State v. Apodaca , 428 P.3d 99 ( 2018 )

2018 UT App 131THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ROBERT S. APODACA,
Appellant.
Opinion
No. 20140774-CA
Filed June 28, 2018
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.
State v. Apodaca
BACKGROUND
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.
20140774-CA 2 2018 UT App 131State v. Apodaca
¶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
1. Victim testified at the preliminary hearing that Apodaca made
this statement. But at trial, Victim testified it was Shooter who
demanded the pills. After reviewing his preliminary hearing
testimony, and after cross-examination on the issue, Victim
conceded he could not recall who made the statement and
agreed it was possible that both Apodaca and Shooter
demanded the pills.
2. Codefendant interpreted the phrase “[p]op his ass” to mean
“shoot him, or punch him, or hit with the gun.”
20140774-CA 3 2018 UT App 131State v. Apodaca
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
20140774-CA 4 2018 UT App 131State v. Apodaca
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
3. Miranda v. Arizona, 384 U.S. 436 (1966), requires that suspects
be informed of their rights to remain silent and to counsel prior
to custodial interrogation if the resulting evidence is to “be used
against [them].” Id. at 478–79.
20140774-CA 5 2018 UT App 131State v. Apodaca
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
20140774-CA 6 2018 UT App 131State v. Apodaca
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
20140774-CA 7 2018 UT App 131State v. Apodaca
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.
20140774-CA 8 2018 UT App 131State v. Apodaca
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
20140774-CA 9 2018 UT App 131State v. Apodaca
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
20140774-CA 10 2018 UT App 131State v. Apodaca
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 which somehow would
obviate the voluntary nature of freely given
information by Mr. Apodaca.
The court concluded that it would allow the State to use
Apodaca’s statements for impeachment purposes.
The Trial
¶24 Apodaca was tried by a jury on one count of aggravated
kidnapping, one count of aggravated robbery, one count of
20140774-CA 11 2018 UT App 131State v. Apodaca
obstructing justice, and four counts of felony discharge of a
firearm. The aggravated robbery count and the discharge of a
firearm counts were based on accomplice liability, meaning that
the State sought to hold Apodaca criminally liable for Shooter’s
acts of robbing Victim and discharging the gun.
¶25 In opening statements, defense counsel set the foundation
for a compulsion defense. Counsel explained to the jury that it
would hear that Apodaca was offered drugs in exchange for
giving Shooter and Codefendant a ride. According to defense
counsel, Apodaca did not know that Shooter had a gun and was
surprised when Shooter pulled it out and announced that they
were going to rob Victim. Apodaca was “afraid of” and
“intimidat[ed]” by Shooter, and when he was “ordered to drive
. . . that’s what he did.” Defense counsel also told the jurors that
“if [Apodaca’s] life was threatened and he was told that he had
to participate or he himself was going to get hurt, [they] will
hear that the law provides that in certain circumstances you’re
allowed to do exactly what [Apodaca] did: drive that car.”
¶26 Victim and Codefendant both testified against Apodaca.
Although Apodaca had planned to testify in his own defense, he
changed his mind and elected not to testify “in light of the . . .
suppression ruling.” As defense counsel explained to the court,
“if [Apodaca] testifies, he’s subjecting himself to impeachment.”
¶27 Relatedly, Apodaca withdrew his request for a
compulsion instruction. In closing statements, defense counsel
argued that the State had not met its burden of proof and urged
the jury to disregard Codefendant’s testimony. Defense counsel
questioned the accuracy and credibility of the State’s witnesses
by highlighting inconsistencies in their statements, Victim’s
allegedly imperfect perception of a stressful event, and
Codefendant’s motivations and shifting stories. In addition,
defense counsel cast blame on Shooter, arguing Apodaca was
not a party to Shooter’s crimes. Defense counsel asserted that
20140774-CA 12 2018 UT App 131State v. Apodaca
Apodaca “didn’t assist anyone,” “was doing what he was told,
[and was] found in the circumstances that he didn’t want to be
in.”
¶28 The court instructed the jury regarding the concepts of
accomplice liability and culpable mental states. The court also
provided the jury with definitions of the terms “intentionally”
and “knowingly.” Relevant to this appeal, Instruction 36
explained the elements of the crime of aggravated robbery. That
instruction directed the jury that, if it found all the other
elements of the offense, it could find Apodaca guilty of
aggravated robbery so long as it found that he “a. Intended that
[Shooter] commit the crime of Aggravated Robbery; or b. Was
aware that his conduct was reasonably certain to result in
[Shooter] committing the crime of Aggravated Robbery.”
¶29 After the court submitted the case to the jury, the jury sent
a note to the court asking:
If someone assists in detaining an individual and
was knowing about plans to scare said individual
to give up their personal property, that is
aggravated kidnapping, but if they only assisted in
the act of detainment under threat for their own
life, does that still leave them at fault as it being
intentional on the party in question?
Does action under duress change intent?
The court responded, “The Court refers you to jury instruction[]
9, what evidence is, or is not, instruction[] 29 on a defendant’s
mental state, instructions 33 and 34 on accomplice liability and
instruction 43 on intentionally and knowingly.”
¶30 The jury acquitted Apodaca of all four counts of felony
discharge of a firearm, but it convicted him of aggravated
20140774-CA 13 2018 UT App 131State v. Apodaca
kidnapping, aggravated robbery, and obstructing justice.
Apodaca appeals.
ISSUES AND STANDARDS OF REVIEW
¶31 First, Apodaca contends that the trial court “incorrectly
concluded that [his] statements to police were voluntary and,
therefore, admissible as impeachment evidence.” “The ultimate
determination of voluntariness is a legal question; accordingly,
we review the district court’s ruling for correctness.” State v.
Rettenberger, 1999 UT 80, ¶ 10, 984 P.2d 1009. We review the trial
court’s underlying factual findings for clear error.4 Id. A trial
court’s factual findings are clearly erroneous “only if they are
4. The Utah Supreme Court has recently explained that “where
the [trial] court’s decision [on a motion to suppress] is based
entirely on its review of the interrogation transcripts and the
court’s interpretation of the law, the question is more law-like
than fact-like,” and thus we owe the trial court no deference in
reviewing that decision. Met v. State, 2016 UT 51, ¶ 34, 388 P.3d
447 (quotation simplified). The supreme court has also stated
that “when a [trial] court relies on live testimony in an
evidentiary hearing where the defendant, interrogators, or other
relevant individuals testify regarding the circumstances of the
confession and the defendant’s characteristics and state of mind
at the time of the confession, some deference may be
appropriate.” State v. Arriaga-Luna, 2013 UT 56, ¶ 8, 311 P.3d
1028. Because the trial court’s decision relied on transcripts as
well as live testimony, this case may be one to which some
deference may be appropriate. See id. But we need not decide
this question. Both parties ask us to review the trial court’s
underlying factual findings for clear error and its ultimate
decision for correctness. We would affirm the trial court’s
decision under either standard.
