ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER
Chief Public Defender Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
GUADALUPE MORALES, )
vs. ) No. 10A05-0007-CR-294
STATE OF INDIANA, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D01-9902-CF-10
June 8, 2001
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Guadalupe Morales appeals her conviction following a jury trial of Neglect of a
Dependent, as a Class B felony. She presents two issues for our
review, which we restate as:
1. Whether the trial court erred when it denied her motion to suppress her
2. Whether the trial court abused its discretion when it denied her motion for
FACTS AND PROCEDURAL HISTORY
Morales emigrated from Mexico and speaks very little English. On January 11,
1999, Morales took her two-year-old daughter, J.M., to the Medical Center of Southern
Indiana in Charlestown. When they arrived at the emergency room, Morales told
the triage nurse that J.M. needed medical treatment for diaper rash.See footnote The
nurse examined J.M.s buttocks and suspected that J.M. had sustained a burn injury
rather than diaper rash. Dr. Glen Franklin examined J.M., diagnosed her with
a scald injury to her buttocks, and ordered that J.M. be transferred to
Kosair Childrens Hospital in Louisville, Kentucky, for medical treatment. Concerned that the
injury stemmed from abuse or neglect, Dr. Franklin immediately reported the incident to
Child Protective Services (CPS).
Before J.M. was transported to Kosair, Charlestown Police Officer Don Wolfe arrived at
the hospital and asked to speak with Morales. Officer Wolfe also asked
Crystal Chavez, a police dispatcher who speaks both English and Spanish, to come
to the hospital to act as an interpreter. Through Chavez, Officer Wolfe
told Morales that he wanted to talk to her about J.M.s injury.
Morales agreed and followed Officer Wolfe, Chavez, and Officer John Ennis to the
hospitals chapel. Before Officer Wolfe initiated any questioning of Morales, he asked
Chavez to translate a
See footnote warning card into Spanish for Morales. After
Chavez read the card, Officer Wolfe asked Morales about J.M.s injury. Morales
initially stated that it was diaper rash, but after Officer Wolfe expressed skepticism,
she stated that her five-year-old son had placed J.M. into a small bucket
of hot water. After talking to Officer Wolfe for approximately twenty or
thirty minutes, Morales returned to J.M.s bedside.
Officer Wolfe, Officer Ennis, Chavez, and CPS investigator Chris Yarbrough proceeded to Morales
residence, where they met Morales husband, Martin Perez. After Chavez orally translated
Miranda warning card for Perez, Officer Wolfe questioned Perez about J.M.s injury.
When Morales arrived home from the hospital, Officer Wolfe was still present
and asked her to go to the police station for further questioning.
Morales agreed, and she rode in a police car with Officer Ennis and
At the station, Chavez orally translated an Advice of Rights form into Spanish
for Morales, but Chavez failed to translate the Waiver of Rights portion of
the form. See infra. After Morales signed the form, Officer Wolfe
continued questioning her about the cause of J.M.s injury. During the thirty
or forty-five minutes of questioning, Morales again gave inconsistent explanations regarding the cause
of the burn on J.M.s buttocks. At one point, Officer Wolfe advised
Morales that he would let [her] go to the hospital to see J.M.
if she told him what really happened. Record at 861. She
finally told Officer Wolfe that some girls had come to her door and
called her some names[,] and that she was upset for being called the
names, . . . and the baby had been crying and . .
. she took the baby to the bathroom and [ran] hot water.
Record at 779. Morales also told Dr. Carla Alcid, J.M.s treating physician
at Kosair, that the burn to J.M.s buttocks was caused when she placed
J.M. into the bathtub. Dr. Alcid relayed that information to Yarbrough.
The State charged Morales with neglect of a dependent, as a Class B
felony, for causing J.M.s burn injury. Morales filed a motion to suppress
her statements to police at the hospital and at the police station, as
well as her statements to Dr. Alcid, on the ground that she had
not been adequately advised of her Miranda rights. After a hearing, the
trial court denied that motion and proceeded to trial. A jury found
Morales guilty. She now appeals.
DISCUSSION AND DECISION
Issue One: Motion to Suppress
Morales first contends the trial court erred when it denied her motion to
suppress her statements to police. Specifically, she argues her statements should have
been suppressed because she did not knowingly, voluntarily, or intelligently waive her Miranda
rights. Morales also maintains her statements to Dr. Alcid should have been
suppressed under the fruit of the poisonous tree doctrine. The State responds
that there is no Miranda issue here because Morales was not in police
custody when she made the challenged statements. We address each of Morales
contentions in turn.
