State v. Leiva-Perez

2016 UT App 237

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSE LEIVA-PEREZ,
Appellant.

Opinion
No. 20141070-CA
Filed December 8, 2016

Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 131800050

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and JILL M. POHLMAN
concurred.

VOROS, Judge:

¶1 Jose Leiva-Perez appeals his conviction for murder, a first
degree felony. He contends that police officers coerced a
confession from him. We affirm.

BACKGROUND

¶2 Leiva-Perez, a Guatemalan national, shared a trailer with
a male roommate (Victim) in rural Utah. In January 2013 Leiva-
Perez called one of Victim’s sisters and told her that Victim had
been taken to a hospital, having been “really bad[ly] beaten” by
four people. When Leiva-Perez “stopped answering” her calls,
State v. Leiva-Perez

the sister, who lived out of state, called local hospitals; none had
any information on Victim. She then contacted Victim’s other
sister, who requested a welfare check from the County Sheriff’s
Office.

¶3 A deputy went to the trailer and knocked on the door but
received no response. He peered through the blinds and saw
that blood “had splattered up . . . the curtains and on the ceiling,
[and] down on the comforter.” He forced his way into the locked
trailer, where he discovered Victim’s frozen body lying face
down. Victim’s body showed blunt force trauma to the mouth,
“extensive” bruising around the eyes, lacerations covering the
face, and multiple skull fractures. Police found a large metal bar
in the trailer. Victim’s truck was gone. Police later found the
truck and Leiva-Perez in California.

¶4 Police interrogated Leiva-Perez. He first told police that
three Guatemalan men came to the trailer, went inside for “two,
three minutes,” and left. Leiva-Perez claimed that he entered the
trailer after the three individuals had left and that he found
Victim “face down . . . on the floor” and saw blood “on the
blanket [Victim] slept on.” Leiva-Perez said that when he
entered the trailer, Victim said he was just “beaten up” and told
Leiva-Perez to leave and take the car. According to Leiva-Perez,
after he left, firefighters and ambulances arrived.

¶5 Police told Leiva-Perez that they had confirmed that no
police, fire trucks, or ambulances had responded to Victim’s
trailer. They also told him that they had evidence that he had
been inside the trailer at the time of the crime and that
“something happened” between him and Victim. They said,
“[W]e know this. Ok? And if you are truly repentant, you can
tell us the truth.” They continued, “[I]f you don’t want to say the
truth . . . [t]he penalty will be worse. The punishment will be
worse, ok? You can say the truth, explain what happened and
they can work with you when the time comes to go see a judge.

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State v. Leiva-Perez

It will be less charges.” When Leiva-Perez did not respond,
officers told him, “[W]e understand, we won’t think you are a
horrible person . . . we all make mistakes.” After Leiva-Perez
reiterated that he did not kill Victim, police responded, “[I]f you
talk to us, we will do a report, we will say that . . . you
cooperated, that you spoke with us and you were honest.” Police
continued, “[T]here is a difference in the law, it is
understandable when someone comes forth and stands tall for
the mistakes they’ve made, versus someone who doesn’t.”

¶6 Leiva-Perez then changed his story. After acknowledging
that “there was a little argument” between him and Victim, he
asked police whether they had found any weapons in the trailer.
After the officers said they did, Leiva-Perez said that Victim had
threated to kill him and he “had to take action.” After Victim
threatened to “load [a] rifle with bullets and fill [him] with all of
them,” Leiva-Perez explained, he got mad and hit Victim three
times with an iron bar. Police then asked Leiva-Perez whether he
would write down his statement; he did. They then asked
whether he felt that they had “forced [him] to say something that
was not the truth,” to which he responded “no.”

¶7 Leiva-Perez later moved to suppress his confession on the
ground that the police officers had coerced him to confess. At the
suppression hearing, an expert qualified to discuss the
Guatemalan justice system testified that a cultural mistrust of
police and the concept of “personalism” caused Leiva-Perez to
confess. The expert explained that in Latin America a statement
such as “I know the judge, and I can talk to that judge and he’ll
give you a better deal” or “I know the judge and I can get you
off” is a believable promise. Leiva-Perez argued that similar
statements made by police during his interrogation led him to
believe that if he confessed “the law would treat him differently
than it would otherwise.”

