State v. Gay

• Decision Date: 23 January 2007
• Docket Number: No. 2 CA-CR 2004-0306.,2 CA-CR 2004-0306.
• Citation: 150 P.3d 787,214 Ariz. 214
• Parties: The STATE of Arizona, Appellee, v. Anthony Shariff GAY, Appellant.
• Court: Arizona Court of Appeals

150 P.3d 787

214 Ariz. 214

The STATE of Arizona, Appellee, v. Anthony Shariff GAY, Appellant.

No. 2 CA-CR 2004-0306.

Court of Appeals of Arizona, Division 2, Department A.

January 23, 2007.

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Terry Goddard, Arizona Attorney General By Randall M. Howe and Nicholas D. Acedo, Phoenix, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender By John F. Palumbo, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 After a jury trial, appellant Anthony Gay was convicted of one count each of first-degree murder and first-degree burglary. The trial court sentenced him to natural life imprisonment for the murder conviction and a concurrent, presumptive term of 10.5 years in prison for the burglary conviction. On appeal, Gay argues the trial court erred by denying his motion to suppress evidence obtained during a search of his apartment, his Batson¹ challenge to the state's peremptory strikes of two prospective jurors, and his motion to suppress statements he made to police. He also argues the court erred by granting the state's motion to preclude expert testimony regarding the reliability of his statements to police at the hearing on his motion to suppress those statements. Finding no reversible error, we affirm.

Background

¶ 2 We view the evidence in the light most favorable to sustaining the convictions. See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App.2004). On April 10, 2001, a Tucson police officer responding to a "check welfare" call discovered Stacy McKeown stabbed to death in her apartment. Police began looking for Gay, a former neighbor of McKeown's, after learning that his fingerprints matched those on a telephone in McKeown's apartment. Police arrested Gay at the apartment he shared with his girlfriend, Veronica Fresby. Police later searched the apartment pursuant to a search warrant, finding a ring and a shirt that belonged to McKeown, as well as a pair of jeans with both Gay's and McKeown's blood on them.

¶ 3 Other evidence incriminated Gay: his blood was found in various places in McKeown's apartment; his semen was found on her vagina; his semen and blood were found on her nightgown; his fingerprints were found on a beer can in her kitchen; and he pawned several compact discs and video-cassettes, at least one of which had both his and McKeown's fingerprints on it. Following his arrest, Gay admitted being in McKeown's apartment in the early morning of April 10, but insisted he did not kill McKeown. Toward the end of his interrogation by police, however, Gay stated he "just went crazy."

Search of Gay's Apartment

¶ 4 Gay first argues the trial court erred by denying his motion to suppress evidence obtained during a search of his apartment. When reviewing a trial court's denial of a motion to suppress, we review only the evidence presented at the hearing on the motion to suppress, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), and we view it in the light most favorable to sustaining the trial court's ruling, State v. Rosengren, 199 Ariz. 112, ¶ 2, 14 P.3d 303, 306 (App.2000). We review the court's decision "for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App.2006).

¶ 5 Several days after the murder, police obtained a warrant for Gay's arrest after learning that fingerprints taken from a telephone in McKeown's apartment matched Gay's. Police went to Fresby's apartment in order to inform her of the arrest warrant for Gay and in an attempt to obtain consent to search the apartment, which she shared with Gay. They did not think Gay would be there. Detectives Thompson and Olivas entered the apartment with Fresby's permission, and Fresby agreed to give a tape-recorded statement. She refused to consent to a search of the apartment, so other officers left to obtain a search warrant. Olivas remained in the apartment to finish taking Fresby's statement.

¶ 6 At some point, Fresby stopped talking and asked Olivas to leave. He refused to leave because he was concerned Fresby might destroy evidence. He permitted Fresby to go back to her bedroom after she asked to call her lawyer and to change clothes, but he asked her to keep the door slightly open. Fresby came out of the room and eventually told Olivas that Gay was in the apartment and would surrender. Gay came out and was arrested without incident. Meanwhile, the detectives who had left to obtain a search warrant returned in response to the arresting officer's page notifying them of Gay's arrest. Following the arrest, police obtained a warrant to search the apartment. A search of the apartment revealed the incriminating evidence.

