State v. CarterState v. Carter
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- Before:
- Hays
Aрpellant, Ambrose Stanley Carter, was convicted of two counts of armed robbery,
1. Did the trial court properly refuse to suppress appellant’s:
a. Pre-arrest statements, because he was allegedly subjected to custodial interrogation and had not received Miranda warnings?
b. Post-arrest statements, because he allegedly did not waive his Miranda rights, or, alternatively, because the police did not honor his decision to terminate questioning and remain silent?
2. Did the trial court abuse its discretion by refusing to suppress physical evidence seized at appellant’s residence because the affidavit in support of the search warrant allegedly contained intentionally, knowingly or recklessly false statements which were necessary for a finding of probable cause?
3. Did the trial court properly refuse to allow the jury to determine whether appellant was on parole at the time of the instant offenses in enhancing punishment pursuant toA.R.S. § 13-604 .-01(A)?
FACTS
At approximately 6:00 p.m. on June 7, 1984, a robbery occurred at a Dairy Queen in Yuma, Arizona. A black male, with his hair styled in corn-row braids and wearing dark sunglasses entered the store. He asked the clеrk, Jule Lute, who was 14 years old, for an ice cream cone. While her back was turned making the cone, he jumped over the serving counter, grabbed the clerk by her neck, and pointed a large Buck knife at her throat. The robber forced the clerk to empty the cash registers and place the money in a bank deposit bag. He also made her empty the contents of her purse, though he found nothing worth stealing there. He took the purse belonging to Anna Durazo, another Dairy Queen employee, which was hanging on the fire
Officer Modesto of the Yuma Police Department arrived on the scene shortly after the robbery. He interviewed Jule Lute. She described the robber as a 5’11” black male who weighed approximately 160 pounds. According to Lute, the robber was wearing a baseball cap, a yellow pullover T-shirt, green shorts and tennis shoes. Modesto lifted fingerprints from the fire extinguisher that the robber had brushed while grabbing Anna Durazo’s purse. The officer also obtained fingerprints from the metal serving counter over which appellant had jumped. In the middle of this same serving counter, Officer Modesto photographed a distinctive shoe print, which had a “running W” pattern on the sole and a “V” on the heel.
Anna Durazo was working at the time of the robbery. She was standing on the back parking lot talking to a friend, Armando Roman, who was in his pickup truck. Before the robbery, Durazo and Roman saw a black man approach and enter the store. Durazo recalled that this man was wearing his hair in corn-row braids.
Sergeant Ford, also of the Yuma Police Department, questioned Armando Roman about the robbery suspect. Romаn indicated where the suspect walked in approaching the store. There, Sergeant Ford found footprints with the same distinctive design that was found on the serving counter inside the Dairy Queen. Later, the officer discovered a trail of these footprints leading from the store. Their pattern suggested that the person making them had been running. Sergeant Ford followed a trail of these footprints down an alley for several blocks to the porch of the house at 613 Avenue A. Appellant resided at this house with his girlfriend and her family.
Several officers from the Yuma Police Department arrivеd at the house. A man inside the house greeted the officers and invited them inside. Appellant, who was inside the house, generally matched the physical description of the robber, including the corn-row style of his hair. Appellant was also wearing tennis shoes with the same distinctive design on the sole found in the footprints at the scene of the crime and leading away from it. Otherwise, appellant’s clothes did not match those worn by the robber. Officer Modesto asked appellant to accompany him to the police station to allow the police to obtain some physical evidence and general‘biographical information that would aid their investigation. Appellant complied with this request.
At the station, Officer Modesto took some photos of appellant. When he was asked why the police needed this information, the officer explained that appellant matched the description of a suspect in the armed robbery of a Dairy Queen. Appellant also asked whether he was under arrest. The officer replied “No.”
In a showup held at the police station, neither Lute nor Durazo, the Dairy Queen employеes present during the robbery, could identify appellant as the robber. Although they expressed uncertainty, they stated that they did not believe that he was the robber. They both conceded, however, that the corn-row styling of appellant’s hair matched the hair style worn by the robber.
Officer Gross asked appellant if he could take his fingerprints. When appellant asked what would happen if he refused, the officer explained that the police would probably seek a court order. Appellant again inquired whether he was under arrest. The officer assured him that he had not been arrested. Appellant then allowed him to take his fingerprints. After doing so, Officer Gross asked if appellant had been present at the Dairy Queen earlier that day. “No, I haven’t,” appellant responded. Officer Gross did not ask appellant any other questions.
