Hitzel Palafox-Dominguez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 23, 2015
• Docket: 49A02-1412-CR-873
• Status: Published

Opinion

MEMORANDUM DECISION Oct 23 2015, 9:14 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hitzel Palafox-Dominguez, October 23, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1412-CR-873 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Judge Appellee-Plaintiff Cause No. 49G01-1402-FB-5766

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 1 of 12 STATEMENT OF THE CASE

[1] Appellant-Defendant, Hitzel Palafox-Dominguez1 (Palafox), appeals her

conviction for Count I, battery, a Class B felony, Ind. Code § 35-42-2-1(a)(4)

(2014); Count II, neglect of a dependant, a Class B felony, I.C. § 35-46-1-4(a)(1)

(2014); and Count III, battery, a Class D felony, I.C. § 35-42-2-1(a)(2)(B)

(2014).

[2] We affirm.

ISSUE

[3] Palafox raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion by admitting her confession at trial.

FACTS AND PROCEDURAL HISTORY

[4] On October 15, 2013, A.L. was born prematurely to Palafox and Omar Lavalle

(Lavalle). After spending approximately six weeks at the neonatal intensive

care unit, A.L. was discharged on November 28, 2013, and sent home to live

with her parents. Because Lavalle worked ten-and-a-half hour days, six to

seven days per week, Palafox was A.L.’s primary caregiver. On January 30,

2014, after A.L. had been crying excessively for three days, Palafox took her to

the emergency room at Eskenazi Hospital. The treating physician noticed that

1 The appellate docket and Appellant’s brief reflect Appellant’s last name as Palafox-Domingues. However, at trial, Appellant concurred that the final letter of her name should be a “z.” The State moved to amend the charging information to reflect Appellant’s last name as Palafox-Dominguez.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 2 of 12 A.L. had bruising to her face, thighs, buttocks, and back and referred her to

Riley Hospital for Children (Riley).

[5] At Riley, A.L. was examined by Shannon Thompson, M.D. (Dr. Thompson), a

board certified physician in pediatrics and pediatric child abuse. Upon

examining A.L., Dr. Thompson discovered that she “had soft tissue injuries or

bruising to her body in different areas. She had three different broken bones or

fractures and she had intracranial hemorrhage or bleeding on the brain.”

(Transcript p. 184). When Dr. Thompson closely examined A.L.’s bruises on

her left facial cheek and her thighs, she noticed that they “were consistent with

the shape of a bite mark” and “indicative of injuries that had been inflicted.”

(Tr. pp. 187, 191). Dr. Thompson opined that those bruises could not have

been caused accidentally and their infliction would have caused A.L. “extreme

pain.” (Tr. p. 192). In addition to bruises, A.L. had three fractures: a classic

lesion in the upper arm bone and a corner fracture in the lower thigh bone on

both the left and right side. Dr Thompson clarified that

a corner fracture is typically caused by some type of significant force that either is providing – or putting tension or sheer on the end of the – end of a long bone that essentially results in the end of that bone being ripped off or fractured. The most common mechanisms from abusive causes would be violent yanking, pulling, grabbing, twisting or - - and it’s also seen when infants are violently shaken if their arms are - - arms or legs are flailing. (Tr. p. 197). Again, Dr. Thompson added that these fractures would have

“caused extreme pain” at the time they were inflicted. (Tr. p. 203). Based on

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 3 of 12 “the constellation of all of [A.L.’s] injuries,” Dr. Thompson declared A.L. to be

the victim of “child abuse.” (Tr. p. 215).

[6] On February 3, 2014, Palafox and Lavalle were interviewed by Indianapolis

Metropolitan Police Detective Justin Hickman (Detective Hickman) at the

Child Advocacy Center. When Palafox and Lavalle arrived at their

appointment with Detective Hickman, they were escorted to separate interview

rooms. Because Palafox speaks little English, an interpreter facilitated

translations between Palafox and Detective Hickman.

