              This opinion is subject to revision before final
                    publication in the Pacific Reporter

                               2013 UT 56

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH
                          STATE OF UTAH,
                       Plaintiff and Appellant,
                                   v.
                      DELFINO ARRIAGA-LUNA,
                       Defendant and Appellee.

                            No. 20110718
                        Filed August 27, 2013

                     Third District, Salt Lake
                The Honorable Randall N. Skanchy
                         No. 101902755

                               Attorneys:
 John E. Swallow, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,
                  Salt Lake City, for appellant
    Joan C. Watt, Brenda M. Viera, Salt Lake City, for appellee

   JUSTICE DURHAM authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
             JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:
                         INTRODUCTION
    ¶1 The State appeals the district court’s grant of defendant
Delfino Arriaga-Luna’s motion to suppress his confession to murder.
The district court held that this confession was coerced because of
the interrogating officers’ “invocation of Mr. Arriaga-Luna’s children
as a method to get a confession.” We reverse.
                          BACKGROUND
   ¶2 On April 5, 2010, a female victim was found deceased in her
apartment. She had two gunshot wounds to the head. As officers
were investigating, Mr. Arriaga-Luna’s wife arrived at the scene
with the victim’s boyfriend and told police that she and her two
young daughters had been kidnapped by the victim’s boyfriend
because of a drug debt owed by her husband. The victim’s boyfriend
then told police he believed that Mr. Arriaga-Luna had killed his
                 STATE OF UTAH v. ARRIAGA-LUNA
                       Opinion of the Court

girlfriend. Police located and apprehended Mr. Arriaga-Luna and
brought him to the police station for questioning.
    ¶3 Mr. Arriaga-Luna was interrogated on April 6, 2010, from
about one a.m. to about three a.m. The interview was conducted
primarily in English, but a Spanish interpreter was present so that
Mr. Arriaga-Luna could elect to hear the questions and give
responses in his native language. During the interview, Detective
Arenaz tried to convince Mr. Arriaga-Luna to tell him that Mr.
Arriaga-Luna’s brother had shot the victim, or that the killing was
an accident, so that Mr. Arriaga-Luna would not go to prison for a
crime he did not commit. As a persuasive technique, Detective
Arenaz appealed to Mr. Arriaga-Luna’s love for his children. He
initiated the following exchange:
       Detective:         You have a wife and kids.
       Arriaga-Luna:      Yeah. (Unintell).
       Detective:         Do you wanna ever . . .
       Arriaga-Luna:      (Unintell).
       Detective:         . . . see them again?
       Arriaga-Luna:      My babies?
       Detective:         Yeah.
       Arriaga-Luna:      I wanna see them.
       Detective:         You’re not gonna see them. You’re
                           . . . you’re gonna be locked in
                          prison for the rest of your life.
Mr. Arriaga-Luna did not confess during this interview.
    ¶4 Two days later, Mr. Arriaga-Luna was interrogated by
Detective Hamideh. Detective Hamideh appears to have employed
the so-called false-friend technique. He spoke to Mr. Arriaga-Luna
in Spanish, made small talk with Mr. Arriaga-Luna in the car ride
before the interview about the challenges facing Latinos in the
United States, and told Mr. Arriaga-Luna that he wanted to help him
and his family.
    ¶5 During this second interview, Mr. Arriaga-Luna repeatedly
expressed concern for his daughters. Detective Hamideh appealed
to this concern and to Mr. Arriaga-Luna’s desire for his daughters’
respect and in persuading him to confess. For example, he said,
“give [your daughters] hope that yes, I did what I did. . . . And I am
going to take the time, until—until that point. . . . And after that
point—‘Girls. We are going to be together.’ But free.” Detective
Hamideh also told Mr. Arriaga-Luna, “I think that their
daddy—their daddy can say, ‘Yes. I did make a mistake. But I have


