A Winston-Salem man charged with first-degree murder in a shootout at a snack truck is asking a judge to throw out his statements to police, alleging that officers interviewed him in the hospital while he was medicated and didn't read him his rights.
Jose Merlin Henriquez Portillo, also known as Jose Massimo Caranaza, 26, is charged with killing Cirilo Laredo Avila, 35, during an attempted robbery on Dec. 16, 2009, at an apartment complex off Cole Road. Avila was selling snacks from a truck for El Jarocho, a grocery store on Waughtown Street.
Avila was shot in the chest, and police found his body in the back of the snack truck in the 2700 block of Pepper Court in the city's southeastern section.
Portillo was shot three times and underwent surgery at Wake Forest University Baptist Medical Center. If convicted of first-degree murder, Portillo faces the death penalty.
In motions filed last week in Forsyth Superior Court, Portillo alleges that Winston-Salem police detectives used "deceit and deception" in getting statements from him in the hospital on Dec. 17, 2009, while he was recovering from surgery. He said they also deceived him on Dec. 23, 2009, when they interviewed him before charging him with first-degree murder and attempted robbery with a dangerous weapon, according to court records.
Police tactics violated North Carolina laws and the state and U.S. constitutions, the motions said.
Forsyth County District Attorney Jim O'Neill, who is prosecuting the case with Assistant District Attorney Patrick Weede, declined Monday to comment on the motions.
David Botchin, one of Portillo's attorneys, also declined to comment. Portillo is also being represented by Mark Rabil, a Winston-Salem attorney who handles death-penalty cases.
According to the motions, Avila was shot four times. Portillo was shot once in the stomach, once in the back near the spine and once in the hand, the motions said.
Portillo had major surgery the night of Dec. 16 and again on Dec. 18. Detectives suspected him in the robbery and ordered a police officer to stay at Portillo's hospital bed at all times, the motions said. Portillo was handcuffed to the bed. Only police and medical personnel were allowed in his room, and Portillo was not allowed to contact anyone, the motions said.
Detectives interviewed Portillo on Dec. 17 but never talked to his treating physician about whether Portillo was medically able to talk, the motions said. Portillo was feeling the effects of medication from his surgery and was also on morphine, the motions said. The interview was not recorded. Portillo alleges that because he was under police custody, investigators were required to record the interview under state law.
In an affidavit, Portillo said police never told him that Avila had died or that he might be charged with a crime. He was never advised of his right to remain silent, Portillo said in the affidavit.
According to the motions, Portillo was released from the hospital on Dec. 23, and detectives picked him up and took him to the Winston-Salem Police Department, where he was interviewed. Before leaving the hospital, Portillo was advised of his rights, and he signed a document written in Spanish waiving his rights, the motions said.
Portillo gave a statement, which he alleges wasn't voluntary because he says detectives deceived him during the interviews and violated his constitutional rights.
He is asking a Forsyth Superior Court judge to suppress the statements and disallow them at his trial. No dates have been set for a hearing on the motions or Portillo's trial.
Portillo is in the Forsyth County Jail with no bond.