State v. Hoover
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IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
CHESTER HOOVER,
)
)
Appellant. )
)
__________________________________)
No. 1 CA-CR 10-0990
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication Rule 111, Rules of the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. CR2009-174497-001 DT
The Honorable Randall H. Warner, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorney for Appellant
Phoenix
Chester Hoover,
Appellant
Tucson
D O W N I E, Judge
¶1
Chester
misconduct
Hoover
involving
timely
weapons
appeals
violation
in
his
of
Statutes (“A.R.S.”) sections 13-3101 and -3102.
conviction
Arizona
for
Revised
Defense counsel
has searched the record, found no arguable question of law, and
asks that we review the record for fundamental error.
See State
v.
388,
Richardson,
(App. 1993).
persona.
175
Ariz.
336,
339,
857
P.2d
391
Defendant filed a supplemental brief in propria
On appeal, we “view the evidence in the light most
favorable to sustaining the verdicts and resolve all inferences
against appellant.”
State v. Nihiser, 191 Ariz. 199, 201, 953
P.2d 1252, 1254 (App. 1997).
FACTS AND PROCEDURAL HISTORY
¶2
Detectives
Hill
and
Lantz
were
on
patrol
around
11:00 p.m. in November of 2009 when they saw a vehicle with a
broken tail light make an improper left turn.
After stopping
the vehicle, Detective Hill spoke to Hoover, the driver.
Hoover
was “very irate” and immediately said he had done nothing wrong
and that detectives were “harassing him.”
weapons
and
registration,
was
and
uncooperative
proof
of
when
He denied having any
insurance.
asked
for
his
Detective
license,
Hill
asked
multiple times for the documents, but Hoover continued yelling
that he had done nothing wrong and accusing the detectives of
harassment.
Detective
Hill
arrested
2
Hoover
for
failure
to
provide identification.
While being handcuffed, Hoover stated
his identification was in his backpack in the trunk.
Hoover
told the detective “where [the backpack] was and how to get to
it” from inside the vehicle because the trunk was wired shut.
Detective Hill ran the Arizona identification card found in the
backpack’s
front
pocket
license was suspended.
and
learned
that
Hoover’s
driver’s
Detective Hill called a tow truck to
impound the vehicle.
¶3
Hoover
license violation.
backpack.
was
upset
when
of
the
suspended
He insisted he had a driver’s license in his
Detective Hill opened the backpack in front of Hoover
and discovered an unloaded handgun.
his wife.
informed
Hoover said it belonged to
Detective Hill retrieved a camera from the patrol car
and photographed the backpack and vehicle.
He heard Hoover tell
another detective that the gun belonged to his wife and that
Hoover had put it in the backpack.
Hoover then yelled to get
Detective Hill’s attention and repeated these same statements.
Hoover said the bullets “were in the side pocket.”
Detective
Hill inventoried the contents of the backpack and vehicle and
impounded the gun, magazine, and bullets.
warnings
1
that
Hoover
acknowledged
He issued Miranda 1
understanding.
When
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
3
asked
about the gun, Hoover repeated that it was his wife’s, that he
had placed it in his backpack, and that he had “messed up.”
¶4
Hoover
was
indicted
on
one
count
of
misconduct
involving weapons, a class 4 felony, for knowingly possessing a
handgun while being a prohibited possessor.
Defense counsel
requested a competency screening pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 11.
The parties stipulated that the
court could determine Hoover’s competency based on reports from
three evaluating experts.
competent
but
One evaluator opined that Hoover was
“[m]alingering”;
another
deemed
his
competency
medication dependent; a third determined he was not competent,
but restorable within statutory timeframes.
The court found
Hoover competent, subject to his “current medication regimen.”
¶5
A jury trial ensued.
Hoover stipulated that he was a
convicted felon, that his right to possess a firearm had not
been restored, and that he was a prohibited possessor on the day
of
the
traffic
stop.
Detectives
Lantz
and
Hill
testified.
Hoover’s wife testified she owned the gun, that she put it in
Hoover’s backpack because she needed the lockbox where it was
typically kept for another purpose, and that Hoover took the
backpack without knowing the gun was inside.
testify.
The jury found him guilty as charged.
¶6
Hoover
Hoover did not
stipulated
to
one
prior
conviction
and
the
State proved another, making him a class 2 repetitive offender.
4
The trial court sentenced Hoover to a mitigated term of three
years’ imprisonment, with 34 days of pre-sentence incarceration
credit.
DISCUSSION
¶7
We have read and considered the briefs submitted by
Hoover
and
his
counsel
and
have
reviewed
the
entire
record.
State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969).
find
no
conducted
fundamental
in
error.
compliance
All
with
the
of
the
Arizona
proceedings
Rules
of
We
were
Criminal
Procedure, and the sentence imposed was within the statutory
range.
Hoover
was
present
at
all
critical
proceedings and represented by counsel.
impaneled and instructed.
phases
of
the
The jury was properly
The jury instructions were consistent
with the offenses charged.
