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
STATE OF ARIZONA,
No. 1 CA-CR 10-0990
RUTH A. WILLINGHAM,
(Not for Publication Rule 111, Rules of the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
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
James J. Haas, Maricopa County Public Defender
By Louise Stark, Deputy Public Defender
Attorney for Appellant
D O W N I E, Judge
Statutes (“A.R.S.”) sections 13-3101 and -3102.
has searched the record, found no arguable question of law, and
asks that we review the record for fundamental error.
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
State v. Nihiser, 191 Ariz. 199, 201, 953
P.2d 1252, 1254 (App. 1997).
FACTS AND PROCEDURAL HISTORY
11:00 p.m. in November of 2009 when they saw a vehicle with a
broken tail light make an improper left turn.
the vehicle, Detective Hill spoke to Hoover, the driver.
was “very irate” and immediately said he had done nothing wrong
and that detectives were “harassing him.”
He denied having any
multiple times for the documents, but Hoover continued yelling
that he had done nothing wrong and accusing the detectives of
While being handcuffed, Hoover stated
his identification was in his backpack in the trunk.
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
license was suspended.
Detective Hill called a tow truck to
impound the vehicle.
He insisted he had a driver’s license in his
Detective Hill opened the backpack in front of Hoover
and discovered an unloaded handgun.
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.”
Hill inventoried the contents of the backpack and vehicle and
impounded the gun, magazine, and bullets.
He issued Miranda 1
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
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.”
involving weapons, a class 4 felony, for knowingly possessing a
handgun while being a prohibited possessor.
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.
One evaluator opined that Hoover was
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.”
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
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.
The jury found him guilty as charged.
Hoover did not
State proved another, making him a class 2 repetitive offender.
The trial court sentenced Hoover to a mitigated term of three
years’ imprisonment, with 34 days of pre-sentence incarceration
We have read and considered the briefs submitted by
State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969).
Procedure, and the sentence imposed was within the statutory
proceedings and represented by counsel.
impaneled and instructed.
The jury was properly
The jury instructions were consistent
with the offenses charged.
The record reflects no irregularity
in the deliberation process.
contention it was improper for the trial judge to leave “his
The record does demonstrate that a substitute
judge was available to take any verdict that might come between
However, Hoover agreed to the substitution in lieu
of continuing trial through the weekend to the next business
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
There is likewise no support for Hoover’s contention
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.
will specifically address issues identified with some measure of
clarity, and we have reviewed the entire record for fundamental
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.
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
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).
detectives “the right to get his ID” out of his backpack.
pretrial evidentiary hearing, Detective Hill testified it was
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
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.
direction, request and consent of the defendant and also as part
of an inventory search for a 30 day impoundment of the vehicle.”
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.
v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973).
Hoover also contends his statements at the scene were
obtained in violation of Miranda because he was “interrogated
“Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or
its functional equivalent.”
Rhode Island v. Innis, 446 U.S.
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).
post-Miranda statements may not be admissible.
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”).
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
“within a few minutes.”
He admitted that Miranda warnings were
directly asked Hoover
[q]uestions about his license, registration,
Asked him several times for
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
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.
thereafter, Hoover yelled to get Detective Hill’s attention and,
without prompting, repeated those statements.
Miranda warnings, Hoover made similar statements.
court granted Hoover’s motion to suppress statements made about
his criminal record and civil rights, but denied the motion as
processed the scene.
It is clear that Hoover was in custody when Detective
Hill questioned him about his criminal history and restoration
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.
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.”
Id. (citation omitted).
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.
He continued to “yell
out” to detectives, stating that the gun belonged to his wife
and that he had put it in the backpack.
Hoover’s own motion for
statements were not prompted by detectives.
After receiving Miranda warnings, Hoover repeated his
The court found the post-Miranda statements
were not tainted because Hoover had not been “coerced” to make
deliberately conducted a two-step interrogation and purposefully
withheld Miranda warnings until defendant confessed, the court
subjective evidence . . . support an inference that the two-step
Zamora, 220 Ariz. at 69-70, ¶ 16, 202 P.3d at 534-35
(alteration in original) (citation omitted).
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
Detective Hill testified he made no threats, coercive
statements, promises, or misleading statements to Hoover.
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
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
Counsel’s obligations pertaining to Hoover’s representation in
options, unless counsel’s review reveals an issue appropriate
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
On the court’s own motion, Hoover shall have 30
days from the date of this decision to proceed, if he desires,
petition for review.
MARGARET H. DOWNIE, Judge
DIANE M. JOHNSEN, Presiding Judge
JON W. THOMPSON, Judge