State v. Jessop

540 P.3d 713

STATE of Utah, Appellee,

v.Justin Richard JESSOP, Appellant.

No. 20210544-CA

Court of Appeals of Utah.

Filed November 16, 2023

Emily Adams, Freyja Johnson, Salt Lake City, Melissa Jo Townsend, and Scott D. Goodwin, Attorneys for Appellant, assisted by law students, Jared Erekson and Rachel Johnson¹

Sean D. Reyes, Salt Lake City, and Natalie M. Edmundson, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan D. Tenney and John D. Luthy concurred.

Opinion

ORME, Judge:

¶1 Justin Richard Jessop appeals the district court's denial of his motion seeking dismissal of the two charges against him for assault against a peace officer, arguing that the court erred in holding that State v. Tiedemann , 2007 UT 49, 162 P.3d 1106, does not apply where the possibly exculpatory evidence never came into existence. He also appeals the court's denial of his motion to suppress evidence gathered from police questioning that took place in the hospital after he was shot by police, arguing that the court incorrectly held that he was not in custody at the time of questioning. Because we conclude that Tiedemann does not apply to evidence that never existed, and because we agree that Jessop was not in police custody when he was first interviewed at the hospital, we affirm.

BACKGROUND²

¶2 Jessop and Lily³ were romantically involved. One night in early June 2019, Lily reported to police that, during a heated argument, Jessop retrieved a handgun, pointed it at her head, and pulled the trigger. But because there was not a live round in the gun's chamber, the gun did not go off. Jessop then turned the gun on himself and pulled the trigger. For the same reason, the gun again did not fire. He told Lily that if she called the police there would be a "blood bath" and, at one point, he threatened to kill her. Understandably, Lily fled the house and called the police, but Jessop continued to send her text messages. Following Lily's flight from the house, Jessop "fired a .40 caliber handgun" and "a 9mm handgun" from his front porch and sent Lily a text message saying, "I'm gonna go bad on these fuckers."

¶3 Based on Lily's report, the police understood Jessop to be a restricted person who could not legally possess firearms. Officers from the local SWAT team were called, but they discovered that Jessop had left the house. Police contacted Jessop via his cell phone and requested that he turn himself in. He refused, and the police began searching for him. Though refusing to turn himself in, he continued to talk with a police negotiator, and the police were able to "ping" his phone and direct officers to Jessop's approximate location. But they were unable to find him. Subsequently, two Weber County Sheriff deputies (Deputy 1 and Deputy 2) were assigned to assist in finding Jessop, and they received updates regarding Jessop's location.

¶4 After responding to multiple ping locations where Jessop was said to be without finding him, the deputies responded to an updated location and spotted a lone man walking down the street, whom Deputy 1 identified as Jessop. Deputy 1 later recounted to an investigator that on recognizing Jessop, "He opened his door, got out of the vehicle before it was put in park, and started giving commands to Mr. Jessop." But Jessop did not stop or show both of his hands, as instructed, and he began to run down a rugged trail.

¶5 Following Deputy 1's identification of Jessop, Deputy 2 exited his vehicle and "attempted to send his dog after [Jessop] but the dog did not see him and started going the other way." Disregarding his dog, Deputy 2 returned his attention to Jessop and later indicated that he saw Jessop's "cell phone being held to his head with one hand" while "[t]he other hand [was] hidden from [Deputy 2's] view." Both deputies indicated that they continued to command Jessop to "show your hands," to which Jessop responded that he would not and at one point stated, "Fuck you." Following this exchange, the deputies recounted that Jessop "turn[ed] and present[ed]—and point[ed] a handgun at" them. At this realization, Deputy 2 "fired two rounds at [Jessop], and realizing that he had no cover, dropped to the ground and continued to fire at [Jessop] until [he] was no longer a threat." Deputy 1 also saw Jessop point a gun in his direction and fired his weapon at Jessop.

¶6 During the entirety of this encounter, both deputies were wearing body cameras, but neither deputy activated his body camera until "shortly after" they fired at Jessop. As recounted in a medical report, Jessop sustained multiple serious injuries from being shot "once in the back, once in the posterior hip region, once in the face and once in the wrist." After being shot, Jessop was handcuffed and searched. The search revealed that Jessop possessed two handguns. Due to the severity of Jessop's injuries, his handcuffs were removed following the search, and he was taken to the hospital, accompanied by a SWAT medic.

