v. Leyba

Citations

• 2019 COA 144

Syllabus

Defendant and his fellow gang member Flores went to a house where a known drug dealer was staying. For reasons that are unclear, Flores shouted at the drug dealer and then shot and killed him and two juveniles who worked for him. Defendant and Flores then took from the house guns, a toolbox, and a curling iron box thought to contain money and eventually left the house. When police arrested defendant, the gun used in the murders fell out of his pants. A jury found defendant guilty of aggravated robbery and three counts of accessory to first degree murder. On appeal, defendant argued that the district court erred by denying his motion to suppress the video-recorded statements he made after he invoked his right to counsel because the detectives didn't honor his request. A defendant who is being interrogated by a law enforcement officer may revoke his or her request for an attorney by reinitiating discussion about the investigation immediately after having made the request. Here, defendant invoked his right to counsel and the detectives stopped questioning him. But defendant immediately continued the conversation, volunteering general information about the incident and indicating a willingness to discuss it. Therefore, the totality of the circumstances indicates that defendant knowingly and intelligently waived his previously invoked right to counsel, and the district court did not err in denying his motion to suppress. Defendant next contended that the district court erred by failing to instruct the jury on theft as a lesser nonincluded offense of aggravated robbery. Given the undisputed evidence showing the use of deadly force, the district court concluded that there was no rational basis for defendant's requested theft instruction, and it correctly denied the request. Defendant also contended that he was entitled to an instruction on the affirmative defense of duress for the aggravated robbery counts because there was credible evidence showing a specific and imminent