Colorado Supreme Court

The Ralph L. Carr Colorado Judicial Center in downtown Denver houses the state Supreme Court and Court of Appeals.

An Eagle County judge mistakenly allowed a man's statements in custody to be admitted as evidence at trial, even though the detective interrogating Jacinto Zelaya-Zelaya ignored his desire to remain silent, the state's second-highest court ruled on Thursday.

Zelaya-Zelaya, who a jury convicted in 2017 of sexually assaulting a child, will now receive a new trial. A three-judge panel for the Court of Appeals found that Zelaya-Zelaya had invoked his Miranda rights, specifically his right against self-incrimination, but Detective Daniel Loya kept pushing him to talk anyway.

"After a suspect invokes the right to remain silent, the police must scrupulously honor the assertion of this right," wrote Judge Anthony J. Navarro in the May 5 opinion. "Consequently, we conclude that the court committed obvious error by not suppressing Zelaya-Zelaya’s responses resulting from interrogation after he invoked his right to remain silent."

Police arrested Zelaya-Zelaya, of El Jebel, in May 2016 for reportedly sexually abusing a child when she was between the ages of 13 and 15. There were a total of five criminal charges against him and after a jury trial, Zelaya-Zelaya was found guilty of three of them. Chief Judge Paul R. Dunkelman gave him an indeterminant sentence of at least 12 years in prison.

What took place in the interrogation room after Zelaya-Zelaya's arrest was at the center of his appeal. According to the appellate court's narrative, Loya conducted the interrogation in Spanish by first advising Zelaya-Zelaya of his Miranda rights, among which was his ability under the Fifth Amendment to remain silent and not incriminate himself.

"I’m not thinking anything right now. Just, I just want to talk to my wife first, and then, then we can talk if you want. But not now," Zelaya-Zelaya responded. "I can’t think about anything, my mind is blank.”

"I understand," Loya responded. Instead of stopping, the detective continued: "I want to talk to you about this first."

Zelaya-Zelaya reiterated that he wanted to speak with family. Loya said that could happen after he talked with Zelaya-Zelaya. Loya then attempted to have Zelaya-Zelaya sign a form indicating he understood his Miranda rights.

"No matter what, I have to sign this?" Zelaya-Zelaya asked.

He did not have to, Loya said, but the signature would indicate Zelaya-Zelaya understood his rights "and want to talk to me." Zelaya-Zelaya signed the form, waiving his Miranda rights, and Loya interrogated him.

Under U.S. Supreme Court precedent, statements obtained from defendants who are in custody in violation of their Miranda rights cannot be used against them at trial. Even though Loya confirmed at a court hearing that Zelaya-Zelaya did not want to talk to him, Dunkelman declined to suppress the statements Zelaya-Zelaya made after invoking his right to remain silent.

Navarro, writing for the appellate panel, noted that the court could reverse the convictions only if Dunkelman had committed an obvious error that so undermined the fairness of Zelaya-Zelaya's trial that it cast doubt on the verdict. The panel agreed that Dunkleman had.

The record of the interrogation "shows that the detective understood that Zelaya-Zelaya did not want to speak at that point (but that the detective disagreed with that decision)," Navarro explained. Because Loya had not respected Zelaya-Zelaya's invocation of his rights, the Miranda waiver was invalid.

The panel determined the only recourse was to reverse Zelaya-Zelaya's convictions. There was no physical or eyewitness evidence corroborating the allegations against him, meaning the case hinged on whether the jury believed Zelaya-Zelaya or the alleged victim. Navarro pointed out that the prosecution had used Zelaya-Zelaya's responses and demeanor during the interrogation in its arguments to the jury.

The panel also barred the prosecution from using, in a new trial, statements Zelaya-Zelaya made during an in-custody phone call. Twenty minutes into the interrogation, Zelaya-Zelaya asked for a lawyer, and also requested to make two calls: one to his pastor and one to his wife. Zelaya-Zelaya knew he would be on speakerphone, Loya would be in the room and the conversations would be recorded.

In the second call with his wife, she repeatedly accused him of being "with" the victim and called Zelaya-Zelaya a liar. At one point, Loya interjected, "Even she knew," after one of her accusations. The jury heard the recorded call.

Navarro wrote that while it is not an interrogation if police passively stand by while a suspect makes incriminating statements, Loya's utterance was not passive. Because Loya during the call had affirmed the accusations of Zelaya-Zelaya's wife — twice, in fact — the detective created a perception that the interrogation was continuing. The panel ordered the trial court to suppress statements Zelaya-Zelaya made after Loya spoke up during the call.

The case is People v. Zelaya-Zelaya.

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