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State v. Leiva-Perez

¶8 The trial court denied the motion to suppress. In
concluding that Leiva-Perez’s confession was not coerced, the
trial court found that Leiva-Perez “did not have family or friends
or counsel present during the interrogation” (though none were
requested) and that “there were two threats of [harsher]
punishment if [Leiva-Perez] did not change his story . . . .”
However, the court also found that the interrogation lasted
under two hours, that the officers “were not particularly
persistent and the tone of the interview . . . was not unduly
harsh,” and that their “efforts to disabuse [Leiva-Perez] of his
truthfulness [were] not excessive.” It found that the officers “did
not employ excessive attempts at deception [and] although there
was some effort to use the false friend technique, the effectiveness
of that device seemed to be mooted by the language barrier and
by [Leiva-Perez’s] personal view on police in general.” Finally,
the trial court found that Leiva-Perez showed “no evidence of
any mental or emotional problems . . . [or] of a learning disability,
except his demonstrably deficient public education of two or
three years.”

¶9 Leiva-Perez presented his coercion theory at trial. The
jury convicted Leiva-Perez of murder, a first degree felony.

ISSUE AND STANDARD OF REVIEW

¶10 Leiva-Perez contends that the officers coerced him to
confess in violation of his rights under the Fifth and Fourteenth
Amendments to the United States Constitution. “In reviewing a
trial court’s determination on the voluntariness of a confession,
we apply a bifurcated standard of review.” State v. Mabe, 864
P.2d 890, 892 (Utah 1993). Under this standard, “the ultimate
determination of whether a confession is voluntary is a legal
question, and we review the trial court’s ruling for correctness.”
Id. (citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)). But we
“set aside a district court’s factual findings only if they are

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State v. Leiva-Perez

clearly erroneous.” State v. Rettenberger, 1999 UT 80, ¶ 10, 984
P.2d 1009. 1

ANALYSIS

¶11 The Fifth Amendment to the United States Constitution
protects a person from being “compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V. And “the
Fifth Amendment’s exception from compulsory self-
incrimination is also protected by the Fourteenth Amendment
against abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6
(1964). Analysis of “whether admission of a confession into
evidence violates the Fifth or Fourteenth Amendment does not
turn solely on the ‘voluntariness’ of the confession.” State v.
Rettenberger, 1999 UT 80, ¶ 11, 984 P.2d 1009. Rather, “coercive
police activity is a necessary predicate to the finding that a
confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157,
167 (1986). But “as interrogators have turned to more subtle
forms of psychological persuasion, courts have found the mental
condition of the defendant a more significant factor in the
‘voluntariness’ calculus.” Id. at 164. A defendant’s mental state is
therefore “relevant to the extent it made him more susceptible to
mentally coercive police tactics.” Rettenberger, 1999 UT 80, ¶ 17
(citation and internal quotation marks omitted). But “a
defendant’s mental condition, by itself and apart from its
relation to official coercion,” does not “dispose of the inquiry
into constitutional voluntariness.” Connelly, 479 U.S. at 164.

1. Leiva-Perez initially also argued that the trial court committed
plain error by asking him in front of the jury whether he wanted
to testify. At oral argument, however, Leiva-Perez conceded that
our recent opinion in State v. Saenz, 2016 UT App 69, 370 P.3d
1278, forecloses this claim. Accordingly, we do not address it
further.

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State v. Leiva-Perez

¶12 “The ultimate goal of analyzing whether a confession was
coerced is to determine ‘whether, considering the totality of the
circumstances, the free will of the witness was overborne.’” State
v. Arriaga-Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028 (quoting United
States v. Washington, 431 U.S. 181, 188 (1977)). The totality of the
circumstances includes “both the characteristics of the accused
and the details of the interrogation.” Rettenberger, 1999 UT 80,
¶ 14 (citation and internal quotation marks omitted). In
analyzing the details of the interrogation, the court must
consider “such external factors as the duration of the
interrogation, the persistence of the officers, police trickery,
absence of family and counsel, and threats and promises made
to the defendant by the officers.” Id.

¶13 In analyzing the characteristics of the accused, the courts
must also consider subjective factors, including “the defendant’s
mental health, mental deficiency, emotional instability,
education, age, and familiarity with the judicial system.” Id. ¶ 15.
Additionally, there must be “a causal relationship between the
coercion and the subsequent confession.” State v. Mabe, 864 P.2d
890, 893 (Utah 1993). As we determine the ultimate question of
voluntariness under a “totality of circumstances” standard, we
discuss each factor below. See Rettenberger, 1999 UT 80, ¶ 14
(citation and internal quotation marks omitted).

A. Duration of the Interrogation

¶14 Although no specific time limit for a coercive
interrogation exists, interrogations ranging from five to six hours
have been held to be non-coercive. See State v. Montero, 2008 UT
App 285, ¶ 12, 191 P.3d 828; see also State v. Ashdown, 296 P.2d
726, 729 (Utah 1956) (holding that a five and one-half hour
interrogation was not coercive), aff’d, 357 U.S. 426 (1958).

