State v. Basta

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SAMEH BASTA, ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 11/12/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 08-0083 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2003-020557-001 DT The Honorable Thomas W. O Toole, Retired Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Katia Mehu, Assistant Attorney General And Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee Theresa M. Armendarez PLC By Theresa M. Armendarez Attorney for Appellant S W A N N, Judge Phoenix ¶1 and Sameh Basta ( Defendant ) appeals from his convictions sentences contends denying for the that his kidnapping trial motion to and court first committed suppress his degree murder. reversible confession error to He by police. Because sufficient evidence supports the court s determination that the confession was voluntary, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On August 11, 2003, police found a deceased woman in the trunk of a car parked at a Scottsdale office complex. She had been killed by blunt force trauma to the head. ¶3 In the course of investigating the homicide, police discovered August 8, 2003 surveillance video leaving a casino with an unidentified man. of the victim Images from the surveillance video were disseminated by the news media, and the police received several tips identifying the man in the video as Defendant. In addition, Defendant (who was in Yonkers, New York) called and spoke three times to Detective John Kirkham of the City of Scottsdale Police Department. ¶4 Detective Kirkham and Detective Daniel Rincon traveled to Yonkers in September 2003. On the morning of September 2, the with detectives made contact Defendant at a Yonkers apartment, where he was staying with a friend, and asked him to accompany them voluntarily to the Yonkers police station. At approximately 9:55 a.m., the two detectives began to interview 2 Defendant in a room at the police station. A camera recorded audio and video of the interview. ¶5 The background. the United detectives began by asking Defendant about his Defendant stated that he is Egyptian and entered States on a visa in 1999. He also told the detectives that he cannot write English, and it is clear from the videotape and Defendant s command imperfect. The transcript and of the comprehension detectives, of however, interrogation spoken that English determined that is an interpreter was not necessary1 and the interview was conducted entirely in English. ¶6 Early in the interview, Detective Kirkham read Miranda warnings to Defendant from a standard police card. The detective asked Defendant whether he understood and Defendant replied that he did not. The following exchange ensued: [Detective Kirkham]: You don t understand? Well, let me explain. Okay? We want to talk to you a little bit about about yourself. We want to talk to you about what happened at the casino with this woman like what we talked about on the phone. 1 In his testimony at the voluntariness hearing, Detective Rincon explained that Detective Kirkham, who had previously communicated with Defendant by telephone, did not express concern about Defendant s ability to communicate in English. Detective Rincon further testified: [T]here was never a point in time where there was an extreme difficulty of understanding him. In the few times he didn t understand a word, he was very vocal and let us know and we were able to communicate with him in using maybe more elementary words to have him understand. But that was infrequent. 3 [Defendant]: Yes. [Detective Kirkham]: with us, okay? [Defendant]: And you came in here voluntarily What does that mean? [Detective Kirkham]: Well, we asked you will you come with us and talk with us. [Defendant]: Right. [Detective Kirkham]: And we want to make sure that you understand that that s you re here to talk with us. You don t have to talk with us if you don t want to. And if you want to have an attorney here, you can have an attorney here if you want. [Defendant]: What s [inaudible]? [Detective Kirkham]: [Defendant]: What? A lawyer. Okay? I [inaudible].2 [Detective Kirkham]: Well, that s something that you need to decide. But you don t have a problem sitting here talking with us? [Defendant]: No, no. [Detective Kirkham]: ¶7 Okay. The interview continued and the detectives began to ask Defendant about his contact with the victim. Defendant told the detectives that on the night in question, he met the victim at the casino, left with her, and had sex with her in her car. He stated that after they had sex, the victim dropped him off 2 At the voluntariness hearing, Detective Rincon testified that there is an error in the transcript and the word Why should replace the word What. The detective testified that at this point, Defendant was asking why he would need a lawyer. 4 and drove away. He denied any involvement in the victim s death. ¶8 As the interview progressed, the detectives repeatedly proposed a scenario in which Defendant accidentally killed the victim, and told Defendant that the alternative scenario was an intentional slaying. go better confessed. him, are for The detectives suggested that things would Defendant, and they would help him, if he The detectives also told Defendant that they, like Christians, and stated that Christians believe in forgiving. ¶9 Defendant asked if he could smoke a cigarette, and was allowed to do so. As he smoked, the conversation continued: [Detective Kirkham]: What happened? [Detective Rincon]: We ll understand, okay? But you ve gotta help us. If you re not gonna help us, we can t help you. No one can help you. How did it start? Come on. [Defendant]: How long is jail for that? [Detective Kirkham]: [Defendant]: How many years is jail for that? [Detective Rincon]: [Defendant]: How what? What? How many years is jail for this, jail? [Detective Rincon]: We don t know. We re not [Detective Kirkham]: We re not gonna worry about that. That s not what we do. Okay? We just, we re here to find out what happened. 