When the police learned that appellant’s fingerprints matched those found at the crime scene, he was arrested. Appellant was interviewed by Officers Modesto and Campbell. Appellant acknowledged that he understood his rights and was willing to speak to the police. At first, appellant professed confusion about what was happening and why he was arrested. Officer Campbell explained the charges against
Appellant insisted that he knew nothing about the armed robbery at the Dairy Queen. In particular, he exclaimed that he “didn’t threaten nobody with a knife.” When he was informed that none of the officers had mentioned that a knife was used in the robbery, appellant denied referring to .a knife in his earlier statement. Appellant also told the officers that although he had visited the Dairy Queen in question еarlier in the day, he knew nothing about the crime.
Irma Harris, appellant’s neighbor, was also interviewed by the police. She knew appellant personally. She saw appellant running across her back yard near the time of the crime. She. recalled that appellant was dressed in shorts and tennis shoes, that his hair was in braids, and that he was carrying a brown purse under his arm. She saw him run into his back yard and go to the rear door of his house.
After obtaining a search warrant, the police searched appellant’s residence. The bank bag and the money stolen were found under a chest of drawers in appellant’s bedroom. Anna Durazo’s driver’s license, which had been in her purse, was found under the bed in the same room. The police also seized some long knives and some clothing, including some yellow T-shirts, shorts and sunglasses. Jule Lute was able to identify some of the clothing as that worn by the robber.
At trial, appellant raised an alibi defense. Delores Simon, the mother of appellant’s girlfriend, testified for the defense. She claimed that appellant was at home during the time of the robbery.
I. DID THE ADMISSION OF TWO OF APPELLANT’S STATEMENTS VIOLATE HIS MIRANDA RIGHTS?
(A) Was Appellant’s Pre-arrest Statement Inadmissible Because He was Subject to Custodial Interrogation and Had Not Received Miranda Warnings?
In order to be admissible, statements obtained while an accused is subject to custodial interrogation require a prior waiver of Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966); State v. Perea, 142 Ariz. 352, 354, 690 P.2d 71, 73 (1984).
After taking appellant’s fingerprints, Officer Gross asked him whether he had been present at the Dairy Queen earlier in the day. Appellant denied being at the scene of the crime that day. This statement was inconsistent with the story appellant later told police. Appellant had not yet received Miranda warnings. Appellant contends that this questioning occurred while he was “in custody.” We disagree.
Thе objective test for “custodial” interrogation is whether under the totality of the circumstances a reasonable person would feel that he was in custody or otherwise deprived of his freedom of action in a significant way. See Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, 719 (1977); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980); Miranda v. Arizona, supra, at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; State v. Burns, 142 Ariz. 531, 534, 691 P.2d 297, 300 (1984); State v. Perea, supra.
In Perea, we declared that factors strongly indicative of custody include:
1) whether the objective indicia of arrest are present,
2) the site of the interrogation,
3) the length and form of the investigation, and
4) whether the investigation had focused on the accused.
142 Ariz. at 355, 690 P.2d at 74; see also State v. Riffle, 131 Ariz. 65, 67, 638 P.2d 732, 734 (App.1981).
As to the first factor, it did not objectively appear that appellant was under arrest. Several officers appeared at appellant’s residence and were invited inside.
Next, we must consider the site of interrogation. It is true that the questioning of appellant at the police station is a factor that enhances the coercive nature of the interrogation. As we stated in State v. Barnes, 124 Ariz. 586, 606 P.2d 802 (1980), howеver, this circumstance does not require a finding of custody:
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed because the questioning takes place at the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction oh a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
124 Ariz. at 589, 606 P.2d at 805 (1980) (quoting Oregon v. Mathiason, supra, at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719) (merely because suspect was questioned at police station does not alone show custodial interrogation); see also State v. Perea, supra (merely because the defendant was the last person seen with the victim and was interrogated at the police station does not prove custodial interrogation); State v. Garrison, 120 Ariz. 255, 256-57, 585 P.2d 563, 564-65 (1978) (same holding as Perea).
It is true that Offiсer Gross indicated to appellant that the police would probably seek a court order if he refused to allow them to take his fingerprints. This statement was, however, immediately followed by an assurance that appellant was not under arrest. This statement also was not a legal misrepresentation and such a statement does not automatically establish custodial interrogation. Cf. State v. Roscoe, 145 Ariz. 212, 222, 700 P.2d 1312, 1322 (1984) (where accused was given Miranda warnings the day before, second interview did not rise to the level of custodial interrogation merely because the police accurately indicated that the accusеd’s lawyer could not prevent the taking of physical evidence).
