Appendix — Ochoa v. Arizona

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Supreme Court, U.S.

4 FILED

, O02 268 JUN 1 72002

OFFICE OF THE GLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

SAMUEL OCHOA, PETITIONER

THE STATE OF ARIZONA, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

THE ARIZONA COURT OF APPEALS, DIVISION TWO

PETITIONER’S APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

BERTRAM POLIS

COUNSEL OF RECORD

338 NORTH GRANADA AVENUE

Tucson, ARIZONA 85701

(520) 884-9911

TABLE OF CONTENTS

Decision of the Arizona Court of Appeals,

OURS SONG ee iw ei Rho d cies chic vase ]

Arizona Supreme Court Order denying

Pa III: O00. Cone Hob ely Ses 2K 12

Petitioner’s Motion to Suppress Statements ........... 13

Trial Court Minvte Entry denying

Motion to Suppress Statements ..................... 17

Transcript of Motion to Suppress Hearing,

November 4, 1999 (Excerpt) ...................200. 18

Transcript of Jury Trial, Day One,

November 14, 2000 (Excerpt) ...................00. 39

Transcript of Jury Trial, Day Three,

November 16, 2000 (Excerpt) ...................... 42

FILED BY CLERK

NOV 15 2001

COURT OF APPEALS

DIVisION TWO

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA, ) 2CA-CR00-0542

) DEPARTMENT A

Appellee, }

) MEMORANDUM

) DECISION

v. ) Nor for Publication

) Rule 111, Rules of

SAMUEL OCHOA, ) the Supreme Court

)

Appellant. )

)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-64102

Honorable Richard Nichols, Judge

AFFIRMED

Janet Napolitano, Arizona Attorney General

By Randall M. Howe and Joseph L. Parkhurst Tucson

Attorneys for Appellee

Polis & Hartshorne, P.C.

By Bertram Polis Tucson

Attorneys for Appellant

PELANDER, Judge.

ql A jury found appellant Samuel Ochoa guilty of

attempted first-degree murder, two counts of aggravated assault,

endangerment, and drive-by shooting. The trial court sentenced

him to concurrent, aggravated prison terms, the longest of

which was fifteen years. None of the issues Ochoa raises on

appeal merits reversal.

BACKGROUND

qj2 We view the evidence and all reasonable inferences

therefrom in the light most favorable to sustaining the verdicts.

State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992).

Ochoa and the victim had an altercation at a taco stand,

apparently relating to a previous exchange of guns between the

_ victim and Ochoa’s brother, Cesar. After the victim had left

and was later driving in a different area, a vehicle driven by

Cesar pulled up next to the victim’s vehicle. Ochoa leaned out

the passenger-side window and yelled at the victim. As Cesar

then tried to force the victim’s vehicle off the road, Ochoa fired

several shots at the victim. Ochoa continued shooting after the

victim’s went off the roadway and came to rest against a dirt

embankment. The victim suffered serious injuries, and one of

his passengers also was wounded.

q3 After police apprehended Ochoa, Detective Briamonte

informed him of his Miranda’ rights. Briamonte then asked

Ochoa if he understood his rights and would agree to waive

them. Ochoa responded affirmatively to both questions. When

Briamonte displayed a tape recorder, however, Ochoa said, “I

won’t talk with that on. I don’t want what I say to be used

" against me.” Briamonte did not clarify that anything Ochoa

said, whether tape-recorded or not, could be used against him.

After Briamonte explained that the tape recorder “was simply

a tool

' Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694 (1966).

to document the conversation” and that Ochoa already was

under arrest for shooting the victim, Ochoa said, “I'll talk to

you, but not on the tape.”

q4 Ochoa then made a statement in which he denied having

shot the victim. Thereafter, he invoked both his right to remain

silent and his right to counsel, and all questioning ceased. At

trial, Ochoa presented an alibi defense that significantly

conflicted with his statement to Briamonte.’

MIRANDA ISSUES

Motion to Suppress

q5 Before trial, Ochoa moved to suppress his statement to

Briamonte, arguing he had not knowingly and intelligently

waived his right to remain silent.’ Specifically, he contended

the portion of his statement in which he had said, “I won’t talk

with [the tape recorder] on. I don’t want what I say to be used

against me,” revealed a complete lack of understanding of his

right to remain silent and thereby invalidated his earlier waiver

of that right. After conducting an evidentiary hearing, the trial

court denied Ochoa’s motion. Ochoa challenges that ruling,

which we review for clear and manifest error. State v. Hitch,

160 Ariz. 297, 302, 772 P.2d 1150, 1155

2 On the night of the offenses, Ochoa was shot in his foot. In his

statement to Briamonte, Ochoa explained that the injury had occurred during a

second altercation at the taco stand after the victim had left. At trial, however,

Ochoa presented evidence through other witnesses that he had accidentally shot

himself in the foot at a family gathering and that family members then had taken him

home, where he had remained for the rest of the night.

3 Ochoa does not claim that his statement was otherwise involuntary.

Accordingly, we do not address that particular issue. See Moran v. Burbine, 475

U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986) (waiver of

Miranda rights has two distinct components, voluntariness and comprehension);

State v. Carrillo, 156 Ariz. 125, 134-35, 750 P.2d 883, 892-93 (1988) (voluntariness

inquiry conducted separately “[s]o long as defendant’s waiver of Miranda was truly

cognitive”).

(App. 1989). In doing so, we view the evidence presented at

the suppression hearing and reasonable inferences therefrom in

the light most favorable to sustaining the trial court’s ruling.

State v. Smith, 197 Ariz. 333, 92, 4 P.3d 388, 92 (App. 1999).

16 Absent police overreaching, a defendant’s statement

made during custodial interrogation is admissible if the state

establishes that the defendant knowingly and intelligently

waived the right to remain silent and the right to the assistance

of counsel. Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct.

1135, 1141, 89 L. Ed. 2d 410, 421 (1986); Hitch, 160 Ariz. At

302, 772 P. 2d at 1155. “[T]he waiver must have been made

with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Moran, 475 US. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421.

Whether such a waiver is knowing and intelligent is a fact-

intensive inquiry that depends on the totality of the

circumstances. Id. ; Hitch.

