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State v. Apodaca

Court of Appeals of Utah

June 28, 2018

State of Utah, Appellee,
Robert S. Apodaca, Appellant.

          Third District Court, Salt Lake Department The Honorable Randall N. Skanchy No. 121911274

          Lori J. Seppi, Attorney for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

          POHLMAN, JUDGE

         ¶1 Robert S. Apodaca appeals his convictions for one count of aggravated kidnapping, a first degree felony; one count of aggravated robbery, a first degree felony; and one count of obstruction of justice, a second degree felony. He contends the trial court erred in concluding that his incriminating statements to police were voluntary and thus admissible at trial as impeachment evidence. He also contends that his aggravated robbery conviction should be reversed because a jury instruction improperly stated the applicable mental state. We affirm.


         The Criminal Episode

         ¶2 A codefendant (Codefendant) was one of the State's key witnesses against Apodaca. Codefendant testified at trial that in November 2012 he purchased a small number of oxycodone pills from a sixteen-year-old drug dealer (Victim) and snorted those drugs. He testified that later the same day, he contacted Apodaca and, referring to Victim, said, "I know this kid we can rob. We can scare him pretty good." Codefendant explained that he called Apodaca "[b]ecause [Apodaca] had a ride," and Apodaca told Codefendant that "he would come through" by picking up Codefendant. Codefendant further testified that he suggested Apodaca "find someone who's got a gun . . . 'cause if [Victim] sees there's a gun, he's going to . . . give [the drugs] up without a fight." Apodaca responded that he would "bring one of his homies." When Codefendant later met with Apodaca, another man carrying a gun (Shooter) was already in the car Apodaca was driving.

         ¶3 Codefendant testified at trial that he, Shooter, and Apodaca had a plan: after Victim got in the car to sell them drugs, they would "just pull out the pistol and scare him, make him give the pills up, and then kick him out of the car." As this happened, Codefendant would feign surprise and "act like [he] didn't know what was going on."

         ¶4 To carry out their plan, Codefendant called Victim and arranged to buy a larger quantity of oxycodone pills from him. Apodaca then drove Codefendant and Shooter to Victim's girlfriend's residence to meet Victim. Codefendant went inside the residence and persuaded Victim to come out, telling him "[t]hey wanted to do [the deal] in the car." Victim got in the backseat behind Apodaca, and Codefendant got in the backseat behind Shooter.

         ¶5 Soon after Victim began counting the oxycodone pills, Apodaca, "out of nowhere," shifted the car into gear and sped off. Immediately after the car pulled away, Shooter pistol-whipped Victim in the head with a .22 caliber revolver and then pointed it at Victim's head. Shooter demanded, "Give us those fucking pills."[1] Victim refused. Meanwhile, Codefendant leaned against the door, screaming, "Just give them the pills. . . . I don't want to die." Victim attempted to open the car door while the car was traveling at approximately forty miles per hour, but the door was locked and would not open. Victim "told them to let [him] out" of the car three or four times, but his pleas went unanswered.

         ¶6 Victim also testified at trial that he heard Apodaca say, "Fucking shoot him." Similarly, Codefendant testified that Apodaca said, "Pop his ass."[2] But on cross-examination, Codefendant expressed uncertainty about who said this and admitted that it "could have been" Shooter.

         ¶7 Shooter then shot Victim in the stomach. Although Victim tried to get the gun from Shooter, Shooter ultimately shot him three more times in the leg. Apodaca stopped the car, and Codefendant exited the car and pulled Victim out. When Victim was removed from the car, he no longer had the oxycodone pills and never received payment for them. Apodaca and Shooter sped away, swerving in and out of traffic and "blow[ing] through" several red lights.

         ¶8 When the police eventually searched Apodaca's car, the rear floor mats were missing, and the backseat looked as though it had been wet. The police saw blood stains under the rear driver's side seat as well as on the back of the driver's seat and headrest. Once the police apprehended Apodaca, they interviewed him and charged him with several crimes.

         The Motion to Suppress

         ¶9 Before the case went to trial, Apodaca moved to suppress the statements he made during his interview with the police, asserting that the police violated his Fifth Amendment rights when they continued to question him after he had invoked his constitutional right to remain silent. Apodaca also asserted that the police obtained his statements through coercive inducement and that, as a result, his statements were involuntary and could not be used against him for any purpose.

         ¶10 In response, the State stipulated that it would not introduce Apodaca's statements in its case-in-chief. But the parties disagreed about whether the State could use Apodaca's statements to impeach his credibility if he testified inconsistently at trial. According to the State, Apodaca's statements were not coerced or involuntarily made, and therefore it could use those statements for impeachment purposes.

         ¶11 Apodaca's interview with two police detectives had three distinct segments. The first was the conversation between the first detective and Apodaca in the police squad car. The second segment took place while a second detective transported Apodaca from the squad car to the interview room. The third segment involved the conversation between Apodaca and both detectives in an interview room at the police station. The first and third segments of the interview were recorded; the second was not. Because there was no record of the second segment, the trial court heard testimony from the second detective and Apodaca before ruling on the motion to suppress. This portion of the proceeding occurred on the second day of trial outside the presence of the jury.