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my dignity because I told the truth.’” When Mr. Arriaga-Luna asked
Detective Hamideh what would happen to his daughters, Detective
Hamideh responded, “[Y]es, I can bring resources there so that [your
daughters] can be educated and break the cycle here.” Less than one
hour after the interview began, Mr. Arriaga-Luna confessed to
shooting the victim.
    ¶6 Mr. Arriaga-Luna moved the district court to suppress his
confession on the grounds that it was coerced. In ruling on this
motion, the court focused its analysis on three aspects of
Mr. Arriaga-Luna’s interrogation: (1) the threat of a possible life
sentence; (2) the use of the false-friend technique, and (3) references
to Mr. Arriaga-Luna’s children. The district court rejected the
defense arguments regarding the possible life sentence and the false-
friend technique. However, the district court granted the motion to
suppress Mr. Arriaga-Luna’s confession based on “[t]he detectives’
invocation of Mr. Arriaga-Luna’s children as a method to get a
confession.” The State appealed this ruling, and we have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j).
                     STANDARD OF REVIEW
    ¶7 A district court’s determination of whether a confession was
voluntary or unconstitutionally coerced involves a mixed question
of law and fact. Our review of mixed questions is “sometimes
deferential and sometimes not.” Manzanares v. Byington (In re
Adoption of Baby B.), 2012 UT 35, ¶ 42, __ P.3d __. In determining
how much deference to afford to the district court’s decision on a
mixed question, we apply a three-part balancing test that considers
       (1) the degree of variety and complexity in the facts to
       which the legal rule is to be applied; (2) the degree to
       which a trial court’s application of the legal rule relies
       on facts observed by the trial judge, such as a witness’s
       appearance and demeanor, relevant to the application
       of the law that cannot be adequately reflected in the
       record available to appellate courts; and (3) other
       policy reasons that weigh for or against granting
       discretion to trial courts.
State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (internal quotation
marks omitted).
    ¶8 Here, the district court’s conclusion that Mr. Arriaga-Luna’s
confession was coerced was based entirely on its review of the
interrogation transcripts and the court’s interpretation of the law.
Because we are in as good a position as the district court to examine

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the transcripts and determine what the law is, we owe the district
court no deference. See Swallow v. Jessop (In re United Effort Plan
Trust), 2013 UT 5, ¶ 22, 296 P.3d 742; In re Adoption of Baby B., 2012
UT 35, ¶ 41. When a district court relies on live testimony in an
evidentiary hearing where the defendant, interrogators, or other
relevant individuals testify regarding the circumstances of the
confession and the defendant’s characteristics and state of mind at
the time of the confession, some deference may be appropriate.
See Levin, 2006 UT 50, ¶ 26. However, even in such cases, deference
may be limited in the interest of developing a uniform body of
appellate law to govern police interrogation practices. See In re
Adoption of Baby B., 2012 UT 35, ¶ 44.
                            ANALYSIS
      I. A CONFESSION IS INVOLUNTARY IF THE WILL
          OF THE ACCUSED HAS BEEN OVERCOME
   ¶9 The due process clauses of the Fifth and Fourteenth
Amendments of the U.S. Constitution protect individuals from being
compelled to incriminate themselves. U.S. CONST. amends. V, XIV;
Malloy v. Hogan, 378 U.S. 1, 6 (1964). 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.” United States v. Washington, 431 U.S. 181,
188 (1977).
    ¶10 The totality of the circumstances includes “both the
characteristics of the accused and the details of the interrogation.”
State v. Rettenberger, 1999 UT 80, ¶ 14, 984 P.2d 1009 (internal
quotation marks omitted). Details of the interrogation include
external factors, such 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. The subjective characteristics of the accused that may
affect susceptibility to “more subtle forms of psychological persua-
sion” include “the defendant’s mental health, mental deficiency,
emotional instability, education, age, and familiarity with the
judicial system.” Id. ¶ 15 (internal quotation marks omitted).
Additionally, for a confession to be involuntary there must be a
causal connection between the coercion and the confession. State v.
Mabe, 864 P.2d 890, 894 (Utah 1993).
    ¶11 As the U.S. Supreme Court has long held, “certain interroga-
tion techniques, either in isolation or as applied to the unique
character of a particular suspect, are so offensive to a civilized


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system of justice that they must be condemned,” and confessions
resulting from them are inadmissible. Miller v. Fenton, 474 U.S. 104,
109 (1985). Threats or promises render a confession involuntary if,
in light of the totality of the circumstances, they overcome a defen-
dant’s free will. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991)
(rejecting a per se rule that any confession following a threat or
promise is involuntary and analyzing the voluntariness of a
confession based on the totality of the circumstances). For example,
we have held that “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, 984 P.2d 1009 (alterations in original)
(internal quotation marks omitted). Police may, however, give a
suspect realistic estimates about probable sentences. State v. Montero,
2008 UT App 285, ¶ 14, 191 P.3d 828.
   ¶12 In Lynumn v. Illinois, 372 U.S. 528, 534 (1963) and United
States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), the defendants’
confessions were held to have been coerced because the interrogat-
ing officers made threats regarding the defendants’ children. The
police officers in Lynumn encircled a single mother and told her that
she would not see her children again unless she admitted to being a
drug dealer. 372 U.S. at 531–32. The officers also told Lynumn that
her children’s government assistance would be withdrawn unless
she confessed. Id. at 534. The U.S. Supreme Court held that the
threats regarding Lynumn’s children, viewed in light of her lack of
experience with criminal law and lack of counsel, overcame her free
will and produced an involuntary confession. Id. at 534.
    ¶13 In Tingle, the Ninth Circuit held more broadly that “[w]hen
law enforcement officers deliberately prey upon the maternal
instinct and inculcate fear in a mother that she will not see her child
in order to elicit ‘cooperation,’ they exert . . . ‘improper influence.’”
658 F.2d at 1336. There, police interrogated a young mother who was
suspected of bank robbery and told her that she “would not see [her]
child for a while if she went to prison.” Id. at 1333–34.
    ¶14 Although we recognize that the intense loyalty and emotion
present in most parent-child relationships does provide an opportu-
nity for coercion, we do not adopt any per se rule regarding the
effect of references to a defendant’s children on the voluntariness of
a confession. The ultimate test in any case involving the voluntari-
ness of a confession is whether the defendant’s will has been
overcome under the totality of the circumstances.