We review the denial of a motion to suppress in a manner similar
to other sufficiency matters. Overstreet v. State, 724 N.E.2d 661, 663 (Ind.
Ct. App. 2000), trans. denied. We do not reweigh the evidence, and
we consider conflicting evidence most favorable to the trial courts ruling. Id.
However, unlike the typical sufficiency of the evidence case where only the
evidence favorable to the judgment is considered, we must also consider the uncontested
evidence favorable to the defendant. Id.
A. Hospital Chapel
It is well settled that the protections afforded under Miranda are implicated only
when the defendant has been subjected to a custodial interrogation, which is questioning
initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.
Bishop v. State, 700 N.E.2d 473, 476 (Ind. Ct. App. 1998) (citation omitted).
Thus, the initial Miranda inquiry is whether the defendant was in custody
at the time of questioning. Id. A criminal defendant is deemed
in custody if a reasonable person in the same circumstances would not feel
free to leave. Id. Whether a person was in custody depends
upon objective circumstances, not upon the subjective views of the interrogating officers or
the subject being questioned. Id.
Here, we cannot say that Morales was in formal custody or that her
freedom of action was limited in any significant way when she made her
statements to police in the hospital chapel. Morales voluntarily accompanied Officer Wolfe
to the chapel to discuss J.M.s injury. See Cliver v. State, 666
N.E.2d 59, 66 (Ind. 1996) (finding Miranda warning not required where defendant voluntarily
went to police station for questioning). While neither Officer Wolfe nor Chavez
advised Morales that she was free to leave the chapel, we find nothing
in the record to suggest that a reasonable person would not have felt
free to leave under the circumstances. We conclude that Morales was not
subjected to a custodial interrogation in violation of her Miranda rights at the
hospital chapel. Accordingly, the trial court did not err when it denied
her motion to suppress her statements to police in the chapel.
B. Police Station
On the other hand, Morales was clearly subjected to a custodial interrogation at
the police station. Officer Ennis drove Morales to the station in a
police car. Once there, Officer Wolfe advised Morales that if she told
him what happened to J.M., he would let [her] go to the hospital
to see her child. Since Morales was told, in effect, that she
needed Officer Wolfes permission to visit her own daughter, we conclude that a
reasonable person would not have felt free to leave the police station.
In fact, it was only after further interrogation that Wolfe stopped the interview
and allowed Morales to leave. Accordingly, Morales was entitled to an advisement
of her Miranda rights. We must address, then, the issue of whether
Morales knowingly, voluntarily, and intelligently waived her Miranda rights before she answered Officer
A waiver of ones Miranda rights occurs when a defendant, after being advised
of those rights and acknowledging an understanding of them, proceeds to make a
statement without taking advantage of those rights. Crain v. State, 736 N.E.2d
1223, 1230 (Ind. 2000). In addition to the required Miranda advisement, a
defendants self-incriminating statement must also be voluntarily given. Id. In judging
the voluntariness of a defendants waiver of rights, we will look to the
totality of the circumstances to ensure that a defendants self-incriminating statement was not
induced by violence, threats, or other improper influences that overcame the defendants free
will. Id. The State bears the burden of proving beyond a
reasonable doubt that the defendant voluntarily and intelligently waived his rights, and that
the defendants confession was voluntarily given. Id. The decision whether to
admit a confession is within the discretion of the trial judge and will
not be reversed absent an abuse of that discretion. Id. When
reviewing a challenge to the trial courts decision to admit a confession, we
do not reweigh the evidence but instead examine the record for substantial, probative
evidence of voluntariness. Id.
Here, Chavez orally translated an Advice of Rights form for Morales, asking her
whether she understood the translation upon completion of each line. However, Chavez
admits that she did not translate the waiver portion of the form, which
WAIVER OF RIGHTS
* * *
I have read this statement of my rights and I understand what my
rights are. I am willing to make a statement and answer questions.
I do not want a lawyer at this time. I understand
and know what I am doing. No promises or threats have been
made to me and no pressure or coercion of any kind has been
used against me.