20140774-CA 14 2018 UT App 131State v. Apodaca
against the clear weight of the evidence, or if we otherwise reach
a definite and firm conviction that a mistake has been made.”
State v. Hinmon, 2016 UT App 215, ¶ 9, 385 P.3d 751 (quotation
simplified). “Our role is not to reweigh the evidence, but to
determine only if the appellant has demonstrated a lack of
evidentiary support for the trial court’s findings.” Salt Lake City
v. Reyes-Gutierrez, 2017 UT App 161, ¶ 22, 405 P.3d 781(quotation simplified).
¶32 Second, Apodaca contends that the trial court
“improperly instructed the jury that it could convict [him] of
aggravated robbery as a party if it found that Apodaca acted
knowingly.” Because he did not preserve this issue at trial, he
asks us to reach the issue under the rubric of ineffective
assistance of counsel. 5 See State v. Bond, 2015 UT 88, ¶ 46, 361
P.3d 104 (recognizing the ineffective assistance of counsel
doctrine as an exception to the preservation rule). We decide a
claim of ineffective assistance of counsel raised for the first time
on appeal as a matter of law. Layton City v. Carr, 2014 UT App
227, ¶ 6, 336 P.3d 587.
ANALYSIS
I. The Voluntariness of Apodaca’s Statements to the Detectives
¶33 Apodaca contends that the trial court erred by ruling that
his incriminating statements to the detectives, though
inadmissible during the State’s case-in-chief, were admissible to
impeach him should he testify inconsistently. Although the State
ultimately did not use Apodaca’s statements at trial, he contends
that his convictions should be reversed because the alleged error
5. Apodaca also asks us to review this issue under the plain error
and manifest injustice exceptions to the preservation rule. See
infra note 14.
20140774-CA 15 2018 UT App 131State v. Apodaca
violated his constitutional rights or because the ruling deterred
him from testifying on his own behalf.
¶34 Individuals are protected from being compelled to
incriminate themselves under the Fifth and Fourteenth
Amendments to the United States Constitution. 6 State v. Arriaga-
Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028 (citing U.S. Const. amends.
V, XIV; Malloy v. Hogan, 378 U.S. 1, 6 (1964)). “The United States
Supreme Court has held that ‘although statements taken in
violation of only the prophylactic Miranda rules may not be used
in the prosecution’s case in chief, they are admissible to impeach
conflicting testimony by the defendant.’” State v. Troyer, 910 P.2d
1182, 1190 (Utah 1995) (quoting Michigan v. Harvey, 494 U.S. 344,
350–51 (1990)). The rationale is that “if defendants exercise their
right to testify on their own behalf, they assume a reciprocal
‘obligation to speak truthfully and accurately.’” Id. (quoting
Harvey, 494 U.S. at 351). Put another way, the law does not
permit “a defendant to ‘turn the illegal method by which
evidence in the Government’s possession was obtained to his
own advantage, and provide himself with a shield against
contradiction of his untruths.’” Id. (quoting Harvey, 494 U.S. at
351); see also Oregon v. Hass, 420 U.S. 714, 722 (1975) (“[T]he
shield provided by Miranda is not to be perverted to a license to
testify inconsistently, or even perjuriously, free from the risk of
6. Apodaca refers in his brief to the federal and state
constitutions, asserting that they both “prohibit the admission of
involuntary statements.” “As a general rule, we will not engage
in a state constitutional analysis unless an argument for different
analyses under the state and federal constitution is briefed.”
State v. Harris, 2004 UT 103, ¶ 23, 104 P.3d 1250 (quotation
simplified). Because Apodaca does not argue for greater
protection under the Utah Constitution than is afforded by the
United States Constitution, we will not engage in a separate state
constitutional analysis.
20140774-CA 16 2018 UT App 131State v. Apodaca
confrontation with prior inconsistent utterances.”). As a result,
even when obtained in violation of Miranda, a defendant’s
statements may be admissible for impeachment purposes
provided that the defendant gave those statements voluntarily
and interrogators did not coerce them. See Met v. State, 2016 UT
51, ¶ 54, 388 P.3d 447.
¶35 “The ultimate goal of analyzing whether a confession was
coerced is to determine ‘whether, considering the totality of the
circumstances, the free will of the witness was overborne.’”
Arriaga-Luna, 2013 UT 56, ¶ 9 (quoting United States v.
Washington, 431 U.S. 181, 188 (1977)). The State bears the burden
of demonstrating “by a preponderance of the evidence that the
statement was made voluntarily based upon the totality of
circumstances.” State v. Rettenberger, 1999 UT 80, ¶ 45, 984 P.2d
1009 (quotation simplified).
¶36 The totality of the circumstances includes both “the
details of the interrogation” and “the characteristics of the
accused.” Id. ¶ 14 (quotation simplified). Details of the
interrogation include external factors, such as “the duration of
the interrogation, the persistence of the officers, police trickery,
absence of family and counsel, and threats and promises made
to the defendant by the officers.” Id. The characteristics of the
accused include “such factors as the defendant’s mental health,
mental deficiency, emotional instability, education, age, and
familiarity with the judicial system.” Id. ¶ 15. “Additionally, for
a confession to be involuntary there must be a causal connection
between the coercion and the confession.” Arriaga-Luna, 2013 UT
56, ¶ 10.
¶37 Apodaca asserts that the totality of the circumstances
demonstrates that his statements were involuntary, relying on
the detectives’ “significant use of threats and promises regarding
Apodaca’s ability to be released,” as well as “a Miranda violation,
the false friend technique and other misrepresentations,
20140774-CA 17 2018 UT App 131State v. Apodaca
isolation, denial of medication, and the officers’ use of
Apodaca’s subjective characteristics to coerce him into
confessing.” According to Apodaca, his statements were induced
by a deal under which the second detective, “in exchange for
Apodaca’s cooperation, would convince the prosecutor to
release Apodaca by Christmas.” Apodaca alleges that the first
detective “also made statements that appeared to guarantee
leniency.” In Apodaca’s view, together all of these circumstances
“demonstrate the unacceptably coercive nature of this
interrogation.”
