STATE v. PATHAK

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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. ) ) ANURAG PATHAK, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 7/11/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 09-0375 DEPARTMENT C AMENDED MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-165670-001 DT The Honorable Christopher T. Whitten, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel William S. Simon, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Anurag conviction. Pathak ( defendant ) appeals For the following reasons, we affirm. his criminal FACTS AND PROCEDURAL HISTORY 1 ¶2 On October 20, 2008, Detective G.M., a member of the Crimes Against Children Unit, learned Services (CPS) referral alleging sexually abused by defendant. of that a a Child young Protective girl had been The girl and her mother were brought to the Child Help children s center, 2 where Detective G.M. conducted forensic interviews. ¶3 Defendant was indicted for sexual abuse, a class 3 felony and dangerous crime against children, pursuant to Arizona Revised Statute indictment ( A.R.S. ) alleged that 13-1404 (2010). 3 intentionally or section defendant The knowingly engaged in direct or indirect touching, fondling or manipulating of any part of the female breast of a minor under fifteen years of age. ¶4 A four-day jury trial was held. case-in-chief, and his Detective videotaped G.M. testified interview of the During the State s about his victim interviews, was played. 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against the defendant. State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 Child Help is a national non-profit organization that provides services for children who are victims of abuse or neglect, including forensic interviews. The Crimes Against Children Unit and a CPS unit are also located there. 3 We cite to the current version of statutes revisions material to this decision have occurred. 2 when no During that interview, the detective told the victim several times that he planned to talk to defendant about what happened. The State ended its direct examination of Detective G.M. with the following colloquy: Q. Now, after you interviewed [the victim] and had spoken to [her mother], what did you do after that? A. We coordinated a little bit with CPS as far as their safety plan goes, and then I made contact or had Mr. Pathak brought down for an interview with me. Q. And did he talk to you? A. No. Defense counsel did not object to this testimony. ¶5 Additionally, the victim, her mother, a CPS caseworker, and a forensic interviewer testified for the State. The defense testify. called The jury defendant found and two defendant character guilty, witnesses and the to court sentenced him to lifetime probation, with terms including sex offender registration and jail time. 4 ¶6 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010). 4 Defendant was ordered to serve 191 days, but received 191 days presentence incarceration credit. 3 DISCUSSION ¶7 Defendant raises one argument on appeal: that the State violated his due process rights by asking Detective G.M. whether defendant had talked to him. Because defendant did not object to this evidence at trial, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (failure to object at trial waives issue absent fundamental error) (citations omitted). Fundamental error is error that goes to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the possibly have received a fair trial. defendant could not State v. Ruggiero, 211 Ariz. 262, 268, ¶ 25, 120 P.3d 690, 696 (App. 2005) (citations omitted). that To obtain relief, defendant must demonstrate both fundamental prejudice. error occurred and that it caused him Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607 (citations omitted). ¶8 Using a defendant s post-Miranda silence for impeachment purposes at trial violates the due process clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 619 (1976); State v. Keeley, 178 Ariz. 233, 235, 871 P.2d 1169, 1171 (App. 1994). This prohibition rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him [via Miranda warnings] and then 4 using his silence to impeach an explanation subsequently offered at trial. (internal Brecht v. quotations Abrahamson, and citations 507 U.S. 619, omitted). 628 (1993) Comment on a defendant s post-Miranda silence constitutes fundamental error. State v. Sorrell, 132 Ariz. 328, 329, 645 P.2d 1242, 1243 (1982). ¶9 There is, however, no constitutional impediment to using a defendant s silence prior to arrest, or after arrest if no Miranda warnings are Brecht, 507 U.S. at 628. here does warnings. that he not given, for impeachment purposes. As defendant acknowledges, the record establish when or if he was given Miranda According to defendant, Detective G.M. s testimony was brought [down] received Miranda warnings. for an interview implies he We disagree that such an inference is implicit from that statement. Contrary to defendant s claim, Detective G.M. did not testify that defendant was brought down to the station for an interview. The detective testified the interviews were conducted in Child Help s neutral interview rooms located just outside a large play room. had previously described the process to the Detective G.M. jury as one requiring independent interview[s] of all parties separately. 5 5 Defendant s opening brief includes victim s videotaped interview. Defendant heard several times that the detective was the defendant. (Emphasis added.) However, in 5 excerpts from the asserts the jury going to question each of the quoted CONCLUSION ¶10 Because the record does not establish any improper comment about post-Miranda silence, we find no error, let alone fundamental error. 6 Defendant s conviction and sentence are affirmed. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge excerpts, Detective G.M. merely stated he was going to talk to defendant. 6 We need not address defendant s contention that the testimony falls within the class of deliberate and not inadvertent error that requires reversal. Even if the prosecutor deliberately elicited the challenged testimony, it was not improper on this record. Were we to reach the issue of prejudice, we would find it lacking as well. See, e.g., State v. Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195 (1978) (finding no prejudice from admittedly improper prosecution question about defendant s post-arrest silence, in part because it was the only time appellant s post-arrest silence was mentioned ). 6

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