The record reflects no irregularity
in the deliberation process.
¶8
In
issues
that
his
supplemental
lack
clarity,
brief,
support,
Hoover
or
raises
context,
numerous
such
as
a
contention it was improper for the trial judge to leave “his
seat
and
another
deliberation.”
judge”
to
sit
at
the
bench
“[d]uring
The record does demonstrate that a substitute
judge was available to take any verdict that might come between
3:30
and
4:30
unavailable.
p.m.
on
a
Friday,
when
the
trial
judge
was
However, Hoover agreed to the substitution in lieu
of continuing trial through the weekend to the next business
5
day.
Cf. State v. Schrock, 149 Ariz. 433, 439-40, 719 P.2d
1049, 1055-56 (1986) (allowing a judge challenged pursuant to
Rule 10.2 to take verdict because “receipt of the jury’s verdict
was merely a ministerial duty” that does “not really involve
judicial participation”).
¶9
he
There is likewise no support for Hoover’s contention
should
prison.”
have
The
evaluations
reports.
and
been
court
ruled
“getting
granted
[mental
his
health]
request
appropriately
based
help[,]
for
on
the
not
competency
submitted
Hoover’s assertions that the prosecutor told the jury
he was “crazy,” that the State and defense counsel “pass[ed] a
piece of paper” during trial, and that the prosecutor pointed at
Hoover and jumped up and down during trial are not supported by
the record, and Hoover does not provide record citations.
We
will specifically address issues identified with some measure of
clarity, and we have reviewed the entire record for fundamental
error.
I.
¶10
Warrantless Search
Unreasonable searches and seizures are prohibited by
the United States and Arizona constitutions.
amends. IV, XIV; Ariz. Const. art. 2, § 8.
See U.S. Const.
Warrantless searches
are per se unreasonable unless a “specifically established and
well-delineated” exception applies.
Katz v. United States, 389
U.S. 347, 357 (1967); State v. Dean, 206 Ariz. 158, 161, ¶ 8, 76
6
P.3d
429,
432
(2003).
An
exception
exists
“where
a
person
having authority to consent to a warrantless search, does so.”
State v. Lucero, 143 Ariz. 108, 109, 692 P.2d 287, 288 (1984).
But even evidence obtained illegally may be admissible if the
prosecution establishes by a preponderance of the evidence “that
the illegally seized items or information would have inevitably
been seized by lawful means.”
State v. Rojers, 216 Ariz. 555,
559, ¶ 18, 169 P.3d 651, 655 (App. 2007) (citation omitted).
¶11
In
a
motion
to
dismiss,
Hoover
admitted
giving
detectives “the right to get his ID” out of his backpack.
At a
pretrial evidentiary hearing, Detective Hill testified it was
standard
violation
procedure
and
to
to
tow
conduct
a
an
vehicle
on
inventory
a
suspended
search
license
before
towing.
Detective Hill further testified that when he informed Hoover he
would be arrested for driving on a suspended license and that
the vehicle would be inventoried and towed, Hoover became irate
and
screamed
that
his
license
was
“in
his
backpack.”
The
detective testified he opened the backpack to search for the
driver’s license to “calm [Hoover] down” and because he had to
inventory the vehicle contents anyway before it was towed.
¶12
The
warrantless
record
search
supports
“was
proper
the
as
conclusion
reasonably
that
done
at
the
the
direction, request and consent of the defendant and also as part
of an inventory search for a 30 day impoundment of the vehicle.”
7
To the extent Hoover suggests a different interpretation of the
evidence, or believes witnesses lied and the judge and jury were
“dupe[d],” it is not our role to re-weigh evidence.
See State
v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973).
II.
Miranda Warnings
¶13
Hoover also contends his statements at the scene were
obtained in violation of Miranda because he was “interrogated
fo[r]
40
minutes
Mirandize[d].”
by
Officer
[sic]
Hill
[before]
being
“Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or
its functional equivalent.”
291,
300-01
(1980).
Rhode Island v. Innis, 446 U.S.
“[A]n
uncoerced
pre-Miranda
warning
statement made in custodial interrogation does not disable a
person from later waiving his rights and confessing after he has
been given the requisite Miranda warnings.”
State v. Zamora,
220 Ariz. 63, 69, ¶ 15, 202 P.3d 528, 534 (App. 2009).
the
pre-Miranda
statements
were
coerced
or
But if
involuntary,
post-Miranda statements may not be admissible.
Id.
then
Questions
seeking basic biographical information are “normally attendant
to arrest and custody” and do not constitute interrogation for
purposes of Miranda.
Innis, 446 U.S. at 301; State v. Landrum,
112 Ariz. 555, 559, 544 P.2d 664, 668 (1976) (Miranda does not
apply to detective’s “clearly neutral, nonaccusatory” questions
“in furtherance of proper preliminary investigation”).