¶38 The State, in contrast, argues that the totality of the
circumstances in this case shows that, rather than having his will
overcome, Apodaca was negotiating with open eyes and was
merely trying to secure the best deal possible. We agree with the
State.
¶39 We begin by addressing Apodaca’s arguments regarding
the detectives’ use of threats and promises. We then address his
arguments regarding the conceded Miranda violation, the false
friend technique, misrepresentations, isolation, denial of
medication, and the alleged use of Apodaca’s subjective
characteristics to coerce his confession. 7
7. The State contends that Apodaca’s challenge to the trial court’s
decision allowing for the admission of the incriminating
statements for impeachment purposes is unpreserved “[b]ecause
Apodaca never proffered to the court what his testimony would
have been.” In Met v. State, the supreme court noted that
“[p]reservation appears to be an inapt label” for a defendant’s
failure to proffer testimony in the face of a similar ruling. 2016
UT 51, ¶ 57 n.14, 388 P.3d 447. The supreme court explained that,
in the case at hand, by moving the trial court to suppress the
incriminating statements and by specifically responding to the
(continued…)
20140774-CA 18 2018 UT App 131State v. Apodaca
A. Threats and Promises
¶40 Apodaca contends that his statements “were involuntary
because the officers made impermissible threats and promises
that caused [him] to confess.” In so arguing, Apodaca relies on
two alleged promises that he believes constituted improper
inducement. First, Apodaca asserts that, in exchange for his
(…continued)
State’s argument that those statements should be admissible for
impeachment, the “concerns that animate [the] preservation
rules” were satisfied. Id. The issue was not lack of preservation
in the traditional sense, “but rather the lack of a record to assess
whether the alleged error would, in actuality, have had any
impact on the outcome of the trial.” Id. A “defendant must, by
some means, create and present a record in the [trial] court
sufficient to permit meaningful appellate review” as to whether
the alleged error was harmful. Id. ¶ 62. This includes establishing
that “he would have testified and that his testimony would have
provoked impeachment by his prior [statements]” to allow the
reviewing court to determine “how that testimony and imagined
impeachment would have changed the evidentiary landscape.”
Id. ¶ 63.
Here, the record is sufficient for us to determine that
Apodaca would have indeed testified and that his testimony
would have provoked the State to impeach him with his prior
statements. Defense counsel’s opening statement, which
preceded the trial court’s ruling, demonstrated that Apodaca
intended to testify and that his testimony would relate to
compulsion. However, because we conclude that the trial court
did not err in ruling that Apodaca’s statements to the detectives
were not coerced and could be used for impeachment, we need
not consider whether the impact of that testimony and
subsequent impeachment would have affected the overall
evidentiary picture.
20140774-CA 19 2018 UT App 131State v. Apodaca
cooperation, the second detective promised that he “would
convince the prosecutor to release [him] by Christmas.” Second,
Apodaca asserts that the first detective “also made statements
that appeared to guarantee leniency.”
1. The Alleged Christmas Promise
¶41 Much of Apodaca’s argument on appeal centers on the
alleged Christmas promise. Apodaca explains that during the
first segment of his interview with the detectives, he “would not
talk . . . unless they offered him a deal.” He then explains that his
“position shifted dramatically between the first and third
segments” of the interview, asserting that the “record supports
that [he] agreed to waive his rights and speak to police [during
the third segment] because he had struck a deal with [the second
detective]” during the second segment. According to Apodaca,
“[i]t appears from the record that the deal was that [the
detective], in exchange for [his] cooperation, would convince the
prosecutor to release [him] by Christmas.”
¶42 The State counters that “there were conflicting accounts of
the conversation” between Apodaca and the second detective
during the second segment and that the “trial court’s ruling of
no coercion shows that the court believed [the detective] and
disbelieved Apodaca.” The State also argues that the only
promise the detective made—that “he would relay any of
Apodaca’s cooperation to the prosecuting attorney”—was “a
non-coercive promise.” We agree with the State on both points.
¶43 After hearing argument from counsel and testimony from
Apodaca and the second detective, the trial court concluded that
“there was no coercion or duress associated with” Apodaca’s
statements. The court explained that “a promise to pass on
information associated with Mr. Apodaca’s cooperation, which
is what this Court understands that testimony to be,” does not
rise to the level of an inducement that would “obviate the
20140774-CA 20 2018 UT App 131State v. Apodaca
voluntary nature of freely given information by Mr. Apodaca.”
The court’s statements indicate that it credited the detective’s
testimony regarding the nature of his promise to Apodaca—that
he told Apodaca that he “would let the prosecution know that
[Apodaca] decided to cooperate.” The court thereby implicitly
rejected Apodaca’s testimony that the detective promised him
that he would be out of jail by Christmas.
¶44 Apodaca’s argument on appeal regarding the first alleged
promise requires this court to set aside the trial court’s implicit
finding that the only promise the detective made was that he
would pass along to the prosecutors information regarding
Apodaca’s cooperation. But “because a trial court is in a better
position to judge credibility and resolve evidentiary conflicts,”
an appellate court will not set aside the trial court’s factual
findings absent clear error. Brown v. State, 2013 UT 42, ¶ 37, 308
P.3d 486 (quotation simplified). For Apodaca to show clear error,
“he must identify the supporting evidence and explain why the
trial court’s factual finding is nonetheless against the clear
weight of the evidence.” See Salt Lake City v. Reyes-Gutierrez, 2017
UT App 161, ¶ 25, 405 P.3d 781. Apodaca fails to do so if he
“simply restate[s] or review[s] evidence that points to an
alternate finding or a finding contrary to the trial court’s finding
of fact.” See id. (quotation simplified).
¶45 Apodaca acknowledges his and the detective’s
“conflicting memories.” He further acknowledges the detective’s
testimony that “he knew Apodaca did not want to speak unless
he was offered a deal,” that “no deal was ever made,” and that
the detective “promised only to let the prosecution know about
Apodaca’s cooperation.” (Quotation simplified.) Yet Apodaca
asserts that “the first and third segments of the interrogation
support Apodaca’s, not [the detective’s], recollection of the
second segment” and substantiate his claim that the detective
promised to write the prosecutors and make sure that Apodaca
was out of jail by Christmas. Apodaca’s recounting of evidence
20140774-CA 21 2018 UT App 131State v. Apodaca
that would have supported an alternate finding does not
establish that the trial court’s finding was against the clear
weight of the evidence. See id.; see also State v. Menzies, 845 P.2d
220, 226 (Utah 1992) (“[T]he existence of conflicting evidence is
not sufficient to set aside a trial court’s finding.”). Accordingly,
we conclude Apodaca has not shown clear error in the trial
court’s finding that the second detective offered only to pass
along information about Apodaca’s cooperation to the
prosecutors.
