State v. Melendez

• Court: Arizona Court of Appeals
• Writing for the Court: BROWN, Judge
• Citation: State v. Melendez, 256 Ariz. 14, 535 P.3d 16 (Ariz. App. 2023)
• Docket Number: 1 CA-CR 20-0066
• Decision Date: 25 July 2023
• Parties: STATE of Arizona, Appellee, v. Giovani Fuster MELENDEZ, Appellant.

256 Ariz. 14

535 P.3d 16

STATE of Arizona, Appellee,

v.Giovani Fuster MELENDEZ, Appellant.

No. 1 CA-CR 20-0066

Court of Appeals of Arizona, Division 1.

Filed July 25, 2023

Arizona Attorney General's Office, Phoenix, By Eric Knobloch, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Dawnese Hustad, Counsel for Appellant

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Jennifer M. Perkins and Chief Judge David B. Gass joined.

BROWN, Judge:

¶1 Giovani Melendez appeals from his convictions and sentences for one count of aggravated assault and five counts of endangerment. Counsel for Melendez filed a brief in accordance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon , 104 Ariz. 297, 451 P.2d 878 (1969), advising us there were no meritorious grounds for reversal. Melendez had the opportunity to file a supplemental brief in propria persona but did not do so. Our obligation is to review the entire record for reversible error, State v. Clark , 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999), viewing the evidence in the light most favorable to sustaining the convictions and resolving all reasonable inferences against Melendez, State v. Guerra , 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

¶2 After our initial review of the record, we ordered the parties to brief, inter alia , whether the State's references to Melendez's refusal to answer certain questions during custodial interrogation violated his constitutional rights and whether fundamental, prejudicial error occurred. See Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Applying established principles from Arizona case law and Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), we hold that such error occurred when the State cross-examined Melendez about his selective silence and then asked the jury to hold that silence against him during closing argument. Thus, we reverse and remand for a new trial.

BACKGROUND

¶3 While signing a new lease for an apartment together, Melendez and his mother met a pastor touring the same apartment building.

After moving into the building, the pastor hosted services, which Melendez's mother started attending and on occasion he joined her. Through this connection, Melendez briefly met the pastor's son, A.G. Melendez and his mother later moved to a different apartment complex after their lease ended.

¶4 Several months after their move, A.G. was walking towards his apartment when he noticed a car drive up and park nearby. The driver, Melendez, exited the car and called out to A.G., asking if A.G. "was the pastor's son." A.G. walked towards Melendez, who pulled out a handgun and fired at A.G. multiple times, without striking him. Police found bullet marks on the outside wall of a nearby apartment where a family of five were present when the shooting occurred.

¶5 After Melendez was taken into custody, a detective read him his Miranda rights. See Miranda v. Arizona , 384 U.S. 436, 467–73, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The detective explained that she wanted to get Melendez's "side of the story." She then asked him several background questions, including his name, birthdate, phone number, information about his employment, and whether he had previous interactions with A.G. or the pastor. Melendez answered each of those questions, and he told the detective he had moved from Puerto Rico about 17 months earlier.

¶6 The detective then asked why he went to the apartment complex and fired shots at A.G., to which Melendez responded, "I want to hold some stuff I want to say." Several minutes later, she asked whether Melendez felt like he needed to protect himself from A.G. and Melendez repeated, "I still want to hold off on some information." This pattern continued through much of the interview:

Detective: Do you believe that you committed a crime today?

Melendez: I still want to hold myself on some things.

Detective: That's fine. So did, did you shoot at somebody today?

Melendez: I would hold information.

Detective: Okay. So we'll set that aside.

¶7 About halfway through the 30-minute interview, the detective told Melendez that he would be going to jail because he committed a crime. Melendez replied that he felt blindsided, and the detective asked Melendez to clarify which parts about the alleged crime he was not sure about so she could better explain things to him. Melendez said he was confused about what the pastor was telling the police and the detective clarified that the pastor was not saying anything. The detective explained that people heard Melendez ask A.G. if he was the pastor's son, so she asked, "do you have a problem with [A.G.]?" Melendez answered that he "barely talked to them," and the detective inquired why he was asking about the pastor, to which Melendez replied, "I'm passing this question." The exchange continued as follows:

Detective: I'm just so confused then, why would you go over there with a gun?

