STATE v. SOTO

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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. ) ) ENRIQUE AMADOR SOTO, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 09/04/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 11-0634 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR200901169 The Honorable Tina R. Ainley, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Craig W. Soland, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney for Appellant Phoenix Fort Collins, CO S W A N N, Judge ¶1 Enrique Amador Soto ( Defendant ) appeals convictions for child abuse and failure to appear. from his He argues that statements he made at a hospital and a police station were improperly admitted as evidence. He also argues that the trial court erred in denying one of his motions to continue. We conclude that his statements were properly admitted and that the continuance was properly denied. We affirm his convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Defendant children. On and October his 7, wife 2009, B. are the Defendant, parents B., two the and of two children were at the Prescott house they shared with Defendant s parents, eating dinner and playing cards. While the adults played cards in the kitchen, the almost-ten-month-old child, A., was in the living room walking on the couch. landed on the carpet. He fell off and He cried a little, but soon stopped. B. checked on him -- she testified that he was fine -- and then walked into the bathroom. ¶3 On her way back from the bathroom, B. noticed A. lying on his back next to the couch. down really slowly. of his head, consciousness. he His stomach was go[ing] up and His eyes had started to roll to the back was turning purple, and he had lost Defendant s mother performed CPR and B. called 911. ¶4 Paramedics drove hospital in Prescott. A. to the emergency room of the Emergency-room doctors performed a CAT scan and, after viewing it, told Defendant and B. that A. had 2 bleeding in his brain. The doctors ordered that A. be flown to the hospital in Flagstaff. ¶5 Dr. Nathan Avery, a neurosurgeon at the Flagstaff hospital, was called in by the trauma surgeon to examine A. Dr. Avery reviewed the CAT scan; he found that A. had a subdural hematoma, between which the he described brain and compressing A. s brain. as skull, a bleeding and that into the the space bleeding was A. was in critical condition and needed immediate surgery to remove the pressure on his brain. With B. s consent, Dr. Avery performed the surgery. ¶6 During the surgery, Dr. Avery injury: a chronic subdural hematoma. found an additional The chronic subdural hematoma troubled Dr. Avery because it was inconsistent with the story that A. s condition had been caused by his fall off of the couch -- A. s chronic subdural hematoma would have been caused approximately two weeks earlier. Further, the lack of any expected evidence (e.g., a skull fracture) that A. s fall off the couch had caused severe head injury, plus the fact that such falls generally do not cause subdural hematoma, led Dr. Avery to conclude that A. had suffered nonaccidental trauma. In other words, Dr. Avery believed that A. had shaken-baby syndrome, in which the shaking displaces the brain enough to cause subdural bleeding, and posttraumatic that his seizure. condition After 3 the after the surgery fall was was a completed successfully, A. was placed in the pediatric ICU to recover. Child Protective Services notified the Prescott police department that A. s injury appeared to have been nonaccidental. ¶7 The investigating detective, Ryan Hobbs, travelled to the Flagstaff hospital on October 9, 2009. When he arrived at the hospital, Detective Hobbs asked Defendant and B. if they were willing Without to reading speak with Miranda him; both warnings to said that either of they were. them, Hobbs interviewed Defendant and B. in a vacant hospital room next door to A. s room. Hobbs sometimes sometimes with each separately. spoke with both together, And without informing either Defendant or B. that he was doing so, he recorded all of the interviews. ¶8 After collecting background information from Defendant and B., Hobbs explained that the doctors had told him that A. had been shaken, and that he needed to interview them to find out what had happened to A. alone, Defendant Hobbs, using a denied When Hobbs and Defendant spoke harming telephone A. handset, When B. rejoined demonstrated the them, kind of shaking he had in mind: shaking that could range from subtle jerks to very violent jerks. After the demonstration, B. asked Defendant, Have you done that? and Defendant responded, Well, not that hard. Hobbs asked B. to I ve done that, but not that hard. leave and then 4 again used the phone to demonstrate Defendant the kind admitted of that shaking he had that he was talking shaken A. five if would times about. for a couple of seconds. ¶9 Hobbs asked Defendant shaking on videotape. he demonstrate Defendant said that he would. the Hobbs asked hospital staff if the hospital had videotaping facilities that could be used for the demonstration. When he was told that the hospital had