STATE v. VAHLE
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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, v. DESTINEY DAWN VAHLE, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) DIVISION ONE FILED: 3/21/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0254 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-007449-001 The Honorable Cynthia J. Bailey, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Destiney convictions and Dawn sentences Vahle for (Defendant) appeals two of counts her hindering prosecution in the first degree involving murder and one count of interfering with judicial proceedings. Defendant challenges the court s ruling denying her motion to suppress statements she made during an interview with a deputy sheriff. Because we conclude no Miranda1 violation occurred and Defendant made her statements voluntarily, we affirm. BACKGROUND2 ¶2 On August 29, 2009, sheriff s deputies were surveilling Defendant s apartment as part of an investigation into a home invasion and homicide committed on or about August 24, 2009. Madden, After the suspects, Robert Pleickhardt and Kathleen exited the apartment the deputies arrested them. Pleickhardt is Defendant s stepfather and Madden s boyfriend. Pleickhardt s head appeared to have been recently shaved. ¶3 Detective Paul S. (Detective S.) interviewed Defendant soon after the suspects were detained, and she claimed not to know anything about the crimes. During the suspects interviews later that day, deputies learned that Corion was also involved in the home invasion. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 ¶4 Based on the interviews with Pleickhardt and Madden, Detective S. learned that Corion was Defendant s boyfriend and that Defendant had knowledge of the crimes. on August 30, 2009, Detective S. and The next morning, Sergeant Albert A. (Sergeant A.) returned to Defendant s apartment to re-interview her primarily for purposes of obtaining information regarding Corion. Detective S. requested that Defendant accompany him to the sheriff s office for further questioning, and she agreed to do so. Detective S. did not advise Defendant of her Miranda rights. ¶5 During the interview, Defendant conceded that she knew some details about the home invasion and that her boyfriend was involved, but she continued to lie about who her boyfriend was. 3 She identified from a photo line-up someone named Corion Cooper as her boyfriend. ¶6 After concluding Sergeant A. returned Sergeant A. told the Defendant Defendant s interview, to aunt her Detective home. (Tracie) At that S. that he and time, believed Defendant was lying and asked Tracie to speak with Defendant and contact him if Defendant told her the truth. Sergeant A. later that day. Tracie called During the call Defendant admitted 3 Defendant admitted that she had been protecting Pleickhardt and had cut his hair after she knew he was involved in the home invasion and after his picture was televised on the news. 3 to lying about Corion s identity. Based on information gathered during that call, Corion Babers was subsequently apprehended as the third suspect in the home invasion. ¶7 The State charged Defendant with two counts of hindering prosecution in the first degree involving murder, a class three identity felony: of concealing Count Babers and One Count Pleickhardt.4 relating Two Before to relating trial, concealing to harboring Defendant moved the or to suppress the statements she made during the August 30 interview, arguing that those statements were made in violation of Miranda and were involuntary. The court held a hearing on the motion, and the only evidence presented was Detective S. s testimony and the transcript of his August 30 interview with Defendant.5 The court denied the suppression motion, finding Miranda warnings were not required because custodial interrogation. proved by a Defendant was not subjected to The court also found that the State preponderance of the evidence that Defendant s statements were voluntary. 4 The State also charged Defendant with one count of interfering with judicial proceedings, a class one misdemeanor, based on her failure to appear as the key witness in Babers jury trial. The facts underlying this charge are not pertinent to our disposition of the issue Defendant raises on appeal. 5 The State also attached a copy of the transcript of the August 29 interview to its opposition to Defendant s suppression motion. 4 ¶8 A jury convicted Defendant of the charged offenses, and the court imposed concurrent presumptive terms of three and a half years imprisonment Defendant timely appealed. for the convictions.6 felony We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010) and -4033.A.1 (2010). DISCUSSION ¶9 to Defendant argues the court erred in denying her motion suppress. She contends Detective S. failed to properly advise her of her Miranda rights before or during the August 30 interview and her statements were involuntary. ¶10 We review the trial State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140 abuse of We review only the evidence presented at hearing, and we do so in favorable to upholding the trial court s ruling. ¶11 for a discretion. suppression objections admitting statements the her ruling defendant s P.3d 899, 909 (2006). over court s We disagree. Voluntariness and Miranda are the light most Id. two separate inquiries. State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983). Preclusion of evidence obtained in violation of Miranda is based on the Fifth Amendment privilege against self- 6 For the misdemeanor Defendant to time served. conviction, 5 the court sentenced incrimination. In re Jorge D., 202 Ariz. 277, 281, ¶ 19, 43 P.3d (App. 605, 609 2002). Preclusion of involuntary confessions is based on the Due Process Clause of the Fourteenth Amendment and applies to confessions that are the product of coercion or other methods offensive to due process. I. ¶12 Id. Miranda The trial court found no Miranda violation occurred at the August 30 interview because Defendant was not subjected to a custodial interrogation; therefore, required. Miranda s warnings were not We agree. ¶13 Miranda interrogation. 