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Diaz lawyer asks high court to keep confession out of trial

PIERRE -- Defense attorneys have asked the South Dakota Supreme Court to honor a lower court's rejection of an accused murderer's confession.

Prosecutors already have sought an appeal to keep the confession in the case. Mitchell defense attorneys Doug Dailey and Chris Nipe filed their response Friday to the prosecution's appeal request. Dailey and Nipe represent Maricela Diaz, who is accused of killing 16-year-old Jasmine Guevara, of Mitchell, in November 2009.

Prosecutors are asking the Supreme Court to consider their appeal of a ruling by Judge Tim Bjorkman barring them from using any statements Diaz made to police after her arrest on Nov. 11, 2009. Diaz was 15 at the time of her alleged involvement in the crime and is now 18.

Bjorkman found Diaz had not waived her Miranda rights prior to being questioned by investigators, and that the importance of her Miranda rights had been downplayed by investigators. The ruling was issued Aug. 28, just weeks before the case was scheduled to go to trial.

Dailey, who prepared the response, notes Diaz has been incarcerated and awaiting trial since Nov. 12, 2009. He argues "the ends of justice are best served" by the Supreme Court rejecting the state's request to appeal.

In the state's request for an appeal, Deputy Attorney General Robert Mayer wrote that Bjorkman's decision "significantly damages the state's case."

In the response, Dailey argues prosecutors still have "significant evidence available for its case," including the testimony of a man already convicted of second-degree murder for his role in Guevara's slaying, Alexander Salgado.

Since being convicted, Salgado has said he will not testify against Diaz and threatened violence if brought to court.

In addition, Dailey claims the state has "DNA and blood splatter evidence," and video evidence showing Diaz with the victim on the night of the alleged killing.

Following a juvenile court's decision not to throw out Diaz's statements to investigators -- the same statements Bjorkman later threw out -- and to move Diaz to adult court, the defense made similar requests for appeals, but those requests were rejected, Dailey's response says.

The Supreme Court will issue a decision at a later date.

Diaz is accused of luring Guevara to a rural area, then stabbing her and leaving her in the trunk of a burning vehicle. In a signed plea agreement, Salgado admitted to participating in the murder and to holding Guevara's head while Diaz cut into her neck.

After being moved from juvenile court to adult court, Diaz was indicted on Aug. 5, 2011, on six charges related to the crime, including first-degree murder.

Investigators said Diaz, who has a child with Salgado, was jealous of a developing relationship between Salgado and Guevara.

Diaz could face life in prison if convicted but, because of her age at the time of the crime, cannot be sentenced to death. And even though she could face life in prison, she cannot face a mandatory life sentence without parole because of a recent federal Supreme Court decision.