The length and form of this interrogation were not unduly coercive. Officer Gross asked appellant only one question. Appellant was present in the station for only approximately an hour before he received Miranda warnings. There were no threats or coercion of appellant. The police did not attempt to mislead appellant and they answered all his questions promptly and accurately.
The investigation had also not yet focused on appellant. The only evidence linking аppellant to the crime was an uncertain chain of evidence. It was only after confirmation that appellant’s fingerprints appeared at the scene of the crime that the police investigation focused upon appellant and he was arrested and given the full panoply of Miranda warnings.
Furthermore, admission of an accused’s spontaneous, voluntary statement that is not made in response to police interrogation does not violate the defendant’s
Miranda
rights.
See, e.g., Rhode Island v. Innis, supra,
at 301-02, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 308;
State v. Bums, supra,
142 Ariz. at 534, 691 P.2d at 300;
State v. Harding,
137 Ariz. 278, 288, 670 P.2d 383, 393 (1983),
cert. denied,
— U.S.
Shortly after arriving at the police station, appellant asked Officer Modesto why the police needed information about him. The officer replied that appellant was a suspect in the armed robbery of a Dairy Queen that occurred earlier in the day. Appellant then exclaimed: “I didn’t rob the Dairy Queen, I wasn’t at the Dairy Queen, I will tell you what I did today at 3:00 p.m. ...” The officer interrupted appellant and stated that he preferred not to discuss the matter. This statement was plainly not in response to police questioning. Under the circumstances, the trial court acted within its discretion in refusing to suppress this statement.
(B) Were Appellant’s Post-Arrest Statements Admitted in Violation of Miranda v. Arizona?
1. Did Appellant Waive His Miranda Rights?
After his arrest, appellant was interviewed by Officers Campbell and Modesto. Officer Modesto had the primary responsibility for interrogating appellant. Officer Campbell was responsible for filling out the booking forms so that appellant could be imprisoned. Appellant was asked by Officer Modesto whether he understood his rights. Both officers recall that appellant replied “Yeah.” Appellant was also asked whether he would waive his rights and voluntarily speak to the police. Officer Modesto recalled that appellant answered this question affirmatively. Because Officer Campbell cannot specifically recall appellant’s answer to this question, appellant argues that there was insufficient evidence to show that he waived his Miranda rights. The trial court rejected this contention. Both officers filled out police reports on the day of the interrogation which indicate that appellant validly waived his Miranda rights. The record therefore supports the trial court’s determination that appellant waived his Miranda rights.
2. Did the Police Refuse to Honor Appellant’s Decision to Terminate Questioning?
If a person is subjected to custodial interrogation and indicates a desire that interrogation cease or otherwise invokes his right to remain silent, this decision must be scrupulously honored by the police. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975); Miranda v. Arizona, supra, at 445, 473-74, 86 S.Ct. at 1612, 1627-28, 16 L.Ed.2d at 707, 723; State v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983); State v. Sauve, 112 Ariz. 576, 579, 544 P.2d 1091, 1094 (1976).
Appellant asserts that during his interview with Officers Modesto and Campbell he tried to terminate questioning, but the police refused to accept his decision. Appellant maintains, therefore, that admission at trial of his statement that he “didn’t threaten nobody with a knife” was error. The trial court ruled that there was insufficient evidence of a constitutional violation. We agree.
It is true that Officer Campbell testified that initially appellant “didn’t want to say anything.” We believe, however, that appellant misinterprets this statement. When appellant was first questioned, he initially expressed confusion as to what was going on, what the charges were, and why he was arrested. According to the police, he acted like an innocent man who could not imagine why he had been accused of a crime. The officers explained more than once the charges against appellant and the evidence linking him to the crime. Appellant originally “didn’t want to say anything” about the crime because he claimed not to know what the officers were talking about. Officer Campbell categorically stated that appellant never expressed a desire to terminate questioning or to deal with the police only through his attorney. Nor was appellant uncommunicative, because he vigorously protested his innocence. Certainly, appellant never indicated any unwillingness to speak to the police in
It is also apparent from the record that Officer Campbell saw no inconsistency between saying that appellant initially “didn’t want to say anything” and that appellant was quite willing to talk, but merely expressed mystification about why he was arrested. Both of these statements appear within a short space of one another in the transcript and both were elicited in response to nonleading questions.
