State v. Carter
| Decision Date | 21 May 1985 |
| Docket Number | No. 6413,6413 |
| Citation | 145 Ariz. 101,700 P.2d 488 |
| Parties | STATE of Arizona, Appellee, v. Ambrose Stanley CARTER, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III, and Roslyn Moore Silver, Asst. Attys. Gen., Phoenix, for appellee.
Kirby Kongable, Yuma, for appellant.
Appellant, Ambrose Stanley Carter, was convicted of two counts of armed robbery, A.R.S. § 13-1904, class 2 felonies, and one count of aggravated assault, A.R.S. § 13-1204, a class 3 felony. The jury found that each of appellant's crimes was a dangerous offense. The jury also found that appellant had a prior conviction in Ohio for armed robbery. See Ohio Rev.Code Ann. § 2911.01 (Page Supp.1984). The trial judge determined that appellant was on parole from the Ohio crime at the time of the present offenses. Appellant was sentenced to life without possibility of parole for 25 years for each of these offenses. See A.R.S. § 13-604.01(A). These sentences were designated to run concurrently. From these convictions and sentences, appellant appeals. We have jurisdiction. Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031, 13-4035. We affirm. We must address three issues:
1. Did the trial court properly refuse to suppress appellant's:
a. Pre-arrest statements, because he was allegedly subjected to custodial interrogation and had not received Miranda warnings?
b. Post-arrest statements, because he allegedly did not waive his Miranda rights, or, alternatively, because the police did not honor his decision to terminate questioning and remain silent?
2. Did the trial court abuse its discretion by refusing to suppress physical evidence seized at appellant's residence because the affidavit in support of the search warrant allegedly contained intentionally, knowingly or recklessly false statements which were necessary for a finding of probable cause?
3. Did the trial court properly refuse to allow the jury to determine whether appellant was on parole at the time of the instant offenses in enhancing punishment pursuant to A.R.S. § 13-604.01(A)?
At approximately 6:00 p.m. on June 7, 1984, a robbery occurred at a Dairy Queen in Yuma, Arizona. A black male, with his hair styled in corn-row braids and wearing dark sunglasses entered the store. He asked the clerk, Jule Lute, who was 14 years old, for an ice cream cone. While her back was turned making the cone, he jumped over the serving counter, grabbed the clerk by her neck, and pointed a large Buck knife at her throat. The robber forced the clerk to empty the cash registers and place the money in a bank deposit bag. He also made her empty the contents of her purse, though he found nothing worth stealing there. He took the purse belonging to Anna Durazo, another Dairy Queen employee, which was hanging on the fire extinguisher. After forcing the clerk to crouch down on the floor, he vaulted over the counter and escaped.
Officer Modesto of the Yuma Police Department arrived on the scene shortly after the robbery. He interviewed Jule Lute. She described the robber as a 5'11" black male who weighed approximately 160 pounds. According to Lute, the robber was wearing a baseball cap, a yellow pullover T-shirt, green shorts and tennis shoes. Modesto lifted fingerprints from the fire extinguisher that the robber had brushed while grabbing Anna Durazo's purse. The officer also obtained fingerprints from the metal serving counter over which appellant had jumped. In the middle of this same serving counter, Officer Modesto photographed a distinctive shoe print, which had a "running W" pattern on the sole and a "V" on the heel.
Anna Durazo was working at the time of the robbery. She was standing on the back parking lot talking to a friend, Armando Roman, who was in his pickup truck. Before the robbery, Durazo and Roman saw a black man approach and enter the store. Durazo recalled that this man was wearing his hair in corn-row braids.
Sergeant Ford, also of the Yuma Police Department, questioned Armando Roman about the robbery suspect. Roman indicated where the suspect walked in approaching the store. There, Sergeant Ford found footprints with the same distinctive design that was found on the serving counter inside the Dairy Queen. Later, the officer discovered a trail of these footprints leading from the store. Their pattern suggested that the person making them had been running. Sergeant Ford followed a trail of these footprints down an alley for several blocks to the porch of the house at 613 Avenue A. Appellant resided at this house with his girlfriend and her family.