{7 By denying Ochoa’s motion to suppress, the trial court

implicitly found he had knowingly and intelligently waived his

right to remain silent. See State v. Fodor, 179 Ariz. 442, 454,

880 P.2d 662, 674 (App. 1994). For several reasons, we cannot

fault that finding. First, after Briamonte advised him of his

rights, Ochoa expressly said that he understood them and agreed

to waive them. Second, the portion of Ochoa’s statement at

issue here, viewed in context, does not reveal a dearth of

understanding, particularly in light of Ochoa’s subsequent

statement, “I’ll talk to you, but not on the tape.” See

Connecticut v. Barrett, 479 U.S. 523, 539 n.4, 107 S. Ct. 828,

832 n.4, 93 L. Ed. 2d 920, 929 n.4 (1987) (“[T]here may be

several strategic reasons why a defendant willing to speak to the

police would still refuse to write out his answers to questions,

or to sign a transcript of his answers prepared by the police....”).

-Rather, it reveals only that Ochoa would invoke his

right to remain silent under a certain condition that did not

arise--Briamonte’s using the tape recorder. Finally, Ochoa

eventually did exercise his right and thereby demonstrated his

understanding of them. See State v. Carrillo, 156 Ariz. 125,

131, 750 P.2d 883, 889 (1988) (“When [the defendant] stopped

the final interrogation session and sought the aid of counsel, he

vividly demonstrated an understanding of his predicament and

of his constitutional rights.”). Given the totality of the

circumstances, we cannot say the trial court committed clear

and manifest error in denying Ochoa’s motion to suppress his

statement.

Alleged Invocation of Right to Remain Silent

q8 During his opening statement at trial, the prosecutor

stated that, after Ochoa had received Miranda warnings, he had

agreed to talk to Briamonte but only is the conversation was not

tape-recorded. Briamonte then testified at trial that Ochoa’s

“first quote...after his response to Miranda was I won’t-I won’t

talk with that on. I don’t want what I say to be used against

me.” Ochoa immediately moved for a mistrial, which the trial

court denied.

q9 As he did below, Ochoa contends a mistrial was

required because the prosecutor improperly and prejudicially

referred to an “invocation of his nghts” and to his post-Miranda.

silence. Ochoa essentially argues that he had invoked his right

to remain silent by saying, “I don’t want what I say to be used

against me,” and, therefore, that portion of his statement was

inadmissible. Absent an abuse of discretion, we will not

overturn a trial court’s ruling on a motion for a mistrial. State

v. Gilfillan, 196 Ariz. 396, 935, 998 P.2d 1069, 935 (App.

2000).

410 As Ochoa correctly points out, it is well settled that the

state may not introduce evidence of or comment on a

defendant’s post-Miranda silence to imply guilt. Doyle v. Ohio,

426 US. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98

(1976); Carrillo,156 Ariz. at 128, 750 P.2d at 886; State v.

Sorrell, 132 Ariz. 328, 329-30, 645 P.2d 1242, 1243-44 (1982);

State v.

Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195 (1978). This

tule rests on the conceptual foundation that it is fundamentally

unfair for the state to implicitly assure a suspect that his or her

silence will not be used against him or her and then later use

that silence to impeach the defendant or to suggest guilt. State

v. Keeley, 178 Ariz. 233, 235, 871 P.2d 1169, 1171 (App.

1994). Exclusion of a defendant’s post-Miranda silence, of

course, extends to a defendant’s expression of an intent to

remain silent. Wainright v. Greenfield, 474 U.S. 284, 295 n.13,

106 S. Ct. 634, 640 n.13, 88 L.Ed. 2d 623, 632 n.13 (1986).

But in all circumstances, the key inquiry is whether the

defendant actually remained silent. See Anderson v. Charles,

447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L. Ed. 222, 226

(1980); State v. Anaya, 170 Ariz. 436, 442, 825 P.2d 961, 967

(App. 1991). Accordingly, the rule does not apply to “a

defendant who voluntarily speaks after receiving Miranda

warnings “because he or she “has not remained silent at all.”

Anderson, 447 U.S. at 408, 100 S. Ct. At 2182, 65 L.Ed. 2d at

226.

q11 As noted above, the trial court did not clearly err in

ruling that Ochoa had knowingly and intelligently waived his

Miranda rights. Because Ochoa thereafter voluntarily agreed to

and did give an unrecorded statement, Briamonte’s testimony

about specific aspects of that statement was permissible.

Anderson. The evidence Ochoa challenges was not an improper

comment on his invocation of Miranda rights but, rather,

merely referred to what Ochoa had said after having waived

those rights. Moreover, the state’s ostensible purpose for

introducing that evidence was not to imply Ochoa’s guilt, but to

explain the absence of a tape-recording. Thus, the trial court

did not abuse its discretion in denying Ochoa’s motion for a

mistrial.

EVIDENTIARY ISSUES

412 Ochoa next contends that, in three respects, the trial

court erred in admitting certain evidence. We review a trial

court’s evidentiary rulings for an abuse of discretion. State v.

Fisher, 141 Ariz. 227, 242, 686 P.2d 750, 765 (1984).

Prior Consistent Statement

913 Attrial, Officer Hernandez testified that the victim had

told him Ochoa had been riding in either a white Ford pick-up

or a green Dodge Intrepid, probably the former, when the

shooting occurred. The victim testified, however, that Ochoa

had been in a green Dodge Intrepid when the shooting occurred

and that the victim previously had told Hernandez that Ochoa

had been driving a white Ford pick-up earlier in the evening.

Ochoa objected, arguing that the victim’s testimony about what

he previously had told Hernandez was hearsay because it was

a prior statement consistent with his trial testimony and that

Ochoa had made no charge of recent fabrication. See Ariz. R.

Evid. 801(d)(1)(B), 17A A.R.S. The trial court overruled

Ochoa’s objection.

914 Generally, prior consistent statements are inadmissible

hearsay. Ariz. R. Evid. 801(c),(d)(1). But, such statements are

not hearsay if they are “offered to rebut an express or implied

charge” that the witness has recently fabricated testimony.

Ariz. R. Evid. 801(d)(1)(B).

915 Ochoa argues that he made no such charge about the

victim’s testimony. During his opening statement, however,

Ochoa said:

[The victim], as you will see, has a memory that

gets better over time. . . . [The victim] says that

at 2:30 . . .Ochoa was either in a green Intrepid

or in a [wJhite Ford pickup depending on which

version...of the incident you choose to believe.

Because on the night in question when the

officer spoke with him he said that. . . Ochoa

was in a white Ford pickup last seen heading

southbound on Old Nogales Highway...and that

there was a green Intrepid also involved.

Later on [Ochoa] is transferred from the pickup

to the green Intrepid. And that’s later on. [The

victim] decides that [Ochoa] is in the green

Intrepid and shooting from there.