¶15 The trial court determined that the “interview was
conducted over a period of approximately 95 minutes,” but due
to the need for interpretation, “the actual amount of time spent

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State v. Leiva-Perez

interrogating the Defendant was less than the ninety-five
minutes.” Leiva-Perez’s 95-minute interrogation was significantly
shorter than the six-hour interrogation in Montero that this court
held was non-coercive. See Montero, 2008 UT App 285, ¶ 12.
Leiva-Perez does not argue that the duration of the interrogation
contributed to its coerciveness. We agree with the trial court that
this factor weighs against a conclusion of coercion.

B. Police Persistence

¶16 “[A] police officer’s exhortations to tell the truth or
assertions that a suspect is lying do not automatically render a
resulting confession involuntary.” Id. ¶ 13. “[W]e think it
eminently reasonable that police officers challenge criminal
suspects’ questionable explanations in their pursuit of the truth
and their efforts to solve crimes.” Id. In Montero, this court held
that the officers’ approach was not coercive when, during an
interrogation, they “repeatedly maintained that statements and
evidence pointed to Montero as the shooter, . . . urged [Montero]
to be a man[,] and suggested that [Montero] needed to take
responsibility for his actions.” Id. (internal quotation marks
omitted).

¶17 Here, before Leiva-Perez confessed, police told him that
they believed he was lying about his involvement in Victim’s
death. But the trial court determined that the officers’ “efforts to
disabuse [Leiva-Perez] of his truthfulness was not excessive.”
The officers’ accusation against Leiva-Perez of lying three times
during the roughly hour-and-a-half interrogation does not
constitute “‘systematic persistence’ sufficiently egregious to
suggest coercion.” See id. (quoting Harris v. South Carolina, 338
U.S. 68, 71 (1949)).

¶18 The trial court also found that the “officers were not
particularly persistent and the tone of the interview, at least as
provided in the written transcript, was not unduly harsh.”
Leiva-Perez does not challenge the persistence of police

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State v. Leiva-Perez

questioning as coercive, and we agree with the trial court that
the “persistence demonstrated by the officer was of the type and
nature that . . . is consistent with appropriate police activity.”

C. False-Friend Technique

¶19 In employing the false-friend technique, “officials
‘represent[] to [a defendant] that they [are] his friends and that
they [are] acting in his best interest.’” State v. Bunting, 2002 UT
App 195, ¶ 25, 51 P.3d 37 (alterations in original) (quoting State
v. Rettenberger, 1999 UT 80, ¶ 24, 984 P.2d 1009). “[S]tanding
alone,” the false-friend technique is not “sufficiently coercive to
produce an involuntary confession.” Rettenberger, 1999 UT 80,
¶ 28. “The significance of the stratagem comes in relation to
other tactics and factors.” Id. The false-friend technique may be
coercive if a defendant has “below-average cognitive abilities” or
other cognitive disabilities. Id. ¶ 26. In Rettenberger, our supreme
court held that because the defendant “suffer[ed] from mental
disabilities and deficiencies,” the effect of the false-friend
technique was heightened “in relation to other tactics and
factors” and contributed to the coercive nature of the police
interrogation. Id. ¶ 28. A defendant “parrot[ing] . . . suggestions”
of criminal activity initially provided by police may indicate that
a defendant is particularly susceptible to the false-friend
technique. See Bunting, 2002 UT App 195, ¶ 26.

¶20 In State v. Montero, we determined that recurring
suggestions to a defendant to tell the truth coupled with
assurances that the interrogating officer would do whatever he
could to help the defendant did not establish coercion. See
Montero, 2008 UT App 285, ¶ 18. Here, police made similarly
innocuous representations to Leiva-Perez, explaining that they
“want[ed] to be able to work” with him, and that they thought
he was “a good person.”

¶21 The trial court found that the officers “did not employ
excessive attempts at deception” but did employ “some effort to

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State v. Leiva-Perez

use the false friend technique.” The trial court determined that
the “language barrier” and Leiva-Perez’s “personal view on
police in general” blunted the effect of the false-friend technique.
The trial court saw “no evidence of any mental or emotional
problems . . . [or] of a learning disability, except his
demonstrably deficient public education of two or three years.”
Because Leiva-Perez did not demonstrate “below-average
cognitive abilities” or “mental disabilities and deficiencies,”
employing the false-friend technique did not heighten police
coercion “in relation to other tactics and factors.” See
Rettenberger, 1999 UT 80, ¶ 28. In addition, the record contains no
indication that Leiva-Perez “parrot[ed] any suggestions” by the
officers. See Bunting, 2002 UT App 195, ¶ 26. In fact, Leiva-Perez
himself alerted police to the murder weapon, which they
collected from Victim’s trailer after Leiva-Perez confessed to
hitting Victim with the metal bar. We thus agree with the trial
court that this factor weighs against a conclusion of coercion.