¶46 Given this conclusion, we consider only whether that
promise is coercive. It is not. As our supreme court has
explained, “the mere representation to a defendant by officers
that they will make known to the prosecutor and to the court
that he cooperated with them . . . [has] been recognized as not
coercive.” State v. Strain, 779 P.2d 221, 225 (Utah 1989) (quotation
simplified). Here, the detective promised only that he would
inform the prosecutors of Apodaca’s cooperation. Thus, we
agree with the trial court that the second detective’s promise,
standing alone, was not coercive.
2. The Alleged Guarantee of Leniency
¶47 As for the second alleged promise, Apodaca asserts that
the first detective “appeared to guarantee leniency.” In support,
Apodaca relies on the following statement that the detective
made when trying to persuade him to reveal the identity of the
shooter: “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 girl and your
son it’s gonna be . . . better for you than for you to be sitting in a
cell for the rest of your life.”
¶48 We do not read the first detective’s statement as
guaranteeing leniency to Apodaca in return for his cooperation.
At most, the detective guaranteed that the prosecutors would be
20140774-CA 22 2018 UT App 131State v. Apodaca
aware of and consider Apodaca’s cooperation and his
helpfulness to the investigation when handling his case. Further,
the statement came after Apodaca began making incriminating
statements and was the latter portion of the detective’s response
to Apodaca’s question, “So do you think this will make me go
home faster . . . ?” In his initial response to this question, the
detective told Apodaca, “I can’t promise you something that I
can’t guarantee.” The detective then urged Apodaca to be
truthful so that things would “come out a lot better for [him].”
On its face and in context, the detective’s statement does not
guarantee Apodaca a certain result. Instead, the context shows
that the detective was suggesting to Apodaca that cooperating
would be his best option; such a suggestion is not coercive. 8 See
id. (indicating that it is not coercive for officers to tell a defendant
that “full cooperation would be his best course of action”).
¶49 Moreover, the record demonstrates that the first detective
told Apodaca multiple times that he could not make promises or
guarantees about his incarceration. For example, during the first
segment when Apodaca said he would not incriminate himself
unless someone told him that he was not going to jail, the first
detective said he could not do that or “give deals.” And during
the third segment, the same detective stated that he could not
8. The portion of the detective’s statement that it would be better
for Apodaca to be with his child than in a cell his entire life
arguably suggests a promise of leniency, but the statement’s
context demonstrates that it was not made to coerce a confession
from Apodaca about his involvement in the crime; the detective
was encouraging Apodaca to identify the shooter rather than
assume greater responsibility for the crime. Cf. State v. Strain, 779
P.2d 221, 226 (Utah 1989) (explaining that police conduct is
impermissibly coercive when it “carrie[s] a threat of greater
punishment or a promise for lesser punishment depending on
whether [the accused] confesse[s]”).
20140774-CA 23 2018 UT App 131State v. Apodaca
speak on behalf of the district attorney’s office and could not
“promise . . . anything.” Because the detective did not guarantee
leniency to Apodaca, and because the only promise made to
Apodaca was not coercive, see supra ¶ 46, the detectives’ alleged
use of threats and promises does not weigh in favor of a
conclusion of coercion.
B. The Miranda Violation
¶50 Apodaca contends that the first detective’s “disregard of
[his] Miranda rights had the coercive effect of demonstrating to
[him] that invoking his rights would not end the interrogation.”
“[A] Miranda violation alone is insufficient grounds for
suppressing statements offered to impeach the defendant’s
testimony.” United States v. Murdock, 667 F.3d 1302, 1306 (D.C.
Cir. 2012) (citing Oregon v. Hass, 420 U.S. 714 (1975); Harris v.
New York, 401 U.S. 222 (1971)); see also Parsad v. Greiner, 337 F.3d
175, 184–85 (2d Cir. 2003) (“[T]he mere fact that a police officer
takes a statement after a suspect invokes his right to remain
silent does not, standing alone, render that statement the
product of coercion.”). But “a Miranda violation may be
considered in a voluntariness analysis.” State v. Kozlov, 2012 UT
App 114, ¶ 56, 276 P.3d 1207; see also Murdock, 667 F.3d at 1306
(“The detective’s failure to honor [the defendant’s] Miranda right
is certainly relevant to whether [the defendant’s] statements
were voluntary, but it is insufficient by itself to establish
involuntariness.”). The State concedes that the detectives
obtained Apodaca’s statements in violation of his Miranda rights,
and we agree with Apodaca that this factor weighs in favor of a
conclusion of coercion.
C. False Friend Technique
¶51 Apodaca contends that the “false friend technique . . .
contributed to the coercion,” causing him to make incriminating
statements. According to Apodaca, the first detective built
20140774-CA 24 2018 UT App 131State v. Apodaca
rapport by “sympathiz[ing] with Apodaca’s ‘hard life’ and
encourag[ing] Apodaca to trust him.” The second detective
likewise built rapport with him by encouraging Apodaca to trust
him and offering to protect Apodaca when he got out of jail.
Apodaca asserts that he “believed the officers’ claims of concern
and friendship,” and “made the incriminating statements
because he believed that the officers would help him if he did.”
¶52 The false friend technique is one “whereby the
interrogator represents that he is a friend acting in the suspect’s
best interest.” State v. Montero, 2008 UT App 285, ¶ 18, 191 P.3d
828. “Standing alone, the false-friend technique is not sufficiently
coercive to produce an involuntary confession, but may be
significant in relation to other tactics and factors.” Id. (quotation
simplified). “The false-friend technique may be coercive if a
defendant has ‘below-average cognitive abilities’ or other
cognitive disabilities.” State v. Leiva-Perez, 2016 UT App 237,
¶ 19, 391 P.3d 287 (quoting State v. Rettenberger, 1999 UT 80, ¶ 26,
984 P.2d 1009). For example, in Rettenberger, the Utah Supreme
Court determined the false friend technique contributed to the
coercive nature of an interrogation where the defendant suffered
from “mental disabilities and deficiencies.” 1999 UT 80, ¶ 28.
