State v. Bravo

• Court: Arizona Supreme Court
• Writing for the Court: MOELLER; GORDON
• Citation: State v. Bravo, 762 P.2d 1318, 158 Ariz. 364 (Ariz. 1988)
• Decision Date: 20 September 1988
• Docket Number: No. CR-86-0015-AP,CR-86-0015-AP
• Parties: STATE of Arizona, Appellee, v. Alexsandro Vincente BRAVO, Appellant.

Page 1318

762 P.2d 1318

158 Ariz. 364

STATE of Arizona, Appellee, v. Alexsandro Vincente BRAVO, Appellant.

No. CR-86-0015-AP.

Supreme Court of Arizona, In Banc.

Sept. 20, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Paul J. McMurdie, Asst. Attys. Gen., Phoenix, for appellee.

Curtis & Cunningham, by George H. Curtis, Tucson, for appellant.

MOELLER, Justice.

JURISDICTION

A jury convicted defendant Alexsandro Vincente Bravo of the felony murder of Shang Ngor (Julie) Wong. The same jury, in a joint trial, also found Bravo guilty of armed robbery, aggravated robbery, and aggravated assault committed against Raland Tinker one day before the Wong murder. Defendant was sentenced to three concurrent twelve-year terms on the Tinker convictions and a consecutive term of life imprisonment without possibility of parole for twenty-five years on the Wong murder. He appeals directly to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031, -4033, -4035.

ISSUES

The principal issues we deal with are:

(1) Whether all of defendant's in-custody statements to investigating officers should have been suppressed on grounds of involuntariness, or whether it was sufficient to suppress those portions taken after the officers continued their interrogation notwithstanding defendant's invocation of his right to remain silent?

(2) Whether the testimony of witness Danny Champion should have been suppressed as fruit of the poisonous tree?

(3) Whether the court properly excluded a hearsay statement of Reynaldo Tapia which tended to implicate a person other than defendant in Wong's murder?

(4) Whether the testimony by a jail counselor and a psychiatrist on the issue of voluntariness violated defendant's rights because the testimony was based, in part, on defendant's exercise of his constitutional rights?

We affirm all of the trial court's rulings except that relating to the Champion testimony, which testimony must be suppressed because it was illegally obtained.

FACTS

A. The Tinker Robbery.

Because of the nature of the issues raised on appeal, we set forth the facts of these interrelated offenses in some detail. On December 12, 1981, Charles Craig's Colt .38 Special was stolen from Tucson's Desert Inn Hotel. Also stolen were some unusual Federal brand bullets which Craig used in the .38. The next evening, December 13, 1981, Raland Tinker left his room at the La Quinta Motel in Tucson and walked to his Chevy Blazer in the parking lot. Tinker put some items in the back of his Blazer and locked the back part of the Blazer. As he walked around the vehicle to get into the driver's seat, two men came out from between some cars parked nearby and approached him. The first man, holding a gun, said, "This is a holdup. I want your money, your wallet, and this is a real gun." The same man then approached Tinker with the gun held high, partially obscuring his face, and ordered Tinker to lie face down on the ground. Tinker, who was familiar with firearms, thought the gun was either a .32 or .38 caliber Colt. Tinker obeyed, laid down on his stomach, and removed his wallet from his back pocket and placed it near his head. The wallet contained some credit cards, a Washington state fishing license, and a hidden $50 bill. The second man, who Tinker never saw, checked Tinker's pockets. The first man then struck Tinker on the head with the gun; the gun discharged, sending a bullet into Tinker's midsection.

After the attack, Tinker was taken to a local hospital where he was treated. The bullet removed from his abdomen was preserved for evidence. Although Tinker was shown several photographic lineups by the police shortly after the crime, he was unable to identify the one attacker he had seen. None of the line-ups shown to Tinker contained a picture of the defendant. Tinker described his attacker as a Mexican or Hispanic male between 17 and 19 years old, standing 5'10"' and weighing approximately 150 pounds.

B. The Wong Murder.

At approximately 9:00 a.m. on December 14, 1981, the day after the assault and robbery of Tinker, an assailant entered the H & W Market near Tucson High School. The assailant shot and killed Wong, a sixty-seven year old woman who was one of the owners of the store. Police arriving on the scene found Wong, who had been shot through the left eye, laying on the floor near the front counter of the store. A television located in the back of the store was on, as was a sewing machine near it. The drawer to the cash register was open and contained only change. Later, during an autopsy, a bullet lodged in Wong's head was removed and preserved for evidence.