Finally, Officer Campbell’s account was fully corroborated by the police report he prepared on the day of interrogation and by the other officer present during questioning. No other evidence was presented to support the defense version of the facts. Under the circumstances, the trial court acted within its discretion in refusing to find that appellant’s Miranda rights had been violated.
II. WERE THERE INTENTIONAL, KNOWING OR RECKLESS MISSTATEMENTS IN THE AFFIDAVIT FOR THE SEARCH WARRANT WHICH INVALIDATE ANY FINDING OF PROBABLE CAUSE?
Appellant attacks the affidavit in support of the search warrant pursuant to which physical evidence was fоund at appellant’s residence. This physical evidence included the bank bag and money taken, Anna Durazo’s driver’s license and some clothing identified as that worn by the robber during the robbery.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court declared that a defendant may challenge the truthfulness of the factual statements in an affidavit supporting a warrant. The evidence seized by reason of a warrant will be deemed inadmissible if the defendant can show by a preponderance of the evidence that:
(a) The affiant made a false statement which was knowingly or intentionally false or which was made in reckless disregard for the truth;
(b) After the false statement is excised, the affidavit’s remaining content is insufficient to support a finding of probable cause.
Id. at 171-72, 98 S.Ct. at 2684-85, 57 L.Ed.2d at 682.
Appellant asserts that there were three material facts which Detective Elkins, the affiant for the search warrant, either misstated or failed to disclose. Detective Elkins stated in his affidavit that (a) Jule Lute described the robber as having a “medium to muscular build.” Detective Elkins also stated in his affidavit, apparently accurately, that appellant had a “stocky” build. Appellant asserts that adding “muscular” to this witness description was a material misstatement. We shall assume,
arguendo,
that Jule Lute never described the robber as “muscular.”
1
Detective Elkins also stated in his affidavit that (b) appellant denied being present at the Dairy Queen earlier that day. Appellant complains that this statement is materially misleading because the detective failed to mention that appellant had also admitted being present at the Dairy Queen earlier in the day. Finally, the detective did not state that (c) the two Dairy Queen employees present during the crime, Lute and Durazo, participated in a showup held within two hours after the crime. According to appellant, these two witnessеs stated that appellant was not the man who robbed them even though they expressed some uncertainty about their belief. Although there is
In order to show that the affiant acted with reckless disregard for the truth, we have required proof that the affiant entertained serious doubts about the truth of the affidavit. See State v. Poland, 132 Ariz. 269, 279, 645 P.2d 784, 794 (1982); see also United States v. Davis, 617 F.2d 677 (D.C.Cir.1979). Proof that the affiant entertained serious doubts concerning the affidavit’s truth can be proven by obvious circumstances that impeaсh the credibility of the information in the affidavit. Id.
It appears that the evidence is inconclusive as to whether the detective intentionally, knowingly, or recklessly made erroneous statements in the affidavit. Merely innocent or negligent mistakes in an affidavit will not satisfy the first prong of the Franks test. See Franks v. Delaware, supra, at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. It is quite possible that the errors in the case at bar were only innocent or negligent mistakes. As to facts (a) and (b), it is undisputed that Detective Elkins had no firsthand knowledge of the true facts. The officers who were personally aware of the correct information could not recall whether this information wаs communicated to the detective. As to fact (c), Detective Elkins testified that he had been informed only that the victims of the crime were unsure in their identification of appellant, and not that they had positively stated that appellant was not the man. We need not decide, however, whether appellant has succeeded in establishing the first Franks requirement. It is. plain that appellant has failed to establish the second Franks requirement of proving that but for these misstated facts there would not have been probable cause to support the search.
To determine whether the remaining content of the affidavit is sufficient to support a finding of probable cause, one must engage in the following analysis. The court must redraft the affidavit by deleting the falsehoods and adding the materially omitted facts. Then the court must determine if the remaining portions of the affidavit provide sufficient information to support a probable cause determination. Franks v. Delaware, supra, at 171-72, 98 S.Ct. at 2684-85, 57 L.Ed.2d at 682; see State v. Martin, 139 Ariz. 466, 473, 679 P.2d 489, 496 (1984).
Applying this method to the present case, we must exclude from the affidavit that (a) appellant was described by the victim as “muscular” as well as the statement that appellant is “stocky.” We must add to the affidavit that (b) appellant told the officers after he was arrested that he had been at the Dairy Queen earlier on the day of the crime and that (c) the victims, although somewhat unsure about it, believed that appellant was not the robber.