Melendez: That's all I want to say about my relationship with the pastor and the pastor's son.

Detective: Okay. Is there somebody else that you were after and not them?

Melendez: Sorry, I apologize, I don't mean to ignore you. I want to pass again.

Detective: Okay. I'll make sure I make that clear, you have no problem with the pastor or his family.

Melendez: Yeah, I have never had any trouble with them.

Detective: Okay. I guess I'll just wonder why you went over there with a gun. You were upset today?

Melendez: Um, I'll pass again.

Detective: Okay. Alright, is there anything else you want to tell me or you feel like I forgot to ask you about today? Did you work today?

Melendez: Yes, I went to work.

Detective: Okay. Did anything happen before you went to the pastor's house or apartment? Did anything happen today to make you mad?

Melendez: I'll pass this question, I'm sorry.

¶8 When the detective asked Melendez if he remembered what happened, he said he "just want[ed] to hold everything for now." She responded, "[a]nd that's fine. That's your right." The detective explained that Melendez had one last chance to tell her his side of the story, and then left the room. When the detective returned, she explained again that Melendez would be going to jail. Melendez then shared his version of what occurred. He explained it was his habit to drive around his old neighborhood, and when he saw A.G., he got out of his car (because his window did not roll down) and asked if A.G. was the pastor's son. A.G. responded "Oh, que pasa cabron" and walked aggressively towards Melendez, while moving his hand as if he were "looking for something." Melendez told the detective that he "reacted to [A.G.] being hostile towards [me] and walking towards me."

¶9 The State charged Melendez with aggravated assault, a class 3 dangerous felony, and five counts of endangerment, all class 6 dangerous felonies. At trial, A.G. testified that he approached Melendez, who had his hand behind his back, and when A.G. moved his hand to greet Melendez, Melendez pulled out the gun. A.G. testified that Melendez fired at him several times, prompting A.G. to run away. A friend of A.G. who saw the incident testified to a similar version of events.

¶10 Melendez elected to testify at trial and his testimony generally tracked his interview with the detective. Melendez explained that Spanish is his first language, and that the term ‘cabron’ represents a "male goat.... So, you know, it can be used – at least in Puerto Rico it can be used as an offense." Melendez also explained that the phrase could be used "if you are cool with a person and you're friends" to convey a greeting, like "what's up, dude?" Because he and A.G. were not well acquainted, Melendez testified that he was "worried" because A.G. "was walking towards me while he said the words" with a body expression and aggressive tone which made him feel as if A.G. "was going to attack" him. Melendez testified that A.G. moved his hand towards his waist "like he was going to look for a gun," and Melendez fired his own gun because he believed his life was in danger.

¶11 On cross-examination, the prosecutor questioned Melendez about his post-arrest, post- Miranda interview, including the following:

Prosecutor: Isn't it true that while you were talking to [the detective] you never claimed self-defense until after she told you[,] you were going to jail for shooting at the pastor's son?

Melendez: She just happened to bring me that information as I was already decided to come in that it was self-defense.

Prosecutor: Okay. But, again, after she told you you're going to jail for shooting at the pastor's son, that's when you're claiming that it was self-defense?

Melendez: ‘Cause she told me: I will be right back, you know, and – and she told me that it was like my last chance to say something, and she went outside. And then when she came, I had decided to – to tell her that it was self-defense.

Prosecutor: Okay. I'm glad you brought that up. So isn't it true that you were asked probably ten times direct questions such as: What made you go over there and shoot today? Do you remember her asking you that?

Melendez: Yes.

Prosecutor: Do you remember saying: I want to hold some of what I want to say?

Melendez: Yes.

Prosecutor: And do I understand correctly that when you're saying: I want to hold some of what I want to say, that means I don't want to answer that question right now?

Melendez: Well, I – I was passing on the opportunity to answer the question at the moment.

Prosecutor: Okay. So you passed on the opportunity to answer the question. And then, you know, she asked you, again: Did you feel like you had to protect yourself today from the pastor's son, and then your answer was: I still want to hold to some of that information?

Melendez: Yeah.

Prosecutor: Right? That's about ten minutes into the conversation. And then she asked you, you know: Is there anything you want to tell me? No answer at that point. Right?

Melendez:

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