STATE v. GUNN

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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.Sup.Ct. 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. NATHAN ALAN GUNN, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 7/18/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0276 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-153106-001 The Honorable Lisa Flores, Judge AFFIRMED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Section Chief Counsel Criminal Appeals and Linley Wilson, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Margaret M. Green, Deputy Public Defender Attorneys for Appellant H O W E, Judge Phoenix ¶1 Gunn appeals his sentences and convictions, arguing that his pre-Miranda, 1 pre-arrest silence in response to police questioning at the scene of a car collision should not have been admitted at trial. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 2 ¶2 Gunn and K were in a relationship and living together. After attending lunch with K and her daughter, Gunn drove K to work. While driving, Gunn and K began to argue. The argument escalated, and K suggested that they end their relationship. Gunn threatened to kill everyone at K s office. K responded, okay and then Gunn said, Fuck this, I m going to kill both of us. He then turned the car into the oncoming lane and crashed into another car. The collision injured K and the driver of the other car. ¶3 Police witnesses. K arrived spoke to at the Officer J, scene but and did not questioned report the Gunn s threats to her or state that Gunn did anything to intentionally cause the collision. Officer J asked Gunn what had happened, and Gunn responded that the brakes locked up and he could not turn the steering wheel. Gunn told Officer J that he had overshot his 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 We view the evidence in the light most favorable to sustaining the conviction and resolve all reasonable inferences against the defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 turn. When Officer J asked why Gunn did not just turn around and come back after he missed his turn, Gunn did not answer. ¶4 At the hospital, K spoke with her family and they encouraged her to tell police exactly what had happened. Officer J came to the hospital to interview K and she told him that Gunn had intentionally turned into oncoming traffic. ¶5 one Gunn was tried for three counts of aggravated assault, count During of criminal Officer questioned J s about damage and testimony, his one and interview count when with of he was Gunn, endangerment. about defense to be counsel objected, believing that the prosecutor would ask Officer J to testify about Gunn s silence after being asked Why didn t you just turn counsel around argued and that go Gunn back? had During the sidebar, exercised his right to defense remain silent and that commenting on Gunn s silence at the accident scene was inappropriate. The prosecutor argued that Gunn was not under arrest at the accident scene and had not been read Miranda rights, and nothing indicated that Gunn s constitutional rights had been violated. The court determined that Gunn was not in custody and that Officer J was simply investigating the accident, and allowed the prosecutor to ask the question. ¶6 that The prosecutor asked the officer, And you indicated you asked him why didn t you just continue driving eastbound and turn around if he knew he d already overshot his 3 turn? Officer J responded yes and the prosecutor asked, And did he provide an explanation for that? Officer J responded that Gunn had not. ¶7 count The jury found Gunn guilty on all counts except the of endangerment, imprisonment. Gunn and he sentenced appealed timely was his to six years convictions and sentences. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and 13-4033(A) (West 2013). 3 DISCUSSION ¶8 Gunn argues that the trial court committed reversible error when it allowed the State to introduce evidence of his pre-arrest, pre-Miranda silence as substantive evidence of guilt. We review de novo whether a defendant s constitutional rights were violated. State v. Beasley, 205 Ariz. 334, 336, ¶ 9, 70 P.3d 463, 465 (App. 2003). ¶9 A information person must claim self-incrimination. (1984). As the simply standing who the wishes Fifth Minnesota United mute States in v. to shield Amendment Murphy, Supreme response to privilege 465 Court incriminating U.S. 420, recently questioning against 427 stated, does not invoke the privilege, unless the person is subject to custodial 3 Absent revisions material to this decision, we cite the current version of applicable statutes. 4 interrogation without Miranda warnings. Salinas v. Texas, 133 S. Ct. 2174, 2178, 2180 (2013) (plurality). Consequently, a person s silence in response to noncustodial questioning without Miranda warnings is not protected by the Fifth Amendment. Id. at 2180 81 ( Our cases all but foreclose such an exception to the invocation requirement.). ¶10 collision, Here, Gunn although was not Officer in J questioned custody 4 and not Gunn about given the Miranda warnings. In that circumstance, Gunn was required to invoke his privilege against self-incrimination if he wished to prevent his silence from being used against him at trial. He did not do so, but simply st[ood] mute in response to Officer J s question. Thus, Gunn s silence was not protected by the Fifth Amendment. The trial court therefore did not err in admitting evidence of Gunn s silence. 4 Gunn argues for the first time in his reply brief that he need not expressly invoke the privilege because he was in custody when Officer J questioned him. Although Gunn was not under arrest or otherwise restrained, he claims that he was not free to leave because leaving would have incurred further criminal liability for leaving the scene of an accident. Because Gunn not only failed to raise this issue before the trial court he did not object when the court found that he was not in custody but also did not raise it on appeal until the reply brief, the issue is waived. In re Marriage of Pownall, 197 Ariz. 577, 583, n.5, ¶ 25, 5 P.3d 911, 917 n.5 (App. 2000) (Arguments raised for the first time in a reply brief are deemed waived.). Moreover, Gunn s decision to remain at the scene of the collision lest he violate a statute is not the kind of compulsion that constitutes custody. 5 CONCLUSION ¶11 For the aforementioned reasons, we affirm. __/s/_____________________________ RANDALL M. HOWE, Presiding Judge CONCURRING: _/s/_________________________________ MAURICE PORTLEY, Judge _/s/_________________________________ PATRICIA A. OROZCO, Judge 6

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