2016 UT App 237

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JOSE LEIVA-PEREZ,

Appellant.

Opinion

No. 20141070-CA

Filed December 8, 2016

Eighth District Court, Vernal Department

The Honorable Clark A. McClellan

No. 131800050

Colleen K. Coebergh, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN and JILL M. POHLMAN

concurred.

VOROS, Judge:

¶1 Jose Leiva-Perez appeals his conviction for murder, a first 

degree felony. He contends that police officers coerced a 

confession from him. We affirm.

BACKGROUND

¶2 Leiva-Perez, a Guatemalan national, shared a trailer with 

a male roommate (Victim) in rural Utah. In January 2013 LeivaPerez called one of Victim’s sisters and told her that Victim had 

been taken to a hospital, having been “really bad[ly] beaten” by 

four people. When Leiva-Perez “stopped answering” her calls,
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20141070-CA 2 2016 UT App 237

the sister, who lived out of state, called local hospitals; none had 

any information on Victim. She then contacted Victim’s other 

sister, who requested a welfare check from the County Sheriff’s 

Office.

¶3 A deputy went to the trailer and knocked on the door but

received no response. He peered through the blinds and saw 

that blood “had splattered up . . . the curtains and on the ceiling, 

[and] down on the comforter.” He forced his way into the locked

trailer, where he discovered Victim’s frozen body lying face 

down. Victim’s body showed blunt force trauma to the mouth, 

“extensive” bruising around the eyes, lacerations covering the 

face, and multiple skull fractures. Police found a large metal bar 

in the trailer. Victim’s truck was gone. Police later found the 

truck and Leiva-Perez in California.

¶4 Police interrogated Leiva-Perez. He first told police that 

three Guatemalan men came to the trailer, went inside for “two, 

three minutes,” and left. Leiva-Perez claimed that he entered the 

trailer after the three individuals had left and that he found 

Victim “face down . . . on the floor” and saw blood “on the 

blanket [Victim] slept on.” Leiva-Perez said that when he 

entered the trailer, Victim said he was just “beaten up” and told 

Leiva-Perez to leave and take the car. According to Leiva-Perez, 

after he left, firefighters and ambulances arrived.

¶5 Police told Leiva-Perez that they had confirmed that no 

police, fire trucks, or ambulances had responded to Victim’s 

trailer. They also told him that they had evidence that he had 

been inside the trailer at the time of the crime and that 

“something happened” between him and Victim. They said, 

“[W]e know this. Ok? And if you are truly repentant, you can 

tell us the truth.” They continued, “[I]f you don’t want to say the 

truth . . . [t]he penalty will be worse. The punishment will be 

worse, ok? You can say the truth, explain what happened and 

they can work with you when the time comes to go see a judge. 
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20141070-CA 3 2016 UT App 237

It will be less charges.” When Leiva-Perez did not respond, 

officers told him, “[W]e understand, we won’t think you are a 

horrible person . . . we all make mistakes.” After Leiva-Perez 

reiterated that he did not kill Victim, police responded, “[I]f you 

talk to us, we will do a report, we will say that . . . you 

cooperated, that you spoke with us and you were honest.” Police 

continued, “[T]here is a difference in the law, it is 

understandable when someone comes forth and stands tall for 

the mistakes they’ve made, versus someone who doesn’t.”

¶6 Leiva-Perez then changed his story. After acknowledging 

that “there was a little argument” between him and Victim, he 

asked police whether they had found any weapons in the trailer. 

After the officers said they did, Leiva-Perez said that Victim had

threated to kill him and he “had to take action.” After Victim 

threatened to “load [a] rifle with bullets and fill [him] with all of 

them,” Leiva-Perez explained, he got mad and hit Victim three 

times with an iron bar. Police then asked Leiva-Perez whether he 

would write down his statement; he did. They then asked 

whether he felt that they had “forced [him] to say something that 

was not the truth,” to which he responded “no.”

