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United States v. Yepa

United States Court of Appeals, Tenth Circuit

July 17, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
GAVIN YEPA, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:12-CR-00163-MCA-1)

          Brian A. Pori, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.

          HARTZ, Circuit Judge.

         The sole issue on appeal is whether self-incriminating statements by Defendant Gavin Yepa during a search of his person authorized by a warrant were spontaneous or were the result of interrogation. We affirm the district court's ruling that the statements were spontaneous. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Defendant's conviction.

         I. BACKGROUND

         Defendant was convicted by a jury in the United States District Court for the District of New Mexico of first-degree felony murder in the perpetration of aggravated sexual abuse in Indian country. See 18 U.S.C. §§ 1153 & 1111. Evidence at trial showed that near midnight on December 28-29, 2011, Defendant knocked on the door of his neighbor, Clint Sando, and told him that there was a woman at his house who was not breathing. They ran to the house, where Sando found Lynette Becenti's naked body on the floor, covered in blood. A later autopsy determined that she was likely killed by a shovel that was forced 15-16 inches into her vagina.

         Defendant was arrested at his home and advised of his rights. He said he wanted a lawyer. He was then driven to the Jemez Pueblo Police Department about 2:45 a.m. FBI Special Agent Ben Bourgeois obtained a telephonic warrant to search Defendant's home and his body. The warrant authorized photographing Defendant, taking his clothes for analysis, taking a blood sample for intoxication, and swabbing areas of his body for DNA testing.

         About 4:20 a.m. Bourgeois began executing the search of Defendant's body in a police-department conference room. He was assisted by the chief of the Jemez Police, Mike Toya; the leader of the FBI's Evidence Response Team (ERT), Diana Parker; and another ERT member, Norm Sedillo. The search, which took a bit more than 50 minutes, was audio-recorded; the recording was later transcribed. During the search, Defendant made various statements, some of which were apparently in Towa, the language of the Jemez Pueblo. The record contains no translation of those portions.

         To analyze Defendant's claim, we must quote in some detail the transcript of the conversation during the search of his person. The officers' statements alleged by Defendant to constitute interrogation are italicized. We have deleted most expletives from the transcript, but all the expletives were Defendant's; we have reproduced the officers' statements unaltered. The recording shows the time that has elapsed during the search, and we provide that information for the portions we quote. What is striking from the recording is that Defendant's incriminating statements are scattered throughout, without any apparent connection to what is going on at the time, and that the officers are focused on performing their search, rarely reacting in any way to what Defendant says about the offense.

         Bourgeois began the search by informing Defendant that he and his team would take some photos of Defendant and would then seize his clothes "because they've got blood on them." Supp. R., Vol. 1 at 3 (Tr.) (CD at 1:28-1:38). Next, Bourgeois introduced Defendant to Diana Parker, stating "Gavin, this is my partner, Diana, she's gonna snap some pictures of you." Id. at 5 (CD at 3:37-3:43). He also removed Defendant's handcuffs and instructed him how to stand for the photos. Without any prompting, Defendant stated, "I'm not a killer, man. I'm not a murderer, man. I'm not nothing like that, man. I'm just a normal guy, man. I came home, tried to get some pussy, and pussy got me." Id. at 6 (CD at 4:18-4:32). Bourgeois responded: "Okay. Just follow Diana's directions for right now." Id. (CD at 4:32-4:35).

         As the officers were taking photos, Bourgeois stated, "Hold on. Do you have any scars? Marks? Anything like that? Hold on. Hold on. Let's take one thing at a time. Turn back around." Id. at 7 (CD at 5:36-5:48) (emphasis added). The next thing Defendant said was, "Don't they have my file here already?" Id. (CD at 6:11-6:25). He then complained about the cold, but followed that up with, "I can take more clothes off." Id. at 7-8 (CD at 7:00-7:09). After further photos, Defendant stated, "Be in this predicament. I don't (inaudible) get in trouble for killing anybody. I didn't do anything." Id. at 8 (CD at 7:50-8:00). Parker responded, "Don't worry about it. It'll work out. Face the wall." See id. (CD at 8:00-8:03).

         Apparently responding to Defendant's comment about the cold, Sedillo then stated, "I'm trying to warm this up, " and Bourgeois added, "He's a tough guy." Id. at 8- 9 (CD at 8:04-8:10) (emphasis added). Defendant responded, "Yeah, man. Well, when it comes to my son (inaudible). I wanna see my son. (Inaudible) accuse of me of killing this lady." Id. at 9 (CD at 8:10-8:34).

         While the officers continued taking photos, Defendant asked them to notify his mother of his arrest. After Chief Toya said he would talk to her, Defendant again asserted his innocence, stating, "You know, I'm not a murderer, man. This happened at my house, dude. You know, of course I'm trying to get some pussy. I didn't do shit, man." Id. at 11 (CD at 12:21-12:32). The officers did not respond to his assertion; but Bourgeois asked for his mother's name and phone number. Bourgeois then pointed out abrasions on Defendant's body that he wanted documented:

Bourgeois: Did you guys get this -- it almost looks like an abrasion right here.
Parker: Behind the ears, yeah.
Male Speaker: On the eyebrow there?
Bourgeois: Yeah. Almost.
Male Speaker: Yeah. That side.
Defendant: That's a pimple, man. (Inaudible). I don't know what I did with my face. You guys are trying to figure out some. (Inaudible), man. (Inaudible). I've told you guys. I thought you guys were investigators, man.
Parker: (Inaudible).
Defendant: (Inaudible).
Bourgeois: You're not a real modest guy, are you?
Defendant: Nope. No.
Bourgeois: Okay. Tell you what we're gonna do. I'm gonna do you a favor. Norm and I are gonna sit in here --
Defendant: (Inaudible).
Bourgeois: I'm gonna ask Frank to stay here, too.
Defendant: That's what I was thinking, I was like. Is he gay or something?
Bourgeois: Let me have you back up against the wall a little bit more.
Parker: You gotta focus with the very top ring, very top ring. You see it?
Male Speaker: Okay. Let's see.
Defendant: My toes are bloody. My feet are bloody.
Bourgeois: Hold on. Hold on.
Defendant: My face is bloody.

Id. at 13-14 (CD at 14:43-16:19) (emphasis added).

         After the officers took some more photos and Defendant made some irrelevant comments, he again attempted to engage the officers in conversation about the killing:

Sedillo: Go ahead and leave the toes flattened out.
Defendant: You guys really think I killed that chick or something? Off the ...

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