847 N.W.2d 144 (S.D. 2014), 26544, State v. Diaz

Docket Nº:26544
Citation:847 N.W.2d 144, 2014 SD 27
Opinion Judge:WILBUR, Justice
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellant, v. MARICELA NICOLASA DIAZ, Defendant and Appellee
Attorney:MARTY J. JACKLEY, Attorney General, SHERRI SUNDEM WALD, Deputy Attorney General, DOUGLAS P. BARNETT, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant. CHRIS A. NIPE of Larson & Nipe, Mitchell, South Dakota; DOUGLAS M. DAILEY of Morgan, Theeler, Wheeler, Cogl...
Judge Panel:GILBERTSON, Chief Justice, and SEVERSON, Justice, concur. ZINTER, Justice, concurs with a writing. KONENKAMP, Justice, dissents. GILBERTSON, Chief Justice, and SEVERSON, Justice, concur. ZINTER, Justice, concurs with a writing. KONENKAMP, Justice, dissents. ZINTER, Justice (concurring). KONENKAMP...
Case Date:May 07, 2014
Court:Supreme Court of South Dakota
 
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847 N.W.2d 144 (S.D. 2014)

2014 SD 27

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

MARICELA NICOLASA DIAZ, Defendant and Appellee

26544

Supreme Court of South Dakota

May 7, 2014

Argued September 30, 2013

Petition for certiorari filed at, 08/04/2014

Page 145

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA. THE HONORABLE TIMOTHY W. BJORKMAN, Judge.

MARTY J. JACKLEY, Attorney General, SHERRI SUNDEM WALD, Deputy Attorney General, DOUGLAS P. BARNETT, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

CHRIS A. NIPE of Larson & Nipe, Mitchell, South Dakota; DOUGLAS M. DAILEY of Morgan, Theeler, Wheeler, Cogley & Peterson, LLP, Mitchell, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice, and SEVERSON, Justice, concur. ZINTER, Justice, concurs with a writing. KONENKAMP, Justice, dissents.

OPINION

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WILBUR, Justice

[¶1] The trial court suppressed Maricela Diaz's confession. The State filed an

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intermediate appeal of the suppression order, arguing that she knowingly and intelligently waived her Miranda rights prior to her confession. We reverse.

Facts and Procedural History

[¶2] On November 10, 2009, Jasmine Guevara's (Jasmine) badly burned body was found in the trunk of her car in Hanson County, South Dakota. Although she had multiple stab wounds, an autopsy revealed that she had been burned alive.

[¶3] The next day, around 7:00 a.m., Mitchell Police Department investigators Joel Reinesch (Reinesch) and Toby Russell (Russell) traveled to the Mitchell residence of Jasmine's friend, Steffany Molina (Molina). The investigators interviewed Molina about Jasmine. Following the interview, Reinesch asked if there was anyone else in the house. Molina answered affirmatively and brought out two Hispanic individuals who identified themselves as Alex Diaz (Salgado)1 and Maricela Diaz (Diaz). The pair spoke to each other intermittently in Spanish while in Reinesch's presence.

[¶4] After he had left Molina's residence, Reinesch realized he had forgotten to obtain date of birth information for Salgado and Diaz. Reinesch then contacted Molina on her cell phone and asked for the additional information. Molina handed Salgado the phone. Salgado again identified himself as Alex Diaz and gave a birth date indicating he was 16 years old. Salgado provided Diaz's name and her date of birth. Both birth dates Salgado provided were false.2 As a result, Reinesch found no record of individuals matching the information provided.

[¶5] Later that same morning, Reinesch returned to the Molina residence to conduct follow-up investigation, this time accompanied by Special Agent Jay Goldhorn. When they entered the living room, Salgado and Diaz were sitting on the couch. During this time, the pair again spoke to each other in Spanish. In neither instance when Reinesch was at the Molina residence were questions asked of Diaz nor did she make any statements to the officers. Salgado, however, did speak with Reinesch. Salgado said he and Diaz had come to Mitchell from Mexico and that they had last seen Jasmine the previous day around 4:00 p.m.

[¶6] As the investigation continued, the police learned what Jasmine was wearing and that she had been seen at Walmart on the night of her murder. The authorities secured and viewed Walmart's surveillance video for the time in question. The video revealed Jasmine accompanied by two individuals whom the police recognized as Salgado and Diaz. The video appeared to place Salgado and Diaz with Jasmine around 8:00 p.m. on the night of her murder, contrary to Salgado's account to Reinesch. Based on the information the officers had, no one saw Jasmine after that point.