¶53 While it is apparent from the record that the detectives
attempted to build rapport with Apodaca by sympathizing with
him and encouraging him to cooperate with the investigation,
Apodaca has not shown that he has “below-average cognitive
abilities” or “mental disabilities and deficiencies” that
heightened his susceptibility to the false friend technique like the
defendant in Rettenberger. See id. ¶¶ 26, 28. To the contrary,
Apodaca’s interactions with police show him as a savvy
negotiator protecting his own interests by offering to trade
information in exchange for leniency. Further, this case is more
like Leiva-Perez, where this court determined that the use of the
technique weighed against a conclusion of coercion where the
police made “innocuous representations” that they wanted to be
20140774-CA 25 2018 UT App 131State v. Apodaca
able to work with the defendant and that they thought he was “a
good person.” 2016 UT App 237, ¶¶ 20–21 (quotation
simplified).
¶54 The only statement that arguably exceeds these bounds is
the second detective’s personal offer to help Apodaca if he was
threatened as a result of naming the shooter. In State v. Arriaga-
Luna, the Utah Supreme Court stated that the detective in that
case “strayed close to the line” when during the interrogation he
made a similar personal offer to help the defendant’s family.
2013 UT 56, ¶ 19, 311 P.3d 1028. However, despite expressing
concern about the statement and advising that officers should
not imply that aid is contingent on a confession, the court
concluded that the statement was not coercive because it was
made in response to the defendant’s inquiry about what would
happen to his family and “not in exchange for a confession.” Id.Similarly, here, the detective’s offer to personally protect
Apodaca was made after Apodaca had implicated himself and in
response to Apodaca’s expression of concern about retaliation if
he were to name the shooter. We thus conclude that the false
friend technique does not weigh in favor of coercion.
D. Misrepresentations
¶55 Apodaca contends that the detectives’
“misrepresentations contributed to the coercion.” “A
defendant’s will is not overborne simply because he is led to
believe that the government’s knowledge of his guilt is greater
than it actually is.” Rettenberger, 1999 UT 80, ¶ 20 (quotation
simplified). “Generally, police ‘half-truths regarding the strength
of the evidence’ against a defendant are not ‘sufficient to
overcome [a defendant’s] free will and spirit.’” Leiva-Perez, 2016
UT App 237, ¶ 22 (alteration in original) (quoting State v. Galli,
967 P.2d 930, 936 (Utah 1998)). “However, in certain cases, police
misrepresentations may be sufficiently egregious to overcome a
20140774-CA 26 2018 UT App 131State v. Apodaca
defendant’s will so as to render a confession involuntary.”
Rettenberger, 1999 UT 80, ¶ 20.
¶56 According to Apodaca, the first detective “started the
interrogation with a lie,” telling him that it “was not an
interrogation at all, but an opportunity.” Near the beginning of
the first segment, the detective told Apodaca, “[M]y opportunity
here is not to question you, not to interrogate you but to give
you the opportunity to tell me your side.” Even assuming this
statement could be characterized as misleading, it did not
exaggerate the strength of the evidence against Apodaca, see
Leiva-Perez, 2016 UT App 237, ¶ 22, and we are not persuaded it
constituted an egregious misrepresentation that weighs in favor
of coercion, see Rettenberger, 1999 UT 80, ¶ 20; cf. Montero, 2008
UT App 285, ¶ 13 (stating that a detective was not “overzealous
in his pursuit of the truth,” in part, because he gave the
defendant “every opportunity to explain” himself). And while
Apodaca identifies other points in the interview where the
detectives suggested “that they had plenty of evidence,
including video surveillance and witnesses,” he has not shown
that, even if these instances were half-truths, they were sufficient
to overcome his will. See Leiva-Perez, 2016 UT App 237, ¶ 22.
E. Isolation and Duration of the Interrogation
¶57 Apodaca contends that “the officers’ use of isolation . . .
contributed to the coerciveness of the interrogation.” He asserts
that he was isolated from his friends, family, and an attorney
and that he was questioned late at night in a hostile setting.
¶58 “[W]hether the defendant was subjected to extended
periods of incommunicado interrogation” is “[a]nother
important consideration.” State v. Rettenberger, 1999 UT 80, ¶ 33,
984 P.2d 1009. While cases involving “prolonged isolation from
family or friends in a hostile setting” may contribute to a Fifth
Amendment violation, State v. Troyer, 910 P.2d 1182, 1188 (Utah
20140774-CA 27 2018 UT App 131State v. Apodaca
1995) (quotation simplified), there is “no specific time limit,” and
“interrogations ranging from five to six hours have been held to
be non-coercive,” State v. Leiva-Perez, 2016 UT App 237, ¶ 14, 391
P.3d 287; see also id. ¶¶ 14–15 (concluding that the length of the
interrogation, ninety-five minutes, weighed against a conclusion
of coercion); State v. Montero, 2008 UT App 285, ¶ 12, 191 P.3d
828 (concluding that a six-hour non-continuous interrogation
was non-coercive, and stating that the “duration of an
interrogation has typically been viewed as coercive only when it
is much longer” than six hours).
¶59 Apodaca’s isolation lasted, at most, about four hours. He
was arrested shortly after 9 p.m., and the third segment of the
interview ended around 1 a.m. Apodaca’s four hours of isolation
are less than the five to six hour interrogations that have been
deemed non-coercive, and his isolation similarly does not weigh
in favor of coercion. See Leiva-Perez, 2016 UT App 237, ¶¶ 14–15.
¶60 Apodaca also complains that the detectives denied his
two requests to speak to his girlfriend. While a police officer’s
non-responsiveness to a defendant’s requests to call family or
friends can weigh in favor of coercion, even repeated denials of
requests to speak to friends or family have been deemed not to
render involuntary an otherwise voluntary confession. Compare
Rettenberger, 1999 UT 80, ¶ 35 (observing that officers
“brush[ing] aside” the defendant’s several requests to call his
mother contributed to the coerciveness of the interrogation), with
State v. Werner, 2003 UT App 268, ¶¶ 33–35, 76 P.3d 204(concluding that the detective’s “repeated denials of [the
defendant’s] requests to speak to his girlfriend” did not “render
involuntary an otherwise voluntary confession”). Here, the
detectives brushed off only one request before Apodaca
incriminated himself. The detectives’ deferral of his requests to
talk to his girlfriend does not weigh in favor of a conclusion of
coercion. See Montero, 2008 UT App 285, ¶ 20 (concluding there
20140774-CA 28 2018 UT App 131State v. Apodaca
was no impropriety in temporarily ignoring the defendant’s
single request to call his mother).
F. Medication
¶61 Apodaca contends that the detectives’ “denial of
medication contributed to the coerciveness of the interrogation,”
asserting that they “hinged [his] access to medication on
whether he spoke to police.” The State concedes that
“conditioning receipt of necessary medication on a defendant’s
confession could be coercive,” but it maintains that there was no
such condition here.
