State v. Sainz

Annotate this Case

Download PDF

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. LARRY GENE SAINZ, Appellant. DIVISION ONE FILED: 01/12/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0971 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-162880-001 DT The Honorable David K. Udall, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix K E S S L E R, Presiding Judge ¶1 appeal Appellant Larry Gene Sainz ( Sainz ) filed an Anders from his conviction and sentence for one count of possession of marijuana in violation of Arizona Revised Statutes ( A.R.S. ) section 13-3405(A)(1) (Supp. 2009). See Anders v. California, was 386 U.S. 738, 744 (1967). Sainz given an opportunity to file a supplemental brief in propia persona but did not do so. Our review of the record revealed a nonfrivolous argument that the superior court may have fundamentally erred by admitting evidence of an inculpatory statement Sainz made to a police officer during a custodial interview without determining its voluntariness outside the presence of the jury. Pursuant to Penson v. Ohio, we ordered the parties to file supplemental briefs on the issue. 488 U.S. 75, 83 (1988). For the following reasons, we affirm Sainz s conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 The State indicted possession of marijuana. Sainz by direct complaint Sainz pleaded not guilty. for At trial, two Phoenix Police officers, J. and K. testified that they first encountered Sainz by discovering his vehicle obstructing traffic in July, 2006. The officers noticed that the vehicle blocking westbound traffic and began an investigation. was They stopped their vehicle approximately five to six feet behind the defendant s vehicle and activated their red and blue emergency lights. ¶3 Two individuals exited the vehicle at approximately the same time. Officer J. pursued the passenger, Sainz. 2 Sainz ran approximately fifty feet towards his mother s house. During the chase, both officers saw Sainz remove a baggie from his pants and drop it on the ground. J. noticed that the baggie contained a green substance and K. observed the baggie s final resting place. Sainz reached the house and attempted to shut the door behind him. J. placed his foot in the door to avoid losing sight of the defendant and maintained visual contact with him until he surrendered, approximately thirty seconds later. ¶4 Soon after taking Sainz into custody, conducted a brief custodial interview of Sainz. Officer J. J. began by reading Sainz the Miranda 1 warnings from a card he regularly keeps in his pocket. J. asked Sainz why he ran from the police. Sainz stated that he ran because he did not want to go to jail and the officer could figure out the rest. ¶5 By that time K. had taken possession of the baggie. The officers forwarded the baggie to the Phoenix Crime lab where M., a forensic scientist, tested the substance in the baggie and determined that it contained 2.5 grams of marijuana. M. testified that marijuana is usable in quantities as small as fifty to one hundred milligrams. ¶6 Antonia H., Sainz s mother, testified that Sainz was in their home on the night of the incident when someone came to the door for him. 1 Sainz left the house with that person and See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 3 sometime later she heard a commotion. She came to the front of the house and saw her son handcuffed at the house next door with the police kicking him. Both officers denied kicking Sainz, stating that J. merely placed his knee in Sainz s back while he was prone in order to handcuff him. ¶7 The jury convicted Sainz. The court, after finding Sainz had four prior felonies, sentenced him to the presumptive term of 3.75 years of incarceration. 2 notice of appeal. This Court has Sainz filed a timely jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-120.21(A)(1)(2003) and § 13-4033(A)(1)(Supp. 2009). ANALYSIS I. Need for Voluntariness Hearing ¶8 The State argues that the superior court had no duty to enforce the due process clause s prohibition on the use of coerced confessions absent a motion from a party. We disagree. Before [a] confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. A.R.S. § 13-3988(A) (Supp. 2009). Where an officer is allowed to testify to confessions, it [is] the duty of the court to require a proper foundation to determine whether they were voluntary . . . . State v. McGilbry, 96 Ariz. 84, 2 While the court found Sainz had four prior historical felonies, it based its sentence on two prior historical felonies. 