         The First Segment

         ¶12 The first detective began by telling Apodaca that he would advise Apodaca of his rights. Apodaca responded, "After you give me my rights though don't ask me no questions cuz [I'm] answering no questions bro." The detective informed Apodaca of his Miranda rights[3] and explained that he would not interrogate Apodaca but rather would give him "the opportunity to tell . . . [his] side." Apodaca asked, "What's that gonna do for me?" He also repeatedly asked to know the charges against him.

         ¶13 The detective relayed that Codefendant identified Apodaca as the car's driver but did not identify who the front passenger was. Apodaca denied shooting anyone and stated that he had done nothing wrong, to which the detective again said, "This is the opportunity for you to give me your side." Apodaca wanted to know whether he was "going to jail [that night] no matter what." The detective did not know and said he could ask. Apodaca then stated, "How can I not go to jail, you guys got to start making me feel more comfortable, cuz I could help anybody as long as I'm gonna get something in the process. I can help you with a lot of things if I get something in the process," and he indicated that if the police wanted him to "give . . . somebody up," then they had to give something to him.

         ¶14 The detective told Apodaca he knew Victim was shot in Apodaca's car. When Apodaca asked again for the charges, the detective said he was unsure but thought Apodaca would be charged with aggravated assault. The detective then asked why Apodaca would not talk, to which he responded, "Cuz I'm not gonna incriminate myself or tell you about anyone else until I get someone [to] tell me you ain't going to jail." The detective told Apodaca he could not do that, but he encouraged Apodaca to talk with him instead of the other detectives because he understood Apodaca's background and his "hard life." Apodaca reiterated that he was not going to incriminate himself "unless [he was] getting some deals." The detective responded that he could not "give deals," only inquire. The detective then asked Apodaca how many people were in the car, and Apodaca responded, "How about you ask them what's it gonna take for me not to go to jail and maybe I can tell them these things if they're gonna guarantee me to not go to jail."

         ¶15 After a pause in the interview, during which the detective inquired about Apodaca's charges, the detective identified kidnapping and aggravated robbery among the possible charges, and told Apodaca, "There's no way that you're not going to jail tonight." Apodaca asked if he could talk to his girlfriend, and the detective said he would ask. Apodaca queried about whether their interaction was being recorded, and the detective answered, "Yeah . . . I have to record our conversation." Apodaca asked whether the detective could turn off the recorder. The detective responded, "You want me to turn [the recorder] off?" Apodaca then stated, "Maybe I'll talk to you a little more, it has to be off." Apodaca then implied that the State would add charges against him because he did not give a statement. The detective told him, "No dude that's not how we work . . . . It's not up to us okay? . . . It's up to the prosecuting [attorneys] to make a decision . . . . All we do is recommend the charges from what we've come up with in our investigation that's all we can do. . . . They make the final decision."

         ¶16 Near the end of the first segment, Apodaca indicated that he understood the charges and, when asked whether he was sick or injured, Apodaca said, "I'm pretty sick to my stomach and I'm gonna need my methadone soon in the morning . . . . [W]hen I don't have that I can't even function." Apodaca also recognized he faced incarceration, stating, "I'm gonna do some time in jail . . . so I'm figuring . . . I got six months . . . without my family I can do that even though I didn't do shit." Apodaca then proposed, "I could set [Codefendant] up, I could buy some drugs from him for you guys . . . . Would that get me out of jail?" The detective responded by explaining that the authorities wanted to know what happened in the car and who was there. Apodaca then suggested that Codefendant must have been confused when he said Apodaca was in the car or that Codefendant was the shooter and was trying to divert blame by accusing someone else. The first segment ended with Apodaca's transfer from the police car to the interview room.

         The Second Segment

         ¶17 Apodaca and the second detective each testified about what transpired during the unrecorded second segment. According to Apodaca, he invoked his rights upon arrest and said he did not want to speak. He then changed his mind and waived his rights during the third segment because the second detective told him during the second segment that if he explained what had happened, the detective would "write the DA and . . . make sure that [Apodaca would be] out by Christmas Day." Apodaca testified that he understood this as a "guaranteed" promise that he would be treated with leniency if he cooperated. He also testified that if he had not been promised that he would be out within one month and by Christmas, he would not have waived his rights and spoken with the police. He added that he told the police "what [he] thought they wanted to hear." Apodaca also testified that, during the second segment, he told the detectives he was going to need his medication and they told him, "[J]ust talk to us; and then we'll make sure you get that." Apodaca explained that, without his medication, he would experience heroin withdrawal symptoms, including pain in his legs, back, and head, and that he "would sweat, shak[e]."

