State v. Carrillo, CR-87-0092-PR

• Decision Date: 02 February 1988
• Docket Number: No. CR-87-0092-PR,CR-87-0092-PR
• Citation: 156 Ariz. 125,750 P.2d 883
• Parties: , 56 USLW 2570 The STATE of Arizona, Appellee, v. Hector Pesqueira CARRILLO, Appellant.
• Court: Arizona Supreme Court

Page 883

750 P.2d 883

156 Ariz. 125, 56 USLW 2570

The STATE of Arizona, Appellee, v. Hector Pesqueira CARRILLO, Appellant.

No. CR-87-0092-PR.

Supreme Court of Arizona, In Banc.

Feb. 2, 1988.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Phoenix, for appellee.

Charles L. Weninger, Tucson, for appellant.

FELDMAN, Vice Chief Justice.

Hector Pesqueira Carrillo was convicted of second-degree murder, A.R.S. § 13-1104, and theft by controlling stolen property with a value of over $1,000, A.R.S. § 13-1802(C). The state alleged and proved that the murder was of a dangerous nature. A.R.S. § 13-604. The trial judge sentenced the defendant to concurrent aggravated terms of twenty years for second-degree murder and ten years for theft. Carrillo petitions for review. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5 and A.R.S. §§ 13-4033 and -4035.

FACTUAL AND PROCEDURAL SUMMARY

Bruce Johnson was killed on December 9 or 10, 1984. One of Johnson's coworkers discovered the body at the victim's Tucson home on December 11, and immediately summoned the authorities. The medical examiner concluded that death occurred a day or two earlier as the result of multiple stab wounds to the chest. The assailant had inflicted other nonlethal wounds, breaking off a knife blade that remained imbedded in Johnson's spine. There was no indication of a break-in or of pilferage other than the absence of Johnson's keys and automobile. The police found the car about one week later parked several blocks away.

Tucson Police Department Detective Edward Gonzales took charge of the homicide investigation. He was assisted by Detective Perry Lowe. Detective Gonzales supervised an intensive effort to find and analyze all of the available physical evidence, collecting hair and blood samples, checking for latent fingerprints, and interviewing Johnson's neighbors, friends, and fellow employees. Leads developed as friends and coworkers compared notes on their last contacts with the victim.

One of Johnson's friends recalled a telephone conversation with Johnson at about 6:30 p.m. on December 9. The victim spoke to someone in the house, saying "Hector, don't do that now," or "Hector, we will do that later." Johnson explained the interruption by saying that the man there would do some gardening the next day. He added that the same man had been there last week and that Johnson had awakened at 2:00 a.m. to discover Hector preparing a meal and had asked Hector to leave. Other friends told the police that the "Hector" referred to was probably Hector Pesqueira Carrillo, the defendant, and that Johnson and Carrillo had had a two-year homosexual relationship. The police also learned that Carrillo had worked for Johnson as a gardener.

Armed with these facts, the police investigation focused on defendant. Police records showed that Carrillo had been arrested for child molestation, trespass, and for three separate arson incidents. On each occasion, the charges were dismissed because the court determined Carrillo was severely mentally retarded and incompetent to stand trial. At this point, while the police had only circumstantial evidence against Carrillo, he was the only suspect.

In an effort to fully interrogate Carrillo, Detective Gonzales decided to employ a misdemeanor traffic warrant that was then outstanding on a person named Hector Carrillo. Detectives Gonzales and Lowe used the traffic warrant as a pretext to visit the defendant on December 20, 1984. The true purpose of this operation was to talk about the Bruce Johnson investigation. Detective Gonzales knew that the defendant was mentally deficient at the time of this first contact. They tried to persuade him to go to the police station because it was Tucson Police Department policy not to arrest on a misdemeanor warrant when the suspect denied its existence. Detective Gonzales told Carrillo that he was not under arrest and Carrillo agreed to go downtown to the station house to be questioned about the traffic offense. The police did not handcuff him for the trip to the station house, which was only a few blocks away.

Gonzales placed Carrillo in a small interview room and began the interrogation. It was independently obvious to him at that point that Carrillo was indeed mentally deficient. Detective Gonzales did not give defendant Miranda warnings ¹ when he began the interview. In the first part of the session, which was not tape-recorded, Gonzales briefly discussed the traffic warrant and then shifted the focus to a previous arrest for child molestation. Carrillo became increasingly reluctant to talk at that development. Gonzales next asked a series of questions seeking a connection between the victim and Carrillo and eventually "dropped it on him that we were investigating the murder of Bruce Johnson and I asked him if he killed him." ² Carrillo said that he had stabbed Johnson but that he did not mean to.

