State v. Osif
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See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.34
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
ANGEL JOHN OSIF,
Appellant.
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No.
DIVISION ONE
FILED: 09/13/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0240
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 2009-136239-001 SE
The Honorable Steven P. Lynch, Judge Pro Tempore
AFFIRMED AS MODIFIED
Terry Goddard, 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
Thomas K. Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix
T I M M E R, Judge
¶1
A jury convicted Angel John Osif of armed robbery, a
class 2 felony and dangerous offense, and misconduct involving
weapons
(prohibited
possessor),
a
class
4
felony.
The
convictions stemmed from a robbery in which Osif’s co-defendant
punched the victim in the face to obtain the victim’s property,
and Osif threatened the victim with a handgun when the victim
chased after them as they fled the scene.
The State alleged and
proved that Osif had two historical felony convictions, and the
trial
court
sentenced
him
as
a
repetitive
offender
to
concurrent, aggravated terms of imprisonment, the longest being
sixteen years on the armed robbery conviction, with credit for
284 days of presentence incarceration.
¶2
Osif
argues
the
trial
court
erred
in
denying
his
motion to suppress statements and by failing to give him full
credit for presentence incarceration.
we
affirm
Osif’s
convictions
but
For reasons that follow,
modify
his
sentences
by
increasing the credit for presentence incarceration.
DISCUSSION
A.
¶3
Motion to suppress
Prior to trial, Osif moved to suppress statements made
to the police during a post-arrest interview on the grounds they
were
involuntary.
The
statements
included
admissions
possessing a handgun and pointing it at the victim.
2
to
The parties
waived
an
evidentiary
hearing
and
agreed
to
have
the
motion
decided on arguments of counsel and the trial court’s review of
a
videotape
of
the
interview.
Following
oral
argument,
the
trial court found Osif’s statements to be voluntary and denied
the motion to suppress.
Osif’s admissions were subsequently
introduced by the State at trial.
¶4
Osif
argues
the
trial
court
erred
in
denying
his
motion to suppress, asserting his admissions were the result of
a “mixture of promises and threats” by the police.
We will not
disturb the trial court’s determination that a confession was
voluntary “absent clear and manifest error.”
State v. Poyson,
198 Ariz. 70, 75, ¶ 10, 7 P.3d 79, 84 (2000).
We review the
trial court’s factual findings for an abuse of discretion, but
we consider de novo whether a constitutional violation occurred.
State v. Davolt, 207 Ariz. 191, 202, ¶ 21, 84 P.3d 456, 467
(2004).
¶5
Confessions
made
to
law
enforcement
admissible at trial only if made voluntarily.
officials
are
State v. Ellison,
213 Ariz. 116, 127, ¶ 30, 140 P.3d 899, 910 (2006).
Confessions
are presumed to be involuntary, and the State has the burden of
establishing
by
a
preponderance
of
the
evidence
confession was freely and voluntarily given.”
“that
the
State v. Thomas,
148 Ariz. 225, 227, 714 P.2d 395, 397 (1986) (citation omitted).
In determining whether a confession is voluntary, we consider
3
whether the defendant’s will was overborne under the totality of
the circumstances surrounding the confession.
State v. Newell,
212 Ariz. 389, 399, ¶ 39, 132 P.3d 833, 843 (2006).
‘personal
circumstances,
such
as
intelligence
“Although
and
mental
or
emotional status, may be considered in a voluntariness inquiry,
the critical element . . . is whether police conduct constituted
overreaching.’”
Poyson, 198 Ariz. at 75, ¶ 10, 7 P.3d at 84
(alteration in original) (quoting State v. Stanley, 167 Ariz.
519, 524, 809 P.2d 944, 949 (1991)).
¶6
Officers
questioned
following his arrest.
Osif
at
the
police
The interview lasted approximately forty-
seven minutes and was recorded in its entirety.
advised
of
the
station
Miranda
warnings,
Osif
After being
initially
denied
any
involvement in criminal activity but offered no explanation for
the victim’s debit card in his possession when arrested.
The
officer in charge decided to terminate the interview, but as
Osif
was
about
to
be
taken
to
booking,
another
apparently knew Osif asked about his son’s age.
his
son
was
ten
months
old.
This
officer
officer
who
Osif answered
made
repeated
references to Osif’s son while attempting to convince him to
tell the truth
questioning,
about
Osif
the
robbery.
admitted
to
pointing it at the victim.