[7] At the commencement of the interview, Detective Hickman advised Palafox of

her Miranda rights. She was also given a Spanish-language written advisement

form. At the end of the advisement, Palafox asked several clarifying questions

about these rights and whether she was detained and should have an attorney

present. Detective Hickman responded that she was not detained “at this time”

and explained that this advisement was “standard procedure” to “make sure

[she] was willing to talk to [him].” (State’s Exh. 48, p. 5). Palafox assured him

that she could talk to him “because [she] was sure that [she] have done [sic]

nothing to [her] daughter.” (State’s Exh. 48, p. 6).

[8] The first twenty-eight minutes of the interview were consumed by Palafox’

monologue, talking about the hospital care she and A.L. had received upon

A.L.’s premature birth. Thereafter, Palafox told Detective Hickman that even

though A.L. had been crying more than usual on the previous Tuesday,

January 28, 2014, she waited to take A.L. to the emergency room until Friday

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 4 of 12 because of her fussiness when eating and constipation. She advised Detective

Hickman that this was the first time she noticed the bruising on A.L.’s body.

Detective Hickman showed Palafox photos of the bruises and informed her that

the bruises were consistent with bite marks; using a doll, he pointed to A.L.’s

fractures. Palafox confirmed that while she is A.L.’s primary care giver, she

had never seen anyone bite or harm her daughter. Shortly thereafter, Detective

Hickman told Palafox that if he “can’t figure out what happened to [A.L.],” it

will “be the [D]epartment of [C]hild [S]ervices (DCS) and the police

department’s recommendation that [A.L.] stays in foster care.” (State’s Exh.

48, p. 49). After this exchange, Detective Hickman and the interpreter left the

room and Palafox requested to use the restroom.

[9] About two minutes later, Palafox returned to the interview room. After the

door closed behind her, she discovered that the door was locked.

Approximately ten minutes later, Detective Hickman returned to the room with

peanut butter crackers and water. When Detective Hickman entered the room,

Palafox asked him whether she was detained and should be getting a lawyer.

Detective Hickman assured her that she was “free to go if [she] wish[ed] to go”

and that it was “totally up to [her]” to get an attorney. (State’s Exh. 48, p. 53).

When she raised a concern about the locked door, Detective Hickman

explained that the doors lock automatically, and if a person is in one of the

rooms alone, it was standard procedure to keep the doors closed because

employees’ desks containing both personal items and firearms were nearby.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 5 of 12 Detective Hickman left again, to “get [Lavalle] situated.” (State’s Exh. 48, p.

55).

[10] After approximately forty-five minutes, Detective Hickman and the interpreter

returned. During the continuation of the interview, Palafox raised several

possible explanations for A.L.’s injuries, such as a “cleanse”, a cultural massage

therapist consulted to make A.L. less “scared,” and repeatedly denied her own

involvement. (State’s Exh. 48, p. 56). After consulting with Dr. Thompson,

Detective Hickman rejected the massage as the source of the fractures and

bruises. He encouraged Palafox that “if you got upset, if you got frustrated and

something happened that you didn’t mean to hurt her but something happened

then now is the time to talk[,] tell us about that because . . . once you go to

court tomorrow . . . DCS is going to make their recommendation for where the

baby’s placed.” (State’s Exh. 48, p. 70).

[11] When Palafox continued to deny any involvement with A.L.’s injuries,

Detective Hickman advised Palafox that he could “get a warrant and take

measurements of [her] mouth and [her] teeth and compare them to the injury

on [A.L.].” (State’s Exh. 48, p. 80). He informed her that “now is the time to

tell the truth because when you leave here you’re not going to have another

opportunity to talk to me and tell me the truth. . . . But if you leave here today

and don’t tell me, look I did this, I’m sorry for it, I didn’t mean to. . . . and I go

and get a warrant and we take our measurement and we match it to that bite . .

. you’re not going to get your baby back . . . ever.” (State’s Exh. 48, pp. 81-82).

After another denial, Detective Hickman told her that if he has “somebody

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 6 of 12 sitting across from” him who could not admit that they had injured their child

when both of them knew that she had, then “how could [he] or the court trust

[Palafox] with [her] baby.” (State’s Exh. 48, p. 84). He immediately added that

he did not want her to admit to something she did not do, but she should take

responsibility if she had caused A.L.’s injuries.