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                 STATE OF UTAH v. ARRIAGA-LUNA
                       Opinion of the Court

 II. THE TOTALITY OF THE CIRCUMSTANCES SHOW THAT
     MR. ARRIAGA-LUNA’S WILL WAS NOT OVERCOME
    ¶15 We agree with the district court that it was not improper for
the officers to inform Mr. Arriaga-Luna about charges and sentences
he could realistically face. See State v. Montero, 2008 UT App 285,
¶ 14, 191 P.3d 828. We also agree that Mr. Arriaga-Luna did not have
any mental or psychological conditions that made him especially
susceptible to the false-friend technique. See State v. Prows, 2011 UT
App 9, ¶ 12, 246 P.3d 1200. However, we reverse the district court’s
ultimate conclusion that the references in the interrogations to
Mr. Arriaga-Luna’s children were coercive police tactics that
rendered his confession involuntary.
            A. Mr. Arriaga-Luna Was Told That He Would
                    Not See His Daughters Again
    ¶16 The detectives appealed to Mr. Arriaga-Luna’s love for his
daughters in three primary ways. First, during the initial interview
Detective Arenaz told Mr. Arriaga-Luna, “You’re not gonna see
[your children]. You’re . . . you’re gonna be locked in prison the rest
of your life.” We have held that officers may not threaten a harsher
punishment if a defendant does not confess or promise a lighter
punishment if the defendant does confess. See State v. Rettenberger,
1999 UT 80, ¶ 29–32, 984 P.2d 1009; State v. Strain, 779 P.2d 221,
225–26 (Utah 1989). Here, Detective Arenaz made the statements
while attempting to coax Mr. Arriaga-Luna to implicate his brother
or say that the killing was accidental—not while persuading him to
confess to murder. Furthermore, these statements were not improper
threats because Mr. Arriaga-Luna in fact faced prison time if found
guilty of murder, and separation from one’s children is a natural
consequence of being in prison. Detective Arenaz did not suggest
that Mr. Arriaga-Luna would be able to see his children only if he
confessed.
    ¶17 Mr. Arriaga-Luna argues that Detective Arenaz’s statement
was a veiled, indirect threat that he must cooperate in order to see
his children. We recognize that implicit threats can constitute
psychological coercion and overcome a defendant’s free will.
However, here, the context of the detective’s statement clarifies that
the statements were not implicit threats but rather factual communi-
cations that if Mr. Arriaga-Luna implicated his brother and his
brother was found to be the sole murderer, Mr. Arriaga-Luna would
not “be locked in prison for the rest of [his] life.” Similarly, if the
killing were entirely accidental, Mr. Arriaga-Luna would likely be
set free. We also note that Mr. Arriaga-Luna did not confess during

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this interview, which suggests that the officer’s statements did not
overcome his free will.1
              B. Mr. Arriaga-Luna Was Told That Resources
                   Were Available For His Daughters
   ¶18 In the second interrogation two days later, Detective
Hamideh employed the false-friend technique. Among other things,
Detective Hamideh told Mr. Arriaga-Luna, “But yes, I can bring
resources there so that [your daughters] can be educated and break
the cycle here.”
    ¶19 When defendants are concerned for the safety and welfare
of their families, law enforcement can inform defendants of public
and charitable resources. However, officers should limit themselves
to factual statements and not imply that aid for defendants’ families
is contingent on a confession. Here, Detective Hamideh strayed close
to the line by making a personal offer to help Mr. Arriaga-Luna
when he said “I can bring resources.” However, it is clear from the
full transcript that the officer made the statement about resources in
response to Mr. Arriaga-Luna’s inquiry about what would happen
to his daughters, and not in exchange for a confession.
      C. The Detective Suggested That Mr. Arriaga-Luna’s Daughters
                Would Respect Him If He Told The Truth
    ¶20 Detective Hamideh also urged Mr. Arriaga-Luna to “give
[your daughters] hope that yes, I did what I did. . . . And I am going
to take the time, until—until that point. . . . And after that
point—‘Girls. We are going to be together.’ But free.” Detective
Hamideh also told Mr. Arriaga-Luna, “I think that their
daddy—their daddy can say, ‘Yes. I did make a mistake. But I have
my dignity because I told the truth.’” Thus, the detective urged him
to confess to earn the respect of his daughters.
   ¶21 Such appeals to a defendant’s sense of morality and
responsibility are usually non-coercive. See United States v. Miller,

