145 F.3d 1140 (10th Cir. 1998), 97-2222, United States v. Bautista

Docket Nº:97-2222.
Citation:145 F.3d 1140
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael BAUTISTA, Defendant-Appellant.
Case Date:May 22, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1140

145 F.3d 1140 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Michael BAUTISTA, Defendant-Appellant.

No. 97-2222.

United States Court of Appeals, Tenth Circuit

May 22, 1998

Page 1141

[Copyrighted Material Omitted]

Page 1142

[Copyrighted Material Omitted]

Page 1143

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM, for appellant.

Kathleen Bliss, Assistant United States Attorney (John J. Kelly, United States Attorney, on the brief), Albuquerque, NM, for appellee.

Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.

BARRETT, Senior Circuit Judge.

Michael Bautista (Bautista) appeals from his conviction and sentence following a jury trial wherein he was found guilty of second-degree murder in Indian Country under 18 U.S.C. §§ 1153 and 1111.


On April 4, 1996, the body of David Carrillo (Carrillo), a 38-year-old member of the Laguna Indian Pueblo residing on an Indian Reservation in the State of New Mexico, was discovered in his apartment at the Laguna Rainbow Elderly Care Center. Carrillo suffered numerous blunt force wounds to his head and approximately 48 puncture wounds to his back, abdomen, and neck. The Laguna police informed FBI Special Agent Jeff Leggitt (Agent Leggitt) that Bautista and his friend, Quentin Martinez (Martinez), sometimes visited Carrillo at Carrillo's apartment.

On April 5, 1996, Agent Leggitt and FBI Special Agent Blaine Kohl spoke with Bautista privately at his home. During the brief interview, Bautista acknowledged that he and Carrillo were friends, but denied knowledge of Carrillo's death.

On June 26, 1996, Agent Leggitt and FBI Special Agent John Schum (Agent Schum) returned to Bautista's home. They told Bautista

Page 1144

they needed to speak to him and asked him to accompany them to the Laguna Police Department. Bautista agreed to go with the agents. He rode with Agent Leggitt in Leggitt's vehicle. Agent Schum followed in his own vehicle.

At the station, Bautista, Agent Leggitt, and Agent Schum proceeded to a small conference room where FBI Special Agent Jim Langenberg (Agent Langenberg) joined them. During the initial questioning, Agents Leggitt and Langenberg sat across from Bautista and Agent Schum sat behind him. Agent Leggitt informed Bautista that their investigation revealed that he and Martinez knew more about Carrillo's death than he had previously told them and asked him to tell them "what really happened." (R.O.A., Supp. Vol. I at 15.) After a while it became evident that Bautista was sticking to the facts of his earlier statement, which Agent Leggitt believed did not comport with other evidence discovered in their investigation. Id. at 15-16. At that point, Leggitt told Bautista that, "This is really serious. We need the truth, and before we do that, we need to advise you of your rights." Id. at 15. Agent Leggitt then advised Bautista of his Miranda 1 rights, reading him the FBI's standard advice and waiver of rights form, Form FD-395. Bautista refused to sign the waiver of rights form and stated that he did not want to answer any more questions. Id. at 18, 35. On the form, Agent Leggitt wrote, "Do not wish to make additional statements" and Bautista initialed it. Id. at 34. Bautista agreed, however, to be fingerprinted. Agents Leggitt and Langenberg then left the room to prepare to take Bautista's fingerprints, but Agent Schum continued to question Bautista, even though Bautista had previously indicated he did not wish to answer any more questions.

Agent Schum testified, at the suppression hearing, that he knew Bautista was close to telling them what really happened so he "continued to probe" trying to get Bautista to talk a little bit more. Id. Supp. Vol. II at 10. Agent Schum stated that Bautista admitted that he was present when Carrillo died, he and his friend Martinez were the only people in the house when Carrillo died, and Carrillo had done something to cause him "to react." Id. at 10-11. Bautista then told Agent Schum he did not want to say anything else or answer any more questions until he had spoken to a family friend or neighbor who was a lawyer. Id. at 11. Agent Leggitt testified that, "As soon as he [Bautista] started wanting to talk to a lawyer, I ceased all questioning." Id. Bautista was then fingerprinted and driven home.