This sufficiently raised an inference of recent fabrication to

permit admission of a prior consistent statement. See Phoenix

Assocs. III v. Stone, 60 F.3d 95, 104 (2d Cir. 1995) (charge of

recent fabrication raised in opening statement). Thus, the trial

court did not abuse its discretion in admitting the victim’s

testimony about his prior statement to Hemandez.

Character Evidence

416 Ochoa’s sister testified that she had stored guns for their

brother, Cesar, and that she had not informed her husband of

that fact. She also testified that three children lived in her

home. Ochoa objected to this testimony on relevance grounds

and then moved for a mistrial, claiming the evidence improperly

attacked his sister’s character. The trial court overruled the

objection and denied the motion for a mistrial.

417 On appeal, Ochoa only contends these aspects of his

sister’s testimony were inadmissible under Rule 404(a), Ariz.

R. Evid. With certain exceptions, Rule 404(a) prohibits the use

‘of character evidence “for the purpose of proving action in

conformity therewith.” By its terms, the rules does not preclude

evidence that pertains to a witness’s character and that is

offered for reasons other than proving “action in conformity

therewith.” In addition, one exception to the rule’s prohibition

is evidence of specific instances of a witness’s conduct that

relate to the witness’s character for truthfulness or

untruthfulness. Ariz. R. Evid. 404(a)(3), 608(b)(1).

418 | Ochoa’s sister’s testimony that she had not told her

husband about having stored Cesar’s guns arguably constitutes

a specific instance of conduct relating to her character for

truthfulness; therefore, it was admissible under Rule 608(b)(1).

Additionally, Ochoa has not identified here or below what

character trait is established by the presence of children in his

sister’s home. But, even assuming the presence of guns and

children in the same home reflected poorly on his sister and

revealed a flawed character trait, Ochoa has not shown that the

state elicited that testimony to prove”action in conformity

therewith” Ariz. R. Evid. 404(a). Absent that element, we

cannot conclude the trial court abused its discretion in admitting

this evidence and denying Ochoa’s motion for a mistrial. See

Gilfillan, 196 Ariz. 396, 935, 998 P.2d 1069, 935. Finally, even

if the trial court should have excluded these aspects of the

sister’s testimony, on this record it is not reasonably probable

the jury would have reached a different verdict had the evidence

not been admitted. See State v. Lacy, 187 Ariz. 340, 348-49,

929 P.2d 1288, 1296-97 (1996). See also Ariz. Const. Art. VI,

§27.

Evidence Rebutting Alibi Defense

419 | Ochoa’s father testified that he had treated Ochoa’s

gunshot wound and, with the exception of a short period of time

when he had gone to a pharmacy to obtain medical supplies,

that he had remained at home with Ochoa on the night of the

offenses. To corroborate his father’s testimony, Ochoa

introduced a pharmacy receipt that showed his father had made

a purchase at 2:14 a.m., placing Ochoa’s father at home with

him at the time the offenses occurred.

q20 To rebut Ochoa’s alibi defense, the state called the

pharmacy manager as a witness. He testified that times reflect

on receipts generally were not accurate because the registers

that produced the receipts did not automatically reset to the

correct time after power outages. He

further testified that the times printed on receipts were generally

five to fifteen minutes earlier than the actual time of the

transactions. On cross-examination, however, he admitted that

he did not know if the registers had been calibrated before

Ochoa’s father’s purchase and, therefore, that it was possible

Ochoa’s father’s receipt bore the correct time.

{21 Ochoa argues there was insufficient foundation for the

pharmacy manager’s testimony because he did not know if the

registers were printing the correct time on the day in question.

Even if Ochoa has not waived this issue by failing to cite any

supporting authority, see Rule 31.13(c)(1)vi), Ariz. R. Crim.

P., 17 A.R.S.; State v. Carver, 160 Ariz. 167, 175, 771 P.2d

1382, 1390 (1989), we are not persuaded.

22 Under Rule 602, Ariz. R. Evid., a witness’s testimony

is admissible so long as he or she has “personal knowledge” of

the subject matter about which the witness is testifying. Here,

the pharmacy manager had the requisite personal knowledge to

testify. That he could not conclusively establish that the time

printed on the receipt was inaccurate went to the weight of the

evidence, not its admissibility. See State v. Hatton, 116 Ariz.

142, 149, 568 P.2d 1040, 1047 (1977) (“that the [evidence was]

not a conclusive link in the case goes only to the weight and not

to the admissibility of the evidence.”) Consequently, the trial

court did not abuse its discretion in admitting the pharmacy

manager’s testimony.

DISPOSITION

423 Ochoa’s convictions and sentences are affirmed.

JOHN PELANDER, Judge

CONCURRING:

J. WILLIAM BRAMMER, JR.., Presiding Judge

M. JAN FLOREZ, Judge

SUPREME COURT

NOEL K. DESSAINT STATE OF ARIZONA KATHLEEN E.

CLERK OF COURT KEMPLEY

402 ARIZONA STATE CHIEF DEPUTY

COURTS BUILDING CLERK

1501 WEST WASHINGTON

PHOENIX, ARIZONA

TELEPHONE: (602) 542-9396

March 21, 2002

RE: STATE OF ARIZONA vs SAMUEL OCHOA

Arizona Supreme Court No. CR-01-0467-PR

Court of Appeals Division Two No. 2 CA-CR 00-0542

Pima County Superior Court No. CR-64102

GREETINGS:

The following action was taken by the Supreme Court of the State of

Arizona on March 19, 2002, in regard to the above-referenced cause:

ORDERED: Petition for Review by the Supreme Court = DENIED.

Record returned to the Court of Appeals, Division Two, Tucson, this

21* day of March, 2002.

Noel K. Dessaint, Clerk

TO:

Hon Janet A Napolitano, Arizona Attorney General

Attn: Randall M Howe

Joseph L. Parkhurst, Assistant Attorney General, Tucson Office

Bertram Polis, Polis & Hartshorne PC

Samuel Ochoa, ADOC #155678, comnices State Prison, Winslow-

Kaibab North Unit

West Publishing Company

Lexis-Nexis

Jeffrey P Handler, Clerk, Court of Appeals, Division Two, Tucson

RECEIVED MAR 25 2002

Polis & Hartshorne, P.C.