The affidavit then reads as follows in pertinent part:
(1) a trail of distinctive footprints led from the scene of the crime to the residence searched, appellant’s residence. Appellant was found inside this house wearing shoes with soles that matched this same distinctive pattern; (2) appellant generally matched the physical description given by the victims of the robbery; (3) appellant’s fingerprints were found at the scene of the crime; (4) appellant initially stated twice that he had not been at Dairy Queen that day. Later, he stated that he had visited the store earlier in the day. This change in his story occurred after appellant was informed by the police that his fingerprints had been found at the scene of the crime; (5) appellant’s neighbor, Irma Harris, knew him personally and could recognize him on sight. On the day of the crime,
An officer has probable cause to conduct a search if a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched. See State v. Summerlin, 138 Ariz. 426, 431, 675 P.2d 686, 691 (1983); United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970).
Plainly, even when the affidavit is redrafted to take account of the excluded facts, there is sufficient information to support a finding of probable cause. The most impressive information excluded was the robbery victims’ belief, albeit somewhat uncertain, that appellant was not the robber. This fact is not, however, so probative as to preclude a finding of probable cause. Anna Durazo only casually glanced at the robber from a distance. When she saw the robber, he was not facing her and she saw him only by profile. Jule Lute did see the robber when he first entered the store. During the robbery, however, the assailant stayed behind her back and never allowed her to face him. Shе never saw the robber during the robbery, even while he was leaving. It is arguable that Irma Harris’s identification of appellant as the robber was more reliable because she personally knew him. We find sufficient information for a probable cause determination.
A trial court’s ruling on a motion to suppress will not be disturbed absent an abuse of discretion. State v. Fischer, 141 Ariz. 227, 236, 686 P.2d 750, 759, cert. denied, — U.S. -, 105 S.Ct. 549, 83 L.Ed.2d 436 (1984); State v. Adamson, 136 Ariz. 250, 253, 665 P.2d 972, 976, cert. denied, — U.S. -, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). There was no abuse of discretion.
III. THE TRIAL JUDGE’S DETERMINATION THAT THE ACCUSED WAS ON PAROLE AT THE TIME OF THE PRESENT CRIMES IN ENHANCING PUNISHMENT UNDER
Appellant asserts that the determination as to whether he was on parole for purposes of
“A.R.S. § 13-604.01 does not contain language that requires a finding by the trier of fact that the defendant was on parole. That the crime was committed while the defendant was on parole is in the .nature of an aggravating circumstance which enhances the possible penalty. When determining whether an aggravating circumstance exists, a trial judge ‘may consider all evidence and information presented at all stages of the trial together with all probation and presentence reports and the testimony presented at the aggravation and mitigation hearing prior to sentencing. For sentencing purposes, the trial judge will have a much broader information base than was presented to the jury at trial. * * * It is only necessary that such a finding be true and that it be supported by reasonable evidence in the record.’ ”
Id. Cf. State v. McNair,
141 Ariz. 475, 485, 687 P.2d 1230, 1240 (1984) (it is not necessary that there be a jury determination as to whether the defendant was on probation
We continue to find this same rationale convincing. Appellant seeks, however, to distinguish Turner and McNair. In contrast to those cases, appellant did not admit that he was on parole or other release from confinement. Because the rationale for both of these cases was plainly not limited in this manner, we disagree.
Appellant also argues that because
The
Turner
rationale is, however, that a finding as to probation, parole or other release from confinement is different from the predicates governed by
We have reviewed the record for fundamental error.
Notes
. This is not entirely clear from the record. It is true that in her written statement Jule Lute describes the robber as having a “medium” build, and does not mention that he is “muscular.” Neither Lute, nor Officer Modesto who interviewed her, were asked whether she might have mentioned this orally and simply failed to write it down. Because Officer Modesto reported to Detective Elkins after interviewing Lute, it is possible that this information could have been communicated to the detective.
. In his police report, Officer Fell simply notes that Lute and Durazo “viewed Carter, and said he was not the man who robbed them.” At trial, however, both testified somewhat differently. When asked about her response when the police asked her whether she recognized appellant, Jule Lute said: “I told them I wasn’t sure, that no, I don’t think it’s him.” When Anna Durazo was asked this same question, she replied: “I told them I was not sure.”