nothing that would be appropriate, Hobbs asked Defendant if he would go to the Flagstaff police station to videotape the shaking there; Defendant said that he was willing to do so. At the station, without reading Miranda warnings to Defendant, Hobbs demonstrate; Defendant Defendant substantially demonstrated handed less at did so, violent the a doll but than hospital. his the After and asked shaking shaking Hobbs him and he to was had Defendant discussed the shaking, Hobbs eventually asked him if he felt that what he had done to A. constituted abuse of a child. Defendant said, Yes. The interview concluded and Defendant left the police station with his parents. ¶10 On November 18, 2009, a grand jury indicted Defendant for one count of child abuse under A.R.S. § 13-3623 and one count of aggravated assault under § 13-1204. Defendant filed obtained by a Hobbs motion during to suppress the 5 all hospital On June 8, 2010, of and the statements police-station interviews. Defendant argued that Hobbs had not read him his Miranda rights either at the hospital or at the police station. The court held an evidentiary hearing on June 28; it found that during the hospital and police-station interviews Defendant had not been in custody and that his statements were made voluntarily. The court denied Defendant s motion to suppress. ¶11 August On 30, 2010, the court reset the trial (originally set for September 8, 2010) for March 2, 2011. On September 22, 2010, probation services notified the court that Defendant had violated whereabouts were unknown. his release order and that his The court issued an arrest warrant. On January 24, 2011, the court vacated the March 2 trial and reset it for June 22, 2011. On January 31, defense counsel requested, without objection from the state, to continue the case to June 29 so that counsel could attend the Arizona Public Defender s Conference on June 22. The court granted that motion, and the trial was set for June 29, 2011. ¶12 to On June 27, 2011, defense counsel filed another motion continue the trial. Defense counsel identified as the [m]ost crucial reason for continuing the trial the fact that at the Arizona Public Defender Association Conference last week, it was discovered that new medical evidence is available now, to disprove the state s contention of AHT [abusive head trauma]. Appended to the motion were two documents: (1) an 6 article, Imaging of Nonaccidental Injury and the Mimics, from a medical journal published in January 2011; and (2) a New York Times article, Shaken-Baby Syndrome Faces New Questions in Court, published in February 2011. ¶13 At the evidentiary hearing, defense counsel said that she had attempted to contact two expert witnesses but neither was then available; one would be available in the future but she did not argument know when. describing Counsel the did experts not offer anticipated any evidence testimony. or The state argued that the information contained in the articles had been available well before June, and stated that B., [a]s a victim, asked that the trial not be continued. The court denied the motion to continue. ¶14 absentia. Defendant did not appear for trial and was tried in The jury convicted him on the child abuse charge; it also found, pursuant to A.R.S. § 13-3601, that the crime was a domestic-violence offense and that A. was under 15 years old at the time of the offense. The jury was unable to reach a verdict on the aggravated assault charge. ¶15 After his conviction, Defendant was apprehended. On August 30, 2011, Defendant pled guilty to failure to appear, a class 5 felony, with the stipulation that whatever sentence was imposed for that offense sentence for child abuse. would run consecutively with his On the same day, the trial court 7 sentenced abuse Defendant conviction; to it 3.5 years imposed a imprisonment consecutive on the sentence child of 1.5 years imprisonment for failure to appear. ¶16 Defendant filed a timely notice of appeal. jurisdiction under Article 6, Section 9 of the We have Arizona Constitution, and A.R.S. §§ 12 120.21(A)(1), 13 4031, and 13 4033(A). DISCUSSION ¶17 Defendant argues that his Fifth Amendment and Fourteenth Amendment rights were violated when his statements to Hobbs were admitted against him at trial without the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). He also argues that he was unable to obtain a necessary expert witness because the trial court abused its discretion by denying his June 27, 2011 motion for a continuance. I. ¶18 THE MIRANDA ISSUE When reviewing a trial court s ruling on a motion to suppress a criminal defendant s statements, we will not reverse that ruling absent an abuse of discretion. State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002); State v. Zamora, 220 Ariz. 63, 67, ¶ 7, 202 P.3d 528, 532 (App. 2009). We defer to the trial court s factual findings, but to the extent that its ruling involves a conclusion of law, our review is de novo. Zamora, 220 Ariz. at 67, ¶ 7, 202 P.3d at 532. 