338 North Granada Avenue COPY

Tucson, Arizona 85701-8212 April 28, 1999

(520) 884-9911 Patricia A. Noland

By Bertram Polis Clerk, Superior Court

Attorney No. 45540

Attorney for Defendant

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA, )

) No. CR-64102

Plaintiff, )

) MOTION TO SUPPRESS

vs. ) STATEMENTS

)

SAMUEL OCHOA, )

) Hon. Richard Nichols

Defendant. )

)

The Defendant, Samuel Ochoa, through undersigned

counsel, hereby moves this Court for its Order suppressing any

and all statements made by Defendant on the grounds that said

statements were obtained in violation of Defendant's fifth, sixth,

and fourteenth amendment rights under the U.S. Constitution

and in violation of Article II, § 4 of the Arizona Constitution.

The grounds for this motion are more fully set forth in the

accompanying Memorandum of Points and Authorities.

RESPECTFULLY SUBMITTED April 28, 1999.

POLIS & HARTSHORNE, P.C.

BERTRAM POLIS

Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

FACTS:

On December 23, 1998, Defendant was arrested on a warrant

charging him with attempted first degree murder, aggravated assault,

endangerment, drive by shooting, and attempted second degree

murder. Defendant was transported to the police station where he

was interrogated by TPD Detective Briamonte.

At the outset of the interrogation, Defendant advised Det.

Briamonte that he did not want the detective to record the

conversation, telling him that “I don’t want what I say to be used

against me.” Without further clarification of the purpose of the

interrogation, Det. Briamonte agreed not to tape record the

conversation and continued questioning Defendant. After answering

the detective’s questions, Defendant said, “No matter what I say, I’m

going to jail then?” When Det. Briamonte replied that he would be

going to jail, Defendant requested an attorney and the interrogation

ended.

ARGUMENT:

The State has the burden of proving that statements elicited

from a defendant while in custody were voluntarily made and taken

in compliance with the defendant's Miranda rights. Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In

Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317

(1984), the Supreme Court reaffirmed the principles of Miranda and

held that a person subjected to custodial interrogation is entitled to

Miranda warnings regardless of the nature or severity of the offense.

In the instant case, it is submitted that the State will not be

able to meet its burden of proving that Defendant's statements were

taken in compliance with Miranda and that any statements obtained

were the result of a valid, knowing and voluntary waiver of those

rights. It is clear that Defendant believed that his statements to Det.

Briamonte would not be used against him. As such, Defendant can

not have been properly advised of his Miranda warnings and any

subsequent “waiver” was certainly not knowledgeable.

“A heavy burden rests on the government to demonstrate that

the defendant knowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed

counsel.” Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. In this case,

it is clear that Defendant did not understand that his statements

would in fact be used against him and instead of properly advising

Defendant of this, Det. Briamonte simply continued the

interrogation. Under these circumstances, it is submitted that the

State cannot meet its heavy burden of establishing that Defendant

executed a knowing and intelligent waiver of his rights. As such, all

statements made by Defendant must be suppressed.

It is further submitted that Defendant's statements were not

voluntarily made and were not the "product of an essentially free and

unconstrained choice by its maker." Columbe v. Connecticut, 367

U.S. 568, 602 (1961). As such, admission of the statements would

violate Defendant's right to due process of law guaranteed by the

fourteenth amendment. Columbe, supra; Jackson v. Denno, 378 U.S.

368 (1964).

Defendant was led to believe that his statements might get

him released from police custody. In order for a confession or

statement to be deemed voluntary, however, it must not be obtained

by a direct or implied promise, however slight. State v. Griffen, 148

Ariz. 82, 713 P.2d 283 (1986); State v. McFall, 103 Ariz. 234, 439

P.2d 805 (1968). It is submitted that Defendant’s invocation of his

right to an attorney at the time he was finally told he would be taken

into custody regardless of his statements demonstrates that his

previous statements were elicited as a result of the belief that he

would receive a benefit in exchange for them. Accordingly, the

statements are involuntary and must be suppressed.

Based on the foregoing, Defendant Ochoa respectfully

requests that this Court issue its Order suppressing any and all

statements made by him and suppressing any evidence obtained as a

result of those statements.

RESPECTFULLY SUBMITTED April 28, 1999.

POLIS & HARTSHORNE, P.C.

BERTRAM POLIS

COPY mailed/delivered this

28 _ day of April, 1999, to:

Daniel Nicolini, Esq.

Pima County Attorney’s Office

32 N. Stone Avenue, 14th Floor

Tucson, Arizona 85701

By:___signature

FILED

PATRICIA A. NOLAND

CLERK, SUPERIOR COURT

November 15, 1999 (10:27 a.m.)

By: Pat Dini

ARIZONA SUPERIOR COURT, PIMA COUNTY

JUDGE: HON. RICHARD NICHOLS CASE NO. CR-64102

COURT REPORTER: NONE DATE: NOVEMBER 15, 1999

STATE OF ARIZONA

VS.

SAMUEL (NMN) OCHOA

MINUTE ENTRY

DEFENDANT’S MOTION TO SUPPRESS STATEMENTS:

IT IS ORDERED that the motion is denied.

cc: Hon. Richard Nichols

Criminal Calendaring

County Attorney - Nicolini

Bertram Polis, Esq.

RECEIVED

NOV 17 1999

Pat Dini

Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA,

Plaintiff,

vs NO. CR-64102

SAMUEL NMN OCHOA,

Defendant.

i i i a a a a

BEFORE: THE HONORABLE RICHARD D. NICHOLS, JUDGE

Division 14

APPEARANCES:

DANIEL A. NICOLINL Esq.

On behalf of the State: COPY

BERTRAM POLIS, Esq.

On behalf of the Defendant.

MOTION TO SUPPRESS

November 4, 1999

Denise M. Gonzales, RMR

Certified Court Reporter

DEFENSE

A. The vehicles were moving, driving around in

the area of Thoroughbred and Nogales.

3 Q. Was the victim, Mr. Espinosa, in a car? ,

4 A. Yes. He was driving. |

5 Q. — Hewas driving acar? All right. And what |

6 did he tell you about the position of the shooter in the

7 other car?

8 A. The shooter was in the front passenger seat.

9 And that there was an additional shooter in the rear

10 passenger seat, would be on the passenger side.

1] Q. Was he able to identify the shooter in the

12 rear?

13 A.. No.

14 Q. But he indicated Sam Ochoa was in the right

15 front seat of this other car?