[12] Palafox explained that she had post-partum depression and stated that “maybe

[she] was the one that did it . . . but [she] [was] not certain that [she] did do

that.” (State’s Exh. 48, p. 86). While assuring that he did not want her to

confess to something she did not do, Detective Hickman advised Palafox that

she was still not taking responsibility and that “now was the time to be truthful

and honest and accept responsibility . . . because once [she] walk[ed] out the

door” she would not get another chance. (State’s Exh. 48, p. 87). Palafox

admitted, “okay, I did it.” (State’s Exh. 48, p. 87). She recounted an incident

which happened the previous Tuesday, when A.L. was crying so forcefully she

was almost choking. She placed A.L. in her crib where she calmed down a

little. Palafox explained that she got close to A.L.’s legs and she “didn’t do it

like with being mad with the intention of hurting her but [she] kinda bit her.”

(State’s Exh. 48, p. 88). Palafox clarified that A.L.’s leg might have gotten

fractured when she gave the infant a bath, and grabbed one of A.L.’s legs that

had gone out of the bathtub.

[13] On February 6, 2014, the State filed an Information, charging Palafox with

Count I, battery, a Class B felony; Count II, neglect of a dependent, a Class B

felony; and Count III, battery, a Class D felony. On June 19, 2014, Palafox

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 7 of 12 filed a motion to suppress her confession, asserting it was unconstitutionally

coerced from her in violation of her rights under both the federal and state

constitutions. After a hearing, the trial court denied the motion, holding that

“[n]either the timing nor the manner in which the interviews were conducted

were improper and [Palafox’s] substantive rights were not violated by virtue of

the investigating detective’s actions.” (Appellant’s App. p. 91).

[14] On October 20 through 22, 2014, the trial court conducted a jury trial. Palafox

renewed her motion to exclude her confession, arguing its coercive nature and

the violation of her constitutional rights. The trial court repeated its denial. At

the close of the evidence, the jury found Palafox guilty of all charges. On

January 5, 2015, the trial court sentenced Palafox to fifteen years executed on

Count I, with seven years suspended and two years of probation. The trial

court reduced Count II to a Class D felony due to double jeopardy concerns

and imposed a sentence of 545 days. The court also sentenced Palafox to 545

days on Count III. The trial court declared all sentences to run concurrent, for

an aggregate sentence of fifteen years.

[15] Palafox now appeals. Additional facts will be provided as necessary

DISCUSSION AND DECISION

[16] Palafox contends that the trial court abused its discretion by admitting her

involuntary and coerced confession in violation of her federal due process rights

under the Fourteenth Amendment. When a defendant challenges the

voluntariness of his or her confession under the U.S. Constitution, the State

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 8 of 12 must prove the statement was voluntarily given by a preponderance of the

evidence. Bond v. State, 9 N.E.3d 134, 137 (Ind. 2014).2 We examine the

totality of the circumstances as presented by the record, and are guided by

several factors including police coercion; the length, location and continuity of

the interrogation; and the defendant’s maturity, education, physical condition,

and mental health. Miller v. State, 770 N.E.2d 763, 767-68 (Ind. 2002). “The

critical inquiry is whether the defendant’s statements were induced by violence,

threats, promises or other improper influence.” Ringo v. State, 736 N.E.2d 1209-

1212-13 (Ind. 2000).

[17] The Fourteenth Amendment forbids the use of involuntary confessions not only

because of the probable unreliability of confessions that are obtained in a

manner deemed coercive, but also because of the “strongly felt attitude of our

society that important human values are sacrificed where an agency of the

government, in the course of securing a conviction, wrings a confession out of

an accused against his will.” Bond, 9 N.E.3d at 137 (citing Jackson v. Denno, 378

U.S. 369, 385-86, 84 S. Ct. 1174, 12 L.Ed.2d 908 (1964)). Additionally, there is

a “deep-rooted feeling that the police must obey the law while enforcing the

law; that in the end, life and liberty can be as much endangered from illegal

methods used to convict those thought to be criminals as from the actual

2 Palafox does not articulate a distinct argument under the Indiana Constitution, which would have required the State to meet the higher hurdle of proving voluntariness beyond a reasonable doubt. See Pruitt v. State, 834 N.E.2d 90, 114-15 (Ind. 2005).