7 protections apply only to custodial State v. Smith, 193 Ariz. 452, 457, ¶ 18, 974 P.2d 431, 436 (1999). In determining whether an interrogation 7 For this reason, we reject Defendant s implication that Detective S. was required to advise her of her rights under Miranda merely because he was asking her incriminating questions. Further, because Miranda is implicated only in the context of custodial interrogation, Defendant s reliance on State v. Pettit, 194 Ariz. 192, 979 P.2d 5 (App. 1998), for the proposition that a Miranda violation also can be evidence of the voluntariness of statements is misplaced. In that case, the trial court found the defendant s statements were made in violation of Miranda. Id. at 194, ¶ 11, 979 P.2d at 7. On appeal, we noted that such a violation is also relevant to determining the voluntariness of those statements, and we affirmed the trial court s suppression of the defendant s statements from being used in any capacity at trial because they were involuntarily made. Id. at 196-97, ¶¶ 19, 24-25, 979 P.2d at 9-10. Here, there was no Miranda violation because Defendant was not in custody; accordingly, Pettit did not apply to require the court to consider Detective S. s failure to give Miranda warnings as a factor in determining the voluntariness of Defendant s statements. 6 is custodial, we look to the objective circumstances of the interrogation, not . . . the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v. California, 511 U.S. 318, 323 (1994). We assess whether under the totality of the circumstances a reasonable person would feel that he was in custody or otherwise deprived of his freedom of action in a significant way. State Carter, 145 Ariz. 101, 105, 700 P.2d 488, 492 (1985). v. In so doing, factors to consider include the method used to summon the defendant, whether objective indicia of arrest are present, the site of the questioning, interrogation. and the length and form of the See State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). ¶14 Detective S. testified that he did not read Defendant her Miranda rights at the August 30 interview because she was not in custody. Specifically, he testified that Defendant was never handcuffed or arrested, she willingly accompanied him in the front seat of his unmarked vehicle to the station, and he was unarmed during the interview. Detective S. further explained that he was dressed in civilian clothes, and he did not use threats, promises, or any force to get Defendant to talk to him. Defendant presented no evidence to the contrary, and, in any event, it was the trial court s role to assess Detective S. s credibility. See State v. Ossana, 199 Ariz. 459, 461, ¶ 7, 7 18 P.3d 1258, 1260 (App. 2001) ( The trial court determines the credibility of the witnesses. ). Finally, the interview lasted less than two hours, and it was punctuated by at least two breaks. Detective S. repeatedly stated during the interview that he was going to return Defendant home after the interview, and, in fact, he did so. ¶15 Under these circumstances, the trial court could properly conclude a reasonable person in Defendant s position would not have felt he was in custody or otherwise deprived of his freedom of action in a significant way. at 105, 700 P.2d at 492. of arrest were interview. not Carter, 145 Ariz. Simply stated, the objective indicia present during Defendant s August 30 See Cruz-Mata, 138 Ariz. at 373, 674 P.2d at 1371 (holding a one and a half hour interview at a police station was not a custodial physically interrogation restrained or because arrested, no the defendant force or was threats not were used, and the defendant willingly accompanied the detective to the police station in the front seat of an unmarked police car). Accordingly, interrogation; Defendant was therefore, not subjected Detective S. inform her of her rights under Miranda. was to a custodial not required to The court did not abuse its discretion in denying Defendant s motion to suppress on this basis. 8 II. ¶16 Voluntariness Defendant also contends her confession was coerced because Detective S. promised she would not be in trouble for talking to him and that they were only looking at her as a witness in the murder investigation, and he related to separating her from her children. made threats The record does not support this argument. ¶17 Because involuntary, preponderance the of a defendant s State the has statements the evidence are burden that of the presumptively proving by statements voluntarily made and not the product of coercion. this surrounding determination, the confession the totality must be of the were State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). making a In circumstances considered. Id. A voluntary confession cannot be induced by a direct or implied promise, however slight. 8 Id. at 165, 800 P.2d at 1273. Before a court determines that a statement is involuntary as the result of a promise, there must be evidence that (1) a promise of a benefit or leniency was made, and (2) defendant relied on the promise in making the statement. Ariz. at 196, ¶ 20, 979 P.2d at 9. Pettit, 194 Mere advice from the police that it would be better for the accused to tell the truth when 8 The State challenges the propriety of the however slight standard. Because we find Detective S. made no promises, we need not address this issue. 