16 A. That’s what the victim told me.

17 Q. All right. Was a warrant issued for Sam

18 Ochoa’s arrest after your interview with the victim?

19 A. Yes.

20 Q. When was he arrested?

21 A. He was arrested December 23 rd, 1998.

22 Q. — Who initially encountered him or detained

23 him?

South Tucson Police Department.

25 Q. And that — did that include Officer Ginzer

1 who was just here and left?

2 A. I believe so, yes.

3 Q. Did you — were you called out at the time

4 of his arrest?

5 A. Yes.

6 Did you go to the scene of the stop?

7 Yes.

8 Did you meet the Defendant, Sam Ochoa?

9 Yes.

10 Where did you meet him?

12 You recognize him here in court today?

. 13 Yes.

14 Q. Can you point him out, indicate what he’s

South Tucson police station.

rPOPD FD PH

15 wearing?

- Dark colored three-piece suit sitting at the

17 Defense table, glasses and a mustache.

18 MR. NICOLINI: May the record reflect he’s

identified

19 the Defendant?

, 20 THE COURT: Yes.

22. BY MR. NICOLINI:

23 Q. When you met Mr. Ochoa did you introduce

24 ~=yourself?

25 A. Yes

wo mannan & WwW NO —

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Q. Did you tell him why you were there?

A. Yes.

Q. Did you read him his Miranda rights?

A. Yes, I did.

Q. Could you tell the Court what you told him

about his rights?

A. I read them from my card.

Q. Do you have your card with you?

A. Yes, I do.

Q. Could you take it out and read it for the

record nice and slow so the court reporter can get it?

You have the right to remain silent.

Anything you say can and will be used against you in a

court of law. You have the right to the presence of an

attorney to assist you prior to questioning and to be with

you during questioning if you so desire.

If you cannot afford an attorney, you have

the right to have an attorney appointed for you prior to

questioning. Do you understand these rights?

> ODP? 2?

Did he respond to that question?

Yes.

What did he say?

Yes.

Did you ask another question

Yes.

ome nN Dn & WH —

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SN DA A & WH —& CoO

What was that?

Now having been advised of these rights and

understanding these rights, will you answer my questions.

What did he say to that?

Yes.

Okay. Now, is it your practice to normally

tape-record interviews with persons being interviewed?

Yes.

What’s the reason for that?

MR. POLIS: Objection, irrelevant.

THE COURT: Overruled.

To preserve their exact words and what was

said in the interview and to have a written transcript of

verbatim what was said in the interview.

Okay. Did you have a tape-recorder with you

when you interviewed Mr. Ochoa?

table?

Yes.

What, did you take it out and put it on the

It was with my notebook and my notepad. And

I put it on the desk there as I was reading him his rights.

Did Mr. Ochoa have anything to say about it?

Yes.

What did he say?

He pointed to it and asked me if it was on.

(

Co monn nA & WY NO —

NI RQ RQ eet

no = © Oo ONAN A A & W NY — S&S

Q. And your response?

A. And I told him no.

Q. Tell us about the conversation you had

concerning the tape-recorder.

A. I documented in my notebooks some quotes of

what he said. Would it be okay if I saw my report?

Q. Sure. Did you write a report of this

interview and other aspects of the investigation shortly

after they occurred?

A. I documented in my notebook what — the

events after they occurred. And then I incorporated in my

supplement which I believe I did in February.

Q. All right. And in writing the supplement or

report did you rely on notes that you had made

contemporaneously with the events, in other words, at the

same time?

Yes, yes.

Do you still have those notes?

Yes.

Were the notes destroyed?

? 8 ? & ?

Yes, they were.

Q. Let me show you State’s Exhibit 1 for

identification. Do you recognize that?

A. Yes. That’s my supplement.

Q. Okay. And in that supplement on page two

{

did you summarize the meeting, interview with Mr. Ochoa?

MR. POLIS: Pardon me, object to the leading

nature of the question. And objecttothe —

THE COURT: Sustained.

BY MR. NICOLINI:

Q. All right. Using the report to refresh your

recollection if necessary, could you tell the Court about

the conversation with Mr. Ochoa concerning the

tape-recorder?

MR. POLIS: Object to the form of the

question. He can refresh his recollection by looking at

the report. What I would like — I think it’s proper to do

that, but I don’t think it’s proper to have the report in

front of him and to testify sometimes coming from the

report, sometimes coming from memory.

THE COURT: Could you tell us accurately

what the conversation was without referring to the report?

THE WITNESS: Not 100 percent, Your Honor,

because I have his exact words in quotes in my report. I

would have to read them.

THE COURT: I'll let him read from his

report. Go ahead.

A After he asked about the tape-recorder, he

said — I quote —I won’t talk with that on. I don’t want

1 what I say to be used against me, end quote.

2 Q. Okay. How did you respond to that?

3 A. I told him that the recorder was simply a

4 tool to document the conversation, basically.

5 Q. And did he have a further statement or

6 response?

7 A. Yes. If I could refer back to his first

8 quote.

9 Q. Okay, please.

0 A. He said — he asked me if he was being

11 arrested. And then I explained to him that he was already

12 under arrest for shooting Stephan Espinosa. And then he

13. said -— andthisaquote — I'll talk to you, but not on

14 thetape, end quote.

15 Q. Okay. And did you agree to that?

16 A. Yes.

17 Q. Did you then interview him?

18 A. Yes.

19 Q. And did you not tape-record it?

20 A. Correct.

21 Q. So you agreed to do what he wanted?

22 A. Yes.

23 MR. POLIS: Object to the characterization,

24 move to strike.

25 THE COURT: Sustained.

BY MR. NICOLINI:

Q. Did you — and, again, did you make notes of

the conversation which you used to write this report later?

A. Yes.

Q. Could you summarize what Mr. Ochoa had to

say about any encounter with Stephan Espinosa on October

17 th?

wow enonaunrrt WN =

MR. POLIS: Object to the form of the

10 question, Your Honor.

THE COURT: Overruled.

A. Yes. He said that he had — he spoke to

Stephan Espinosa at the BK Taco Stand. And he asked him if

14 he had a problem with his— Mr.— Mr. Ochoa asked Mr.

15 Espinosa if he had a problem with his brother, Cesar Ochoa.

16 Q. Okay.

17 A. And Mr. Espinosa said that he didn’t. And

18 at some point during that conversation or that contact a

19 fight broke out where Mr. — Mr. Ochoa said that he was

20 attacked bya number of people. And at some point in the

ee ee!

we NO —_

21 middle of that a shot was fired and he was shot in the

22 = foot.