[¶7] On November 12, 2009, the authorities sought to locate and further question Salgado and Diaz. At 12:30 p.m. that same day, Reinesch and Investigator Dean Knippling located Diaz alone at the Molina residence. Reinesch re-introduced himself to Diaz, explained that he would like to speak with her further regarding an investigation, and asked if she would be willing to come to the police department. She agreed and the officers transported her to the Mitchell Police Department for further questioning. Diaz arrived at the jail at approximately 1:00 p.m. Once there, she was placed in Interview Room #1, either

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an 8x10 or 10x12 foot room equipped with a small table and chairs.

[¶8] Russell and Officer Hector Soto (Soto) of the Sioux Falls Police Department entered Room #1 just after 1:18 p.m. Soto is fluent in Spanish, his first language, and his assistance was sought with the Spanish translation of the interviewees. After introducing themselves, Russell informed Diaz that the officers were involved in an investigation looking for Jasmine. Russell then requested some preliminary information.

[¶9] In response, Diaz provided several pieces of false information: she spelled her first name incorrectly, provided no middle name although she had one, supplied a false birth date, and gave a false name for her mother. She told officers that she did not know the name of the town in which her parents lived or their places of employment, and provided a false number for them. She also failed to correct Russell's assumption that her parents lived together. Diaz gave the officers a false name for Salgado, told them he was her brother, and said that Molina's mother had brought them to South Dakota for vacation. With this information, almost all of which soon proved false, Russell and Soto left the room at 1:24 p.m. Russell then unsuccessfully attempted to contact Diaz's parents.

[¶10] Shortly thereafter, the officers returned to the interview room. This time Diaz provided a second parental contact number. Responding to a follow-up question as to where her parents lived, Diaz told the officers they lived in Fort Wayne, Indiana, but reiterated that she did not know the name of the place where they worked. In response to Soto's question of whom Diaz would call in an emergency, she replied, " Oh, to reach my mom? . . . Mm, just those numbers because I don't got no more." 3 The officers again left the room to attempt to contact Diaz's parents.

[¶11] At approximately 1:40 p.m., Russell and Soto returned to the interview room. Russell then continued his effort to obtain identifying information. In this brief session, Diaz told them she had lived with her family in Indiana for four or five years, and prior to coming to Indiana had lived in Mexico. She told the investigators she had attended South Side High School in Fort Wayne until the time in October when they came to South Dakota. She told them her brother--actually Salgado--was either 18 or 19, but was not sure and that he was no longer in school. Diaz also said she " kind of" had a boyfriend who went to school in Mitchell, but did not know his last name.

[¶12] After exiting the interview room at 1:45 p.m., Russell contacted the Fort Wayne Police Department seeking assistance in locating Diaz's parents. In response, a Fort Wayne detective spoke with Reinesch and provided correct names and dates of birth for Diaz and Salgado and emailed photos of each. Fort Wayne authorities also identified Diaz's mother as Irma Gutierrez-Placencia (Mother). As a result of obtaining Diaz's correct birth date, the officers learned Diaz was listed as a runaway child or missing person.

[¶13] Russell finally reached Mother by telephone at approximately 3:30 p.m. at the second number Diaz had provided him. Having realized Mother spoke Spanish, Russell handed the phone to Soto.4 The

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entire dialogue between Mother and Soto was in Spanish. Mother informed Soto that she was Diaz's mother, Diaz had a baby girl with Salgado, Diaz was 15 years old, and Diaz had called Mother that morning and told Mother that Salgado had beaten her and forced her to go to South Dakota. Soto then informed Mother that Diaz was detained over another investigation and was in good health. Soto then proceeded with his inquiry:5

Soto: We have already fed her, she, she is in good health. And the reason why we are calling you is to ask for your permission to talk with her about the investigation that we are conducting.

Mother: What permission, are you doing a separate investigation there in South Dakota? Soto: Yes. Because she is a minor, we need permission from her parents to talk to her about the matter here. Because it is possible that she is a witness to what happened. . . . . Mother: . . . Well, allow me a second, because I am talking with, with another person. Allow me a second. Soto: Yes. Mother: (Mother talking to another person in the background) . . . investigation, they are investigating over there and I think another matter, (inaudible) I don't know, but they want permission, for me to talk, for me to give permission for her to talk, since she is a minor they need me to say . . . (back speaking with Soto) Well, it's alright, well, you can interrogate her. Soto: Yes, we can interrogate her. Look, if you want to talk with her, you can talk to her after, or now, or whatever you like, if you have any questions for her. Like I said, she is fine, she is not hurt in any way. But I would like to get your information. We only have the telephone number that we called you on. Your name is Irma right? Ma'am? Mother: Yes. Soto: And are you Maricela's natural mother? Mother: Yes. . . . . Mother: I have a question. Soto: Yes, of course. Mother: Excuse me. You caught her in another investigation. You caught her at the house right? Where was she living[?] Soto: Let me ask the detective that detained her. (To Russell in English) Say, she wants to know where...

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