¶ 7 Gay moved to suppress the evidence obtained during the search. The trial court denied the motion, determining that the search was reasonable under Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). Gay argues that once Fresby asked the officer to leave and he refused, a seizure in violation of the Fourth Amendment began.

¶ 8 The United States and Arizona Constitutions protect persons from unreasonable searches and seizures. See U.S. Const. amends. IV, XIV; Ariz. Const. art. II, § 8. Police generally may not search a home or seize evidence without a warrant supported by probable cause. McArthur, 531 U.S. at 330, 121 S.Ct. at 949; State v. Smith, 208 Ariz. 20, ¶ 6, 90 P.3d 221, 223 (App.2004); Mehrens v. State, 138 Ariz. 458, 460, 675 P.2d 718, 720 (App.1983). Evidence seized as a result of a violation of the Fourth Amendment generally must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); State v. Soto, 195 Ariz. 429, ¶ 9, 990 P.2d 23, 25 (App.1999). But there are exceptions to the warrant requirement, including the exigent circumstances exception. McArthur, 531 U.S. at 331, 121 S.Ct. at 950; Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923, 925 (1997).

¶ 9 In McArthur, police refused to allow McArthur to reenter his home without a police escort for about two hours, while they obtained a warrant to search the home for drugs. 531 U.S. at 328-29, 121 S.Ct. at 948-49. When McArthur did enter, a police officer stood just inside the door and watched what McArthur did. Id. at 329, 121 S.Ct. at 949. An Illinois appellate court upheld the trial court's decision to suppress the drug evidence obtained after a search pursuant to the warrant. Id. at 329-30, 121 S.Ct. at 949. The Supreme Court reversed. Id. at 337, 121 S.Ct. at 953. In upholding the search, it relied on the exigent circumstances exception to the warrant requirement. Id. at 331, 333, 121 S.Ct. at 950, 951. The Court considered four circumstances "in combination." Id. First, the police had probable cause to believe the residence contained contraband. Id.

Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant....

Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact — until a neutral Magistrate, finding probable cause, issued a warrant....

Fourth, the police imposed the restraint for a limited period of time, namely, two hours.

Id. at 332, 121 S.Ct. at 950-51.

¶ 10 Gay's challenge centers on the second and third circumstances announced in McArthur.² We conclude those requirements were met here. Because Gay and Fresby shared the apartment, it was reasonable for the detectives to believe there might be evidence incriminating Gay in the apartment, and Fresby might have incentive to destroy it. See McArthur, 531 U.S. at 331, 121 S.Ct. at 950 (police claim of "specially pressing or urgent law enforcement need" must be "plausible"). Furthermore, the police made a reasonable attempt to accommodate Gay's privacy by not searching the apartment until they had obtained a warrant. See id. at 332, 121 S.Ct. at 950 (decision not to search prior to obtaining warrant a factor in reasonableness of temporary seizure). And Gay cannot raise any violation of Fresby's privacy interests here. See State v. Papineau, 146 Ariz. 272, 273, 705 P.2d 949, 950 (App.1985) ("Only one whose own rights have been violated may seek the remedy of exclusion.").

¶ 11 But Gay argues, citing State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986), that any exigent circumstance stemming from concern that Fresby might destroy evidence was created by police because they failed to obtain a search warrant prior to going to the apartment. In Ault, the police went to the defendant's house with the ultimate intention of arresting him. Id. at 464, 724 P.2d at 550. Our supreme court held that police could not enter the residence to secure it out of concern that the defendant might destroy evidence because, by not obtaining an arrest warrant and arresting the defendant at the front door of his home when they had the opportunity and probable cause to do so, the police created the exigency. Id. at 463-64, 724 P.2d at 549-50. The court concluded the evidence the police had seized without a warrant while accompanying Ault inside the house should have been suppressed. Id. at 462, 466, 724 P.2d at 548, 552.

¶ 12 Here, the police did not believe Gay would be at the apartment and did not go there to arrest Fresby or Gay. Instead, they intended to inform Fresby of the arrest warrant for Gay and gain her consent to search the apartment. Consent is a valid exception to the warrant requirement. State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996). The police did not act unreasonably in attempting to...