State v. Perea

• Decision Date: 15 November 2013
• Docket Number: No. 20100891.,20100891.
• Citation: 747 Utah Adv. Rep. 10,322 P.3d 624
• Parties: STATE of Utah, Plaintiff and Appellee, v. Riqo Mariano PEREA, Defendant and Appellant.
• Court: Utah Supreme Court

322 P.3d 624

747 Utah Adv. Rep. 10

STATE of Utah, Plaintiff and Appellee,

v.Riqo Mariano PEREA, Defendant and Appellant.

No. 20100891.

Supreme Court of Utah.

Nov. 15, 2013.

John E. Swallow, Att'y Gen., Christopher D. Ballard, Asst. Att'y Gen., Salt Lake City, for appellee.

Samuel P. Newton, Kalispell, MT, for appellant.

Justice Parrish, opinion of the Court:

INTRODUCTION

¶ 1 Riqo Perea appeals from a conviction for two counts of aggravated murder in violation of Utah Code section 76–5–202 and two counts of attempted murder in violation of Utah Code section 76–5–203. Mr. Perea was sentenced to life without parole (LWOP) for each aggravated murder conviction and three years to life for each attempted murder conviction.

¶ 2 Mr. Perea raises numerous issues. He contends that the district court erred by limiting and excluding the testimony of defense experts, precluding the testimony of potentially exculpatory defense witnesses, and denying Mr. Perea's motion to suppress his confession. Mr. Perea further contends that the combination of errors constitutes cumulative error and requires reversal. Mr. Perea also argues that Utah Code section 76–3–207.7, which provides the sentencing scheme for first degree felony aggravated murder, is unconstitutional. He finally argues that we should require recording of confessions occurring at police stations.

¶ 3 We hold that the district court erred when it excluded the testimony of the defense's expert witnesses. But we conclude that the error was harmless and does not undermine our confidence in the verdict when viewed against the backdrop of Mr. Perea's overwhelming guilt. We also hold that section 76–3–207.7 is constitutional on its face and was constitutionally applied to Mr. Perea. We therefore affirm.

BACKGROUND

¶ 4 On the evening of August 4, 2007, Mr. Perea, then nineteen years old, was spending time with friends. Mr. Perea and many of those with him belonged to the Ogden Trece gang. That night, Dominique Duran drove the group to the home of Christina Rivera in her maroon GMC Yukon (SUV). When the group arrived at Ms. Rivera's residence, Sarah Valencia, who had been left in charge of the residence, told the group they were not welcome.

¶ 5 When the group entered Ms. Rivera's house over Ms. Valencia's objections, she and a friend walked across the street to Anthony Nava's house. Mr. Nava was hosting a wedding party that included some members of the Norteños, a rival gang to the Ogden Trece. Before Ms. Valencia and her friend made it to Mr. Nava's house, Mr. Perea and the others followed them and an argument erupted. The argument led to an exchange of gang insults between Mr. Perea's group and some partygoers at Mr. Nava's, at which point an unknown person fired a shot in the air.

¶ 6 When the shot was fired, Mr. Perea and his group returned to Ms. Duran's SUV. Mr. Perea was seated in the front passenger seat. Ms. Valencia, who was standing near the street, testified that as the SUV pulled away, “I seen Riqo over the top, shooting.” Similarly, Angelo Gallegos and Elias Garcia, passengers in the SUV, testified that Mr. Perea fired shots from the SUV as it pulled away from the party.

¶ 7 Ms. Valencia and her friend, Sabrina Prieto, were standing on a walkway between the front door and the carport of Mr. Nava's house when the shots rang out from the SUV. Ms. Valencia ran east along the front of the home toward the carport, and as she sought cover in a side door, she turned and saw Ms. Prieto fall on the doorstep. Ms. Prieto had been fatally shot through the right side of her chest.

¶ 8 Richard Esquivel, like many of the other witnesses, was facing the road when the shots from the SUV were fired. Mr. Esquivel testified that he saw someone from the passenger side of the SUV lean over the roof and fire towards Mr. Nava's house. After the first shot was fired, Mr. Esquivel got down but was hit in the back part of his shoulder and hip. Rocendo Nevarez, who was standing slightly closer to the road, was fatally shot in the lower left part of his back.

¶ 9 Keri Garcia was standing in Mr. Nava's driveway when the shots from the SUV were fired. She ran south along the side of the house, but was shot in the lower back as she sought cover. Ms. Garcia testified that the shots came only from the direction of the road.

¶ 10 Lacey Randall was standing beside her car, which was parked in Mr. Nava's driveway. As did the other witnesses, Ms. Randall testified that she saw the shooter sitting on the passenger side windowsill of the SUV. Ms. Randall was pulled to the ground just before a bullet struck the car window above her.

