By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — When it comes to the constitutional right of those accused of crimes to remain silent, the Arizona Supreme Court has ruled that decision sometimes can be held against them.

And the key to those who want to protect that right is to refuse to answer any questions at all.

In a unanimous decision Friday, the justices rejected claims by Giovani Melendez that he was entitled to answer only some questions by police when he was arrested. Melendez had told police the shooting at someone else was self-defense but declined to respond to others.

More to the point, Justice John Lopez, writing for the unanimous court, said there was nothing wrong with prosecutors not only questioning Melendez on the stand about his decision to not answer some of the questions but then pointing out that fact to jurors who eventually convicted him.

Lopez acknowledged in Friday’s ruling that the Fifth Amendment protects the rights of individuals to refuse to talk to police.

That is enshrined into practice with the 1966 Miranda ruling by the U.S. Supreme Court that says suspects must be informed of their constitutional rights, including the right to remain silent and their right to an attorney, before questioning them in custody. That precedent also says the decision to invoke that right can’t be used against them at trial.

But in this case, Lopez said, Melendez was “selective” in his silence. And that, he said, entitled prosecutors at his trial to ask him, in front of a jury, about the questions he refused to answer.

Friday’s ruling is significant, and not only because of the precedents it sets for future police questioning and trial tactics that can be used by prosecutors.

It comes more than a year after the state Court of Appeals reached a contrary ruling. There, the judges voided the conviction, pointing out that Melendez repeatedly told the detective he did not want to talk about the shooting, and that the detective, in her responses to him, affirmed that was his right.

The arrest stems from a 2019 incident where Melendez returned to an apartment complex where he used to live, a complex that also hosted church services.

According to court records, he parked his car, walked toward the child of the pastor, and asked “Are you the pastor’s son?” The boy responded affirmatively and began walking toward Melendez.

At that point, Melendez pulled a gun and fired multiple shots at him. Each shot missed and Melendez drove away.

Officers later took him into custody and took him to a nearby precinct where they informed him of his Miranda rights. He said he didn’t want to talk any more and that interview ended.

Later, at the Phoenix police station, Melendez was again informed of his rights.

At that point, he made some comments. But when asked about why he shot at the child, he said “I want to hold some stuff I want to say” and “I still want to hold myself on some things.”

Only later did he say that he was acting in self-defense.

That was the same defense Melendez offered at his trial. But the prosecutor then began questioning him about his decision to pass on some questions, especially since that claim of self-defense came only after he was informed he was going to jail.

And during closing arguments, the prosecutor urged the jury to question Melendez’s self-defense claim because a “reasonable person” would have answered the questions about the motive if he “really shot in self-defense.”

The jury sided with the prosecutor’s version of what happened, found him guilty of aggravated assault, and a judge sentenced him to a presumptive term of 7.5 years in prison.

When Melendez appealed, an attorney for the state argued that he had effectively waived his Fifth Amendment rights because he did not remain completely silent. Appellate Judge Michael Brown said he and his colleagues weren’t buying that.

“Nothing in the Miranda warnings informs a suspect that if he relies on his Fifth Amendment right to be silent, completely or partially, his exercise of that right can be used against him at trial,” wrote Brown in overturning the conviction.

“The warnings required by Miranda would have to be amended to inform a suspect that not only what he says may be used against him, but what he does not say will also be used against him,” Brown wrote.

“The warnings have not been amended,” he said. “And allowing the state to penalize a defendant at trial for his earlier silence when he was not informed of that consequence would improperly relieve the state of its burden to prove waiver.”

Lopez, writing Friday for himself and his colleagues, said that appellate court ruling misunderstands the nature of Miranda warnings.

“Once an individual invokes his right to remain silent, police must cease questioning,” Lopez acknowledged. “Prosecutors may not comment at trial on a defendant’s post-invocation silence.”

But he said all that changed when Melendez agreed to answer some questions at the police station.

“We cannot conclude he unequivocally and unambiguously invoked his right to remain silent in his second interview when he stated that he would ‘hold’ and ‘pass’ on answering certain questions ‘for now,’” Lopez wrote.

“Indeed, Melendez’ mid-interview statement that he was willing to continue the interview buttresses this conclusion,” he said. “Melendez’ statements are more aptly characterized as tactical deferrals to responding to specific questions than unequivocal refusals to answer.”

And what all that means, Lopez said, is that the prosecutor did nothing wrong in asking Melendez about the questions did not answer.

“Here, the prosecutor’s cross-examination of Melendez is more akin to permissible impeachment,” the justice said, where the witnesses is being asked about any “prior inconsistent statement” in an effort to convince jurors that the testimony is not credible. And that, said Lopez, is different than asking defendants why they refused to answer any questions at all, something that clearly is prohibited.

Anyway, Lopez said, the prosecutor in his statements to the jury was not commenting on his silence but what the court called “wavering tactical deferrals” by Melendez in his interview which was was using “as a ploy to stall his answers until he knew what witnesses had told police about the shooting.”