State v. Apodaca, No. 20140774-CA

• Court: Court of Appeals of Utah
• Writing for the Court: POHLMAN, Judge
• Citation: 428 P.3d 99
• Parties: STATE of Utah, Appellee, v. Robert S. APODACA, Appellant.
• Docket Number: No. 20140774-CA
• Decision Date: 28 June 2018

428 P.3d 99

STATE of Utah, Appellee,
v.
Robert S. APODACA, Appellant.

No. 20140774-CA

Court of Appeals of Utah.

Filed June 28, 2018

Lori J. Seppi, Attorney for Appellant

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

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

Opinion

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.

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

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him "[t]hey wanted to do [the deal] in the car." Victim got in the backseat behind Apodaca, and Codefendant got in the backseat behind Shooter.

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

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

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

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

The Motion to Suppress

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

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

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

428 P.3d 106

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 rights³ and explained that he would not interrogate Apodaca but rather would give him "the opportunity to tell ... [his] side." Apodaca asked, "What’s that gonna do for me?" He also repeatedly asked to know the charges against him.

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

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

¶15 After a pause in the interview, during which the detective inquired about Apodaca’s charges, the detective identified kidnapping and aggravated robbery among the possible charges, and told Apodaca, "There's no way that you're not going to jail tonight." Apodaca asked if he could talk to his girlfriend, and the detective said he would ask. Apodaca queried about whether their interaction was being recorded, and the detective answered, "Yeah ... I have to record our conversation." Apodaca asked whether the detective could turn off the recorder. The detective responded, "You want me to turn [the recorder] off?" Apodaca then stated, "Maybe I'll talk to you a little more, it has to be off." Apodaca then implied that the State...