State v. Perez

• Decision Date: 20 February 2008
• Docket Number: No. 33003.,No. 33004.,33003.,33004.
• Citation: 179 P.3d 346,145 Idaho 383
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Mariano PEREZ, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

179 P.3d 346

145 Idaho 383

STATE of Idaho, Plaintiff-Respondent, v. Mariano PEREZ, Jr., Defendant-Appellant.

No. 33003.

No. 33004.

Court of Appeals of Idaho.

February 20, 2008.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

LANSING, Judge.

The principal issue presented by this appeal is whether the district court erred in denying motions to suppress incriminating statements that Mariano Perez, Jr., made to law enforcement officers, and later to television reporters, after being informed of his Miranda rights. Perez contends that he invoked his right to remain silent and his right to counsel and that these rights were violated when law enforcement authorities resumed interrogating him and, later, when television reporters were allowed to interview him. We affirm.

I. BACKGROUND

On February 6, 2005, Perez threatened his estranged girlfriend and three other persons with a handgun. He was charged with three counts of aggravated assault, Idaho Code §§ 18-901(a or b), -905(a), one count of felony injury to children, I.C. § 18-1501(1), and one count of unlawful possession of a firearm, I.C. § 18-3316, and a warrant was issued for his arrest.

Three days later, Officer Allen Williamson saw Perez commit a traffic infraction. Williamson attempted a traffic stop but Perez fled, eventually crashing his vehicle. Perez then exited the vehicle and ran, with Williamson in pursuit. When Williamson caught up to him, Perez pulled a gun and shot the officer multiple times from point-blank range. Williamson survived his injuries.

Perez fled to Reno, Nevada, where he was apprehended by local authorities. Perez told Nevada police that he wished to speak to Idaho authorities, so on February 12, two Idaho officers went to the Washoe County jail in Reno to conduct a videotaped interview of Perez. After Perez was informed of his Miranda rights, however, he said that he would "rather wait" to talk to the officers. When the officers said, "You said you want to wait, so ...," Perez responded, "Yeah, I think I need advice, man." The Idaho officers then left the room. Less than an hour later, a Reno police officer entered the interview room and spoke to Perez, saying that he knew Perez was hurting and that Perez would feel better if he talked. Perez then told the Reno officer to call the Idaho officers back because he now wanted to speak to them. The Idaho officers then returned and interviewed Perez, who made incriminating statements.

The next day, a television reporter from Idaho asked Washoe County jail officials to convey to Perez a request for an on-camera interview. Perez agreed and signed a consent form acknowledging that the Washoe County Sheriff's Office would also record the interview and that it could be used against him in legal proceedings. The interview was conducted, with uniformed Washoe County deputies present for security purposes. On February 14, a Reno television reporter also interviewed Perez under the same circumstances.

As a consequence of Perez's encounter with Officer Williamson, he was charged with aggravated battery on a law enforcement officer, Idaho Code §§ 18-903(a), -915(b), -907(1)(b), felony eluding, I.C. § 49-1404, and unlawful possession of a firearm, I.C. § 18-3316. Perez filed a motion to suppress the statements he made to the Idaho officers at the Reno jail and his statements to the television reporters, asserting that his Fifth Amendment rights had been violated. The district court denied the motion, holding that Perez never unequivocally invoked his right to silence or requested counsel and that the television reporters were not acting as agents of the police when they interviewed Perez.

In a consolidated proceeding, Perez pleaded guilty to the charge of aggravated assault on his estranged girlfriend and to aggravated battery on Officer Williamson and admitted the State's allegation that he was subject to sentence enhancements as a persistent violator, I.C. § 19-2514. In exchange, the remaining charges were dismissed. Perez's plea in the aggravated battery case reserved the right to appeal the denial of his suppression motion. The district court imposed concurrent fixed life sentences for the offenses. Perez's subsequent Idaho Criminal Rule 35 motions to reduce the sentences were denied. Perez appeals in both cases.