5 [Detective Rincon]: That depends on how you explain it to us. No one s in jail right now, so you re okay. [Defendant]: family. But see, [Inaudible] I take care of my [Detective Rincon]: Can take care, we can [Detective Kirkham]: We know. We know that you care about your family, okay? But right now we gotta take care of you. Okay? [Detective Rincon]: [Defendant]: [Inaudible]. Help us. Help us. [Inaudible], there s nobody helping me. [Detective Rincon]: help you. We ll help you, your church will [Defendant]: [Inaudible], I don t want to go to jail, I can t go to jail. [Detective Rincon]: [Defendant]: No one s going to jail. I can t go jail. [Detective Rincon]: Talk to us. [Detective Kirkham]: Sameh, talk to us about what happened. Let us at least know what happened, okay? We have to know what happened. We don t think that you re a bad guy. We think that something happened and it was an accident. And that s really all we want to know. But you have to tell us what happened. Okay? So what happened that day? After you guys left the casino, what happened? ¶10 the At that point, Defendant began to confess to killing victim. about the The details approximately interview detectives and 12:47 continued surrounding p.m., placed at the which Defendant 6 to victim s point under question they arrest. Defendant death until concluded the Defendant was later indicted for kidnapping and first degree murder, and the State gave notice of its intent to seek the death penalty on the murder charge. ¶11 Before trial, Defendant filed a motion to suppress his confession and all evidence therefrom. The matter proceeded to a voluntariness hearing at which Defendant presented only the testimony of Dr. Richard Ofshe, a social psychologist. Relying only on the transcript of the interview, Dr. Ofshe opined that Defendant s coercion. confession was the product of psychological He explained that the detectives engaged in a pattern of questioning that culminated in a promise that Defendant would not go to jail if he told the appropriate story. ¶12 The State presented the testimony of Detective Rincon, who testified that the detectives did not make any promises to Defendant. He further testified that his statements to Defendant that No one s in jail right now and No one s going to jail were statements of fact and were not intended to be promises. The prosecutor played the videotape of the statements in open court and Detective Rincon observed that Defendant had started to speak before the detective completed the statement No one s going to jail. ¶13 After considering the evidence presented at the voluntariness hearing, the court issued a minute entry denying Defendant s motion to suppress. The court found that Dr. Ofshe 7 was not credible because, inter alia, he had not reviewed the videotape of the interview. The court identified the issue as whether Defendant had relied on a promise that he would not go to jail, and found that the Defense can provide the Court with no evidence that the defendant relied upon the statement. 3 ¶14 Defendant moved for reconsideration, the court denied his motion without comment, and the case proceeded to trial. The jury found Defendant guilty of kidnapping and first degree premeditated murder and found that Defendant had committed the murder in an especially cruel manner. In the penalty phase, the jury rejected imposition of the death penalty and recommended life in prison. ¶15 The court entered judgment on the jury s verdicts and sentenced him to concurrent prison terms of life4 for the murder and five years for the kidnapping. Defendant timely appeals. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A). 3 We note that the court made no additional findings. Though the court was not required to state its findings and reasoning on the record, the absence of specific findings makes effective appellate review considerably more difficult. See State v. Fisher, 141 Ariz. 227, 236 n.1, 686 P.2d 750, 759 n.1 (1984). 4 The court later clarified that the term was not for natural life. 8 DISCUSSION I. STANDARD OF REVIEW ¶16 Defendant contends that the trial court committed reversible error by finding that his confession was voluntary and denying his motion to suppress. In Arizona, confessions are presumed involuntary and it is the State s burden to show by a preponderance of the evidence that the confession was voluntary. State v. Knapp, 114 Ariz. 531, 538, 562 P.2d 704, 711 (1977). We will not disturb the trial court s determination of voluntariness absent clear and manifest error. State v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546 (1978). We will not find clear and manifest error unless the record contains insufficient evidence from which burden of proof. we can find that the State carried its State v. Thomas, 148 Ariz. 225, 227, 714 P.2d 395, 397 (1986). II. ¶17 VOLUNTARINESS The crucial question in the voluntariness inquiry is whether the defendant confessed because his will was overborne by coercion, or police overreaching. State v. Scott, 177 Ariz. 131, 136, 865 P.2d 792, 797 (1993); State v. Lopez, 174 Ariz. 131, 137, 847 P.2d 1078, 1084 (1992). To answer this question, we must consider the totality of the circumstances. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). Relevant factors may include the environment and duration of the 9 interrogation, whether Miranda warnings were given, and whether there was impermissible police conduct. State v. Blakely, 204 Ariz. 429, 436, ¶ 27, 65 P.3d 77, 84 (2003). age, intelligence, considered. and level of The defendant s education may also be State v. Hatfield, 173 Ariz. 124, 126, 840 P.2d 300, 302 (App. 1992). A. Environment and Duration of the Interview ¶18 Defendant voluntarily submitted to the interview, it commenced at three hours. a reasonable hour, and it lasted approximately Defendant was allowed to smoke a cigarette during the interrogation and there is no evidence that he was denied access to any amenities. Though it is undisputed that Defendant is not a native English speaker, the transcript and videotape reflect that, communicate for the most effectively part, without the the parties were able of assistance to an interpreter. ¶19 We have contains sufficient no difficulty evidence to concluding support a that the finding record that the atmosphere of the interview was not inherently coercive.5 5 We note that the Arizona Supreme Court has consistently refused to find a coercive atmosphere in numerous cases involving interrogations under far more onerous conditions. See, e.g., State v. Newell, 212 Ariz. 389, 399, ¶ 42, 132 P.3d 833, 843 (2006) (fourteen-hour interrogation not coercive where defendant was given breaks to smoke, use the restroom, write letters, and sleep); Scott, 177 Ariz. at 136-37, 865 P.2d at 797-98 (interrogation not coercive where defendant had not 10 B. ¶20 Miranda Warnings Miranda and voluntariness are separate inquiries, State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983), but the question whether there has been a Miranda violation may be relevant to the voluntariness determination. ¶21 Miranda warnings are required only where the defendant is in custody. Miranda v. Arizona, 384 U.S. 436, 444 (1966). When the warnings are required but are not given, that factor weighs against a finding of voluntariness. State v. Pettit, 194 Ariz. 192, 196, ¶¶ 17, 19, 979 P.2d 5, 9 (App. 1998). And when the warnings are required and are properly given and waived, that factor weighs in favor of a finding of voluntariness. See State v. Patterson, 105 Ariz. 16, 17-18, 458 P.2d 950, 951-52 (1969). Further, when the warnings are not required but are nonetheless properly given and waived, that factor weighs in favor of a finding of voluntariness. 435-36, ¶¶ 23, 28, 65 P.3d at 83-84. See Blakley, 204 Ariz. at The State contends that this is the situation here. slept, eaten, or taken his medication during his fourteen hours at the police station, but had been given drinks and cigarettes upon request and had not requested other amenities); Amaya-Ruiz, 166 Ariz. at 164-65, 800 P.2d at 1272-73 (interrogation not coercive where defendant, clad only in blanket and jockey shorts, had been placed alone in a room for approximately nine hours but during that time had been given a drink, cigarettes, and possibly food). 11 We agree that Defendant was not in custody,6 and that ¶22 Miranda warnings were not required. cannot given conclude and apprised that waived. that he the warnings Miranda has a On this record, however, we were requires right to nonetheless that remain the properly defendant silent, that be his statements may be used against him, and that he has a right to retained or appointed legal counsel. the standard Defendant, understand. recitation however, read to unequivocally 384 U.S. at 444. Defendant indicated was Here, comprehensive. that he did not The detectives knew that Defendant is not a native English speaker and knew that he required extra explanation of some English words. Detective Kirkham therefore attempted to explain the warnings using different words. however, was incomplete. His explanation, He did not explain that Defendant s 6 A defendant is in custody where he is formally arrested or where his freedom of movement is restrained to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994). The custody inquiry is based on objective criteria only. State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). Factors 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. State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948 (1991). In State v. Carrillo, the court found that the defendant was not in custody where he was interviewed at a police station but was not subjected to any booking processes and was expressly told that he was not under arrest. 156 Ariz. 125, 133-34, 750 P.2d 883, 891-92 (1988). Like the defendant in Carrillo, Defendant was not booked and was told several times that his presence was voluntary. 12 statements could be used against him, and he did not explain Defendant s right to an appointed attorney. that Defendant s voluntarily confusion and about the insufficient apprised to of his waived them. meaning attorney -- central warnings -- was not adequately resolved. establish rights, whether we cannot It also appears of the concepts terms in the Because the record is Defendant conclude was that adequately he validly See Miranda, 384 U.S. at 444 (valid waiver must be voluntary, knowing, and intelligent). ¶23 We therefore conclude that the Miranda factor weighs against a finding of voluntariness here. But this factor does not compel a finding that the confession was not voluntary. Miranda is a prophylactic custodial situations. measure that is required only in Were we to find that police failure to administer Miranda warnings (either in whole or in part) in noncustodial situations inadmissible, terms. we renders would a defendant s effectively expand statements Miranda per beyond se its We note also that here, the flaw in the warnings was apparently unintentional and the warnings, though incomplete, did not misstate the law. C. ¶24 Impermissible Police Conduct A confession is involuntary if it is the product of impermissible police conduct. P.2d at 1272. Amaya-Ruiz, 166 Ariz. at 164, 800 Pursuant to the Fifth Amendment to the United 13 States Constitution, it is impermissible for the police to obtain a confession by any direct or implied promises, however slight, Hutto v. Ross, 429 U.S. 28, 30 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)); this standard applies to the states through the Fourteenth Amendment. 