State v. Hoover

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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. ) ) CHESTER HOOVER, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0990 DIVISION ONE FILED: 09/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-174497-001 DT The Honorable Randall H. Warner, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix Chester Hoover, Appellant Tucson D O W N I E, Judge ¶1 Chester misconduct Hoover involving timely weapons appeals violation in his of Statutes (“A.R.S.”) sections 13-3101 and -3102. conviction Arizona for Revised Defense counsel has searched the record, found no arguable question of law, and asks that we review the record for fundamental error. See State v. 388, Richardson, (App. 1993). persona. 175 Ariz. 336, 339, 857 P.2d 391 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 against appellant.” State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). FACTS AND PROCEDURAL HISTORY ¶2 Detectives Hill and Lantz were on patrol around 11:00 p.m. in November of 2009 when they saw a vehicle with a broken tail light make an improper left turn. After stopping the vehicle, Detective Hill spoke to Hoover, the driver. Hoover was “very irate” and immediately said he had done nothing wrong and that detectives were “harassing him.” weapons and registration, was and uncooperative proof of when He denied having any insurance. asked for his Detective license, Hill asked multiple times for the documents, but Hoover continued yelling that he had done nothing wrong and accusing the detectives of harassment. Detective Hill arrested 2 Hoover for failure to provide identification. While being handcuffed, Hoover stated his identification was in his backpack in the trunk. Hoover 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 backpack’s front pocket license was suspended. and learned that Hoover’s driver’s Detective Hill called a tow truck to impound the vehicle. ¶3 Hoover license violation. backpack. was upset when of the suspended He insisted he had a driver’s license in his Detective Hill opened the backpack in front of Hoover and discovered an unloaded handgun. his wife. informed 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.” Detective Hill inventoried the contents of the backpack and vehicle and impounded the gun, magazine, and bullets. warnings 1 that Hoover acknowledged He issued Miranda 1 understanding. When Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). 3 asked 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.” ¶4 Hoover was indicted on one count of misconduct involving weapons, a class 4 felony, for knowingly possessing a handgun while being a prohibited possessor. Defense counsel 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. competent but One evaluator opined that Hoover was “[m]alingering”; another deemed his competency 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.” ¶5 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 of the traffic stop. Detectives Lantz and Hill testified. 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. testify. The jury found him guilty as charged. ¶6 Hoover Hoover did not stipulated to one prior conviction and the State proved another, making him a class 2 repetitive offender. 4 The trial court sentenced Hoover to a mitigated term of three years’ imprisonment, with 34 days of pre-sentence incarceration credit. DISCUSSION ¶7 We have read and considered the briefs submitted by Hoover and his counsel and have reviewed the entire record. State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969). find no conducted fundamental in error. compliance All with the of the Arizona proceedings Rules of We were Criminal Procedure, and the sentence imposed was within the statutory range. Hoover was present at all critical proceedings and represented by counsel. impaneled and instructed. phases of the The jury was properly The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. ¶8 In issues that his supplemental lack clarity, brief, support, Hoover or raises context, numerous such as a contention it was improper for the trial judge to leave “his seat and another deliberation.” judge” to sit at the bench “[d]uring The record does demonstrate that a substitute judge was available to take any verdict that might come between 3:30 and 4:30 unavailable. p.m. on a Friday, when the trial judge was However, Hoover agreed to the substitution in lieu of continuing trial through the weekend to the next business 5 day. 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 judicial participation”). ¶9 he There is likewise no support for Hoover’s contention should prison.” have The evaluations reports. and been court ruled “getting granted [mental his health] request appropriately based help[,] for on the not competency submitted 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. We will specifically address issues identified with some measure of clarity, and we have reviewed the entire record for fundamental error. I. ¶10 Warrantless Search 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. Warrantless searches 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 6 P.3d 429, 432 (2003). An exception exists “where a person 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). ¶11 In a motion to dismiss, Hoover admitted giving detectives “the right to get his ID” out of his backpack. At a pretrial evidentiary hearing, Detective Hill testified it was standard violation procedure and to to tow conduct a an vehicle on inventory a suspended search license before towing. 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 and screamed that his license was “in his backpack.” The 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. ¶12 The warrantless record search supports “was proper the as conclusion reasonably that done at the the direction, request and consent of the defendant and also as part of an inventory search for a 30 day impoundment of the vehicle.” 7 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. See State v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973). II. Miranda Warnings ¶13 Hoover also contends his statements at the scene were obtained in violation of Miranda because he was “interrogated fo[r] 40 minutes Mirandize[d].” by Officer [sic] Hill [before] being “Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” 291, 300-01 (1980). Rhode Island v. Innis, 446 U.S. “[A]n uncoerced pre-Miranda warning 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). the pre-Miranda statements were coerced or But if involuntary, post-Miranda statements may not be admissible. Id. then Questions 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”). 8 ¶14 In a pre-Miranda statements post-Miranda statements. pretrial confession motion, be Hoover excluded was asked tainted by his contended and that his the pre-Miranda 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 p.m. and for the suspended license and weapons violations “within a few minutes.” He admitted that Miranda warnings were not p.m., issued until 11:50 and that before they were, he directly asked Hoover [q]uestions about his license, registration, and insurance. Asked him several times for his ID. 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 restored. ¶15 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. Immediately thereafter, Hoover yelled to get Detective Hill’s attention and, without prompting, repeated those statements. After receiving Miranda warnings, Hoover made similar statements. The trial court granted Hoover’s motion to suppress statements made about his criminal record and civil rights, but denied the motion as 9 to the “unsolicited comments” made while Detective Hill processed the scene. ¶16 It is clear that Hoover was in custody when Detective Hill questioned him about his criminal history and restoration of rights. pre-Miranda The trial responses to court those thus properly questions. excluded However, his Hoover’s 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. Interrogation, 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.” ¶17 The record Id. (citation omitted). establishes that detectives posed no 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. 10 He continued to “yell[] out” to detectives, stating that the gun belonged to his wife and that he had put it in the backpack. dismissal corroborates Detective Hoover’s own motion for Hill’s testimony that the statements were not prompted by detectives. ¶18 After receiving Miranda warnings, Hoover repeated his earlier statements. The court found the post-Miranda statements were not tainted because Hoover had not been “coerced” to make the “spontaneous” statements. To determine if detectives deliberately conducted a two-step interrogation and purposefully withheld Miranda warnings until defendant confessed, the court considers “whether objective evidence and any available subjective evidence . . . support an inference that the two-step interrogation warning.” procedure was used to undermine the Miranda Zamora, 220 Ariz. at 69-70, ¶ 16, 202 P.3d at 534-35 (alteration in original) (citation omitted). ¶19 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 scene. Detective Hill testified he made no threats, coercive statements, promises, or misleading statements to Hoover. record is also deliberately establishes irate and devoid delayed that any issuing events yelling, of and evidence Miranda progressed that Detective warnings. rapidly, Detective 11 that Hill that The Hill Instead, it Hoover was initially sought 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 ¶20 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 their merit.”). CONCLUSION ¶21 We affirm Hoover’s conviction and sentence. Counsel’s obligations pertaining to Hoover’s representation in this appeal inform have Hoover of ended. the Counsel status of need the do nothing appeal and more his than future options, unless counsel’s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court’s own motion, Hoover shall have 30 12 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ JON W. THOMPSON, Judge 13 or