¶7 Following the shooting, an Ogden City Police detective (Detective) came to the scene of the shooting to be briefed on a domestic violence and officer-involved shooting case. Detective testified that once on the scene, he was assigned to investigate the domestic violence that preceded the officer-involved shooting. He recounted that as part of his briefing on the domestic violence, he was informed that Jessop "had a gun pointed at him" but he was not informed that Jessop had pointed a gun at the deputies. Detective further recounted that he concluded "it could be a possibility" that Jessop was a restricted person because, although it was suggested by Lily, Jessop's status as a restricted person was at that point "uncertified."

¶8 Jessop was admitted to the hospital in the early hours of June 3, 2019, where he promptly underwent surgery. He was placed in the ICU around 6:00 a.m. Because of the major surgery and associated consequences, hospital staff implemented a regimen of powerful pain medications and sedatives. But beginning at around 5:30 p.m. that same day, hospital staff began to "detoxify" Jessop and did not administer any further doses of certain powerful medications—specifically a short-acting sedative and a highly addictive pain medication. Although Jessop was detoxifying from the more powerful medications, hospital staff continued to monitor and mitigate Jessop's pain, administering other pain medication again around 8:00 p.m.

¶9 At some point, hospital staff reached out to Detective and said that Jessop was "awake and communicating" and that he was "making statements about wanting to unplug his medical devices," which raised concerns that he was suicidal. On the heels of this communication, Detective and a second detective arrived at the hospital by around 8:00 p.m. to fill out an involuntary commitment order as requested by hospital personnel and to interview Jessop regarding the domestic violence incident. Prior to the interview, Jessop's nurse advised the detectives that Jessop was communicating well and that he "would be able to answer their questions appropriately." Jessop's nurse testified that Jessop "was able to understand her questions, did not have any difficulty answering her questions and ... had been given doses of" powerful sedatives and pain medications "prior to the detectives arriving but the side effects of those medications had worn off prior to the interview."

¶10 Before beginning the interview, Detective informed hospital staff that Jessop did not need to be guarded "as he was not being detained, was not in custody at that time," was "absolutely not a suspect," and was "a free person." The detectives also advised Jessop directly "that he was not under arrest" and was "not being detained" and "that they just want[ed] to get his side of the story" but "he was not under any obligation to talk to them."

¶11 At around 9:00 p.m., the detectives began interviewing Jessop. For the duration of the interview, the door to the hospital room was open so anyone could come in or leave the room at any time, and Jessop was not placed in handcuffs or otherwise restrained by the detectives. The State maintains that the interview lasted approximately 30 minutes and consisted of mostly "yes or no" questions, which Jessop responded to through nonverbal actions and in writing. Detective testified that during the interview, there were "only nods and yeses and [answers] in written form on a ... clipboard with a magic marker and a paper." Detective further testified that Jessop was "coherent" and "was able to track [their] conversation," even though he was experiencing a visible degree of discomfort during the interview. But this discomfort did not affect his ability to answer the detectives’ questions, although at one point he asked Detective to stop the interview to clarify a previous answer.

¶12 At the beginning of the interview, Jessop asked the detectives whether he was under arrest. Responding to the question, Detective said, "You've been shot; you could be a victim." Then, near the end of the interview, Jessop asked what he was charged with, and Detective responded, "Nothing yet. I say yet, though, because possibly." At the end of this interview, Detective asked Jessop whether they could return the next day to ask more questions. Jessop responded by nodding his head in the affirmative.

¶13 Jessop was "not arrested or detained and remained out of custody for approximately three months prior to being booked into ... [j]ail for his pending charges" of, in relevant part, two counts of assaulting a peace officer. Following his arrest, Jessop elected to waive his preliminary hearing, and the case was set for trial. Jessop filed both a motion to suppress evidence gathered from the detectives’ first interview⁴ and a motion to dismiss all charges.

Motion to Suppress Evidence

¶14 In his motion to suppress evidence, Jessop cited the seminal case of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),...