D. Police Misrepresentations

¶22 “[A] defendant’s will is not overborne simply because he
is led to believe that the government’s knowledge of his guilt is
greater than it actually is.” State v. Galli, 967 P.2d 930, 936 (Utah
1998) (citation and internal quotation marks omitted). Generally,
police “half-truths regarding the strength of the evidence”
against a defendant are not “sufficient to overcome [a
defendant’s] free will and spirit.” Id.

¶23 The trial court here determined that, aside from the use of
the false-friend technique, the police “did not employ any other
alleged deception . . . during the interview.” Leiva-Perez does
not claim police misrepresentations, and the record does not
indicate that police exaggerated the strength of the evidence
against him. We thus agree with the trial court that this factor
weighs against a conclusion of coercion.

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State v. Leiva-Perez

E. Threats or Promises

¶24 “An interrogation can be impermissibly coercive because
[it] carried a threat of greater punishment or a promise for lesser
punishment depending on whether [a defendant] confessed.”
Rettenberger, 1999 UT 80, ¶ 29 (alterations in original) (citation
and internal quotation marks omitted). Further, a promise of
leniency necessarily implies a threat of a harsher punishment. Id.
¶ 30. But “even strong suggestions that a defendant might not face
a particular charge or punishment if he confessed ‘standing
alone, may not . . . overcome [a defendant’s] will’ but may
‘constitute evidence that, when considered in light of the totality
of the circumstances, strongly weighs against the conclusion that
the confession was voluntary.’” Bunting, 2002 UT App 195, ¶ 23
(quoting Rettenberger, 1999 UT 80, ¶ 32). Finally, the “mere
representation to a defendant by officers that they will make
known to the prosecutor and to the court that [the defendant]
cooperated with them . . . ha[s] been recognized as not coercive.”
State v. Strain, 779 P.2d 221, 225 (Utah 1989).

¶25 Leiva-Perez maintains that “the combination of threats of
harsher punishment, a promise that there could be leniency, and
that the Judge would be contacted . . . on Leiva-Perez’s behalf
induced [Leiva-Perez] to change his version of events and
ultimately confess.”

¶26 Rettenberger involved coercive threats and promises.
Rettenberger was charged with murder and aggravated robbery
following his confession to killing the victim during the
commission of the robbery. 1999 UT 80, ¶¶ 1–3. During his
interrogation, “the officers suggested to Rettenberger that the
murder could be recast as a crime far less serious in nature than
capital homicide.” Police also stated that if Rettenberger did not
choose to confess, he would be “looking at lethal
injection . . . firing squad, . . . [or] hanging.” Id. ¶¶ 30–31. Police
emphasized that if Rettenberger confessed, he would not “have

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State v. Leiva-Perez

to die” and he would not “have to spend the rest of [his] life in
prison.” Id. ¶ 29. The supreme court determined that the
statements, considered in light of the totality of circumstances,
“strongly weigh[ed] against the conclusion that the confession
was voluntary.” Id. ¶ 32.

¶27 Bunting and Montero, on the other hand provide examples
of interrogation techniques that were not so coercive as to
overcome the defendant’s free will. In Bunting, we determined
that the defendant’s “free will was not overcome by any threats
or any suggestions of leniency” when police “told Defendant
that he was going to be charged with premeditated, first degree
murder” and implied that defendant “could avoid a
premeditated murder charge if he offered an unintentional,
negligent or reckless explanation for [the victim’s] death.”
Bunting, 2002 UT App 195, ¶ 24. Similarly, in Montero, we
determined that “factually accurate statements” that the
defendant “could end up going to jail” and “still be an accessory
to murder” did not constitute coercive behavior to render
defendant’s confession involuntary. State v. Montero, 2008 UT
App 285, ¶ 14, 191 P.3d 828 (internal quotation marks omitted).

¶28 Here, the officers’ statements fell short of “strong
suggestions that [Leiva-Perez] might not face a particular charge
or punishment if he confessed.” See Bunting, 2002 UT App 195,
¶ 23 (emphasis omitted). However, without referencing specific
charges, police did tell Leiva-Perez that if he did not tell the
truth “the penalty” and “punishment” would “be worse.” The
officers also stated that “there is a difference in the law, it is
understandable when someone comes forth and stands tall for
the mistakes they’ve made, versus someone who doesn’t.”