         ¶18 In contrast to Apodaca's testimony, the second detective testified that "no deal was ever made" during the second segment of the interview and that he did not give Apodaca "any definite answers about jail or Christmas." According to the detective, when he met Apodaca in the forensics area of the police station, he "struck up a conversation" with Apodaca about tattoos. Apodaca got upset when he overheard the detective tell another employee that Apodaca might be charged with attempted homicide and obstruction of justice, and Apodaca "began to question" the detective about why he would face those charges. Apodaca was "concerned about going to jail" and "did not want to snitch." The detective told Apodaca that "cooperation was a good thing," "it always look[ed] better to cooperate," and "now was a good time to cooperate if he was willing to do it." In response to Apodaca's concern that "his cooperation would not get back to the prosecutors in charge of his case," the detective reassured Apodaca that if he wanted to cooperate, the detective "would let the prosecution know that he decided to cooperate and take responsibility." Although Apodaca proposed other ways that the detective could pursue the investigation, he agreed to speak more with the detective in the interview room. The detective testified that when he said he was giving his word to Apodaca, he was reassuring him that he would pass along to the prosecuting attorneys information about Apodaca's cooperation. The detective testified that he followed through and did so.

         The Third Segment

         ¶19 The transcript of the third segment began in the interview room. The following exchange ensued:

[Apodaca]: I just hope that prosecuting attorney sees how much I'm giving up.
[Detective]: I guarantee they will.
[Apodaca]: I just hope I get out.
[Detective]: Hey you've got my word alright.
[Apodaca]: That would be the shit if I was out by Christmas man.
[Detective]: No I hear ya.

         After this exchange, Apodaca began making incriminating statements. When Apodaca articulated the suspicion that the detective already knew "everything," the detective said that he did but was giving Apodaca "a chance to let [him] know [what happened] as well." The detective then stated, "I said you guys were in trouble you know that it's a matter of how we deal with it from here . . . and I think it always looks better if you cooperate."

         ¶20 Although Apodaca made additional incriminating statements, he was reluctant to identify the shooter, explaining, "I guess I have to go to jail because . . . cuz I can't do that man. It's gonna be me on the paperwork snitching on my homeboy. . . . I can't man cuz my friends gonna read it when he gets caught and he's gonna tell everybody." Apodaca also expressed concern that he would "be in jeopardy" when he was released, and the detective reassured him, "When you get out . . . [and] [i]f you feel like you're in jeopardy you need to call me and I will take care of it." Apodaca stated, "I'm still getting in jail whether I say his name or not. . . . Unless I get a better offer . . . I can't say anything." The detective asked, "Do you think it's gonna look a little bit worse if you don't go to jail and everybody else does?" Apodaca said there was "no benefit" to naming the shooter, and when the detective remarked that Apodaca's child is "not gonna have dad for a little while," Apodaca agreed and said "at least for a year."

         ¶21 At this point, the first detective entered the room and resumed questioning. The first detective urged Apodaca to think about Apodaca's child having an involved father in his life, but he also stated that he could not speak on behalf of the district attorney's office and could not "promise [Apodaca] anything." The detective reminded Apodaca that he grew up in "the same kind of life," and continued, "I can't guarantee what's going to happen in court, but I, I could tell you that it's gonna be helpful to know that you're being cooperative, and that's all we're trying to do here is give you the opportunity to do so." When Apodaca asked whether his cooperation would "make [him] go home faster," the detective responded, "I can't promise you something that I can't guarantee. . . . I can tell you this it's gonna come out a lot better for you if you're truthful." The detective then said, "I want you to tell me the truth of what you witnessed and I guarantee you that [the prosecutors are] gonna look at that hard and they're gonna realize that you're being helpful with this investigation . . . and you being with . . . your son it's gonna be . . . better for you than for you to be sitting in a cell for the rest of your life." The detective reiterated, "I can't guarantee any of this stuff [you're] asking." Apodaca then made more incriminating statements.

         The Parties' Arguments and the Trial Court's Ruling

         ¶22 Apodaca argued to the trial court that his statements were elicited in violation of his Miranda rights and could be used against him for impeachment purposes only if they were voluntarily and freely given and without compulsion or coercion. He then argued that his "complete shift" regarding cooperation between the first segment and the third segment was explained by police inducement, in the form of a promise that he would get out of jail by Christmas. Because he was induced into making the statements, Apodaca asked the court to find that they were involuntary and therefore could not be admitted for any purpose. The prosecutor countered that there was no inducement and that the evidence showed "no Christmas promise that was made to [Apodaca]."

         ¶23 The court concluded that Apodaca's statements were obtained in violation of Miranda and could not be used in the State's case-in chief. However, based on the testimony and the parties' arguments, the court found that "there was no coercion or duress associated with the statements made by Mr. Apodaca." The court further explained,

And really on the spectrum of this idea of trickery or coercion-the suggestion that somebody has- engages in voluntary conversations doesn't rise to the level of what might otherwise be duress or coercion, nor is a promise to pass on information associated with Mr. Apodaca's cooperation, which is what this Court understands that testimony to be-an inducement for ...

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