4 87, 392 P.2d 297, 299 (1964) (quoting State v. Kellington, 93 Ariz. 396, 399, 381 P.2d 215, 217 (1963)). at any stage of the proceedings [W]hen it appears that a confession is involuntary, it is the trial judge s duty to exclude it from evidence. State v. Strayhand, 184 Ariz. 571, 583 n.3, 911 P.2d 577, 589 n.3 (App. 1995). ¶9 hearing The superior court s duty to conduct a voluntariness may be triggered by a motion or objection from the defendant or by evidence indicating that the confession may have been involuntary. State v. Fassler, 103 Ariz. 511, 513, 446 P.2d 454, 456 (1968); State v. Goodyear, 100 Ariz. 244, 248, 413 P.2d 566, 569 (1966). outside the jury s voluntariness when The superior court must hold a hearing presence the and evidence rule upon presents the even issue a suggestion that a confession may not be voluntary. of slight State v. Simoneau, 98 Ariz. 2, 7, 401 P.2d 404, 408 (1965). ¶10 The fact that an interrogation takes place while the defendant is involuntariness. in custody creates a presumption of State v. Huerstel, 206 Ariz. 93, 105, ¶ 50, 75 P.3d 698, 710 (2003) (citing State v. Jimenez, 165 Ariz. 444, 448-49, 799 P.2d 785, 789-90 (1990)). In addition, any aspect of the totality of the circumstances surrounding a confession could suggest its involuntariness court s duty to conduct a hearing. 5 and prompt the superior State v. Stanley, 167 Ariz. 519, 524, 809 P.2d 944, 949 (1991). voluntariness have considered Arizona courts determining factors such as whether the interrogation is conducted by the same officer who had violently arrested the defendant, the length of time between the violent confrontation and the interrogation, and whether the defendant was wearing handcuffs. See State v. Tom, 126 Ariz. 178, 180, 613 P.2d 842, 844 (App. 1980) (holding that the superior court clearly and manifestly erred by finding a confession voluntary when the confessing defendant was handcuffed, had his face covered with a towel and being interviewed by officers who had violently arrested him only minutes before). ¶11 The evidence raised more than a slight suggestion that the confession was involuntary. It reveals that Officer J. took Sainz into custody in a physical confrontation. The physical confrontation included officers allegedly kicking Sainz while he was handcuffed on the ground, although the officers denied kicking him and testified that because he struggled with Officer J., the officer put Sainz in a prone position, placed his knee in Sainz s back and handcuffed him. Soon after taking Sainz into custody, Officer J. conducted a brief custodial interview with Sainz. After giving Sainz Miranda warnings, J. asked Sainz why he ran from the police. Sainz stated that he ran because he did not want to go to jail and the officer could figure out the rest. 6 The State argues that a case 3 applying Arizona Rule of ¶12 Criminal Procedure 16.1 precludes our finding that the superior court had a duty to raise the issue of voluntariness because Sainz failed to make a procedurally proper motion or objection. We disagree. Rule 16.1 is a broad general procedure for raising issues and objections in criminal cases. Arizona courts have never construed Rule 16.1 to limit the superior court s specific statutory and constitutional duty to decide voluntariness when it is raised by the evidence. the issue of See Simoneau, 98 Ariz. at 7, 401 P.2d at 408. ¶13 Prior to Rule 16.1 becoming effective, Arizona courts consistently held that the superior court must consider the voluntariness of a confession when it is put in issue by the evidence. E.g. Fassler, 103 Ariz. at 513, 446 P.2d at 456; Goodyear, 100 Ariz. at 248, 413 P.2d at 569; Simoneau, 98 Ariz. at 7, 401 P.2d at 408. Rule 16.1 took effect in 1973, and the very next year the Supreme Court reaffirmed the superior court s duty to inquire into the voluntariness of a confession when raised by the evidence. State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974) (citing State v. Armstrong, 103 Ariz. 280, 281, 440 P.2d interpreted superior 3 307, Rule court to 308 16.1 in conduct (1968)). reliance a The on Supreme cases voluntariness Court requiring hearing when State v. Alvarado, 121 Ariz. 485, 591 P.2d 973 (1979). 