9 unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. State v. Blakley, 204 Ariz. 429, 436, ¶¶ 27, 29, 65 P.3d 77, 84 (2003). ¶18 Here, information the from purpose Defendant of the interview regarding the was get suspect, third to her boyfriend Babers, and to corroborate Pleickhardt s and Madden s statements. Detective actually that Babers had in participated indicates S. the Detective identity. information home that invasion, expected S. Thus, no Defendant Detective S. s Defendant and to nothing lie statements about that he considered Defendant to be merely a witness were not promises but statements of fact. Further, Detective S. s statement to Defendant that nothing would happen to her was not a promise as Defendant asserts but similarly a statement of fact. v. Miles, 186 (detective Ariz. telling the 10, 14, defendant 918 P.2d that he 1028, was See State 1032 not (1996) guilty of murder if he was just there was not a promise but a statement of fact); State v. Lopez, 174 Ariz. 131, 138, 847 P.2d 1078, 1085 (1992) (detective s statement to the defendant that the tape recording of the interview would not be played for the victim s mother statement). was not a promise but merely a factual Finally, Detective S. did not mention a deal if Defendant provided information, and he expressly stated that he could not make her any promises if she told the truth. 10 See Blakley, 204 Ariz. at 436, ¶ 28, 65 P.3d at 84 (lack of specific deal accompanied by detectives statement that no promises could be made precluded finding of involuntariness). ¶19 We further reject Defendant s contention that Detective S. made threats related to Defendant s children that coerced her statements. To find a confession involuntary, we must find both coercive police behavior and a causal relation between the will. State v. Boggs, 218 Ariz. 325, 336, ¶ 44, 185 P.3d 111, 122 (2008). coercive behavior and the defendant's overborne Defendant points to, among others, the following statements Detective S. made during the interview: ï · He reminded Defendant children were to her; ï · When Defendant hesitated in answering a question or stated that she did not want to be a witness, Detective S. reminded her of her children and that she loved them and told her he knew she wanted to go home to them; ï · After informing Defendant that she was involved, Detective S. distinguished between being involved and being a witness and stated, One is you re with your kids and you go home. The other is you don t . . . . ; and ï · Detective S. asked Defendant whether she was afraid of losing her children, and Defendant answered, Yes. how important her ¶20 The court found these statements were made, not as threats, but as attempts to persuade 11 Defendant to tell the truth. In doing so, the court relied on Boggs. In Boggs, our supreme court held that one isolated question by the detective regarding the defendant s son s name did not constitute a threat to separate cooperate. the defendant from Id. at ¶ 46. his child if he failed to On the other hand, Defendant urges that United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), is dispositive. In that case, an FBI agent expressly told the defendant either that she would not or might not see her twoyear-old child for a while if she failed to cooperate. 1333-34. The Ninth Circuit held this statement was Id. at one of several factors that caused the defendant to confess during the interrogation after she cried for at least ten minutes and was visibly shaking. ¶21 with Id. at 1334, 1336. Here, Detective S. did not directly threaten Defendant separation instead, from Detective her S. children, made as considerably was done more in than Tingle; one non- threatening statement similar to what the Boggs court found did not constitute a threat. However, assuming, without deciding, that Detective S. s statements did amount to threats, they did not rise to the coercive effect of the threatening statement in Tingle. There was no evidence that Defendant was upset in response to Detective S. s comments, and we note that Defendant herself introduced the topic of her children as a mechanism to explain her innocence. When confronted with information that 12 Pleickhardt told law enforcement everything, Defendant stated that she would not knowingly allow Pleickhardt and Madden to stay in the house after committing the crimes because doing so would jeopardize her children s safety. She also swore on [her] kids in an attempt to persuade Detective S. that she was telling the truth about not knowing her boyfriend s given name.9 ¶22 Moreover, Defendant comments regarding her overborne During in the children compelling interview, did her to although not to rely the make on Detective extent her inculpatory Defendant will S. s was statements. gradually provided information that law enforcement already had, she continued to lie about her boyfriend s identity. Defendant did not divulge Babers identity until after the interview ended when she was at home and had discussed the matter with Tracie. Whatever impropriety may be attributed to Detective S. s questioning, it did not overcome Defendant s will because she continued to lie about Babers; coercive.10 1017, 9 therefore, Detective S. s questioning was not See State v. Walton, 159 Ariz. 571, 579 80, 769 P.2d 1025 26 (1989) (finding no reliance when forty-five Defendant stated she knew her boyfriend only as Phat. 10 While threatening statements made by a police officer may result in a coerced or involuntary confession as in Tingle, we note that a defendant may not use those statements as a defense to his or her decision to lie during an interrogation. 13 minutes elapsed between alleged promise and confession during interrogation). ¶23 abused On this record, we cannot conclude the trial court its discretion in finding Defendant s statements were voluntary. CONCLUSION ¶24 The court did not err in denying Defendant s motion to suppress; accordingly, her convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________________ PETER B. SWANN, Judge /S/ ___________________________________ DANIEL A. BARKER, Judge Pro Tempore* *The Honorable Daniel A. Barker (Retired), Judge Pro Tempore of the Court of Appeals, Division One, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to Article 6, Section 3, of the Arizona Constitution and A.R.S. §§ 12-145 to -147 (2003). 14
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