8
¶14
In
a
pre-Miranda
statements
post-Miranda
statements.
pretrial
confession
motion,
be
Hoover
excluded
was
asked
tainted
by
his
contended
and
that
his
the
pre-Miranda
At the ensuing evidentiary hearing, Detective Hill
testified that the “three offenses happened relatively quickly,”
and that he arrested Hoover for the first violation at 11:10
p.m.
and
for
the
suspended
license
and
weapons
violations
“within a few minutes.”
He admitted that Miranda warnings were
not
p.m.,
issued
until
11:50
and
that
before
they
were,
he
directly asked Hoover
[q]uestions about his license, registration,
and insurance.
Asked him several times for
his ID.
Asked him where his driver’s
license was. . . . asked him if he had ever
been arrested before.
And . . . asked him
if he had ever had his civil rights
restored.
¶15
Hoover admitted he had spent time in prison and that
his civil rights had not been restored.
Detective Hill then
began to process the scene and heard Hoover make unsolicited
statements about the handgun to another detective.
Immediately
thereafter, Hoover yelled to get Detective Hill’s attention and,
without prompting, repeated those statements.
After receiving
Miranda warnings, Hoover made similar statements.
The trial
court granted Hoover’s motion to suppress statements made about
his criminal record and civil rights, but denied the motion as
9
to
the
“unsolicited
comments”
made
while
Detective
Hill
processed the scene.
¶16
It is clear that Hoover was in custody when Detective
Hill questioned him about his criminal history and restoration
of
rights.
pre-Miranda
The
trial
responses
to
court
those
thus
properly
questions.
excluded
However,
his
Hoover’s
statements that the weapon and vehicle were his wife’s, that he
put the gun in the backpack earlier that day, that he “messed
up,” and that the bullets were in the side pocket were not
elicited through questioning by the detectives.
Interrogation,
though, also encompasses “any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police . . . should have known were reasonably
likely to elicit an incriminating response.”
State v. Finehout,
136 Ariz. 226, 230, 665 P.2d 570, 574 (1983) (quoting Innis, 446
U.S. at 301-02).
“The focus in ascertaining whether particular
police conduct amounts to interrogation, then, is not on the
form of words used, but the intent of the police detectives and
the perceptions of the suspect.”
¶17
The
record
Id. (citation omitted).
establishes
that
detectives
posed
no
questions to Hoover after asking about his criminal history and
status as a prohibited possessor.
Instead, Hoover became irate
about being arrested as a prohibited possessor and spontaneously
stated that the gun was his wife’s.
10
He continued to “yell[]
out” to detectives, stating that the gun belonged to his wife
and that he had put it in the backpack.
dismissal
corroborates
Detective
Hoover’s own motion for
Hill’s
testimony
that
the
statements were not prompted by detectives.
¶18
After receiving Miranda warnings, Hoover repeated his
earlier statements.
The court found the post-Miranda statements
were not tainted because Hoover had not been “coerced” to make
the
“spontaneous”
statements.
To
determine
if
detectives
deliberately conducted a two-step interrogation and purposefully
withheld Miranda warnings until defendant confessed, the court
considers
“whether
objective
evidence
and
any
available
subjective evidence . . . support an inference that the two-step
interrogation
warning.”
procedure
was
used
to
undermine
the
Miranda
Zamora, 220 Ariz. at 69-70, ¶ 16, 202 P.3d at 534-35
(alteration in original) (citation omitted).
¶19
Nothing in the record suggests Hoover was coerced into
making his spontaneous statements.
Except for the two questions
discussed above, no questions were posed by detectives at the
scene.
Detective Hill testified he made no threats, coercive
statements, promises, or misleading statements to Hoover.
record
is
also
deliberately
establishes
irate
and
devoid
delayed
that
any
issuing
events
yelling,
of
and
evidence
Miranda
progressed
that
Detective
warnings.
rapidly,
Detective
11
that
Hill
that
The
Hill
Instead,
it
Hoover
was
initially
sought
identification to establish Hoover’s identity and went into the
backpack only to “appease” Hoover when he continued to insist
his license was inside.
III. Ineffective Assistance of Counsel
¶20
To the extent Hoover asserts error because counsel was
ineffective, those claims are not appropriate for direct appeal.
See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527
(2002) (“Any such claims improvidently raised in a direct appeal
. . . will not be addressed by appellate courts regardless of
their merit.”).
CONCLUSION
¶21
We
affirm
Hoover’s
conviction
and
sentence.
Counsel’s obligations pertaining to Hoover’s representation in
this
appeal
inform
have
Hoover
of
ended.
the
Counsel
status
of
need
the
do
nothing
appeal
and
more
his
than
future
options, unless counsel’s review reveals an issue appropriate
for
submission
review.
to
the
Arizona
Supreme
Court
by
petition
for
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).
On the court’s own motion, Hoover shall have 30
12
days from the date of this decision to proceed, if he desires,
with
an
in
propria
persona
motion
for
reconsideration
petition for review.
/s/
MARGARET H. DOWNIE, Judge
CONCURRING:
/s/
DIANE M. JOHNSEN, Presiding Judge
/s/
JON W. THOMPSON, Judge
13
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