4
Thereafter,
possessing
the
upon
further
handgun
and
¶7
Osif cites United States v. Tingle, 658 F.2d 1332 (9th
Cir. 1981) to argue that the officer coerced his admissions by
using threats and promises to play on an emotional attachment to
his son.
In Tingle, the police essentially told the defendant
that if she did not make a statement she would not see her child
for
a
long
time
and
her
failure
communicated to the prosecutor.
held
that
the
officers’
to
cooperate
658 F.2d at 1336.
would
statements
were
be
patently
The court
coercive,
observing that “Tingle had every reason to believe, from what
she
was
told,
that
her
confession
would
impact on her ability to see her child.”
¶8
have
a
significant
Id. at 1336-37.
Here, the trial court found the officer’s statements
to Osif concerning his son to be distinguishable from those in
Tingle and more akin to the circumstances in State v. Boggs, 218
Ariz. 325, 185 P.3d 111 (2008).
In Boggs, our supreme court
rejected a similar argument based on Tingle, holding that the
officer’s statements regarding Boggs’ son were an “attempt[] to
solicit a sense of responsibility for his son to encourage Boggs
to ‘tell the truth,’ not to intimate that Boggs would never see
his son if he did not cooperate.”
Id. at 336, ¶ 46, 185 P.3d at
122.
¶9
The
officer
made
statements
concerning
Osif’s
son
that, if viewed in isolation, might be considered similar to
those in Tingle.
These include: “The difference is if you see
5
your kid sooner or not see your kid soon,” and “I don’t think
that your ten-month-old son needs to grow up without a dad.”
When viewed in context and considered under the totality of the
circumstances, however, the evidence supports a finding that the
thrust
of
the
officer’s
statements,
like
in
Boggs,
was
to
communicate it would be better for Osif to take responsibility
and to do the right thing for himself and his son.
that
it
would
be
better
interrogation tactic.”
to
be
truthful
is
“Mere advice
a
permissible
State v. Blakley, 204 Ariz. 429, 436, ¶
29, 65 P.3d 77, 84 (2003) (citation omitted).
¶10
Our review of the recording supports a finding that no
promises of any kind were made to Osif and, in contrast with
Tingle, at no time did the officer suggest that Osif would be
subject
to
harsher
treatment
if
he
did
not
cooperate.
See
United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994)
(recognizing
distinction
between
propriety
of
suggesting
cooperation may increase likelihood of more lenient sentence and
impropriety of threatening to inform prosecutor of failure to
cooperate); State v. Strayhand, 184 Ariz. 571, 579-80, 911 P.2d
577, 585-86 (App. 1995) (same).
On this record, the trial court
could reasonably conclude that the officer’s remarks concerning
Osif’s son were not the sort that would have overborne Osif’s
will and render his admissions involuntary.
6
Accordingly, there
was no clear and manifest error by the trial court in denying
the motion to suppress.
B.
¶11
Credit for presentence incarceration
Osif also contends the trial court erred in granting
too little credit for presentence incarceration.
He argues he
is entitled to credit for 286 days of presentence incarceration
rather than the 284 days granted by the trial court.
The State
concedes error, and we agree.
¶12
A
defendant
actually
spent
in
is
entitled
custody
to
pursuant
credit
to
an
for
“[a]ll
offense
until
prisoner is sentenced to imprisonment for such offense.”
Rev. Stat. (“A.R.S.”) § 13-712(B) (2010). 1
time
the
Ariz.
Osif was taken into
custody on May 30, 2009, and was sentenced on March 12, 2010.
This
period
between
arrest
and
sentencing
totals
286
days.
Thus, we modify Osif’s sentences to increase the total credit
for presentence incarceration to 286 days.
We further correct
the
of
sentencing
minute
reflect this change.
entry
and
the
order
confinement
to
See A.R.S. §§ 13-712(E), -4037(A) (2010);
State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App.
1992).
1
Absent material revisions after the date
offense, we cite a statute’s current version.
7
of
an
alleged
CONCLUSION
¶13
For
convictions,
the
but
we
foregoing
modify
reasons,
his
sentences
we
by
affirm
increasing
credit for presentence incarceration to 286 days.
/s/
Ann A. Scott Timmer, Judge
CONCURRING:
/s/
Jon W. Thompson, Presiding Judge
/s/
Daniel A. Barker, Judge
8
Osif’s
the
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