State v. Arido-Sorro
| Decision Date | 13 October 2017 |
| Docket Number | No. 2 CA-CR 2016-0366,2 CA-CR 2016-0366 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MARVIN ARIDO-SORRO, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED AS MODIFIED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Howard1 concurred.
¶1 Marvin Arido-Sorro appeals his convictions and sentences arising from the June 2015 assault of his girlfriend, M.M. He argues the trial court committed fundamental error by allowing the introduction of evidence collected during a warrantless search of his home, testimony that he had objected to the search and invoked his right to remain silent, and statements he made after an investigating officer "goaded him into custodial interrogation" after he had invoked his Miranda2 rights. Arido-Sorro also contends the trial court erred in sentencing him on count four of the indictment, sentencing him for a class 3 felony when the correct designation was a class 4 felony. For the reasons that follow, we affirm his convictions and sentences, as modified to correct the sentencing error on count four.
¶2 We view the facts in the light most favorable to affirming Arido-Sorro's convictions. State v. Causbie, 241 Ariz. 173, ¶ 2, 384 P.3d 1253, 1255 (App. 2016). In June 2015, Arido-Sorro and M.M. were at the home they shared. Arido-Sorro awoke M.M. and physically assaulted her by grabbing her by the hair and neck, punching her, dragging her down a flight of stairs, and hitting her with a frying pan and a metal food strainer. M.M. escaped through the back door, but Arido-Sorro caught her and continued to assault her. M.M.'s injuriesincluded an eye-socket (orbital-bone) fracture and two facial lacerations.
¶3 Two neighbors, D. and M., awoke to hear M.M. screaming, and observed Arido-Sorro stomping on her head. D. intervened, stopping the assault, and M. brought M.M. inside the neighbors' home and called 9-1-1. Police arrived and detained Arido-Sorro.
¶4 Arido-Sorro was charged with one count of aggravated assault by strangulation, two counts of aggravated assault with a dangerous instrument, and one count of aggravated assault by causing serious physical injury, which was later amended to aggravated assault causing substantial but temporary disfigurement. The jury acquitted him on the strangulation charge but found him guilty of the lesser-included offense of simple assault, and found him guilty on the other three charges. The trial court sentenced him to concurrent, presumptive prison sentences, the longest of which is 7.5 years.
¶5 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1), (4).
¶6 On appeal, Arido-Sorro argues the trial court committed fundamental error by allowing the state to introduce evidence collected during a warrantless search of the residence he shared with M.M. The evidence in question included photographs of blood smeared around the home and braided hair extensions pulled from M.M.'s head, as well as the frying pan and metal strainer with which Arido-Sorro struck her. Because Arido-Sorro did not object to this evidence below, we review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (); see also State v. Newell, 212 Ariz. 389, ¶ 34, 132 P.3d 833, 842 (2006) (); State v. Kinney, 225 Ariz. 550, ¶ 11, 241 P.3d 914, 919(App. 2010) ().3
¶7 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV; State v. Gilstrap, 235 Ariz. 296, ¶ 7, 332 P.3d 43, 44 (2014). Evidence seized as a result of an unreasonable search is generally suppressed, State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007), and "warrantless searches are presumptively unreasonable," Rodriguez v. Arellano, 194 Ariz. 211, ¶ 9, 979 P.2d 539, 542 (App. 1999).
¶8 A recognized exception to the warrant requirement is the "protective sweep" of hidden areas "immediately adjoining the place of arrest from which an attack could be immediately launched." State v. Fisher, 226 Ariz. 563, ¶ 8, 250 P.3d 1192, 1194 (2011), quoting Maryland v. Buie, 494 U.S. 325, 334 (1990). To search beyond that area requires "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene." Id., quoting Buie, 494 U.S. at 334.
¶9 Here, the evidence indicates officers arrived on scene, and briefly spoke with M.M. at the neighbors' home. During that conversation, she was on the floor, bleeding from her head and mouth, and her voice "was very low and in and out." Officers proceeded to the adjacent residence M.M. shared with Arido-Sorro. Through the front window, and before entering the home, they observed clear indications of a violent incident, including overturned furniture, blood on the floor and walls, and that the rear sliding glass door "was wide open." The state of the home, as well as M.M.'scondition while speaking with officers, including the severity of her injuries and her affect, supported a reasonable belief that the residence might contain "an individual posing danger to those on the arrest scene." See id., quoting Buie, 494 U.S. at 334. Moreover, "[c]ourts must be careful not to use hindsight in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger." United States v. Astorga-Torres, 682 F.2d 1331, 1335 (9th Cir. 1982), quoting United States v. Coates, 495 F.2d 160, 165 (D.C. Cir. 1974); cf. State v. Manuel, 229 Ariz. 1, ¶ 11, 270 P.3d 828, 831 (2011) (). Thus, Arido-Sorro's assertion that officers must have known there was no one inside the residence is unavailing, as it relies on a hindsight determination not consistent with the initial evidence at the scene and officer-safety concerns underlying the protective-sweep warrant exception. We conclude the warrantless entry into M.M.'s and Arido-Sorro's home was permissible as a protective sweep, and the trial court did not commit fundamental error in allowing the state to present evidence collected there.
¶10 Arido-Sorro next argues the trial court erred by not excluding statements he made after he invoked his right to counsel. Because he did not object on this basis at trial, we review for fundamental, prejudicial error. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008) ().
¶11 When a detained suspect invokes the right to remain silent or speak with a lawyer, all questioning must stop. Edwards v. Arizona, 451 U.S. 477, 482 (1981); Miranda v. Arizona, 384 U.S. 436, 474 (1966). But a detainee may waive his rights by "initiat[ing] further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85. Such a waiver does not occur where a detained suspect responds to "express questioning or its functional equivalent," meaning "any words or actions . . . police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); see also State v. Jones, 203 Ariz. 1,¶ 15, 49 P.3d 273, 278 (2002). Examples of persuasive tactics that are equivalent to interrogation despite the lack of any express questioning include deemphasizing "the moral seriousness of the offense," "cast[ing] blame on the victim or on society," suggesting "legal excuses" to induce a confession, using coached witnesses to accuse the detainee of fictitious crimes, and equating a suspect's silence with evidence of guilt. Miranda, 384 U.S. at 450-51, 453-54; see also Innis, 446 U.S. at 299. However, interrogation does not occur when a suspect's statements are "the unforeseeable results of [officers'] words or actions," such as when a suspect overhears a brief conversation between officers before voluntarily divulging the location of missing evidence. Innis, 446 U.S. at 295, 301-02.
¶12 In this instance, Arido-Sorro had been detained and invoked his right to remain silent. As officers returned from conducting the protective sweep, he interrupted two officers' conversation to assert that the entry into the residence had violated his rights. One officer responded that they "were doing a welfare check . . . [and] didn't violate his rights." Arido-Sorro then requested the officer's badge number and purported to threaten the officer's job. The officer commented that Arido-Sorro "was not a tough guy for beating his girlfriend," and Arido-Sorro responded by saying, "[Y]ou're lucky she's even still here, and . . . when I get out I'm going to kill her and you won't be able to talk to her then." After the officer "told him he shouldn't make statements like that," Arido-Sorro added, "you will see . . . when she's gone nobody...
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