8 ¶19 The police are permitted to question suspects without Miranda warnings custody. if Oregon the v. person Mathiason, being 429 questioned U.S. 492, is not 495 in (1977) ( Miranda warnings are required only where there has been such a restriction on a person s freedom as to render him in custody. ); State v. Carter, 145 Ariz. 101, 105-06, 700 P.2d 488, 492-93 (1985); Zamora, 220 Ariz. at 67, ¶ 9, 202 P.3d at 532. Whether the interrogated person is in custody must be determined in interrogation. light of the objective circumstances of the Howes v. Fields, 132 S.Ct. 1181, 1189 (2012) (citation omitted). The critical question is whether, in those objective circumstances, a reasonable person would have felt at liberty to terminate the interrogation and leave. Id. (citation omitted). ¶20 Courts have identified several factors to consider in the custody determination. court specified objective three: indicia of In State v. Cruz-Mata, our supreme the site arrest of were the questioning; present (e.g., whether whether suspect was subjected to the booking process, whether officer s weapon was drawn); and the length and form of the interrogation. 138 Ariz. Supreme 370, Court 373, has 674 also P.2d 1368, listed: 1371 (1983). statements made The during U.S. the interview; the presence or absence of physical restraints during 9 the interview; and whether the person questioned was released when the questioning concluded. ¶21 Howes, 132 S.Ct. at 1189. With those factors in mind, we analyze Defendant s two interviews to determine whether a reasonable person would have felt free to stop answering Hobbs s questions and to leave. A. The Hospital Interview ¶22 The site of the hospital interview and the manner in which it was conducted show that it was not an incommunicado interrogation . . . in a police-dominated atmosphere. State v. Morse, 127 Ariz. 25, 28, 617 P.2d 1141, 1144 (1980) (citation omitted). The hospital interview took place in an empty room next to the room that held A., and it had a glass door that was shut but not locked. Even if he was uncomfortable talking to Hobbs in a strange environment, Defendant was not entirely cut off from his normal life and companions, nor was he thrust into a police-dominated atmosphere. Maryland v. Shatzer, 130 S.Ct. 1213, 1220 (2010) (citation omitted). At different times during B., the participated interview, in the questions on her own. Defendant s discussion, wife, and even was asked present, Defendant And although during the interview Hobbs s gun and badge were visible, Defendant was never handcuffed nor was he told that he was under arrest. ¶23 could Further, Hobbs told Defendant more than once that he leave whenever he wanted. 10 Hobbs told Defendant such things as: [Y]ou are free to leave, and, you know, I m not placing you under arrest. with Defendant agreeing The hospital interview concluded to go to the police station to be videotaped. ¶24 We conclude that the trial court properly found that Defendant was not in custody during the hospital interview. A reasonable person would have realized that he or she was free to stop talking to Hobbs and to leave the room. B. The Police-Station Interview ¶25 On appeal, Defendant emphasizes two facts about the trip to the police station and his interview there. First, he points out that when he sat in the back of the squad car that drove him from the hospital to the police station, the back doors of the car were locked. Second, he claims that the interview room, which was in a secured section of the station, was also locked. ¶26 Factually, the first assertion is true, but misleading without context. As Hobbs testified at the evidentiary hearing, Defendant agreed to enter the police car and could have exited if he had established asked to as fact; a do so. The Hobbs second testified assertion that he was didn t not know whether the door to the police-station interview room was locked or not. He testified that 11 [i]f the door was locked, [Defendant] wouldn t have been able to get out, but he was informed he was free to leave at any time. ¶27 A suspect does not enter police custody just because an officer drives that suspect in the officer s vehicle to the station for questioning. See State v. Navarro, 201 Ariz. 292, 294, 297, ¶¶ 5, 21, 34 P.3d 971, 973, 976 (App. 2001) (holding that suspect was not in custody when he voluntarily accompanied officer to the station in front seat of unmarked police car). The critical question is still how a reasonable man in the suspect s position would have understood his Berkemer v. McCarty, 468 U.S. 420, 442 (1984). situation. Here, Defendant entered the police car because he had agreed to travel to the station to videotape the kind of shaking that he and Hobbs had discussed. He was not forced to go, nor was he handcuffed for the trip. He accepted a ride from Hobbs, and a reasonable person accepting a ride in the back seat of a police squad car (a vehicle often used to transport unwilling passengers) would realize that the back doors would not open easily (or at all) from the inside. The doors being locked would not have meant that Defendant was in no way free to leave; it would only have meant that (as Hobbs testified) Defendant would first have needed to ask for the doors to be opened if he changed his mind about the trip