23 Q. Did Mr. Ochoa indicate that Mr. Espinosa

24 was involved in that physical altercation at all?

25 A. No. He said he was not involved. He didn’t

see him.

Q. Okay. And, in fact, what — what did he

tell you about Mr. Espinosa’s involvement in any

altercation? I’m trying to ask this so it’s not leading.

A. He thought that Mr. Espinosa’s friend might

be involved, but he didn’t know that for sure. And that he

said regarding — I’m not sure what you’re asking me.

Q. Look in your report, page two. Let me count

the paragraphs. One, two, three, four, end of the fourth

Co mon Hn & WY NO —

10 paragraph. Did you record some information about — that

11 Mr. Ochoa told you about Mr. Espinosa’s involvement?

(12 A. Yes. He said that there was no problem and

13 he refused to fight.

14 Q. That is Mr. Espinosa?

15 A. Correct.

16 Q. Sammy Ochoa told you that Mr. Espinosa said

17 there was no problem and Mr. Espinosa refused to fight; is

18 that right?

19 A. Yes, that’s correct.

20 Q. Then he told you subsequent to that he was

21 ina fight with other people and was shot in the foot?

22 A. Yes.

23 Q. Okay. Allright. What else did you talk

24 about?

25 THE COURT: Do we really need to get into

io ona vn & WO N —

Se ee ae ee ee” ee ee ell dl gl pr 9

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that?

BY MR. NICOLINI:

Q. Did he deny shooting Mr. Espinosa?

A. Yes, he did.

Q. Did you end the interview at that point or

did you — did you take a pause in it?

A. I left to go check my case file for a

minute, came back a few minutes later. And he said

something to the effect of I’m going to go to jail no

matter what I say. And I told him yeah, that was true.

And at one point he said that it’s my word against his, in

my mind referring to Mr. Espinosa. And then he said he

didn’t want to talk any more without a lawyer, and I

stopped asking questions.

Q. That was the end of the interview?

A. Yes.

Q. Allright. Did you subsequently develop

information that he may have lied about being shot in the

foot?

_ A. Yes.

Q. And what was the source of that?

A. Mr. --

MR.POLIS: Pardonme. Objection. What’s

the —

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THE COURT: Yeah, I’m confused about that.

BY MR. NICOLINI:

Q. Allright. I guess we don’t have to get

into that.

MR. NICOLINI: _I think in terms of the

motions, that’s all I need from this witness.

THE COURT: Let me just clarify something,

Mr. Ochoa sees the tape-recorder, asks if it’s on?

THE WITNESS: Yes, sir.

THE COURT: And did you ever tell him that

even though you would not tape-record the conversation,

that it could be used against him any way?

THE WITNESS: Not that specifically.

THE COURT: Tell me about that part of it

again. i

THE WITNESS: Just — just in the Miranda

rights that would be used against him. I didn’t give an

additional clarification to the fact that talking to me

would also be used.

THE COURT: Cross-examine?

Co won a un & WY NY =

NM NO NH NH NO NO | | | | FSF ES OSES OOS

On & WW NO = COO DBnrAI A Nn & W NY — S&S

CROSS-EXAMINATION

BY MR. POLIS:

Q. Just briefly. When he sees the

tape-recorder, he tells you — and I think this is a

quote — I won’t talk with that on, I don’t want what I say

to be used against me? _Is that what he tells you?

A. Yes, sir.

Q. Okay. You then say to him — and I’Il just

quote from your report so that it’s accurate — you say to

him, quote, that the tape-recorder was not on. You told

him that the tape-recorder was simply a tool to document

his side of the story. Is that what you told him?

A. Yes, sir.

Q. Okay. And that was directly after he told

you he didn’t want to talk with the tape on because he

didn’t want what he said to be used against him?

A. Yes, sir.

Q. Now, just so that I’m clear here, you do not

maintain, do you, sir, that your report contains all of

your conversation with Mr. Ochoa?

A. Correct, that is correct.

Q. You just took certain statements that he

made, put them in quotes and put them in your report from

your notes?

A. Yes.

Q. Okay. And those were statements that you

thought were the most significant; right?

A. Yes.

Q. How long was your conversation with Mr. |

Ochoa? |

A. Maybe ten or 15 minutes.

Q. Okay. And after you told him that the

tape-recorder was a tool for getting his side of the story,

he then asked you if he was under arrest; correct?

A. Yes, sir.

Q. But where you were interviewing him was in

an interview room at the police station; correct?

A. Yes.

Q. Okay. And before you Mirandized him did you

tell him he was under arrest?

A. Can I check my supplement again?

Q. Sure, please do.

A. — Idon’t believe that I told him he was

actually under arrest before I read him his rights.

Q. Okay. Did you tell him anything to that

effect?

A. Not that I can recall.

Did you tell him what you were there for?

Yes, sir.

What did you tell him?

Pre

A. That I was there to talk to him about the

shooting with Stephan Espinosa.

Q. Okay. Did you tell him also that depending

upon what he says, he could be released?

A. I don’t recall saying that.

Q. Or something to that effect?

A. No, I don’t recall saying anything like

that.

Q. Okay, sir.

He — after you told him that the recorder

was simply a tool, he then asked you if he was under

arrest; correct?

A. Yes.

Q. And at that time did you have a discussion

with him about whether he was under arrest?

A. I just told him that he was.

Okay. Did you show him a warrant?

No, sir.

Did you have the warrant with you?

I had a copy of it in my file, yes.

But you didn’t show it to him at that time?

POPP Pe

No, sir.

Q. You told him he was under arrest on what

charge?

A. For shooting Stephan Espinosa

oOo mona nn f& WY NY —

Q. Okay, sir. Did he make a comment to that?

A. Right at that time?

Q. Yeah.

A. Can I check my supplement?

Q. Sure.

A. Yes. That’s when he made a quote where he

said I’ll talk to you, but not on tape.

Q. But that was after you told him that the

recorder was simply a tool for documenting his side of the

story; correct?

A. Yes.

Q. And after you told him that, you at no time

told him again that whether he talked on tape or not on

tape it could be used against him?

A. That’s correct.

Q. Did Mr. Ochoa sometimes say he would take a

lie detector test?

A. I don’t remember him saying anything about

that.

Q. Something to that effect?

A. No. I don’t remember anything about a lie

detector.

Q. Okay. How many pages were your notes?

A. Oh, probably just the front side of a legal

sized tablet, not line for line, just —

Q. Did you record line for line in your

supplement what was in your notes?