¶7 Leiva-Perez later moved to suppress his confession on the 

ground that the police officers had coerced him to confess. At the 

suppression hearing, an expert qualified to discuss the 

Guatemalan justice system testified that a cultural mistrust of 

police and the concept of “personalism” caused Leiva-Perez to 

confess. The expert explained that in Latin America a statement 

such as “I know the judge, and I can talk to that judge and he’ll 

give you a better deal” or “I know the judge and I can get you 

off” is a believable promise. Leiva-Perez argued that similar 

statements made by police during his interrogation led him to 

believe that if he confessed “the law would treat him differently 

than it would otherwise.”
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20141070-CA 4 2016 UT App 237

¶8 The trial court denied the motion to suppress. In 

concluding that Leiva-Perez’s confession was not coerced, the 

trial court found that Leiva-Perez “did not have family or friends 

or counsel present during the interrogation” (though none were 

requested) and that “there were two threats of [harsher] 

punishment if [Leiva-Perez] did not change his story . . . .” 

However, the court also found that the interrogation lasted 

under two hours, that the officers “were not particularly 

persistent and the tone of the interview . . . was not unduly 

harsh,” and that their “efforts to disabuse [Leiva-Perez] of his 

truthfulness [were] not excessive.” It found that the officers “did 

not employ excessive attempts at deception [and] although there 

was some effort to use the false friend technique, the effectiveness 

of that device seemed to be mooted by the language barrier and 

by [Leiva-Perez’s] personal view on police in general.” Finally, 

the trial court found that Leiva-Perez showed “no evidence of 

any mental or emotional problems . . . [or] of a learning disability,

except his demonstrably deficient public education of two or 

three years.”

¶9 Leiva-Perez presented his coercion theory at trial. The 

jury convicted Leiva-Perez of murder, a first degree felony.

ISSUE AND STANDARD OF REVIEW

¶10 Leiva-Perez contends that the officers coerced him to 

confess in violation of his rights under the Fifth and Fourteenth 

Amendments to the United States Constitution. “In reviewing a 

trial court’s determination on the voluntariness of a confession, 

we apply a bifurcated standard of review.” State v. Mabe, 864 

P.2d 890, 892 (Utah 1993). Under this standard, “the ultimate 

determination of whether a confession is voluntary is a legal 

question, and we review the trial court’s ruling for correctness.” 

Id. (citing Arizona v. Fulminante, 499 U.S. 279, 287 (1991)). But we 

“set aside a district court’s factual findings only if they are 
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20141070-CA 5 2016 UT App 237

clearly erroneous.” State v. Rettenberger, 1999 UT 80, ¶ 10, 984 

P.2d 1009.1

ANALYSIS

¶11 The Fifth Amendment to the United States Constitution 

protects a person from being “compelled in any criminal case to 

be a witness against himself.” U.S. Const. amend. V. And “the 

Fifth Amendment’s exception from compulsory selfincrimination is also protected by the Fourteenth Amendment 

against abridgment by the States.” Malloy v. Hogan, 378 U.S. 1, 6 

(1964). Analysis of “whether admission of a confession into 

evidence violates the Fifth or Fourteenth Amendment does not 

turn solely on the ‘voluntariness’ of the confession.” State v. 

Rettenberger, 1999 UT 80, ¶ 11, 984 P.2d 1009. Rather, “coercive 

police activity is a necessary predicate to the finding that a 

confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157, 

167 (1986). But “as interrogators have turned to more subtle 

forms of psychological persuasion, courts have found the mental 

condition of the defendant a more significant factor in the 

‘voluntariness’ calculus.” Id. at 164. A defendant’s mental state is 

therefore “relevant to the extent it made him more susceptible to 

mentally coercive police tactics.” Rettenberger, 1999 UT 80, ¶ 17

(citation and internal quotation marks omitted). But “a 

defendant’s mental condition, by itself and apart from its 

relation to official coercion,” does not “dispose of the inquiry 

into constitutional voluntariness.” Connelly, 479 U.S. at 164.