7 then the the evidence raises the issue. State v. Sutton, 115 Ariz. 417, 420, 565 P.2d 1278, 1281 (1977) (citing State v. Stevenson, 101 Ariz. 254, 256, 418 voluntariness indicates P.2d is that 591, raised the 593 by (1966) (holding implication defendant felt scared that when the and issue sick of evidence when he confessed and that he did so only after being threatened and brought to a crime scene against his will)). ¶14 State v. Alvarado recognized the tension between the language of Rule 16.1 and the holdings of the cases applying it and held that the superior court has discretion to entertain procedurally improper voluntariness hearings, regardless of the rule s unequivocal waiver language. 121 Ariz. at 488, 591 P.2d at 976. as interpreted by motions for Moreover, Alvarado holds that Jackson, Wainwright v. Sykes, 433 U.S. 72 (1977), requires a voluntariness hearing when a defendant raises the issue by introducing evidence surrounding the confession. n.2. of coercive circumstances Id. at 487 n.2, 591 P.2d at 975 This supports the need for a voluntariness hearing in this case and means that Alvarado ended the odd situation of the superior court being required to raise an issue that a party could not. The state of the law after Alvarado is that the superior court must sua sponte decide the issue of voluntariness when the evidence presents it, and parties are permitted to remind the superior court of that duty. 8 II. Fundamental Error ¶15 The need for a voluntariness hearing does not end our inquiry, however. Because this is an Anders appeal, we will grant relief to Sainz only if he can show fundamental error. Error is fundamental when it goes to the foundation of the case, takes from the defendant a right essential to his defense, and is of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) Sainz has the burden of proof to show that the error was fundamental. Id. show that the error caused him prejudice. P.3d at 607. Moreover, Sainz must Id. at 567, ¶ 20, 115 In this context, prejudice depends on whether a reasonable jury could have reached a different result. 569, ¶ 27, 115 P.3d at 609. Id. at This is, in effect, the same standard used for harmless error except that the defendant must show the error was not harmless. Id. at 570-71, ¶¶ 38-39, 115 P.3d at 610-11 (Hurwitz, J., concurring). ¶16 We need not decide whether the error in this case was fundamental because we conclude that there was no prejudice. A coerced confession is subject to harmless error analysis and admission of such sufficient other a confession evidence that is we can harmless determine if there the is verdict rendered in this case was surely unattributable to the error. Arizona v. Fulminante, 499 U.S. 9 279, 284-85 (1991) (coerced confession subject to harmless error analysis); State v. Eastlack, 180 Ariz. 243, 251-52, 883 P.2d 999, 1007-08 (1994) (same; on review, actually rendered harmless based court was on will determine unattributable other whether the the error; to incriminating statements verdict error and weak defense); State v. Ross, 180 Ariz. 598, 604, 886 P.2d 1354, 1360 (1994) (even admission was circumstantial conviction). if confession harmless should error evidence given not have that been the overwhelmingly admitted, physical supported and the Compare Strayhand, 184 Ariz. at 585-86, 911 P.2d at 592-93 (State failed to prove harmless error from involuntary statement in merits appeal when other evidence against the defendant was weak and State did not argue harmless error). ¶17 The evidence against Sainz was overwhelming. Both police officers positively identified Sainz as the passenger who fled the vehicle and testified that they saw him drop the baggie on his way to his mother s front door. Both officers also testified to Sainz and J. struggling at the door of the house, J. testified that he never lost sight of Sainz, and K. testified that the baggie he picked up was the only one in the area in which he saw Sainz drop the baggie. The State s evidence also positively identified the baggie s contents as a usable amount of marijuana. mother who The merely only other testified evidence that 10 Sainz was that left the of Sainz s house when someone came to get him and shortly thereafter she saw Sainz being kicked by police officers next door. Her testimony is consistent with the State s case that Sainz was in the vehicle in front of his mother s house when the police pulled up behind the vehicle. III. No Other Fundamental Error ¶18 We have read and considered counsel's brief and have searched the entire record for reversible error. See State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969). none. We find All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Sainz was represented by counsel at all stages of the proceedings, Sainz was present at all stages of the proceedings except the trial on priors, 4 the evidence was sufficient for the jury to convict Sainz, and the sentence imposed was within the statutory limits. Sainz was present at sentencing and given the opportunity to address the court. ¶19 Sainz requested his counsel raise the following issues for review: 1) the failure of the Phoenix Police Department to preserve DNA and fingerprint evidence on a baggie of marijuana admitted as investigate evidence; fingerprint 2) defense evidence 4 on counsel s the baggie; failure 3) to defense At the beginning of the trial, the superior court warned Sainz that failure to appear may result in the proceeding continuing in his absence. 