suppression order under subsection (6). She concluded that the state properly followed the procedure on that point.
Lastly, she found Domingo Diego’s belief to be mistaken that if the state represents in a motion under subsection (6) 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).
“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),” Vaidik wrote. “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).”
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