 

1. Leiva-Perez initially also argued that the trial court committed 

plain error by asking him in front of the jury whether he wanted 

to testify. At oral argument, however, Leiva-Perez conceded that 

our recent opinion in State v. Saenz, 2016 UT App 69, 370 P.3d 

1278, forecloses this claim. Accordingly, we do not address it 

further.
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20141070-CA 6 2016 UT App 237

¶12 “The ultimate goal of analyzing whether a confession was 

coerced is to determine ‘whether, considering the totality of the 

circumstances, the free will of the witness was overborne.’” State 

v. Arriaga-Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028 (quoting United 

States v. Washington, 431 U.S. 181, 188 (1977)). The totality of the 

circumstances includes “both the characteristics of the accused 

and the details of the interrogation.” Rettenberger, 1999 UT 80, 

¶ 14 (citation and internal quotation marks omitted). In 

analyzing the details of the interrogation, the court must 

consider “such external factors as the duration of the 

interrogation, the persistence of the officers, police trickery, 

absence of family and counsel, and threats and promises made 

to the defendant by the officers.” Id.

¶13 In analyzing the characteristics of the accused, the courts 

must also consider subjective factors, including “the defendant’s 

mental health, mental deficiency, emotional instability, 

education, age, and familiarity with the judicial system.” Id. ¶ 15. 

Additionally, there must be “a causal relationship between the 

coercion and the subsequent confession.” State v. Mabe, 864 P.2d 

890, 893 (Utah 1993). As we determine the ultimate question of 

voluntariness under a “totality of circumstances” standard, we 

discuss each factor below. See Rettenberger, 1999 UT 80, ¶ 14 

(citation and internal quotation marks omitted).

A. Duration of the Interrogation

¶14 Although no specific time limit for a coercive 

interrogation exists, interrogations ranging from five to six hours 

have been held to be non-coercive. See State v. Montero, 2008 UT 

App 285, ¶ 12, 191 P.3d 828; see also State v. Ashdown, 296 P.2d 

726, 729 (Utah 1956) (holding that a five and one-half hour 

interrogation was not coercive), aff’d, 357 U.S. 426 (1958).

¶15 The trial court determined that the “interview was 

conducted over a period of approximately 95 minutes,” but due 

to the need for interpretation, “the actual amount of time spent 
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20141070-CA 7 2016 UT App 237

interrogating the Defendant was less than the ninety-five 

minutes.” Leiva-Perez’s 95-minute interrogation was significantly 

shorter than the six-hour interrogation in Montero that this court 

held was non-coercive. See Montero, 2008 UT App 285, ¶ 12.

Leiva-Perez does not argue that the duration of the interrogation 

contributed to its coerciveness. We agree with the trial court that 

this factor weighs against a conclusion of coercion.

B. Police Persistence

¶16 “[A] police officer’s exhortations to tell the truth or 

assertions that a suspect is lying do not automatically render a 

resulting confession involuntary.” Id. ¶ 13. “[W]e think it 

eminently reasonable that police officers challenge criminal 

suspects’ questionable explanations in their pursuit of the truth 

and their efforts to solve crimes.” Id. In Montero, this court held 

that the officers’ approach was not coercive when, during an 

interrogation, they “repeatedly maintained that statements and 

evidence pointed to Montero as the shooter, . . . urged [Montero] 

to be a man[,] and suggested that [Montero] needed to take 

responsibility for his actions.” Id. (internal quotation marks 

omitted).

¶17 Here, before Leiva-Perez confessed, police told him that 

they believed he was lying about his involvement in Victim’s 

death. But the trial court determined that the officers’ “efforts to 

disabuse [Leiva-Perez] of his truthfulness was not excessive.” 

The officers’ accusation against Leiva-Perez of lying three times 

during the roughly hour-and-a-half interrogation does not 

constitute “‘systematic persistence’ sufficiently egregious to 

suggest coercion.” See id. (quoting Harris v. South Carolina, 338 

U.S. 68, 71 (1949)).

¶18 The trial court also found that the “officers were not 

particularly persistent and the tone of the interview, at least as 

provided in the written transcript, was not unduly harsh.” 