¶62 We agree with the State that the record does not support
Apodaca’s assertion that the detectives denied him medication.
Near the end of the first segment, Apodaca told the first
detective, “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’s statement amounted to a
request for medication in the future and did not signal that he
had an immediate need of it. Because Apodaca did not tell the
detectives then or at any other point that he had an immediate
need for medication, 9 the detectives did not purport to condition
receipt of necessary medication on Apodaca’s incriminating
statements. Cf. id. (rejecting the defendant’s complaint that a
detective impermissibly brushed aside his concerns about
vomiting because “he never again mentioned a need to throw up
after raising the possibility just once,” and observing that “[h]ad
9. Apodaca testified that during the unrecorded second segment
he again informed the detectives that he was “going to need [his]
medicine.” The trial court made no findings regarding this
assertion. But even assuming Apodaca made a second request
for medication, the request apparently was not substantively
different from his first.
20140774-CA 29 2018 UT App 131State v. Apodaca
he been truly exhausted or ill, he would have renewed his
requests” to lie down and call his mother). Because the record
does not support Apodaca’s claim regarding the denial of
medication, this factor weighs against a conclusion of coercion.
G. Apodaca’s Subjective Characteristics
¶63 Apodaca also contends that the detectives “took
advantage of [his] subjective characteristics in order to coerce
him into confessing.” In particular, he argues that the detectives
exploited his lack of legal training, his desire to avoid jail, and
his resolve not to talk unless he had a deal. 10
¶64 Courts consider a defendant’s “subjective characteristics,
especially as known to the interrogating officers, to determine
the extent to which those characteristics made him more
susceptible to manipulation.” State v. Rettenberger, 1999 UT 80,
¶ 37, 984 P.2d 1009. “[A] confession may be suppressed in
circumstances in which a police officer knows of a suspect’s
mental illness or deficiencies at the time of the interrogation and
effectively exploits those weaknesses to obtain a confession.” Id.
¶ 18.
¶65 Apodaca asserts that the detectives took advantage of his
lack of legal training. Cf. id. ¶ 37 (expressing heightened concern
of suggestibility where, among other things, “the defendant had
had little prior experience with the judicial system”); State v.
Montero, 2008 UT App 285, ¶ 21, 191 P.3d 828 (taking into
consideration the defendant’s familiarity with the legal system,
as evidenced by his criminal history). But we agree with the
10. Regarding his subjective characteristics, Apodaca also asserts
that the detectives took advantage of his drug addiction and his
need for medication. We have already rejected this contention.
See supra ¶¶ 61–62.
20140774-CA 30 2018 UT App 131State v. Apodaca
State that the record undermines the notion that Apodaca was
ignorant about the legal system. For example, Apodaca
displayed a fairly sophisticated knowledge of his rights, and he
also showed that he had at least some understanding of the
criminal process, as evidenced by his expressed concern that any
information he divulged would be disclosed to the shooter in the
police paperwork. We therefore do not have a heightened
concern of suggestibility related to Apodaca’s experience in the
judicial system.
¶66 As for his claim that the detectives exploited his desire to
avoid jail and his resolve not to talk unless he had a deal,
Apodaca does not cite any authority to support his claim that
those desires made him particularly susceptible to police
manipulation. And Apodaca does not cite any evidence that his
“‘mental health, mental deficiency, [or] emotional instability’
affected the voluntariness of his statements” to the detectives,
and our review of the record reveals none. See State v. Kozlov,
2012 UT App 114, ¶ 63, 276 P.3d 1207 (alteration in original)
(quoting Rettenberger, 1999 UT 80, ¶ 15); see also Montero, 2008 UT
App 285, ¶ 21 (“[W]e see nothing in the record to suggest that
[the defendant] was in any way particularly susceptible to
coercion or manipulation.”); State v. Werner, 2003 UT App 268,
¶¶ 18–19, 76 P.3d 204 (noting the lack of “evidence of mental
illness or emotional instability that would render [the defendant]
vulnerable to police interrogation,” and concluding that he was
not “vulnerable”). Accordingly, Apodaca’s subjective
characteristics do not weigh in favor of concluding that there
was coercion.
¶67 Taken together, we conclude that the totality of the
circumstances demonstrates that Apodaca’s statements to police
were voluntary. Only one factor (the Miranda violation) weighs
in favor of determining that the interview was coercive, and the
record otherwise demonstrates that Apodaca was actively and
knowingly negotiating with the detectives and that his will was
20140774-CA 31 2018 UT App 131State v. Apodaca
not overcome by police tactics or manipulation. We thus affirm
the trial court’s ruling that Apodaca’s statements to the
detectives were not coerced and therefore could be used against
him as impeachment evidence.
II. The Aggravated Robbery Jury Instruction
¶68 Next, Apodaca contends that his aggravated robbery
conviction should be reversed because of an erroneous jury
instruction. According to Apodaca, the jury was required to find
that he intended the robbery to occur before it could find him
guilty of aggravated robbery as an accomplice, but Instruction 36
“permitted the jury to convict if it found that Apodaca acted
knowingly with regard to the robbery.” The State, while not
directly defending the correctness of Instruction 36, responds
that “Apodaca has not made the requisite showing of prejudice
because the evidence, argument, and result would have been
identical had the language he complained of been omitted.”
¶69 Apodaca did not preserve his challenge to Instruction 36
but seeks our review under the ineffective assistance of counsel
exception to the preservation rule. To prevail on a claim of
ineffective assistance of counsel, a defendant must show that
counsel’s performance was both deficient and prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A. Deficient Performance
¶70 To show deficient performance, Apodaca must show that
his defense counsel’s performance “fell below an objective
standard of reasonable professional judgment.” State v. Bond,
2015 UT 88, ¶ 59, 361 P.3d 104 (quotation simplified). Apodaca
argues that his defense counsel should have objected to
Instruction 36 on the ground that it misstated the applicable
mental state. We agree.
20140774-CA 32 2018 UT App 131State v. Apodaca
¶71 In a prosecution for a crime committed as an accomplice,
the State is required to prove beyond a reasonable doubt that a
defendant acted “with the mental state required for the
commission of an offense” and “solicit[ed], request[ed],
command[ed], encourage[d], or intentionally aid[ed] another
person” in committing a crime. See Utah Code Ann. § 76-2-202(LexisNexis 2017). “‘An accomplice must . . . have the intent that
the underlying offense be committed.’” State v. Lomu, 2014 UT
App 41, ¶ 20, 321 P.3d 243 (omission in original) (quoting State v.
Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628). In other words,
“accomplice liability adheres only when the accused acts with
the mens rea to commit the principal offense.” State v. Calliham,
2002 UT 86, ¶ 64, 55 P.3d 573. And “an accomplice cannot be
convicted based on a lesser mental state than that required to
commit the underlying [principal] offense.” State v. Grunwald,
2018 UT App 46, ¶ 33 (citing Calliham, 2002 UT 86, ¶ 64), petition
for cert. filed, June 13, 2018 (No. 20180459).
¶72 Here, aggravated robbery is the principal offense. The
parties agree that, as charged in this case, the elements of
aggravated robbery “require intentional conduct.” 11 (Quotation
simplified.)
11. As relevant to the charges in this case, a person commits
robbery when the “person unlawfully and intentionally takes or
attempts to take personal property in the possession of another
from his person, or immediate presence, against his will, by
means of force or fear, and with a purpose or intent to deprive
the person permanently or temporarily of the personal
property.” Utah Code Ann. § 76-6-301(1)(a) (LexisNexis 2017).
Also as relevant here, a person commits the crime of aggravated
robbery when the person, in the course of committing robbery,
“uses or threatens to use a dangerous weapon.” Id.§ 76-6-302(1)(a).
20140774-CA 33 2018 UT App 131State v. Apodaca
¶73 Instruction 36 stated that to convict Apodaca for
aggravated robbery as an accomplice, the jury had to find the
following elements as to Apodaca’s intent for the underlying
offense beyond a reasonable doubt:
2. The defendant Robert Apodaca,
a. Intended that [Shooter] commit the crime of
Aggravated Robbery; or
b. Was aware that his conduct was reasonably certain to
result in [Shooter] committing the crime of Aggravated
Robbery.
(Emphasis added.) Apodaca challenges the emphasized portion
of Instruction 36.
¶74 The difference between intentional conduct and knowing
conduct is defined by statute. Intent is the highest level of
culpability, Utah Code Ann. § 76-2-104 (LexisNexis 2017), and an
actor acts “[i]ntentionally, or with intent or willfully with respect
to the nature of his conduct or to a result of his conduct, when it
is his conscious objective or desire to engage in the conduct or cause
the result,” id. § 76-2-103(1) (emphasis added). Under this mental
state, which is reflected in subsection (2)(a) of Instruction 36,
“the accomplice desires to cause” the principal offense. State v.
Jeffs, 2010 UT 49, ¶ 45, 243 P.3d 1250.
¶75 On the other hand, a person acts “[k]nowingly, or with
knowledge, with respect to his conduct or to circumstances
surrounding his conduct when he is aware of the nature of his
conduct or the existing circumstances” and “with respect to a
result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.” Utah Code Ann.
§ 76-2-103(2) (LexisNexis 2017) (emphasis added). Under this
mental state, which is reflected in subsection (2)(b) of Instruction
20140774-CA 34 2018 UT App 131State v. Apodaca
36, “the accomplice knows that his conduct will most likely
cause” the principal offense. Jeffs, 2010 UT 49, ¶ 45.
¶76 Instruction 36 incorrectly stated the law. The principal
offense of aggravated robbery required intentional conduct, and
for the jury to convict Apodaca as an accomplice, it had to find
that Apodaca had the same mens rea—intentional—to commit
the principal offense. Instruction 36 erroneously stated that
Apodaca could be found guilty if he acted merely knowingly
regarding the principal offense by giving the jury the option to
find that he “was aware that his conduct was reasonably certain
to result in [Shooter] committing the crime of Aggravated
Robbery.” This error effectively lowered the State’s burden of
proof. Apodaca’s defense counsel should have objected to this
error, and his failure to do so cannot be considered reasonable
trial strategy. See State v. Barela, 2015 UT 22, ¶ 27, 349 P.3d 676(holding that “no reasonable lawyer would have found an
advantage in understating the mens rea requirement”).
Accordingly, we conclude that Apodaca has established that his
defense counsel’s performance fell below an objective standard
of reasonableness.
B. Prejudice
¶77 Nevertheless, Apodaca has failed to demonstrate that his
defense counsel’s deficient performance prejudiced him. To
show prejudice, Apodaca must demonstrate that “but for the
error, there is a reasonable probability that the verdict would
have been more favorable to [him].” State v. Dunn, 850 P.2d 1201,
1225 (Utah 1993). This requirement “is a relatively high hurdle to
overcome.” State v. Garcia, 2017 UT 53, ¶ 44. “It is not enough for
[Apodaca] to show that the error[] had some conceivable effect
on the outcome of the proceeding.” See Strickland v. Washington,
466 U.S. 668, 693 (1984). Rather, “[t]he likelihood of a different
result must be substantial.” Harrington v. Richter, 562 U.S. 86, 112
(2011).
20140774-CA 35 2018 UT App 131State v. Apodaca
¶78 To determine whether Apodaca has met this burden, we
must consider the totality of the evidence at trial, and assess
“whether the jury could reasonably have found” the facts in
Apodaca’s favor “such that a failure to instruct the jury properly
undermines confidence in the verdict.” See Garcia, 2017 UT 53,
¶ 42. Specifically, we must ask whether there is a reasonable
probability that the jury found Apodaca acted knowingly, rather
than intentionally, with respect to the aggravated robbery
charge. See id. ¶¶ 42–48 (considering whether an erroneous jury
instruction caused prejudice in the context of an ineffective
assistance of counsel claim).
¶79 In support of his argument that the error in Instruction 36
prejudiced him, Apodaca contends that “he did not know a
robbery was going to occur,” and therefore he “did not act
intentionally.” According to Apodaca, he “agreed to drive
because he believed that they were going to do a drug deal,” he
was “shocked” when Shooter drew the gun and shot Victim, and
he drove away “because he was afraid of [Shooter] and [Shooter]
told him to drive.” The evidence, however, does not support his
narrative. Further, Apodaca has failed to articulate a theory of
the evidence that supports his contention that it is reasonably
likely that the jury found that his participation in the aggravated
robbery was knowing but not intentional.
¶80 First, even if the jury believed that the robbery was
unplanned, the record does not support Apodaca’s claim that he
was surprised by it and only participated out of fear. At trial, the
jury was presented with alternative versions of events. In one
version, Codefendant, Apodaca, and Shooter planned to rob
Victim. Pursuant to that plan, Victim was induced into
Apodaca’s car with the promise of a drug transaction, and
Apodaca “out of nowhere” shifted the car into gear and sped
away. While Apodaca drove and ignored Victim’s pleas to let
him out of the car, Shooter pointed a gun at Victim’s head and
Shooter (and possibly Apodaca) demanded Victim turn over the
20140774-CA 36 2018 UT App 131State v. Apodaca
pills. Apodaca eventually stopped the car to let Victim out but
only after Shooter shot Victim four times.