¶29 Though troublesome, these statements do not rise to the
level of the threats made in Rettenberger. There, police referred to
the methods of execution that the defendant potentially faced,
including lethal injection, firing squad, and hanging. See

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State v. Leiva-Perez

Rettenberger, 1999 UT 80, ¶¶ 30–31. Nor do the statements that
officers made to Leiva-Perez rise to the level of the specific
reference to “premeditated, first degree murder” that this court
determined in Bunting was not so coercive as to overcome the
defendant’s free will. See 2002 UT App 195, ¶ 23. Here, the
officers’ vague references to “difference[s] in the law” and the
potential for fewer charges to be brought if Leiva-Perez
confessed do not indicate that his “free will was . . . overcome by
any threats or any suggestions of leniency.” See id. ¶ 24.

¶30 But even if police did make an impermissibly coercive
threat to Leiva-Perez, we cannot conclude that this threat
induced Leiva-Perez to confess. There must be “a causal
relationship between the coercion and the subsequent
confession.” State v. Mabe, 864 P.2d 890, 893 (Utah 1993). Leiva-
Perez maintained his original narrative about his lack of
involvement with Victim’s death even after police explained that
the penalty might be worse if Leiva-Perez did not confess. Leiva-
Perez divulged information about killing Victim with a metal bar
only after asking police whether they found weapons in the
trailer and the officers confirmed that they had found a gun. This
sequence of events suggests that the officers’ representations
about potential charges or penalties likely did not induce his
confession. We thus agree with the trial court that “there is no
evidence that the defendant’s will was overcome.”

F. Subjective Factors

¶31 Finally, we consider Leiva-Perez’s “subjective
characteristics, especially as known to the interrogating officers,
to determine the extent to which those characteristics made him
more susceptible to manipulation.” See Rettenberger, 1999 UT 80,
¶ 37. “A confession may be suppressed in circumstances in
which a police officer knows of a suspect’s mental illness or
deficiencies at the time of the interrogation and effectively
exploits those weaknesses to obtain a confession.” Id. ¶ 18. In

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State v. Leiva-Perez

Montero, although the defendant argued that “he was a scared
eighteen-year-old and a Venezuelan who does not speak English
as his native language,” we did not see anything in the record
“to suggest that Montero was in any way particularly
susceptible to coercion or manipulation.” Montero, 2008 UT App
285, ¶ 21.

¶32 Leiva-Perez maintains that he “was inarguably
uneducated and unsupported” and his “upbringing in
Guatemala would have him left with a strong conviction that
persons who can get someone to intercede with a judge on their
behalf would get leniency, and those who could not would fall
through the cracks, and potentially be incarcerated indefinitely
without trial.” Although the trial court found that the officers
knew of Leiva-Perez’s “demonstrably deficient” education, it
found no indication, nor has Leiva-Perez pointed us to any
portion of the record to demonstrate, that officers “had any
understanding of the political history or of the justice system in
Guatemala.” In State v. Maestas, we emphasized that “an officer’s
knowledge of subjective mental infirmities could make the
officer’s actions sufficiently coercive, if there is evidence that he
has exploited them.” 2012 UT App 53, ¶ 36, 272 P.3d 769. Here,
we see nothing in the record to suggest that the officers
attempted to exploit Leiva-Perez’s subjective beliefs about the
Guatemalan justice system or even that they were aware of those
beliefs. Further, Leiva-Perez acknowledged that he was not
under the impression that the “same characteristics [of
Guatemalan police] apply to the police in the United States,”
stating that “what happens [there is] very different from here,
what happens there is manipulation because of money.”

¶33 The trial court also emphasized that Leiva-Perez,
“although uneducated, is not suffering from any mental
deficiency or emotional instability that affects his ability to
understand what is happening to him,” that he is “capable of
writing Spanish and communicating reasonably well in his

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native language in writing,” and that he can “think critically and
respond appropriately to questions that are asked of him.”
Because we see “nothing in the record to suggest that [Leiva-
Perez] was in any way particularly susceptible to coercion or
manipulation” due to his unique characteristics, we decline to
disturb the trial court’s findings.

CONCLUSION

¶34 Examining a totality of the circumstances, we see no error
in the trial court’s ruling that Leiva-Perez’s confession was not
coerced. The judgment of the trial court is accordingly affirmed.

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