A. No. Some of it was from memory and some of

it was from the notes. The quotes I made sure were exactly

5 from the notes.

6 Q. But there were some things on the notes that

7 are not contained in this report; correct?

8 A. Well, I don’t — Idon’tremember. I wrote

most of it from memory and then added the quotes from the

10 report.

11 Q. Okay. Mr. Ochoa told you after Mr. Espinosa

12 said there was no problem that Mr. Ochoa walked away;

13 correct?

14 A. Yes. Are you referring to the BK Taco

15 Stand?

16 Q. I am, sir.

17 A. That’s correct.

18 Q. That’s when he said he was attacked?

19 A. Yes, sir.

20 Q. By who he believed were friends of Mr.

"21. Espinosa?

22 A. Yes, sir.

23 Q. Did you at any time tell him, sir, that you

24 knew that he shot Mr. Espinosa?

25 A. I probably did. I don’t have an independent

recollection, but that’s something I would say. And I

believe that I did say it.

Q. Okay. And at what time during this

interview did you say I know you shot Mr. Espinosa?

A. Probably in the beginning at some point. I

can’t tell you exactly what point it was in there. That’s

when I said I believe — when I told him what he was under

arrest for, probably right around there then.

Q. Okay.

A. The way I recall it, it was connected to

wo mona n & WN —

—=— £i-—

—_ ©

for the shooting of Steve Espinosa. I know you shot him,

I know what happened type of thing —

Q. Okay.

A. — as an opening kind of remark.

Q. And what did he say?

A. He didn’t say anything to that. It just

went on to his denial that he shot him later on in the

conversation. He denied doing it.

19 Q. Let me get this straight, sir. You say to

20 him I know you shot Mr. Espinosa, I know what happened, and

21 you say he remained silent at that time?

22 A. Yeah. That sounds — yes.

23 Q. Then what do you say, through you then

24 forced the issue?

25 THE COURT: Is this relevant to the motion

ee ee ee ee ee

on TWN NH Se WY KN

wo mona unt Ww ne =

to suppress?

MR. POLIS: Well, it may be, Judge. We

don’t have the whole conversation. We got a 15-minute

conversation. And there’s obvious issues about

voluntariness, issues about overbearing as well. And I

think you need to hear this part of it, frankly.

THE COURT: Go ahead.

A. Can you repeat the question, please?

Q. Yeah. When he says nothing, you obviously

then say something else; right? In other words, you press

the issue?

A. Let me look at my supplement here for a

second.

The way I remember it, I said it in the

section right around when he said I’m not going to talk to

you on tape. That was part of my way of telling him that I

had already heard the other side of the story and I knew

what happened. And then beyond that, he — we had the

conversation about him-that there was a problem with him

and Cesar, Mr. Espinosa.

Q. Let me clarify this then, sir.

A. Okay.

Q. You’ re telling us now that you turn on the

tape?

A. No. sir.

a a

You show him the tape?

No, sir. I just put it on the desk.

Well, that’s — It was in his view?

Yes, sir.

Okay. And that’s when you say to him I know

you shot Mr. Espinosa, I know what happened?

No I said — when] told him he was under

arrest when we had the conversation about him being under

]

5 Q.

arrest, I said yeah, you’re under arrest for shooting

10 Espinosa. I know what happened. I know you did it. And

11 then we went on from there.

12 Q.

And this is after he tells you he doesn’t

13 want to talk on tape because he doesn’t want anything used

14 against him?

Yes.

Okay. At some point, sir, he says to you no

17 matter what I say, I’m going to jail?

15 A.

16 «Q.

S. Az

19 Q.

20 =A.

21 Q.

Yes.

Okay. When —

After I came back from checking my file.

Okay. What -— did you ask him a question

22 before he says that?

23 A.

No. I walked in and had my file with me at

24 that point. And then he just said no matter what I say,

25 I’m going to jail.

Q. Is there any time before that, sir, that you

suggested to him that whether he was going to jail depended

3 upon what he said?

4 A. No.

5 Q. How did the subject then come up then, sir,

where he — are you telling me that out of the blue he just

says no matter what I say, I’m going to jail then?

A. Well, he was in handcuffs and he was

transported from Osborne and 22” Street in a police car.

10 Q. Well, that’s after, though?

11 A. No, sir. That was before. That’s when he

12 was stopped for the traffic violation and brought over to

13 South Tucson.

14 Q. Okay. My question, though, sir, is are you

15 testifying that out of the blue he says no matter what I

16 say, I’m going to jail then?

17 A. Yes, sir.

18 Q. And there was no — and your testimony is

19 that there was no discussion before that about the impact

20 on his saying something to you or his side of the story on

21 whether or not he was going to jail?

22 A. Not that I can recall, no.

23 Q. Was anyone else present during this

24 interview?

25 A. No, sir.

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA, )

Plaintiff, 2CA-CR 00-0542

SAMUEL NMN OCHOA, : NO. CR-64102

Defendant.

)

BEFORE: THE HONORABLE RICHARD D. NICHOLS, JUDGE

Division 14

APPEARANCES:

DANIEL A. NICOLINL Esq.

On behalf of the State: COPY

BERTRAM POLIS, Esq.

On behalf of the Defendant.

JURY TRIAL. DAY ONE

November 14, 2000

Denise M. Gonzales, RMR

Certified Court Reporter

DEFENSE

He was the assigned case detective on this

case. And he pursued investigation of the case imitially

reviewing reports of officers at the scene. Other officers

responded and collected evidence which you’!l hear about

5 including the shell casings in the street.

6 Detective Randy Deeming dug some bullets out

7 of the car itself. At least one bullet was recovered from

8 the hospital from Steve Espinosa’s body. But the car, the

9 green Intrepid was driven away and not to be seen and not

10 found that night.

11 When Detective Briamonte was assigned, one

12 of the first things he needed to do was interview Steve

13 Espinosa who up to that point hadn’t been interviewed

14 because he was in no condition to be interviewed. He had

15 been in the hospital for quite some time. He was at home.

16 And, finally, on November 6th I believe it

17 was, of ‘98, Detective Briamonte was able to interview him

18 at home although he was still in a heavily medicated and

19 very grave condition but recovering and able to talk. And

20 he told Detective Briamonte that Sammy Ochoa had shot him.

j 21 A warrant was issued for Sammy Ochoa’s

22 arrest. He wasn’t located at this time, but he was picked

23 up on the warrant on December 23rd about five or six weeks

24 later. And at that time Detective Briamonte met Mr. Ochoa

25 at the police station and he read him his rights, you know,

1 the rights that we’ve all heard on every TV show. You have

2 aright to remain silent. Everything you say can be used

3 against you and so forth. And Mr. Ochoa agreed to talk to

4 him, but he would only do it if it was off tape.

