# Appendix — Ochoa v. Arizona

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0282%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 974

## Text

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
V.

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

10

CONCURRING:

J. WILLIAM BRAMMER, JR.., Presiding Judge

M. JAN FLOREZ, Judge

i]

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

kg
RECEIVED MAR 25 2002

12

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

13

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

15

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

16

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

17

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.

l

2

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?

nN
>
>

South Tucson Police Department.
25 Q. And that — did that include Officer Ginzer

19

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?
1]
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.
21

22. BY MR. NICOLINI:

23 Q. When you met Mr. Ochoa did you introduce
24 ~=yourself?

25 A. Yes

20

wo mannan & WwW NO —

NO NO NH NO HK HN ww oe ee tlt
an & WAN = Co Oo BOHN A A & WW NY — OS

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?

A.

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?

Q.

> ODP? 2?

Did he respond to that question?
Yes.

What did he say?

Yes.

Did you ask another question
Yes.

21

ome nN Dn & WH —

ell nel ae
SN DA A & WH —& CoO

18
19
20

24

22
23
24
25

Q.
A.

What was that?
Now having been advised of these rights and

understanding these rights, will you answer my questions.

Q.
A.

Q.

What did he say to that?
Yes.
Okay. Now, is it your practice to normally

tape-record interviews with persons being interviewed?

A.
Q.

A.

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.

Q.

Okay. Did you have a tape-recorder with you

when you interviewed Mr. Ochoa?

A.

Q.
table?

A.

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.

Q.

A.
Q.
A

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.

(

22

Co monn nA & WY NO —

NI RQ RQ eet
no = © Oo ONAN A A & W NY — S&S

23

N
aS

25

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

{

23

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

od

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.
25

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

26

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
Gh wees S&S eC eoewH AUN & WN = @

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 —

28

Oo OanN Hn ff WO NY —

NO NWO NO NH NY NO | | | | | S| OES OO S|
On & WN —&§ CFO OHA A Nn f& WY NY —= OS

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?

29

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.

30

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

31

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

32

oOo mona nn f& WY NY —

10
1]
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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 —

33

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

l

2

3

4

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
9

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

34

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

35

wo mona unt Ww ne =

10
1
12
13
14
15
16
17
18
19
20
|
22
23
24
25

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.

36

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?

A.

No I said — when] told him he was under

arrest when we had the conversation about him being under

]
2
3
4
5 Q.
6
7
8
9

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.

37

Q. Is there any time before that, sir, that you
suggested to him that whether he was going to jail depended

|
2
3 upon what he said?

4 A. No.

5 Q. How did the subject then come up then, sir,
6

7

8

9

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.

38

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

39

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

|

2

3

4

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

4]

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

42

20
21
22
23
24
25

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.

43

] 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.

45

a

Oo mOanNn Hn & W NY —

10

(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

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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

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a

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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

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> WwW NY — ©

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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

47

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0282%3A2. Public record. Not legal advice.