Leiva-Perez does not challenge the persistence of police 
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20141070-CA 8 2016 UT App 237

questioning as coercive, and we agree with the trial court that 

the “persistence demonstrated by the officer was of the type and 

nature that . . . is consistent with appropriate police activity.”

C. False-Friend Technique

¶19 In employing the false-friend technique, “officials 

‘represent[] to [a defendant] that they [are] his friends and that 

they [are] acting in his best interest.’” State v. Bunting, 2002 UT 

App 195, ¶ 25, 51 P.3d 37 (alterations in original) (quoting State 

v. Rettenberger, 1999 UT 80, ¶ 24, 984 P.2d 1009). “[S]tanding 

alone,” the false-friend technique is not “sufficiently coercive to 

produce an involuntary confession.” Rettenberger, 1999 UT 80, 

¶ 28. “The significance of the stratagem comes in relation to 

other tactics and factors.” Id. The false-friend technique may be 

coercive if a defendant has “below-average cognitive abilities” or 

other cognitive disabilities. Id. ¶ 26. In Rettenberger, our supreme 

court held that because the defendant “suffer[ed] from mental 

disabilities and deficiencies,” the effect of the false-friend 

technique was heightened “in relation to other tactics and 

factors” and contributed to the coercive nature of the police 

interrogation. Id. ¶ 28. A defendant “parrot[ing] . . . suggestions” 

of criminal activity initially provided by police may indicate that 

a defendant is particularly susceptible to the false-friend 

technique. See Bunting, 2002 UT App 195, ¶ 26.

¶20 In State v. Montero, we determined that recurring 

suggestions to a defendant to tell the truth coupled with

assurances that the interrogating officer would do whatever he

could to help the defendant did not establish coercion. See

Montero, 2008 UT App 285, ¶ 18. Here, police made similarly 

innocuous representations to Leiva-Perez, explaining that they 

“want[ed] to be able to work” with him, and that they thought 

he was “a good person.”

¶21 The trial court found that the officers “did not employ 

excessive attempts at deception” but did employ “some effort to 
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20141070-CA 9 2016 UT App 237

use the false friend technique.” The trial court determined that 

the “language barrier” and Leiva-Perez’s “personal view on 

police in general” blunted the effect of the false-friend technique. 

The trial court saw “no evidence of any mental or emotional 

problems . . . [or] of a learning disability, except his 

demonstrably deficient public education of two or three years.” 

Because Leiva-Perez did not demonstrate “below-average 

cognitive abilities” or “mental disabilities and deficiencies,”

employing the false-friend technique did not heighten police 

coercion “in relation to other tactics and factors.” See 

Rettenberger, 1999 UT 80, ¶ 28. In addition, the record contains no 

indication that Leiva-Perez “parrot[ed] any suggestions” by the 

officers. See Bunting, 2002 UT App 195, ¶ 26. In fact, Leiva-Perez 

himself alerted police to the murder weapon, which they 

collected from Victim’s trailer after Leiva-Perez confessed to 

hitting Victim with the metal bar. We thus agree with the trial 

court that this factor weighs against a conclusion of coercion.

D. Police Misrepresentations

¶22 “[A] defendant’s will is not overborne simply because he 

is led to believe that the government’s knowledge of his guilt is 

greater than it actually is.” State v. Galli, 967 P.2d 930, 936 (Utah 

1998) (citation and internal quotation marks omitted). Generally, 

police “half-truths regarding the strength of the evidence” 

against a defendant are not “sufficient to overcome [a 

defendant’s] free will and spirit.” Id.

¶23 The trial court here determined that, aside from the use of 

the false-friend technique, the police “did not employ any other 

alleged deception . . . during the interview.” Leiva-Perez does 

not claim police misrepresentations, and the record does not 

indicate that police exaggerated the strength of the evidence 

against him. We thus agree with the trial court that this factor 

weighs against a conclusion of coercion.
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20141070-CA 10 2016 UT App 237

E. Threats or Promises

¶24 “An interrogation can be impermissibly coercive because 

[it] carried a threat of greater punishment or a promise for lesser 

punishment depending on whether [a defendant] confessed.” 