  1
     The parties dispute whether the two interrogations should be
considered together or whether only the second interrogation, in
which Mr. Arriaga-Luna actually confessed, should be considered
for purposes of this voluntariness analysis. See State v. Mabe, 864 P.2d
890, 894 (Utah 1993) (“The passage of time [between two
interrogations] . . . would tend to dissipate any lingering effects of
police coercion.”). We need not address this issue because even
when both interrogations are considered together, we do not find
any coercion.

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                 STATE OF UTAH v. ARRIAGA-LUNA
                       Opinion of the Court

984 F.2d 1028, 1031–32 (9th Cir. 1993) (holding that an FBI agent
asking a suspect to consider the “spiritual ramifications” of commit-
ting a crime did not overcome the suspect’s free will); State v. Boggs,
185 P.3d 111, 122 (Ariz. 2008) (en banc) (holding that officers may
“solicit a sense of responsibility” regarding a suspect’s child to
encourage truthful statements); State v. Newell, 132 P.3d 833, 843–844
(Ariz. 2006) (en banc) (holding that the detectives’ suggestion that a
suspect “would feel better if he confessed” was not coercive).
    ¶22 In State v. Prows, 2011 UT App 9 ¶ 10 n.4, 246 P.3d 1200, the
court of appeals rejected the defendant’s argument that his confes-
sion was coerced based on appeals to morality and responsibility.
The defendant in Prows was being questioned by the police on
suspicions of child abuse. Id. ¶ 2. The officer told the victim that the
step-daughter he was allegedly abusing would likely continue “the
cycle of abuse” by herself becoming an abuser in the future. Id. ¶ 10
n.4. The court of appeals held that “pointing out such consider-
ations—possibilities over which the police clearly exercise no
control—[does not amount] to a threat or promise of the kind
pertinent to our inquiry.” Id. Here, as in Prows, Detective Hamideh’s
suggestion to Mr. Arriaga-Luna that his daughters would respect
him if he told the truth does not constitute a threat or promise
because Detective Hamideh was merely appealing to Mr. Arriaga-
Luna’s sense of personal dignity and responsibility and speculating
about how his daughters may feel about him in the future.
            III. THE STATE DID NOT INVITE ERROR
    ¶23 Mr. Arriaga-Luna lastly argues that any error in the court’s
ruling was invited by the State. Under our case law, a party may not
“entice the court into committing an error and then reap the benefit
of objecting to that error on appeal.” State v. Moa, 2012 UT 28, ¶ 25,
282 P.3d 985; see also State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d
742 (holding that counsel invited error by representing that its jury
instruction listed all essential elements and then arguing on appeal
that the instructions did not include the mens rea element).
   ¶24 Mr. Arriaga-Luna asks us to conclude that the state invited
error during closing arguments on the motion to suppress the
confession. The prosecutor engaged in the following exchange with
the district court:
      Court: Would you agree though that in the State of Utah
      it’s almost a bright line distinction in terms of your
      ability to use an interrogation tactic of the use of your
      children and threats not to be able to see them[?] . . . So


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      the moment we address children is the moment we’ve
      crossed the line in that interview. Isn’t—isn’t that really
      what the state of the law is?
      [Prosecutor]: I think you have to significantly use the
      children, not just mention the children. . . . I don’t think
      it’s that absolute. . . . But I could be wrong.
    ¶25 This statement by the prosecutor did not invite error. The
prosecutor was expressing disagreement with the court’s view that
“the moment we address children is the moment we’ve crossed the
line.” She was correcting the court’s erroneous view and expressing
her belief that to “cross[] the line,” an interrogator must “signifi-
cantly use the children.” Thus, she did not lead the court down a
path of error but rather stated a view consistent with the state’s
position on appeal that there is no bright-line test regarding
references to children in interrogations.
                           CONCLUSION
    ¶26 The totality of the circumstances show that Mr. Arriaga-
Luna’s free will was not overborne. Accordingly, the trial court erred
in granting Mr. Arriaga-Luna’s motion to suppress his confession.
We reverse and remand for further proceedings consistent with this
opinion.




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