State v. Vasquez-Santiago

301 Or.App. 90

456 P.3d 270

STATE of Oregon, Plaintiff-Respondent,

v.Eloy VASQUEZ-SANTIAGO, Defendant-Appellant.

A159499

Court of Appeals of Oregon, En Banc.

Argued and submitted March 9, 2017

Resubmitted en banc October 16, 2018

December 4, 2019

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, and Powers, Judges, Hadlock and Garrett, Judges pro tempore.

JAMES, J.

Few things are more powerful than the familial bonds that tie us together—especially the bonds of love and protection that a parent has for his or her child. When those bonds are used as a pressure point to induce a confession to a crime, there is a risk: Was the confession a product of free will, or the result of an inducement of hope or fear such as to render the confession unreliable? That question, and how a court goes about arriving at an answer, is the essence of this case.

Defendant appeals a judgment of conviction for murder, arguing that the trial court erred in admitting evidence of confessions he made during two separate police interrogations. In those interrogations, police communicated to defendant—an illiterate, immigrant man with an IQ of 53, a number associated with mental retardation and significantly subaverage intellectual functioning—that three members of his family, including his infant son, were in custody, that his entire family was suffering as a result, and that the key to securing the family members’ release and ending that suffering was for defendant to confess to the murder. In defendant’s view, a confession obtained under those circumstances is involuntary and therefore inadmissible under Oregon law.

In light of the Oregon Supreme Court’s decision in State v. Jackson , 364 Or. 1, 430 P.3d 1067 (2018), we agree with defendant. For the reasons explained below, we conclude that, as in Jackson , police communicated inducements to defendant through both threats and promises and the state failed to demonstrate that, under the totality of the circumstances, defendant’s will was not overborne by those inducements. We accordingly reverse and remand.¹

BACKGROUND

The relevant facts are undisputed. The victim, a 56-year-old woman who worked with defendant as a field worker at a berry farm, left home one morning in August 2012 after talking to defendant on the phone. When she did not return, her daughter notified the police.

Defendant was quickly identified as a suspect in the victim’s disappearance. Detective LaMonica learned that defendant lived in Woodburn with his family, including his father, Benito; his brother, Moises; his "common-law wife," Jacinta; his infant son; his mother; and his two sisters. Defendant, however, had abruptly left the Woodburn house and taken his wife, the baby, his father, and his brother with him. LaMonica’s investigation connected the family with an address in Madera, California. In late September, a few weeks after the victim’s disappearance, LaMonica traveled to California with Detective Ganete.

Meanwhile, defendant’s father and brother had been arrested on unrelated local charges in California. After arriving in California, the detectives made contact with defendant’s father and brother at the police station. His father and brother informed the detectives that, on the morning of the victim’s disappearance, defendant had taken his father’s van without permission, saying that he was going to see his "girlfriend." When defendant returned later that day, his father and brother observed blood on his hands and on both the inside and outside of the van. According to his father and brother, defendant told them that he had become upset with the victim and hit her, and that they had to "run." The men explained that, after the family arrived in California, defendant left them and continued on alone to Mexico. From there, defendant called his father and brother and said that he had killed the victim by stabbing her.

The detectives next visited defendant’s wife and inquired about defendant’s whereabouts. They left their contact information with her and began the return trip to Oregon. Defendant’s father and brother were still in jail in California on the local charges.

While the detectives were traveling back to Oregon, defendant, who had evidently been contacted by his wife, called Ganete and expressed concern that defendant’s father, brother, and infant son were in police custody. As Ganete made clear in his testimony, defendant’s reason for contacting police was to secure the release of his family, including his infant son:

"[PROSECUTOR]: Detective Ganete, when the defendant first called you, what did he say he wanted from you?

"[GANETE]: He wanted his father, his brother, his son released from police custody."