Several officers from the Yuma Police Department arrived at the house. A man inside the house greeted the officers and invited them inside. Appellant, who was inside the house, generally matched the physical description of the robber, including the corn-row style of his hair. Appellant was also wearing tennis shoes with the same distinctive design on the sole found in the footprints at the scene of the crime and leading away from it. Otherwise, appellant's clothes did not match those worn by the robber. Officer Modesto asked appellant to accompany him to the police station to allow the police to obtain some physical evidence and general biographical information that would aid their investigation. Appellant complied with this request.
At the station, Officer Modesto took some photos of appellant. When he was asked why the police needed this information, the officer explained that appellant matched the description of a suspect in the armed robbery of a Dairy Queen. Appellant also asked whether he was under arrest. The officer replied "No."
In a showup held at the police station, neither Lute nor Durazo, the Dairy Queen employees present during the robbery, could identify appellant as the robber. Although they expressed uncertainty, they stated that they did not believe that he was the robber. They both conceded, however, that the corn-row styling of appellant's hair matched the hair style worn by the robber.
Officer Gross asked appellant if he could take his fingerprints. When appellant asked what would happen if he refused, the officer explained that the police would probably seek a court order. Appellant again inquired whether he was under arrest. The officer assured him that he had not been arrested. Appellant then allowed him to take his fingerprints. After doing so, Officer Gross asked if appellant had been present at the Dairy Queen earlier that day. "No, I haven't," appellant responded. Officer Gross did not ask appellant any other questions.
When the police learned that appellant's fingerprints matched those found at the crime scene, he was arrested. Appellant was interviewed by Officers Modesto and Campbell. Appellant acknowledged that he understood his rights and was willing to speak to the police. At first, appellant professed confusion about what was happening and why he was arrested. Officer Campbell explained the charges against him and that his fingerprints had been found at the scene of the crime.
Appellant insisted that he knew nothing about the armed robbery at the Dairy Queen. In particular, he exclaimed that he "didn't threaten nobody with a knife." When he was informed that none of the officers had mentioned that a knife was used in the robbery, appellant denied referring to a knife in his earlier statement. Appellant also told the officers that although he had visited the Dairy Queen in question earlier in the day, he knew nothing about the crime.
Irma Harris, appellant's neighbor, was also interviewed by the police. She knew appellant personally. She saw appellant running across her back yard near the time of the crime. She recalled that appellant was dressed in shorts and tennis shoes, that his hair was in braids, and that he was carrying a brown purse under his arm. She saw him run into his back yard and go to the rear door of his house.
After obtaining a search warrant, the police searched appellant's residence. The bank bag and the money stolen were found under a chest of drawers in appellant's bedroom. Anna Durazo's driver's license, which had been in her purse, was found under the bed in the same room. The police also seized some long knives and some clothing, including some yellow T-shirts, shorts and sunglasses. Jule Lute was able to identify some of the clothing as that worn by the robber.
At trial, appellant raised an alibi defense. Delores Simon, the mother of appellant's girlfriend, testified for the defense. She claimed that appellant was at home during the time of the robbery.
In order to be admissible, statements obtained while an accused is subject to custodial interrogation require a prior waiver of Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966); State v. Perea, 142 Ariz. 352, 354, 690 P.2d 71, 73 (1984).
After taking appellant's fingerprints, Officer Gross asked him whether he had been present at the Dairy Queen earlier in the day. Appellant denied being at the scene of the crime that day. This statement was inconsistent with the story appellant later told police. Appellant had not yet received Miranda warnings. Appellant contends that this questioning occurred while he was "in custody." We disagree.
The objective test for "custodial" interrogation is whether under the totality of the circumstances a reasonable person would feel that he was in custody or otherwise deprived of his freedom of action in a significant way. See Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, 719 (1977); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980); Miranda v. Arizona, supra, at 444, 86 S.Ct....
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