¶ 11 Mr. Gallegos, a passenger in the SUV, testified that when Mr. Perea climbed back into the vehicle after the shootings, Mr. Perea told them that “[i]f [they] said anything, there would be a bullet with [their] name on it.” In contrast, Mr. Garcia, another passenger, testified that Mr. Perea “was confused,” but “never threatened to put a bullet in anybody.” Ms. Duran, who was driving, testified that Mr. Perea said, “[D]rive right and let's not get pulled over.”

¶ 12 A short time later, Ms. Duran dropped off the group near a church in North Ogden. Mr. Garcia testified that later that morning, Mr. Perea dumped the gun in an alley. The gun was never recovered.

¶ 13 The bullets recovered from Ms. Prieto's and Mr. Navarez's bodies were .22 caliber and appeared to have been fired from the same gun. Police recovered ten expended .22 caliber shell casings in the street in front of Mr. Nava's house. No other shell casings were found at the crime scene. While the State's ballistic expert determined that all of the casings were expended from the same gun, the expert was not able to determine if the gun that fired the bullets was the same gun that expended the casings.

¶ 14 While investigating the case, Detective John Thomas called Mr. Perea's cell phone. Detective Thomas explained that he needed Mr. Perea “to come into the police station, talk to [him],” and give the detective “[Mr. Perea's] version of what happened that night.” Mr. Perea denied any involvement in the crime and then disconnected the call. When Detective Thomas called back, Mr. Perea stated that “he wasn't coming in yet, that he needed to speak with his lawyer first before he came in,” and that “he got screwed the last time he spoke with cops and he was innocent.”

¶ 15 Two days later, officers arrested Mr. Perea in Layton. They transported Mr. Perea back to Ogden and placed him in an interview room. Mr. Perea was allowed to use the bathroom, and when he returned, Detective Thomas read Mr. Perea his Miranda rights. Detective Thomas joked that Mr. Perea “had his rights read to him so many times that he could probably read them back to [him], and [Mr. Perea] kind of laughed and said, ‘Yeah, probably.’ ” Officer Gent, who was standing outside the interview room, monitored the conversation via a closed-circuit television. Despite the fact that the closed-circuit television was equipped to do so, Officer Gent did not record the interview because it was the Ogden Police Department's policy not to record interrogations.

¶ 16 After providing Mr. Perea with some water, Detective Thomas and Officer Gent began their questioning. Mr. Perea agreed to speak with the investigators and told them his version of the events the night of the shootings. Though the investigators told Mr. Perea that his story did not match that of other witnesses, the conversation remained calm and civil.

¶ 17 During the questioning, the investigators suggested that perhaps Mr. Perea fired the shots from the SUV because he was trying to protect Ms. Duran's children, who were in the back seat of the SUV. And in an attempt “to minimize the consequences of what [Mr. Perea] was looking at,” Officer Gent suggested to Mr. Perea that he intentionally shot low or high, not intending to kill anyone. During this part of the questioning, Mr. Perea began to cry and though “he was tearing up and his eyes were welling up,” Officer Gent testified that “it wasn't like [Mr. Perea] was full grown distraught.” When further questioned about whether he shot to protect the children, Mr. Perea stated that “as they drove off [in the SUV] he blacked out and he couldn't remember what happened.”

¶ 18 The investigators told Mr. Perea that “it doesn't usually work out well” when people say they blacked out, and they encouraged Mr. Perea to tell the truth. Mr. Perea thereafter admitted to shooting from the SUV. When asked what kind of gun he fired, Mr. Perea stated that it was a .22 caliber, a fact the investigators had not previously disclosed.

¶ 19 After admitting to the shooting, Mr. Perea agreed to sign a typewritten confession. Officer Gent once again gave Mr. Perea a Miranda warning, and Mr. Perea again agreed to speak with the officers. Officer Gent then asked Mr. Perea open-ended questions about the shooting, to which Mr. Perea gave answers that “seemed appropriate for the question.” Officer Gent testified that he transcribed Mr. Perea's statements “verbatim.”

¶ 20 After Officer Gent completed the transcription, he printed the document and handed it to Mr. Perea for review. When Officer Gent asked Mr. Perea if he could read, “[Mr. Perea] laughed at [the officer] and said he could.” Mr. Perea read the statement and signed where appropriate, including an acknowledgment that he voluntarily waived his Miranda rights. Officer Gent testified that he “[n]ever saw any indication that [Mr. Perea] was not understanding what [the investigators] were saying” and that Mr. Perea was attentive and responsive throughout the process. Officer Gent further testified that he never made any promises to Mr. Perea in exchange for his cooperation with the investigators.

¶ 21 The State charged Mr. Perea with two counts of aggravated murder and two counts of attempted murder. The State initially filed, and then withdrew, a notice of intent to seek the death penalty. Prior to trial, ...