Police connected the Tinker and Wong crimes through ballistics analysis which revealed that the unusual bullets removed from the victims' bodies probably came from the same Colt .38 or .38 special revolver. Analysis also revealed that the fired bullets had characteristics similar to those which had been stolen from Charles Craig at the Tucson Inn. However, no matching gun was ever found.

C. The Defendant's In-Custody Statements.

Nearly two and one-half years later, on April 4, 1984, defendant Bravo was arrested in Benson, Arizona, for attempting to steal a police car in broad daylight. He was incarcerated in the Cochise County jail in Bisbee. While being booked, he was extremely disoriented and it was impossible to communicate with him. As described by one witness, he was "literally bouncing off the walls." Jail personnel observed Bravo banging his head against jail bars and walls and had to physically restrain him. He openly masturbated continuously, engaged in other public displays of sexual conduct, and asked other inmates for sexual favors.

The jail psychiatrist initially thought defendant's condition was due to acute drug intoxication and decided to let the defendant "dry out." However, defendant's condition did not improve. Therefore, eight days after his arrest, the jail psychiatrist placed defendant on Haldol, a powerful psychotropic medicine. He also prescribed Symmetrel to control the physical side effects of Haldol. The Haldol was administered to make defendant more manageable, to clear his thought processes, and to help defendant communicate. While defendant's behavior improved somewhat, jail personnel testified that he was still disoriented.

By April 17, 1984, after five days of medication, defendant's abnormal public sexual activity ceased. At approximately noon on that day, defendant asked a detention officer if he could use the jail phone. He made a phone call. Approximately two hours later, he asked to talk to a detention officer. An officer went to defendant's cell where, without any prompting from the officer, defendant told the officer that he had killed an old woman in an armed robbery in Tucson. The officer then asked defendant if he would like to speak to the jail counselor, Nancy Kirkman.

Defendant agreed to speak to Kirkman and was escorted to her office by two officers. According to Kirkman, defendant was nervous and visibly upset. Defendant told Kirkman that he had "lived with it" long enough and that he needed to confess to a crime. Kirkman told defendant that she had to call a police detective because she could not keep confessions in confidence. She then told defendant that if he desired she would summon a detective. Defendant said that is what he desired. Kirkman then summoned a detective to her office. Before the detective arrived, defendant again told Kirkman that he had murdered a lady in Tucson. While defendant and Kirkman waited for the detective's arrival, Kirkman advised defendant that he should consider exactly what he wanted to tell the detective because it could be used against him.

Detective Martinez, who was stationed in the same building, arrived a short time later and read defendant his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kirkman was present during the reading of the Miranda rights and she attempted to explain the meaning of each of the rights to the defendant in terms he could understand. Kirkman took the time to explain the Miranda rights to defendant because her observation of his behavior led her to believe that he might be incapable of understanding his rights. Defendant acknowledged that he understood his rights by either nodding his head or saying "yes."

After Martinez finished reading defendant his rights, defendant became visibly upset and invoked his Miranda rights by saying, "I don't want to say anything now." Martinez honored defendant's invocation of rights and immediately left the room. However, the defendant shortly thereafter asked Kirkman to summon Martinez again, which she did. Kirkman, after observing defendant exercise his rights, came to believe that he did indeed understand them. When Martinez returned, he again informed defendant of his Miranda rights and Kirkman again explained the rights to defendant. Defendant again acknowledged that he understood his rights.

In an unrecorded conversation, defendant then told Martinez that he had shot an elderly lady, possibly in May 1982, near Tucson High. He thought the name of the store was the "C & W store." Defendant said he shot the lady with a .38 special because she attempted to stop his robbery of the store. Defendant first said he threw the .38 special into the Santa Cruz River and then said that he had sold it. Martinez then contacted the Tucson Police Department which dispatched homicide Detectives Perry Lowe and Edward Gonzales to Bisbee to talk with defendant.

Lowe and Gonzales, who were introduced to defendant as members of the Tucson Police Department, conducted a tape-recorded interview of the defendant. Lowe and Gonzales interrogated the defendant at length. The resulting statements by the defendant are at the heart of three of the four principal issues in this appeal. Early in the interrogation, defendant implicated himself in both the...