¶81 In the second version, as elicited from Codefendant on
cross-examination, 12 Codefendant arranged a drug deal with
Victim and never intended to rob him. The anticipated
transaction turned into a robbery when Shooter pulled out a gun
and demanded Victim’s pills. But this is where the divergence
between the two versions ends. Although Apodaca asserts there
is evidentiary support for defense counsel’s opening statements
that Apodaca “was shocked when [Shooter] pulled out the gun”
and that he “drove away because he was afraid of [Shooter] and
[Shooter] told him to drive,” no evidence supports that assertion.
¶82 Instead, Codefendant testified that he did not hear
Shooter order Apodaca to drive, and neither Codefendant nor
Victim described Apodaca as a fearful (or even passive)
participant. While both witnesses equivocated about whether it
was Shooter or Apodaca who demanded the pills and suggested
that Victim be shot, both witnesses described Apodaca as
actively involved. It was Apodaca, after all, who shifted the car
into gear and sped away while Victim was still counting the pills
in the backseat, and it was Apodaca who did not unlock the
12. Although Codefendant testified on direct examination that
he, Apodaca, and Shooter made a plan to rob Victim, the jury
also heard that Codefendant previously stated that he had only
arranged a drug deal with Victim and did not know there would
be a robbery. This version of events was based on Codefendant’s
statement of facts in support of his plea agreement: “On or about
November 28, 2012, I arranged for two people to obtain . . .
Oxycontin from another individual. During the drug transaction,
one of the two people pulled out a handgun and demanded
Oxycontin from the victim. I should have known that the other
two individuals were going to try to take the drugs by force.”
20140774-CA 37 2018 UT App 131State v. Apodaca
doors or stop the car in response to Victim’s multiple pleas. And
Apodaca drove the car away after Codefendant and Victim
exited it. Further, when defense counsel tried to elicit testimony
from Apodaca’s girlfriend and Codefendant that Shooter was
someone to be afraid of, both witnesses rejected the suggestion.
¶83 Thus, Apodaca’s contention that he was an unwilling
participant in the aggravated robbery—a contention on which
his claim of prejudice depends—fails because it lacks evidentiary
support. See generally State v. Jimenez, 2012 UT 41, ¶ 14 & n.22,
284 P.3d 640 (concluding that, regardless of whether the
defendant knew beforehand that the codefendant had a gun, the
defendant knew a gun was used in the robbery and became an
accomplice to the aggravated robbery by driving the getaway
car, and collecting cases acknowledging that “drivers of getaway
cars are typically found guilty under accomplice liability theories
because, as a driver, they inherently show active involvement in
the crime” (quotation simplified)); State v. Garcia-Vargas, 2012 UT
App 270, ¶ 17, 287 P.3d 474 (stating that once a codefendant
started hitting a victim and ransacking a house, the defendant
was “on notice that [the codefendant] was committing a
robbery,” and concluding that, by “actively participat[ing],” it
was fair to infer that the defendant intended to aid the
codefendant in robbing the victims absent any assertion that he
had another mental state).
¶84 Second, Apodaca’s claim of prejudice fails for the
additional reason that he has not explained how, even if the jury
accepted his version of events, 13 it reasonably could have
concluded that he acted knowingly, in that he “was aware that
13. Apodaca contends that the jury’s question about the legal
relevance of duress and its acquittal of him on the discharge of a
firearm charges suggest that “it was inclined to believe that
Apodaca was a less-than-willing, if not unwilling, participant.”
20140774-CA 38 2018 UT App 131State v. Apodaca
his conduct was reasonably certain to result in [Shooter]
committing the crime of Aggravated Robbery,” but not
intentionally. While the Utah Supreme Court has recognized that
“there exists a narrow set of circumstances where a person may
act ‘knowingly’ without acting ‘intentionally,’” it has also
observed that the “terms are not . . . mutually exclusive, and
most ‘knowing’ conduct also fits accurately within the statutory
definition of ‘intentional’ conduct.” State v. Casey, 2003 UT 55,
¶ 47, 82 P.3d 1106. Other than merely suggesting that it is
reasonably likely that the jury would have acquitted him of
aggravated robbery if it believed he did not originally plan to
rob Victim, Apodaca has not articulated how the jury reasonably
could have concluded that he acted knowingly without also
concluding that he acted intentionally. He has therefore failed to
demonstrate prejudice resulting from his counsel’s performance,
see State v. Garcia, 2017 UT 53, ¶ 37 (“[I]t is the defendant’s
burden to show that he was prejudiced by his counsel’s
performance.”), and his ineffective assistance of counsel claim
necessarily fails, see Strickland v. Washington, 466 U.S. 668, 687
(1984) (explaining that to succeed on a claim of ineffective
assistance of counsel a defendant must show that counsel’s
performance was both deficient and prejudicial). 14
14. Apodaca also asks this court to review his unpreserved
challenge to Instruction 36 under the rubrics of plain error and
manifest injustice. “When a party fails to object to a jury
instruction in the trial court, ‘the instruction may not be assigned
as error except to avoid a manifest injustice,’ and in most
circumstances manifest injustice is synonymous with plain
error.” State v. Reigelsperger, 2017 UT App 101, ¶ 39, 400 P.3d
1127 (quoting Utah R. Crim. P. 19(e)). To succeed on a claim of
plain error, a defendant “must establish harmful error that
should have been obvious to the trial court.” Id. (citing State v.
Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346). The harmfulness test in
(continued…)
20140774-CA 39 2018 UT App 131State v. Apodaca
CONCLUSION
¶85 The trial court correctly ruled that Apodaca’s statements
to the detectives were voluntary and that the State therefore
could introduce those statements at trial to impeach Apodaca if
he chose to testify. As to his conviction for aggravated robbery,
Apodaca has not shown that he was prejudiced by the error in
the jury instruction explaining the elements of that offense.
Accordingly, we affirm each of Apodaca’s convictions.
(…continued)
the context of the plain error analysis “is equivalent to the
prejudice test applied in assessing claims of ineffective assistance
of counsel.” State v. Dean, 2004 UT 63, ¶ 22, 95 P.3d 276. Because
we have concluded that Apodaca’s ineffective assistance of
counsel claim fails for lack of prejudice, his plain error claim
likewise fails.
20140774-CA 40 2018 UT App 131