II. DISCUSSION

A. Motion to Suppress Statements Made to the Officers and Press

Perez first contends that the district court should have suppressed statements that he made to law enforcement and television reporters at the jail in Nevada because the statements were obtained in violation of his Fifth Amendment rights to counsel and to remain silent as enunciated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These rights apply whenever an accused is subject to custodial interrogation by law enforcement officers. Id. If an individual in custody invokes the right to remain silent, that invocation must be scrupulously honored, police questioning must cease, and authorities may reinitiate interrogation only after a "significant period of time" has passed. Michigan v. Mosley, 423 U.S. 96, 104-06, 96 S.Ct. 321, 326-27, 46 L.Ed.2d 313, 321-22 (1975); State v. Blevins, 108 Idaho 239, 242, 697 P.2d 1253, 1256 (Ct. App.1985). A request for counsel likewise must be scrupulously honored, and interrogation may not resume until an attorney is present or the suspect himself reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378, 384 (1981). See also Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). If the right to counsel has been invoked, the police may not reinitiate interrogation of the detainee in the absence of an attorney. Minnick v. Mississippi, 498 U.S. 146, 153-54, 111 S.Ct. 486, 491-92, 112 L.Ed.2d 489, 497-98 (1990); State v. Tapp, 136 Idaho 354, 360, 33 P.3d 828, 834 (Ct.App.2001).

In his suppression motion, Perez contended that he sufficiently invoked his Miranda rights at his initial meeting with the Idaho officers by saying that he would rather wait and that he needed advice. His rights were therefore violated, he maintains, when the Nevada officer disregarded those invocations by subsequently interrogating him and urging him to talk, when Idaho authorities resumed interviewing him, and when Nevada authorities permitted and monitored the television news interviews, allegedly utilizing the reporters as agents of law enforcement. The district court concluded that suppression was not warranted because Perez had not unequivocally invoked either the right to silence or the right to counsel.

In Miranda, the United States Supreme Court indicated that a police interrogation must terminate when a person in custody indicates "in any manner" that he wishes to consult with an attorney. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612-13, 16 L.Ed.2d at 706-07. Subsequently, however, the Court required more, holding that "the suspect must unambiguously request counsel" before officers will be obligated to terminate questioning. Davis, 512 U.S. at 459, 114 S.Ct. at 2355, 129 L.Ed.2d at 371. The Davis Court explained that an objective standard applies in that the detainee:

must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 1147 n.4, 89 L.Ed.2d 410[ 428 n.4] (1986) ("[T]he interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney").

Id. The Court then held that the defendant's statement in that case, "Maybe I should talk to an attorney," was not an unequivocal request for counsel that obligated the officers to stop the interrogation.

Following Davis, the Idaho Supreme Court considered whether police violated a minor's Miranda rights by continuing to question him after his mother asked an officer whether she needed an attorney for her son and also said, "The Miranda rights state that he has a right to one." The Court held that although a minor's parent may assert the right to counsel on behalf of a child, these comments by the mother did not do so because they were not a clear and unambiguous request for counsel. State v. Doe, 137 Idaho 519, 525, 50 P.3d 1014, 1020 (2002). In State v. Eby, 136 Idaho 534, 537, 37 P.3d 625, 628 (Ct.App.2001), the suspect's statement, "I've got an attorney," was likewise held not to be an unequivocal invocation of the right to counsel.

Measured against the standard of clarity required by these precedents, Perez's claim that he unequivocally invoked his right to counsel is without merit. His statement to the officers was, "Yeah, I think I need advice, man." As Perez did not directly refer to a desire to see to an attorney, he may have been expressing a wish for advice from family, friends, a clergyman, or other advisor. Viewed objectively, Perez's statement would not necessarily be understood by a reasonable police officer as a present request for an attorney.

A suspect's invocation of the right to remain silent also must be clear and unequivocal. State v. Law, 136 Idaho 721, 725, 39 P.3d 661, 665 (Ct.App.2002); State v. Whipple, 134 Idaho 498, 502-04, 5 P.3d 478, 482-84 (Ct.App.2000). Here, Perez stated that he would "rather wait" to talk to the officers. This statement was not a clear indication that Perez was refusing to talk, but rather that he wanted to postpone the conversation. A statement that...