Detective Gonzales then turned on his tape recorder and advised Carrillo of his Miranda rights in simplified form to ensure that Carrillo understood them. Defendant confessed to the crime and repeated the confession in substantially similar detail a few minutes later to a police psychologist. Significantly, when Detective Lowe began the third round of questions a short time later, Carrillo finally invoked his Miranda rights, did not answer any more questions, asked for an attorney, and then refused to speak. Other than these confessions, there was no direct evidence placing Carrillo at the scene of the murder. The defendant was not matched to any of the blood or hair samples nor to any of the fingerprints found at the victim's home and on the victim's car.

Carrillo was charged with first degree murder, burglary, and theft. He then filed a motion for mental examination. Rule 11, Ariz.R.Crim.P., 17 A.R.S. The trial court's extensive Rule 11 hearing disclosed that Carrillo suffers from mild to moderate mental retardation. Two mental health experts concluded that Carrillo was incompetent to stand trial. Two other experts disagreed. The trial court found the defendant competent to stand trial.

The defendant also moved to suppress the confessions and statements that he had made. The trial court concluded that the statements fit within hearsay exceptions and that the confessions were voluntarily made. They were presented to the jury at trial. So, also, was the question of voluntariness. In order to bolster the contention that Carrillo had voluntarily confessed, the prosecutor referred to Carrillo's invocation of his Miranda rights and elicited testimony from two prosecution witnesses concerning Carrillo's resort to his constitutional rights.

The jury convicted Carrillo of second degree murder and theft. The trial court sentenced him to concurrent sentences of twenty years for the murder and ten years for the theft. Carrillo appealed his conviction to division two of our court of appeals. He asserted that the trial court had committed four serious errors: First, the confessions were not voluntary. Second, comments made to police taking him to a psychiatrist's office were involuntary, irrelevant, and unfairly prejudicial; they should not have been admitted. Third, the court erred in admitting the hearsay statements about the conversation between the victim and a friend concerning a "Hector" who had been at Johnson's house on December 9, 1985. Fourth, the prosecutor and two witnesses had improperly commented on Carrillo's invocation of his rights to remain silent and right to counsel after the initial police interrogations. The court of appeals affirmed the conviction. State v. Carrillo, 156 Ariz. 120, 750 P.2d 878 (App.1987). Carrillo petitioned this court to review, asserting the same four grounds raised in the court of appeals.

We granted review only on the first and fourth issues. These issues present questions of first impression. See Rule 31.19(f), Ariz.R.Crim.P., 17 A.R.S.

A. GOVERNMENT COMMENTARY ON DEFENDANT'S INVOCATION OF HIS CONSTITUTIONAL RIGHTS

Defendant claims that the trial judge erred in admitting evidence of defendant's invocation of his Miranda rights. Protection against compelled evidence or testimony is given in the fifth amendment to the United States Constitution and art. 2, § 10 of the Arizona Constitution. Before the results of any custodial interrogation may be directly used by the state, the authorities must tell the defendant that he has the right to remain silent as well as the right to the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Arizona courts have recognized that the protection against self-incrimination includes freedom from adverse consequences flowing from defendant's exercise of his right. Thus, the prosecutor may not raise an inference of defendant's guilty mind by remarking upon the silence of a suspect who exercised his Miranda rights. State v. Villalobos, 6 Ariz.App. 144, 430 P.2d 723 (1967). Normally, any reference by judge or prosecutor to a defendant's protected silence will constitute fundamental error. State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973).

Federal caselaw discloses an instructive evolution of this principle. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the defendants offered an exculpatory explanation for their participation in an alleged drug transaction. On cross-examination the prosecutor asked them why they had not explained their conduct at the time of arrest. The Court held that the cross-examination was fundamentally unfair and violated the due process clause of the fourteenth amendment. Even though defendant's invocation of rights might raise an inference of his consciousness of guilt, the Court concluded that the Miranda warnings carried an implicit assurance that a defendant's choice to remain silent would carry no penalties. 426 U.S. at 618-19, 96 S.Ct. at 2245. The Court has repeatedly recognized that the Miranda...