Record at 775. Moreover, while Chavez asked Morales whether she understood her
translation of each word, Chavez never asked Morales whether she understood her rights
and never advised her that she would be waiving these rights by signing
the waiver form. See Dickerson v. State, 257 Ind. 562, 276 N.E.2d
845, 850 (1972) (finding it misleading to instruct defendant to sign rights form
if he understood it.) As our supreme court noted in Dickerson, a
defendant should not be instructed to sign a waiver form if he understands
it, but rather he should be informed that he is signing a waiver
of his rights and that he should sign it only if he desire[s]
to answer questions at that time without the presence or advice of an
attorney. Id. We conclude that, under the circumstances, Morales did not
knowingly, voluntarily, or intelligently waive her Miranda rights, and the trial court erred
when it denied her motion to suppress her statements to police at the
police station. C. Statements to Dr. Alcid
In addition, we note that Morales claims to have had difficulty understanding Chavezs
Spanish translation throughout the questioning by police. Chavez admitted that she had
no formal training as an interpreter, so we are unable to say whether
Morales complaint on this issue is unfounded.
See footnote In light of the fifty-five
percent increase in Indianas Hispanic population during the past decade,
see Stats Indiana,
available at http://www.stats.indiana.edu/profiles/pr18000.html, this court is concerned that the unavailability of qualified interpreters
throughout the state might impinge on the constitutional rights of Hispanics. See
Court Interpretation: Model Guides for Policy and Practice in the State Courts
11 (State Justice Institute 1995) (noting that large increases in minority populations make
it more difficult for criminal justice system to meet constitutional requirements of fundamental
fairness, equal protection, and right to cross examine adverse witnesses).
The constitutional issues arising from ad hoc oral translations presented in this appeal
are likely to recur. We think both the defendants rights and effective
law enforcement would be better served if standardized forms containing Miranda warnings and
waivers written in Spanish were created and distributed to all law enforcement agencies.
Similar forms should be made available for other large non-English speaking populations
within our state. The use of such forms would minimize translation issues
and facilitate review of Miranda challenges on the merits both in the trial
courts and on appeal.
Nonetheless, statements obtained in violation of Miranda and erroneously admitted are subject to
harmless error analysis. Davies v. State, 730 N.E.2d 726, 735 (Ind. Ct.
App. 2000), trans. denied, cert. denied, 121 S.Ct. 1410 (2001). The improper
admission of evidence is harmless error when the conviction is supported by substantial
independent evidence of guilt which satisfies the reviewing court that there is no
substantial likelihood the challenged evidence contributed to the conviction. Ground v. State,
702 N.E.2d 728, 732 (Ind. Ct. App. 1998). A federal constitutional error
is reviewed de novo and must be harmless beyond a reasonable doubt.
Id. (citing Chapman v. California, 386 U.S. 18, 24 (1967)). The court
must find that the error did not contribute to the verdict, that is,
that the error was unimportant in relation to everything else the jury considered
on the issue in question. Davies, 730 N.E.2d at 735.
We conclude that Morales statements to police at the police station were merely
cumulative of other evidence that she inflicted the burn injury upon J.M.s buttocks.
Three physicians testified that J.M. had sustained a second degree burn to
her buttocks. Dr. Alcid testified that Morales admitted having placed J.M. in
a tub of hot water, causing the burn. The verdict was supported
by substantial independent evidence of guilt. The trial courts admission of Morales
statements to police at the police station was harmless error.
Morales also contends that her statements to Dr. Alcid should have been excluded
as fruit of the poisonous tree. We cannot agree.
The fruit of the poisonous tree doctrine is one facet of the exclusionary
rule of evidence which bars the admissibility in a criminal proceeding of evidence
obtained in the course of unlawful searches and seizures. Hanna v. State,
726 N.E.2d 384, 389 (Ind. Ct. App. 2000). When applied, the doctrine
operates to bar not only evidence directly obtained, but also evidence derivatively gained
as a result of information learned or leads obtained during an unlawful search
or seizure. Id. To invoke the doctrine, a defendant must show
that challenged evidence was obtained by the State in violation of the defendants
Fourth Amendment rights. Id. Here, Morales does not claim any violation
of her Fourth Amendment rights, so she cannot rely on the fruit of
the poisonous tree doctrine. The trial court did not err when it
denied Morales motion to suppress her statements to Dr. Alcid.