148 Ariz. at 227, 714 P.2d at 397. Thomas, A confession is involuntary, therefore, if (1) the police made an express or implied promise, and (2) the defendant relied on the promise in confessing. State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994). Though the burden of proof in a voluntariness determination generally rests on the State, it is the defendant s burden to show reliance. See, e.g., State v. Tapia, 159 Ariz. 284, 290, 767 P.2d 5, 11 (1988). ¶25 As an initial matter, we defer to the trial court s determination Though Dr. Defendant that Ofshe was Dr. Ofshe s opined that coercive, he testimony the admitted was not detectives that he credible. interview did not whether he reviewed the videotape of the interview. of recall Where a videotape of an interview is available, a witness whose function is to offer an opinion of whether the interview was coercive should review the tape. A videotape, unlike a transcript, preserves useful evidence such as tone, conversation pacing, and body language. 14 ¶26 Even without Dr. Ofshe s testimony, however, on this record we conclude that a promise was made. We will find a promise where a police statement implies that the defendant will receive a benefit in return for providing information. State v. Burr, 126 Ariz. 338, 340, 615 P.2d 635, 637 (1980) (finding promise not to arrest defendant in detective s statement that I would just like to know what you have to say about it. First of all, before we go any further, I ve got to tell you, I m not trying, I m not going to arrest you or put you in jail or anything. ). See also Pettit, 194 Ariz. at 196, ¶ 21, 979 P.2d at 9 (finding promise not to use defendant s statements against him where defendant was told that questioning would not concern his specific case but instead would relate only to furthering an investigation against a different defendant); Thomas, 148 Ariz. at 226-27, 714 P.2d at 396-97 (finding promise where deputy told defendant that he would probably qualify for non-prison punishment if he confessed). ¶27 videotape8 An objective review7 of the interview transcript and show that Detective Rincon s statement No one is 7 Contrary to the State s argument on appeal, the promisor s subjective intent is immaterial to our inquiry. 8 The copy of the videotape that was admitted into evidence at the voluntariness hearing is defective because it cuts off before the relevant portion of the recording. But because the relevant portion was played in open court at the hearing and we 15 going to jail was a promise. Detective Rincon made the statement during a stage of the interview in which Defendant was emphatically and emotionally communicating that he did not want to go to jail. Further, the statement was preceded (and also immediately followed) by the detectives statements that they could help possible, Defendant and accident. that if he they confessed, believed the that forgiveness victim s death was was an In this context, Detective Rincon s assertions about jail clearly implied that if Defendant confessed, he would not go to jail. ¶28 To render the confession involuntary, defendant must have relied on the promise. however, the We do not agree with the trial court that there is no evidence of reliance here. Though Defendant did not urge that there was reliance except through the testimony of Dr. Ofshe, reliance may be established by circumstantial evidence alone. ¶ 23, 979 P.2d at 10. Pettit, 194 Ariz. at 197, The interview videotape does not reveal words, body language, changes in tone or other indicia that Defendant processed confessing. Defendant made. But confessed From that, and the considered videotape almost and immediately reliance could have the promise transcript after been the before show that promise was inferred. See are able to review a complete copy of the tape that was admitted into evidence at the trial, the defect in the tape is harmless. 16 Pettit, 194 Ariz. at 197, ¶ 23, 979 P.2d at 10 (finding ample evidence of reliance where defendant agreed to talk to police immediately after he was promised that his statements would not be used against him). ¶29 The court was not, however, compelled to find from the timing of Defendant s confession alone that reliance was shown by a preponderance of the evidence. The judge had the opportunity to view the video recording and evaluate all aspects of Defendant s reaction to the promise. Because Defendant s behavior cannot be said to unambiguously demonstrate reliance as a matter of law, the record is sufficient to support a finding that reliance was not shown by a preponderance of the evidence, and we cannot conclude that the trial court committed clear and manifest error in finding an absence of reliance. 17 CONCLUSION ¶30 the There is sufficient evidence to support findings that atmosphere coercive and of that Defendant s his interview confession impermissible police conduct. was was not not the inherently product of We cannot say, therefore, that the trial court committed clear and manifest error by finding that the confession was voluntary. Accordingly, we affirm. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________________ LAWRENCE F. WINTHROP, Judge 18

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