5 MR. POLIS: Objection, Your Honor.

6 THE COURT: Come on up.

7 (The following discussion

8 occurred at sidebar.)

9 MR. POLIS: This is an invocation of my

10 client’s rights.

11 MR. NICOLINI: No, it isn’t.

12 MR. POLIS: It is.

13 MR. NICOLINI: That is precisely what the

id testimony was at the first trial. He agreed to talk, but

15 only off tape. And the jury heard all about this.

16 MR. POLIS: Well, I believe this is an

17 invocation of my client’s right. It’s a comment on my

18 client’s exercise of his Fifth Amendment right.

19 THE COURT: Overruled. That’s not an

20 invocation.

21 (The sidebar discussion ended.)

>: Sil MR. NICOLINI: Sammy Ochoa told Detective

23 Briamonte that he would talk to him, but not on tape. So |

24 Detective Briamonte took very careful notes and wrote a

25 very careful report at the conclusion of this brief

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

STATE OF ARIZONA, )

Plaintiff, 2CA-CR 00-542

SAMUEL NMN OCHOA, NO. CR-64102

Defendant. ;

)

BEFORE: THE HONORABLE RICHARD D. NICHOLS, JUDGE

Division 14

APPEARANCES:

DANIEL A. NICOLINEI Esq.

On behalf of the State: COPY

BERTRAM POLIS, Esq.

On behalf of the Defendant.

JURY TRIAL. DAY THREE

November 16, 2000

Denise M. Gonzales, RMR

Certified Court Reporter

DEFENSE

A. Yes, I do.

Q. Could you please take it out and tell the~

jury or read to the jury exactly what you told Sammy Ochoa

about his rights, Miranda rights?

A. Yes. You have a right to remain silent.

Anything you say can and will be used against you in a

court of law. You have the right to the presence of an

attorney to assist you prior to questioning and to be with

you during questioning if you so desire.

If you cannot afford an attorney, you have

the right to have an attomey appointed for you prior to

questioning. And then I ask do you understand these

righ

Q Did he respond?

A. Yes, he did.

Q. What did he say?

A Yes.

Q What is your next question?

A Now having been advised of these rights and

understanding these rights, will you answer my questions.

Q. What did he say?

A. Yes.

Q. All right. Now, did you have a

tape-recorder with you?

A. Yes. I did.

] Q. Did you put iton — what was the setting

2 ~ where this interview was occurring?

3 A. I think this was in an office that was

4 provided for me by the South Tucson Officers to speak to

5 Mr. Ochoa. So there’s a desk and somebody else’s stuff in

6 there.

7 Q. And a couple of chairs?

8 A. Yes.

9 Q. Okay. Was anyone else present at any time

10 during this interview?

1] A. No.

12 Q. Did you put your tape-recorder on the table

13. or the desk?

14 A. I had my notepads. And the tape-recorder, I

15 had those sitting on the desk next to me.

16 Q. Do you normally tape-record interviews of

17 _ this sort?

18 A. Yes.

19 Q. Why is that?

20 A. To document exactly what’s being said.

2 Q. Okay. Did you record this one?

22 A. No.

23 Q. Why not?

24 MR. POLIS: Objection. Your Honor.

25 THE COURT: Overruled. Go ahead.

BY MR. NICOLINI:

Q. What happened that caused you not to record

it?

A. I have some exact quotes in the report. But

basically Mr. Ochoa asked that I did not tape-record it.

Q. Okay. And when you put quotes in your

report are those phrases exactly what you were told?

Co men NHN fF WY] NY —

A. The quotes are, yes.

10 Q. And you wrote them down verbatim and

11 recorded it in the typed report later?

12 MR. POLIS: Objection, leading.

13 THE COURT: Overruled.

14 A. I did, yes.

15 Q. What exactly did Mr. Ochoa say to you about

16 your use of the tape-recorder?

17 A. May I refer to my report?

18 Q. Please do.

19 A. The first — the first quote that I have

20 after his response to Miranda was I won’t — I won’t talk

21 + withthaton. I don’t want what I say to be used against

22 me.

23 MR. POLIS: Pardon me, Your Honor. May I

24 approach? I object.

25 THE COURT: Come on up.

Oo mOanNn Hn & W NY —

(The following discussion

occurred at sidebar.)

MR. POLIS: I move fora mistrial. That’s a

direct invocation of his rights. That is beyond what he

put in the statement. We litigated this. He can’t bring

up his invocation of his rights.

MR. NICOLINI: We have been through a motion

to suppress on this before, and this whole thing’s been

resolved.

MR. POLIS: It has not been resolved. He

11 did not mention it in opening statement. Now he brings out

directly that my client invokes his rights.

THE COURT: How, as — that was as to the

tape-recording issue; right?

MR. POLIS: Yeah, but what he says is I

16 don’t want it to be used against me. Now how can that come

in after Miranda?

THE COURT: We did have a motion to suppress.

MR. POLIS: Yeah, but you never ruled that

this could come in. What you ruled is that his statement

could come in, not his invocation of rights.

THE COURT: [I'll stand by the original

decision.

MR. POLIS: There is no original decision,

Judge. You never ruled on this issue. He didn’t bring it

wo mena n & WY NO —

ee ee ee

> WwW NY — ©

up at the last trial.

MR. NICOLINI: _ It’s right there in quotes in |

the report. : :

MR. POLIS: That may be, but you did not

bring it up in testimony. I object to it in opening |

statement. We didn’t go this far. Now he’s going further.

He has basically told this jury that my client refused to

talk because he didn’t want it used against him.

MR. NICOLINI: What I said was he didn’t

want to talk on tape.

MR. POLIS: Because it could be used against

him. That’s an invocation of his rights after Miranda. He

can’t bring it up. He didn’t bring it up last time. I

move for a mistrial. This is totally improper. He kept

away from it in opening statement. And he did it. It

prejudiced my client.

MR. NICOLINI: Judge, I asked the

question — pardon?

THE COURT: I’ll show it’s denied.

MR. NICOLINI: Thank you.

(The sidebar discussion ended.)

BY MR. NICOLINI:

Q. And, Detective, did you record an additional

quote to Mr. Ochoa as to what he said about your use of the

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