and decided to exit the squad car. 12 ¶28 Further, Miranda warnings are not automatically required simply because a suspect is questioned in a police station. Carter, 145 Ariz. at 106, 700 P.2d at 493. Here, the fact that Defendant agreed to leave the hospital and go to the station for a reason that Hobbs explained to him -- the hospital had no facilities to videotape the shaking -- weighs against a finding that the police-station interview was custodial. Defendant went to the station voluntarily and with a purpose, not because he was under arrest. Also, the police-station interview was relatively short, lasting less than 30 minutes, and Defendant was allowed to leave the station without hindrance at the interview s conclusion. See id. interrogation lasted for approximately an hour). (non-custodial And at the beginning of the interview, Defendant had been told that he was free to conclude go. A consideration that a reasonable of these person factors would have leads felt us to free to terminate the interview and to leave. ¶29 Defendant argues that J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), requires us to consider an additional factor: Defendant s immaturity. In J.D.B., the Court held that when applying custody the Miranda analysis to the police s questioning of a 13-year-old child, it was appropriate for the trial court to factor in the child s age. 131 S.Ct. at 2398-99. In reaching that conclusion, the Court s discussion expressly 13 focused only on cases involving juvenile suspects. 2405. Id. at The word juvenile functions in J.D.B. as a term of art: [a] person who has not reached the age of (usu. 18) at which one should system. was not treated as an adult by the criminal-justice Black s Law Dictionary 884 (8th ed. 2004). discussing immature. the be cases involving adults who The Court happen to be The Court specifically articulated its holding with phrase the child s age. J.D.B., 131 S.Ct. at 2406 (emphasis added). ¶30 In this case, Defendant was a nineteen-year-old man, a husband, and the father of two children. He himself was not a child, and J.D.B. did not require the court to consider in its custody analysis the fact that he was (as he puts it on appeal) an immature 19 year old defendant. The statements he made to Hobbs at the hospital and police station were properly admitted against him. II. ¶31 THE CONTINUANCE ISSUE Defendant argues that the trial court erred in denying his June 27, 2011 motion to continue. Under Ariz. R. Crim. P. 8.5(b), a continuance shall be granted only upon a showing that extraordinary circumstances exist and indispensable to the interests of justice. that delay is The granting of a continuance under Rule 8.5 is not a matter of right. State v. Sullivan, 130 Ariz. 213, 215, 635 P.2d 501, 503 (1981). Whether 14 to grant or deny a continuance is a decision left to the sound discretion of the trial judge, id., because the trial judge is the only party in a position to determine whether there are extraordinary circumstances warranting a continuance and whether delay is indispensible to the interests of justice. State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983) (quoting Ariz. R. Crim. P. 8.5(b)). Therefore, the trial court s decision will not be disturbed absent a clear abuse of discretion and a resulting prejudice. Sullivan, 130 Ariz. at 215, 635 P.2d at 503. ¶32 Here, circumstances the were trial court was not it noted extraordinary: convinced that that the the articles Defendant attached to his motion (and the theory contained in those articles) had been out for some time. See State v. Jackson, 157 Ariz. 589, 593-94, 760 P.2d 589, 593-94 (1988) (denial of continuance proper when defendant had ample opportunity to obtain a witness several months before trial). It also concluded that it was impractical to allow Defendant to have additional time to develop an undisclosed expert who was not available with any certainty (and the substance of whose testimony, we note, was unknown). Defendant to use the articles Instead, the court permitted to examination of the state s experts. 15 conduct a liberal cross ¶33 Further, the court considered the express wishes of the victim -- i.e., B., who was acting on A. s behalf pursuant to A.R.S. § 13-4433(C) -- that the trial be concluded as quickly as possible. 8.5(b), In doing so, the court followed Ariz. R. Crim. P. which continuance, states the that court [i]n shall ruling consider on the a motion rights of for the defendant and any victim to a speedy disposition of the case. See also State v. Dixon, 226 Ariz. 545, 555, ¶ 56, 250 P.3d 1174, 1184 (2011) ( Rule judge to consider the defendant, are entitled 8.5(b) rights under expressly of our directs victims, who, Constitution the trial like to a the speedy disposition of criminal charges. ). ¶34 Nothing in the record indicates that the court s decision to deny the motion to continue was a clear abuse of discretion. CONCLUSION ¶35 We affirm Defendant s convictions and sentences. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ____________________________________ ANDREW W. GOULD, Judge 16

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