Certiorari to the Utah Court of Appeals Third District, Salt
Lake The Honorable Randall N. Skanchy No. 121911274
D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen.,
Nathan Evershed, Salt Lake City, for respondent
J. Seppi, Salt Lake City, for petitioner
Justice Himonas authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Pearce, and Justice Petersen joined.
Robert Apodaca asks us to reverse the court of appeals'
affirmance of his convictions for aggravated kidnapping,
aggravated robbery, and obstruction of justice. He contends
that the court of appeals erred in affirming the trial
court's conclusion that his confession and other
incriminating statements made to police would have been
admissible at trial as impeachment evidence, despite an
acknowledged violation of his Miranda rights, which
barred the statements from being used in the State's
case-in- chief. Additionally, he contends that the court of
appeals erred in affirming his conviction for aggravated
robbery in the face of a faulty jury instruction that
improperly recited the requisite mental state for the
The court of appeals-following the standard we set forth in
State v. Arriaga-Luna, 2013 UT 56, ¶ 9, 311
P.3d 1028, which echoed the United States Supreme Court's
ruling in United States v. Washington, 431 U.S. 181,
188 (1977)-properly surveyed the totality of the
circumstances surrounding the statements made by Apodaca and
held that Apodaca's free will was not overborne in making
them. We agree. Apodaca's confession and statements to
police were not coerced and would have been properly
admissible against him as impeachment evidence if he had
chosen to testify. Furthermore, although the jury instruction
given at trial was faulty as to the proper mens rea
required to convict Apodaca of aggravated robbery, we also
agree with the court of appeals that it did not result in
prejudice to Apodaca. Accordingly we affirm the decision of
the court of appeals in its entirety.
Apodaca's co-defendant Brandon Montoya testified at trial
that on November 28, 2012, he had purchased a small amount of
oxycodone pills from J.H.,  a sixteen-year-old drug dealer.
Later that same day, Montoya raised the idea of robbing J.H.
with Apodaca. Montoya testified that he contacted Apodaca
because Apodaca had a car and that he asked Apodaca to bring
a gun or someone with a gun so J.H. would "give [the
drugs] up without a fight." Apodaca agreed to the plan
and promised to "bring one of his homies."
Montoya then called J.H. to arrange to purchase a large
quantity of oxycodone pills. Montoya testified at trial that,
according to their plan, he, Apodaca, and Gilbert Vigil would
drive to J.H.'s house and ask to do the drug deal in
Apodaca's car. The plan was that once J.H. was in the
car, Vigil would "just pull out the pistol and scare
him, make him give the pills up, and then kick him out of the
car." Montoya would feign surprise and encourage J.H. to
Montoya, Apodaca, and Vigil arrived at J.H.'s
girlfriend's home and asked J.H. to do the drug deal in
the car. J.H. got into the backseat of the car. As J.H.
counted the pills, Apodaca sped off. Vigil struck J.H. in the
head with a .22 caliber revolver, then pointed it at
J.H.'s head and demanded, "Give us those fucking
pills." As this happened, Montoya screamed,
"Give them the pills. . . . I don't want to
die." J.H.'s pleas to be let out of the car were
ignored and he was unable to open the door while the car was
in motion. J.H. attempted to get the gun from Vigil, but
Vigil shot him in the stomach and multiple times in the legs.
Apodaca then stopped the car, and Montoya and J.H. got out
while Apodaca and Vigil drove away. Police arrested Apodaca
after finding his car, which had blood stains, a wet
backseat, and missing floor mats.
Apodaca's interview with two detectives occurred in three
distinct segments. The first segment, a conversation between
Detective Martell and Apodaca in the squad car, was recorded.
The second segment, which was not recorded, occurred while
Detective Jensen transported Apodaca from the squad car to
the interview room. The third segment, which was recorded,
was conducted by both detectives in an interview room at the
At the beginning of the first segment, which was recorded in
the squad car, Detective Martell told Apodaca he would
explain his rights to him. Apodaca replied, "After you
give me my rights though don't ask me no questions cuz I
answering no questions bro." Detective Martell recited
Apodaca's Miranda rights and acknowledged that
Apodaca had invoked his right to remain silent. He then told
Apodaca that he would give him "the opportunity to tell
. . . [his] side."
Apodaca denied any wrongdoing and asked whether he was
"going to jail [that night] no matter what." When
Detective Martell replied that he did not know whether
Apodaca was going to jail, Apodaca said, "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." Apodaca
consistently expressed his desire to make a deal and said
that he would not incriminate himself or anyone else without
getting "someone [to] tell [him] you ain't going to
jail." Detective Martell said he could not make a deal,
but encouraged Apodaca to talk to him because, unlike the
other detectives, he understood Apodaca's background and
his "hard life." Apodaca again said that he would
not talk "unless [he was] getting some deals."
Additionally, Apodaca said, "How about you ask them what
it's 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."
Detective Martell later told Apodaca, "[T]here's no
way that you're not going to jail tonight." Apodaca
then asked whether the interview was being recorded. When the
detective replied that it was, Apodaca indicated that he
would be willing to disclose more information if the recorder
was turned off. Apodaca then expressed his understanding that
the detectives would add charges against him if he did not
give a statement. Detective Martell replied, "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." Before Detective Jensen took custody of
Apodaca, Detective Martell asked Apodaca if he was sick or
injured, to which Apodaca replied, "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 was then transported from the police
car to the interview room.
Because Detective Jensen and Apodaca conversed in the
forensic area while Apodaca was being transported, there is
an unrecorded "second segment" of his interview
with police. The trial court heard testimony from Apodaca and
Detective Jensen about the content of this unrecorded
conversation. According to Apodaca, he invoked his right to
remain silent during the first segment, but changed his mind
and decided to waive his rights because of the exchange he
had with Detective Jensen in the second segment. Apodaca said
Detective Jensen told him that if he explained what happened,
Detective Jensen 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 testified that if he had not received this
promise, he would not have talked to police.
According to Detective Jensen, "no deal was ever
made" during the second segment of the interview, and he
did not give Apodaca "any definite answers about jail or
Christmas." Detective Jensen testified that he
"struck up a conversation" with Apodaca about
tattoos in the forensics area of the police station after
Apodaca became upset when he overheard Detective Jensen
telling a technician that Apodaca may be charged with
attempted homicide. Apodaca asked about the charges and
expressed that he was "concerned about going to
jail" and "did not want to snitch." Detective
Jensen told Apodaca that "now was a good time to
cooperate if he was willing to do it."
According to Detective Jensen, Apodaca expressed concern that
"his cooperation would not get back to the prosecutors
in charge of his case," so Detective Jensen told Apodaca
that if he decided to cooperate, he, Detective Jensen,
"would let the prosecution know that he decided to
cooperate and take responsibility." The detective
testified that when he said he was giving his word to
Apodaca, he was only reassuring Apodaca that he would pass
along the information about Apodaca's cooperation to the
The third segment took place in an interview room with
Detectives Martell and Jensen and was recorded. The interview
transcript begins with the following exchange:
[Apodaca]: I just hope that prosecuting attorney sees how
much I'm giving up.
[Det. Jensen]: I guarantee they will.
[Apodaca]: I just hope I get out.
[Det. Jensen]: Hey you've got my word ...