11 counsel s interference with Sainz s right to testify; 4) defense counsel s failure to develop and present evidence in favor of a mitigated sentence; suppressed because considered these and 5) police claims that evidence should have been Sainz s home. We have entered and find them without merit or not reviewable on direct appeal. ¶20 The alleged police failure to preserve evidence is not reversible error. failure to In order to obtain relief because of a police preserve evidence, the defendant must show that material exculpatory, as opposed to potentially useful, evidence was lost and the police preserve the evidence. acted in the failure of faith by failing to State v. Speer, 221 Ariz. 449, 457, ¶¶ 36-38, 212 P.3d 787, 795 (2009). that bad the police The record does not reveal to collect and preserve any potential fingerprint or DNA evidence on the baggie resulted in the destruction of exculpatory evidence or resulted from bad faith. Further, nothing in the record reveals that the DNA or fingerprint evidence on the baggie is in any different condition than at the time the police collected the baggie. ¶21 Defense counsel s alleged failure fingerprint evidence is not reversible error. to develop Defense counsel s failure to develop potential evidence implicates the claim of ineffective assistance of counsel. State v. Schultz, 140 Ariz. 222, 225, 681 P.2d 374, 377 (1984). This Court does not address 12 ineffective assistance claims on direct appeal from a criminal conviction. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims should be brought under Arizona Rule of Criminal Procedure 32. ¶22 Defense Id. counsel s alleged interference with Sainz s right to testify is not reversible error because it implicates a claim for ineffective assistance of counsel. See Miller v. State, 1 So.3d 1073, 1082 (Ala. Crim. App. 2007). must be raised via Rule 32 rather than a This claim direct Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. appeal. Further, the Court notes that Sainz expressed a lack of desire to testify after an unfavorable ruling at his Rule 609 hearing. The court then advised Sainz that he had the right to chose whether or not to testify and that he did not have to make a final decision immediately. Sainz said I better not testify and his counsel indicated that she would advise him later on whether to testify. ¶23 Defense counsel s alleged failure to present mitigation evidence implicates ineffective assistance and must be raised via Rule 32 rather than a direct appeal. See State v. Glassel, 211 Ariz. 33, 51 n.9, ¶ 64, 116 P.3d 1193, 1211 n.9 (2005); Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. ¶24 The alleged reversible error. illegal entry of Sainz s home is not Sainz argues that the police searched his home without a warrant and therefore all evidence found should 13 be suppressed. The record does not reveal whether or not the police actually entered Sainz s home. Further, the baggie was found outside the home, so the exclusionary rule would not apply to it even if the police later entered Sainz s home illegally. See State v. Schinzel, 202 Ariz. 375, 382, ¶ 28, 45 P.3d 1224, 1231 (App. 2002). ¶25 After the filing of this decision, counsel s obligations pertaining to Sainz s representation in this appeal have ended. status of Counsel need do no more than inform Sainz of the the appeal and of Sainz s future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the Court s own motion, Sainz has thirty days from the date of this decision to proceed, if he desires, with a motion for reconsideration or petition for review in propia persona. 14 CONCLUSION ¶26 For the forgoing reasons we affirm Sainz s conviction and sentence. /s/ DONN KESSLER, Presiding Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Judge /s/ SHELDON H. WEISBERG, Judge 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.