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 9 of 12 criminals themselves.” Id. (quoting Spano v. New York, 360 U.S. 315, 320-21, 79

S. Ct. 1202, 3 L.Ed.2d 1265 (1959)).

[18] Turning to her confession, Palafox asserts that it was rendered involuntary and

uttered against her free will because Detective Hickman made “the threat that

she would lose custody of her baby.” (Appellant’s Br. p. 19). Specifically,

Palafox points to the Detective’s statements that if he could not figure out what

had happened to A.L., it would be DCS’s recommendation that A.L. remain in

foster care. However, Detective Hickman’s statement cannot be categorized as

a threat; rather it amounts to a statement as to DCS’s standard procedure in

investigations of child abuse and imposed upon Palafox the seriousness of the

interview and its likely consequences.

[19] Likewise, we reach a similar result with respect to Detective Hickman’s

statement that

now is the time to tell the truth because when you leave here you’re not going to have another opportunity to talk to me and tell me the truth. . . . But if you leave here today and don’t tell me, look I did this, I’m sorry for it, I didn’t mean to. . . . and I go and get a warrant and we take our measurement and we match it to that bite . . . you’re not going to get your baby back . . . ever. (State’s Exh. 48, pp. 81-82). “A detective’s statements implying that a

confession would aid” Palafox’s case do not in and of themselves render that

confession involuntary. Bond, 9 N.E.3d at 137. This is “neither a coercive

police tactic nor an unexpected one, and we do not view it as having overcome”

Palafox’s free will. Id. Even though Detective Hickman stated that if A.L.’s

bite marks matched Palafox’s teeth, she would never get A.L. back might be Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 10 of 12 considered borderline coercive, “[s]tatements by police . . . explaining the

crimes and penalties that are possible results are not specific enough to

constitute either promises or threats.” See Massey v. State, 473 N.E.2d 146, 148

(Ind. 1985).

[20] With respect to Detective Hickman’s actions of locking Palafox in the room

and responding to her questions of being detained and needing legal

representation, we find no error. Detective Hickman explained the reasoning

behind the locked door to Palafox and even left the door open at her request so

she could use the restroom. Besides reading her Miranda rights and handing her

a Spanish-language written advisement form, Detective Hickman repeatedly

assured her that she was free to go if she wished to do so and that it was her

decision to retain an attorney.

[21] Palafox also challenges as unduly coercive Detective Hickman’s repeated

requests to take responsibility and be truthful because once she left she would

not get another opportunity to speak with him. On several occasions, we have

rejected similar arguments as it is permissive for police officers to express “a

desire that a suspect cooperates[.]” See, e.g., Kahlenbeck v. State, 719 N.E.2d

1213, 1217 (Ind. 1999). Furthermore, even though the request for cooperation

and the truth was reinforced several times, Detective Hickman always reassured

Palafox that he did not want her to confess to something she had not done.

[22] In sum, Palafox was invited to an interview at the Child Advocacy Center, a

less coercive setting than a police department’s interrogation room. She was

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 11 of 12 provided with an interpreter and voluntarily signed a waiver of rights.

Detective Hickman responded appropriately to all her legal questions. She was

provided with restroom breaks, food, and water. Detective Hickman gave

Palafox time to present her version of the injuries and offer alternative

scenarios, which he countered by impressing upon her the seriousness of A.L.’s

harm. Detective Hickman did not threaten Palafox, nor did he coerce her into

a confession. Rather, he presented her with the gravity of the situation and its

likely consequences. After the interview, Palafox was escorted to the lobby and

free to go. Based on the totality of the circumstances, we cannot conclude that

Palafox’ confession was involuntarily rendered in violation of the Fourteenth

Amendment.

CONCLUSION

[23] Based on the foregoing, we conclude the trial court properly admitted Palafox’

confession at trial.

[24] Affirmed.

[25] Brown, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-873 | October 23, 2015 Page 12 of 12