Rettenberger, 1999 UT 80, ¶ 29 (alterations in original) (citation 

and internal quotation marks omitted). Further, a promise of 

leniency necessarily implies a threat of a harsher punishment. Id. 

¶ 30. But “even strong suggestions that a defendant might not face 

a particular charge or punishment if he confessed ‘standing 

alone, may not . . . overcome [a defendant’s] will’ but may 

‘constitute evidence that, when considered in light of the totality 

of the circumstances, strongly weighs against the conclusion that 

the confession was voluntary.’” Bunting, 2002 UT App 195, ¶ 23 

(quoting Rettenberger, 1999 UT 80, ¶ 32). Finally, the “mere 

representation to a defendant by officers that they will make 

known to the prosecutor and to the court that [the defendant]

cooperated with them . . . ha[s] been recognized as not coercive.” 

State v. Strain, 779 P.2d 221, 225 (Utah 1989).

¶25 Leiva-Perez maintains that “the combination of threats of 

harsher punishment, a promise that there could be leniency, and 

that the Judge would be contacted . . . on Leiva-Perez’s behalf 

induced [Leiva-Perez] to change his version of events and 

ultimately confess.”

¶26 Rettenberger involved coercive threats and promises. 

Rettenberger was charged with murder and aggravated robbery 

following his confession to killing the victim during the 

commission of the robbery. 1999 UT 80, ¶¶ 1–3. During his 

interrogation, “the officers suggested to Rettenberger that the 

murder could be recast as a crime far less serious in nature than 

capital homicide.” Police also stated that if Rettenberger did not 

choose to confess, he would be “looking at lethal 

injection . . . firing squad, . . . [or] hanging.” Id. ¶¶ 30–31. Police 

emphasized that if Rettenberger confessed, he would not “have 
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20141070-CA 11 2016 UT App 237

to die” and he would not “have to spend the rest of [his] life in 

prison.” Id. ¶ 29. The supreme court determined that the 

statements, considered in light of the totality of circumstances, 

“strongly weigh[ed] against the conclusion that the confession 

was voluntary.” Id. ¶ 32.

¶27 Bunting and Montero, on the other hand provide examples 

of interrogation techniques that were not so coercive as to 

overcome the defendant’s free will. In Bunting, we determined 

that the defendant’s “free will was not overcome by any threats 

or any suggestions of leniency” when police “told Defendant 

that he was going to be charged with premeditated, first degree 

murder” and implied that defendant “could avoid a 

premeditated murder charge if he offered an unintentional, 

negligent or reckless explanation for [the victim’s] death.” 

Bunting, 2002 UT App 195, ¶ 24. Similarly, in Montero, we 

determined that “factually accurate statements” that the 

defendant “could end up going to jail” and “still be an accessory 

to murder” did not constitute coercive behavior to render 

defendant’s confession involuntary. State v. Montero, 2008 UT 

App 285, ¶ 14, 191 P.3d 828 (internal quotation marks omitted).

¶28 Here, the officers’ statements fell short of “strong 

suggestions that [Leiva-Perez] might not face a particular charge 

or punishment if he confessed.” See Bunting, 2002 UT App 195, 

¶ 23 (emphasis omitted). However, without referencing specific 

charges, police did tell Leiva-Perez that if he did not tell the 

truth “the penalty” and “punishment” would “be worse.” The 

officers also stated that “there is a difference in the law, it is 

understandable when someone comes forth and stands tall for 

the mistakes they’ve made, versus someone who doesn’t.”

¶29 Though troublesome, these statements do not rise to the 

level of the threats made in Rettenberger. There, police referred to 

the methods of execution that the defendant potentially faced,

including lethal injection, firing squad, and hanging. See 
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20141070-CA 12 2016 UT App 237

Rettenberger, 1999 UT 80, ¶¶ 30–31. Nor do the statements that 

officers made to Leiva-Perez rise to the level of the specific 

reference to “premeditated, first degree murder” that this court 

determined in Bunting was not so coercive as to overcome the 

defendant’s free will. See 2002 UT App 195, ¶ 23. Here, the 

officers’ vague references to “difference[s] in the law” and the 

potential for fewer charges to be brought if Leiva-Perez 

confessed do not indicate that his “free will was . . . overcome by 

any threats or any suggestions of leniency.” See id. ¶ 24.