The roadside telephone conversation between defendant and the detectives occurred in Spanish, as did the police interactions with defendant that followed. Although defendant’s son had never been detained, Ganete did not correct defendant on that point. Ganete said that he wanted to talk to defendant about the victim and he advised defendant to turn himself in at the California-Mexico border. Defendant replied, "I want you to go leave the little boy with his mom, because he’s breast feeding, and let my dad go." Again, the detective did not correct defendant’s belief that the infant was detained and separated from his mother. Rather, Ganete responded, "I can’t make that kind of a deal until I talk to you in person. I don’t make deals on anything, because I’m not in a position to make deals." At the end of the conversation, defendant agreed to turn himself in, but he continued to request that Ganete release his son.

The next day, defendant turned himself in at the border. When he was finally able to cross the border, defendant immediately notified the local authorities in San Ysidro, California, that he was seeking the release of his infant son.

LaMonica and Ganete interrogated defendant in the San Diego county jail beginning at 10:00 p.m. The interrogation lasted until approximately 12:45 a.m. It began with Ganete reading defendant his Miranda rights, which defendant acknowledged understanding. Defendant said that he knew that he was a suspect in the victim’s disappearance and that the police "took" his father, brother, and infant son for that reason. Defendant explained that he had turned himself in because of the choice police had given him regarding his "defenseless baby." He also reiterated his belief that the baby was still at an age that he needed to be breast fed:

"[DEFENDANT]: *** [T]hey think that I’m suspect *** of these and that’s why they’re detaining him.

"[GANETE]: Uh-huh.

"[DEFENDANT]: My baby is now about—he was born in April. He was born in April. I don’t know if he’s only five or six months old. And he is still breast feeding.

"[GANETE]: Okay."

The detectives did not correct defendant’s misunderstanding that his son was detained. Rather, again, they reinforced defendant’s misconception and explicitly adopted it as their own version of events. When defendant said that his wife had reported that the police "detained my dad, my brother and my son," Ganete replied, "Yes. Uh huh, exactly. They are in custody for now."

As the interrogation proceeded, defendant denied killing the victim and continued to express concern for his infant son, as well as for his father and brother. Ganete, meanwhile, referred to defendant’s family and their "suffering" in exchanges with defendant. Ganete stated, "I don’t want your family to *** suffer for something that I know you are responsible for. I don’t want the other family to suffer from not knowing where their family’s body is. I don’t know where the body is."

Ganete explained to defendant that, unless he could recover the victim’s body, defendant’s father and brother would be detained because "they are witnesses that, that have to go to the court and say, ‘[Defendant] told me that he killed her.’ Your dad has to testify and [your brother] has to testify." Ganete later stated,

"I believe that in your heart you want to settle this. You don’t want to leave it like this—a mess. You—I believe your dad and your mom and your family don’t deserve this, because everyone is suffering right now.

"* * * * *

"One family has a dead relative and they don’t know where she is and they’d at least like to give this woman a decent burial. And I have another family—

"* * * * * "—suffering over their son, that they want their son to tell the truth so the family can have peace. I have two families and you are the key to this."

Ganete told defendant that, unless he "told the truth," his father and brother would remain key witnesses in the case, but that if defendant confessed, his father’s and his brother’s testimony would become less important. Defendant then discussed a possible deal with the detectives, in which he would confess in exchange for his family’s release:

"[DEFENDANT]: *** When are you going to let my family go?

"[GANETE]: I can’t let your family go until I find that body. And not until I get the truth from you. Because they are the only witnesses who can say what you told them.

"[DEFENDANT]: I want to assure you of one thing.

"[GANETE]: Tell me.

"[DEFENDANT]: If you ... let my family go right now and I will tell you the truth. Just like I told you there, I’ll tell you here. I’m sincere.

"[GANETE]: You’re telling me that if I—what you’re telling me is if your dad and brother get out of jail —

"[DEFENDANT]: And my son.

"[GANETE]: —and your son , you will tell me where the body is and everything that happened.

"[DEFENDANT]: Yes.

"[GANETE]: You will take me exactly to where it is,

...