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.
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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.
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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
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“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
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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.
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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
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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
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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
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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).
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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
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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
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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
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