State v. Brown

• Decision Date: 27 September 2013
• Docket Number: No. 2 CA–CR 2012–0124.,2 CA–CR 2012–0124.
• Citation: 233 Ariz. 153,670 Ariz. Adv. Rep. 4,310 P.3d 29
• Parties: The STATE of Arizona, Appellee, v. Heulon Colston BROWN, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 153

310 P.3d 29

670 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Heulon Colston BROWN, Appellant.

No. 2 CA–CR 2012–0124.

Court of Appeals of Arizona,

Division 2, Department B.

Sept. 27, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Joseph L. Parkhurst, Tucson, Attorneys for Appellee.

Barton & Storts, P.C. By Brick P. Storts, III, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 After a jury trial, appellant Heulon Brown was convicted of first-degree felony murder, first-degree burglary, four counts of attempted armed robbery, and five counts of aggravated assault. He was sentenced to concurrent prison terms, the longest being life with the possibility of release after twenty-five years. On appeal, he argues the trial court erred by failing to suppress his pretrial statements and failing to give certain jury instructions. He also contends Arizona's felony-murder statute is unconstitutional. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 “We view the facts in the light most favorable to sustaining the convictions.” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). One evening in August 2010, four armed, masked men, including Brown, went to the door of an apartment and a fifth man, E.V., who was not masked, was forced to enter the apartment at gunpoint ahead of them. Immediately after opening the door, E.V., who was known to the apartment's occupants, dropped to the floor, placed his hands on his head, and curled into a ball while the gunmen ordered the occupants to “get on the ground.” One of those occupants, J.J., had a gun and shot at the masked men, killing Michael White and injuring Brown. During the exchange, J.J. and A.B., a minor who was in the apartment, also were shot and injured.

¶ 3 At trial, Brown's defense was that he, like E.V., had been forced to participate in the home invasion. He was convicted and sentenced as described above and now appeals. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Suppression of Statements

¶ 4 Brown argues the trial court erred by not suppressing statements he had made to police while he was hospitalized after surgery immediately following the incident. We review the denial of a motion to suppress evidence for an abuse of discretion. See State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App.2011). In our review, we look only to the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling, see State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007), deferring to the court's determination of facts and witness credibility but reviewing de novo its legal conclusions, see State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

¶ 5 Following the home invasion, Brown, who had been shot in the chest, was taken to Tucson's University Medical Center where he underwent emergency surgery. The same day, approximately six hours after the surgery, police detectives questioned him about the incident (the August 26 interview). At the beginning of the interview, Detective Diaz informed Brown that he was being detained and advised him of his rights pursuant to Miranda,¹ after which Brown said, “I'll answer your questions.” Although Brown had been given medication, Detective Cassel noted that the conversation was “normal” and “coherent,” and “nothing ... was limiting [Brown's] ability to communicate.” Diaz similarly noted that Brown was lucid and able to engage in active conversation. At the conclusion of the interview, Brown was informed he was under arrest.

¶ 6 At approximately two o'clock the following morning, Diaz returned to the hospital and continued questioning Brown (the August 27 interview). The detective asked, “Obviously, you remember your rights from yesterday and you still understand them, we're still good with that? Yeah?” Brown responded, “Ah-[h]ah,” and proceeded to answerquestions. At no point during either interview did Brown invoke his right to remain silent or his right to counsel. Finally, seven days later, while still hospitalized, Brown initiated a conversation with Diaz (the September 3 interview). The detective did not remind him of his rights, and Brown made additional statements. Before trial, Brown moved to suppress all of his statements on the ground he had not given them voluntarily. The trial court denied the motion after conducting an evidentiary hearing, and statements from the three interviews were introduced at trial.

Voluntariness

¶ 7 On appeal, Brown maintains that his statements were involuntary and should have been suppressed. We will not overturn a trial court's determination of voluntariness absent clear error. See State v. Graham, 135 Ariz. 209, 211, 660 P.2d 460, 462 (1983). Confessions are presumed to be involuntary, and the state has the burden of demonstrating voluntariness by a preponderance of the evidence. State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988). In considering whether a confession is voluntary, a court must determine whether, under the totality of the circumstances, the will of the defendant was overborne. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978). A defendant's mental or physical condition is relevant to the inquiry, but generally is insufficient by itself to render a statement involuntary. State v. Smith, 193 Ariz. 452, ¶ 14, 974 P.2d 431, 436 (1999); cf. Mincey v. Arizona, 437 U.S. 385, 398–402, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (confession involuntary where defendant seriously wounded, evidently confused, still in hospital's intensive care unit and encumbered by medical apparatus, complained of “unbearable” pain, asked for the interrogation to stop, and repeatedly lost consciousness).

¶ 8 Brown argues he “was not in a mental condition to comprehend the nature and import of the [Miranda ] warning” he received. He asserts he “had been shot and was in critical condition and strongly medicated” and therefore the questioning was “coercive in nature, causing [his] statements to be ... involuntary.” But no evidence was introduced at the hearing to support the contention that he was strongly medicated, in critical condition, or that he did not understand what was happening.

¶ 9 Instead, although detectives observed that Brown was “hooked up to many monitors and ... an IV,” and that he appeared to be in pain, they testified he was “lucid” and able to engage in active conversation, his answers to their questions were coherent and responsive, and “nothing ... was limiting his ability to communicate.” Brown at one point requested pain medication, and the nurse informed him she would provide the medication as soon as the interview was over. Brown did not ask for the questioning to stop, nor did he repeat his request for pain medication.

¶ 10 The detectives made no promises or threats to Brown. And, after informing him of the nature of the questions they wanted to ask, about a minute into the encounter the detectives read him his rights, which he said he understood.² Brown agreed to continue answering questions, and did so for about an hour. Nothing in the recording of the interview or the suppression testimony indicated Brown's will had been overborne. The trial court reviewed and considered the audio recording of the interview when determining voluntariness, as have we, and it supports the court's ruling. Under these circumstances, we find no abuse of discretion in the court's finding that Brown's statements were voluntary. And because his arguments relating to the voluntariness of the statements given in the subsequent interviews hinge on a finding of involuntariness in the first, we need not address them.

¶ 11 Brown also maintains that because the statements were not suppressed, he was required “to testify in an effort to explain the[ir] content and discrepancies,” which both violated his right to remain silent and “made him appear to be a liar and severely prejudiced his defense.” He did not object on this basis below and we therefore review only for fundamental, prejudicial error. See State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009). But he does not argue on appeal that the error is fundamental, and because we see no error, fundamental or otherwise, the argument is waived. See State v. Moreno–Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App.2008) (fundamental error argument waived on appeal); see also Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (“A defendant who chooses to testify waives his privilege against compulsory self-incrimination ... and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.”).

Right to Counsel and Timely Initial Appearance

¶ 12 Brown next contends the statements he made while hospitalized should have been suppressed because they were taken in violation of his Fifth and Sixth Amendment rights to counsel and a timely initial appearance. ³ He asserts these grounds for the first time on appeal; we therefore review for fundamental error. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d at 236;see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App.2008) (“[A] general objection is insufficient to preserve an issue for appeal,” and “an objection on one ground does not preserve the issue on another ground.”).

¶ 13 Brown acknowledges that his right to counsel under the Sixth Amendment had not attached when he gave his statements. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (Sixth Amendment right to counsel does not attach until initiation of adversary judicial criminal proceedings, “ ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment’ ”), quoting ...