¶30 But even if police did make an impermissibly coercive 

threat to Leiva-Perez, we cannot conclude that this threat 

induced Leiva-Perez to confess. There must be “a causal 

relationship between the coercion and the subsequent 

confession.” State v. Mabe, 864 P.2d 890, 893 (Utah 1993). LeivaPerez maintained his original narrative about his lack of 

involvement with Victim’s death even after police explained that 

the penalty might be worse if Leiva-Perez did not confess. LeivaPerez divulged information about killing Victim with a metal bar 

only after asking police whether they found weapons in the 

trailer and the officers confirmed that they had found a gun. This 

sequence of events suggests that the officers’ representations 

about potential charges or penalties likely did not induce his 

confession. We thus agree with the trial court that “there is no 

evidence that the defendant’s will was overcome.”

F. Subjective Factors

¶31 Finally, we consider Leiva-Perez’s “subjective 

characteristics, especially as known to the interrogating officers, 

to determine the extent to which those characteristics made him 

more susceptible to manipulation.” See Rettenberger, 1999 UT 80, 

¶ 37. “A confession may be suppressed in circumstances in 

which a police officer knows of a suspect’s mental illness or 

deficiencies at the time of the interrogation and effectively 

exploits those weaknesses to obtain a confession.” Id. ¶ 18. In 
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20141070-CA 13 2016 UT App 237

Montero, although the defendant argued that “he was a scared 

eighteen-year-old and a Venezuelan who does not speak English 

as his native language,” we did not see anything in the record 

“to suggest that Montero was in any way particularly 

susceptible to coercion or manipulation.” Montero, 2008 UT App 

285, ¶ 21.

¶32 Leiva-Perez maintains that he “was inarguably 

uneducated and unsupported” and his “upbringing in 

Guatemala would have him left with a strong conviction that 

persons who can get someone to intercede with a judge on their 

behalf would get leniency, and those who could not would fall 

through the cracks, and potentially be incarcerated indefinitely 

without trial.” Although the trial court found that the officers 

knew of Leiva-Perez’s “demonstrably deficient” education, it

found no indication, nor has Leiva-Perez pointed us to any 

portion of the record to demonstrate, that officers “had any 

understanding of the political history or of the justice system in 

Guatemala.” In State v. Maestas, we emphasized that “an officer’s 

knowledge of subjective mental infirmities could make the 

officer’s actions sufficiently coercive, if there is evidence that he 

has exploited them.” 2012 UT App 53, ¶ 36, 272 P.3d 769. Here,

we see nothing in the record to suggest that the officers 

attempted to exploit Leiva-Perez’s subjective beliefs about the 

Guatemalan justice system or even that they were aware of those 

beliefs. Further, Leiva-Perez acknowledged that he was not 

under the impression that the “same characteristics [of 

Guatemalan police] apply to the police in the United States,” 

stating that “what happens [there is] very different from here, 

what happens there is manipulation because of money.”

¶33 The trial court also emphasized that Leiva-Perez, 

“although uneducated, is not suffering from any mental 

deficiency or emotional instability that affects his ability to 

understand what is happening to him,” that he is “capable of 

writing Spanish and communicating reasonably well in his 
State v. Leiva-Perez

20141070-CA 14 2016 UT App 237

native language in writing,” and that he can “think critically and 

respond appropriately to questions that are asked of him.” 

Because we see “nothing in the record to suggest that [LeivaPerez] was in any way particularly susceptible to coercion or 

manipulation” due to his unique characteristics, we decline to 

disturb the trial court’s findings.

CONCLUSION

¶34 Examining a totality of the circumstances, we see no error 

in the trial court’s ruling that Leiva-Perez’s confession was not 

coerced. The judgment of the trial court is accordingly affirmed.