Issue Two: Mistrial
Finally, Morales contends the trial court abused its discretion when it denied her
motion for mistrial. The decision to grant a motion for mistrial lies
within the sound discretion of the trial court. Palmer v. State, 486
N.E.2d 477, 483 (Ind. 1985). The trial courts decision is afforded great
deference on appeal because the trial court is in the best position to
gauge the surrounding circumstances of the event and its impact on the jury.
Mack v. State, 736 N.E.2d 801, 803 (Ind. Ct. App. 2000), trans.
denied. In order to establish that a denial of a mistrial motion
constituted an abuse of discretion, the appellant must demonstrate that he was placed
in a position of grave peril to which he should not have been
subjected. Palmer, 486 N.E.2d at 483. The declaration of a mistrial
is an extreme action which is warranted only when no other recourse could
remedy the perilous situation. Id.
Gary Stocco, Executive Director of the National Burn Victim Foundation, testified as an
expert witness on Morales behalf regarding the cause of J.M.s injury. Despite
a discovery order requiring the State to provide Morales with any papers, documents,
. . . or other tangible objects which the State intends to use
at trial, Record at 22, the State failed to provide Morales with any
information about what it intended to use to impeach Stoccos credibility. During
the States cross-examination of Stocco, the prosecutor questioned Stocco about inconsistencies between his
testimony in prior, unrelated trials and that in Morales trial. Morales objected
to only one of the questions regarding these alleged inconsistencies on the ground
that it was irrelevant, and the trial court sustained that objection.
See footnote Morales
made no other objections during the States cross-examination of Stocco. After Morales
examined Stocco further on redirect examination, the trial court recessed the trial for
the weekend. The following Monday, Morales filed a written motion for mistrial
claiming that she was deprived of her right to a fair trial due
to the States failure to provide her with the materials the State used
to impeach Stoccos credibility.See footnote
An objection to allegedly improper testimony must be made at that critical point
in the trial when the evidence is offered or when the question is
Jones v. State, 425 N.E.2d 128, 131 (Ind. 1981); see Strain
v. State, 560 N.E.2d 1272, 1274 (Ind. Ct. App. 1990) (finding waiver of
claim that trial court erroneously denied motion for mistrial where defendant failed to
object to challenged testimony and moved for mistrial only after lengthy cross examination
of witness), trans. denied. The requirement for timely objection at trial, with
resulting waiver in its absence, applies notwithstanding a trial courts pre-trial ruling on
admissibility of such evidence. Lenoir v. State, 515 N.E.2d 529, 529 (Ind.
1987). Morales made only one objection during the States cross-examination of Stocco.
When the trial court sustained that objection, Morales neither requested an admonition
nor a mistrial. Indeed, Morales did not move for a mistrial until
after Stocco had completed his testimony, both on cross-examination and redirect examination, and
after the trial court had recessed for the weekend. Morales has waived
this claim of error for appellate review.
MATTINGLY-MAY, J., and VAIDIK, J., concur.
Footnote: We heard oral argument at Jasper High School in Dubois County
on May 15, 2001.
Footnote: Morales neighbor Wanda Thacker, who speaks both Spanish and English, accompanied
Morales to the hospital to act as an interpreter.
See Miranda v. Arizona, 384 U.S. 436 (1966).
We note that Indiana Rule of Evidence 604, which governs qualifications
of interpreters in court proceedings, provides: An interpreter is subject to the
provisions of these rules relating to qualification as an expert and the administration
of an oath or affirmation to make a true translation.
Footnote: A party cannot use an objection which has been sustained as
the basis for an appeal.
Beverly Enterprises, Inc. v. Spragg, 695 N.E.2d
1019, 1022 (Ind. Ct. App. 1998). Had Morales believed she was prejudiced
despite the trial courts favorable ruling on the objection, her remedy would have
been to ask for an admonition or mistrial. See id. Morales
requested neither remedy at that time.
Morales also argued that she was deprived of her right to
present a defense, her right to discovery, and her right to effective assistance
of counsel. In addition, Morales contended that the prosecutor committed misconduct in
her cross-examination of Stocco.
Footnote: Due to Moraless waiver of this issue, we do not address
whether she was entitled to discovery of the States materials used to impeach
her own witness.
See Potts v. Williams, 2001 WL 499363 (Ind. Ct.
App. May 11, 2001) (finding plaintiffs materials used to impeach defendants own witness
work-product and not discoverable by defendant absent a special showing).