ST. GEORGE — Additional details came to light Tuesday in the case of a local woman accused of severely injuring two small children.
Nancy Pena, 31, appeared in 5th District Court for an evidentiary hearing that was scheduled after her defense attorney, Ken Combs, filed a motion to suppress her confession to police on the basis that law enforcement did not properly read the defendant her Miranda rights before she allegedly admitted to injuring the two children.
As such, any incriminating statements made without or before the Miranda warning were inadmissible, since that would be “in violation of her Fifth and Sixth Amendment rights,” Combs stated in the motion.
The Fifth Amendment protects the accused from being “compelled in any criminal case to be a witness against himself,” and the Sixth Amendment provides the right to counsel and to be informed of the nature and cause of the accusations before any questioning takes place.
Pena is facing two counts of third-degree felony aggravated child abuse inflicting serious physical injury after a July incident that involved two children, ages 2 and 4, who both had previous visits to the emergency room at Dixie Regional Medical Center in St. George to be treated for fractures.
Pena was originally charged with four counts of aggravated child abuse, a point that was at issue during a preliminary hearing held Sept. 16. when District Judge John J. Walton dismissed two of the third-degree felony counts, saying court was provided with “absolutely no testimony relating to how those two injuries occurred.”
The two injuries in question involved a pelvic fracture on the 4-year-old and scapula fracture on the 2-year-old, both of which were in different stages of healing, having occurred at different times. During the September hearing, the expert witness for the state said those injuries could have been caused by an accident.
“I don’t believe there is probable cause for counts three and four,” Walton said, “so what we are left with is one count for each child.”
On Tuesday, Combs asserted that his client did not understand her Miranda rights, since both detectives involved in the case read them in English instead of in Spanish, the defendant’s native language.
St. George Police Lt. Rich Tripplett, one of two detectives that interviewed Pena at the police station, took the stand and recounted Pena’s statements made during the July interview, saying she told him it all started when she was changing the toddler’s diapers. As she did so, Tripplett said, “the baby flipped over, and she grabbed him by the leg and twisted it until it broke.” He said defendant also told him she took the child to the hospital because “his leg hurt him.”
“She said, ‘I felt bad for the boy, I lost control. I was really stressed,’ and then she kept saying ‘I lost it’ over and over again,” Tripplet said.
In response to the question of her Miranda rights, Tripplett said he gave the defendant the statement in English but went on to say that initially he greeted Pena and her husband in Spanish, a language he is fluent in, but then Pena continued to answer him in English.
He also testified the defendant was interviewed by Detective Matt Sherman just prior to his meeting with her, and the entire interview was “in fluent English,” so he did the same. He also said that Pena used “very complicated sentences and common English phrases, such as ‘the mother is out of the picture,’ and so on,” throughout the two-hour interview and said she never asked him to speak Spanish at any time.
When questioned further, Tripplett said that immediately after reading Pena’s Miranda rights, “she actually told me she heard the rights before on TV shows and other places and that she understood them,” so he had no reason to believe she was not fluent in the language.
Combs then asked if Pena was in custody or knew of the potential charges against her during either interview.
The detective responded by saying that Pena was not in custody during the first interview – and she was advised of such by Sherman – nor was she in custody during the first portion of the second interview, adding it was only after she confessed that she was “no longer free to leave.” He also said the charges came as a direct result of what she said during the interview, which made it impossible to provide the information about being in custody any sooner than they did.
After closing arguments, Walton said the primary issue was whether Pena understood her Miranda rights, which he said he believed she did, and “she made a knowing and willing waiver of those rights.”
The motion to suppress the confession was denied, and the case will proceed to trial.
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