On July 2, 1996, Agent Leggitt arrested Bautista at Cinnamon Hills alcohol treatment facility in St. George, Utah. Bautista was taken to a large conference room in the local federal building in St. George by Agent Leggitt and another FBI agent. Agent Leggitt read Bautista his Miranda rights and Bautista waived his rights, agreeing to answer questions.

Bautista told Agent Leggitt that he and Martinez had bought a 40-ounce bottle of beer and some marijuana and that they had gone to Carrillo's apartment to share the marijuana and thereby repay Carrillo for some marijuana he had previously shared. He stated that things were fine until Martinez left the room to use the restroom and Carrillo asked him to spend the night. Bautista related that: he understood Carrillo wanted him to spend the night to have sex with him; Carrillo said, "Come on, we'll have a lot of fun," and made as many as four attempts to grab his crotch; he told Carrillo to stay away from him; and pushed Carrillo back into a chair. Bautista admitted hitting Carrillo in the side of the head with the 40-ounce beer bottle when Carrillo tried to grab him around the neck as if to choke him, causing Carrillo to stumble and fall into the living room. Bautista stated that Carrillo then reached for an ice pick, but that he got it first and began stabbing Carrillo with it. Bautista said he was enraged and "kept stabbing him and crying." When Martinez returned from the restroom, he and Bautista

Page 1145

gathered a towel, the ice pick, and the broken beer bottle in a plastic bag, cleaned up Carrillo's apartment and left believing Carrillo was still alive. Agent Leggitt then wrote out Bautista's statement, which Bautista signed and initialed.

On July 17, 1996, Bautista was indicted on the charge of second-degree murder. On August 26, 1996, Bautista filed a motion to suppress his June 26, 1996, statements to Agent Schum and his July 2, 1996, confession to Agent Leggitt. After an evidentiary hearing, the district court denied his motion.

At trial, Bautista proffered evidence of Carrillo's homosexuality, through the testimony of two defense witnesses, in support of his defense theory that Carrillo attacked him such that he had not murdered Carrillo, but that he had killed in the heat of passion upon adequate provocation. The district court ruled the proffered evidence/testimony was irrelevant and, thus, inadmissible. The court concluded that Carrillo's homosexuality was not an essential element of the offense and that it was not evidence that Carrillo was prone to aggressive homosexual advances.

On January 30, 1997, a jury found Bautista guilty of second-degree murder. He was sentenced to 210 months imprisonment and five years of supervised release.

On appeal, Bautista contends that the district court erred (1) in failing to suppress the incriminatory statements he made to Agent Schum on June 26, 1996, after he invoked his right to remain silent and his July 2, 1996, confession, and (2) in refusing to allow two defense witnesses to testify as to Carrillo's homosexuality.


I. Incriminating Statements

Bautista contends that the district court erred in failing to suppress his June 26, 1996, statements and his July 2, 1996, confession.

First, Bautista asserts that his June 26, 1996, statements were obtained during custodial interrogation in violation of his rights under Miranda, because Agent Schum continued to interrogate him after he had expressly invoked his right to remain silent. He argues that he was in custody for purposes of Miranda on June 26, 1996, because the agents: used strong-arm tactics by appearing unannounced at his home; secured his agreement to accompany them to the police station by telling him they needed to talk to him and had serious questions; promised him he was going to return home; created a police-dominated atmosphere in the conference room; and used the Miranda warning as a psychological vehicle to intimidate and impress him with their authority. He claims that under the circumstances Schum's flagrant disregard of his invocation of his right to remain silent would lead any reasonable person to conclude that he was at the mercy of the agents and not free to leave. Bautista also maintains that his statements were involuntary and inadmissible.

Second, Bautista asserts that his July 2, 1996, confession stemmed from the June 26, 1996, violation of his right to remain silent and, as such, was inadmissible in the government's case-in-chief as "fruit of the poisonous tree." He claims that when Agent Schum ignored his attempt to invoke his right to remain silent, his confession was fatally tainted and that no meaningful intervening circumstances removed the taint. In addition, Bautista alleges that his July 2, 1996, confession was inadmissible because it was taken in violation of his Miranda right to counsel as guaranteed in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that once he invoked his right to counsel by stating he did not want to answer any more question until he had spoken with his neighbor, an attorney, he was not subject to further interrogation until counsel was made available to him and that in the absence of counsel, he could not effectively waive his rights.

The government responds that the district court properly found Bautista was not in custody during the June 26, 1996, interview and, thus, he was not entitled to the safeguards of...

To continue reading