State v. Lopez

• Decision Date: 02 July 1991
• Docket Number: No. 1,CA-CR,1
• Citation: 170 Ariz. 112,822 P.2d 465
• Parties: STATE of Arizona, Appellee, v. Bruno Arthur LOPEZ, Appellant. 89-1013.
• Court: Arizona Court of Appeals

Page 465

822 P.2d 465

170 Ariz. 112

STATE of Arizona, Appellee, v. Bruno Arthur LOPEZ, Appellant.

No. 1 CA-CR 89-1013.

Court of Appeals of Arizona,

Division 1, Department A.

July 2, 1991.

Redesignated as Opinion Sept. 17, 1991.

Review Denied Jan. 21, 1992.

[170 Ariz. 113] Grant Woods, Atty. Gen. by Paul McMurdie, Chief Counsel, Crim. Div., and Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

George M. Sterling, Jr., Phoenix, for appellant.

OPINION

CAMPBELL, Judge. ^*

Appellant Bruno Arthur Lopez (defendant) was indicted on six counts of sexual conduct with a minor under the age of 15, class 2 felonies and dangerous crimes against children in the first-degree under Ariz.Rev.Stat.Ann. § 13-604.01 (1989). The indictment charged various incidents involving a single male victim named Chris ¹, then 12 years old, on two dates in May or June, 1987.

FACTUAL BACKGROUND

We review the evidence in the light most favorable to sustaining the verdict. Chris met defendant in April, 1987, after Chris answered an advertisement for a job that allowed teenagers to make money selling candy door-to-door. When defendant came to Chris' home to take him on the sales route, Chris was on the telephone to his mother at work. Defendant almost immediately began to touch Chris in a sexual manner; ² though Chris protested, he accompanied defendant on the candy sales route. Over the next two days, defendant told Chris about sexual acts performed with men and with a woman named Lydia. Defendant also promised Chris fellatio as a reward for good candy sales.

On the third day, defendant came to Chris's house to pick him up. He entered Chris's bedroom and sexually molested him. After Chris got dressed, defendant took him on his candy sale route.

On another occasion several days later, defendant came to Chris's home with sexual paraphernalia and pornographic magazines. Defendant anally assaulted Chris with the items he had brought; defendant also masturbated Chris, performed fellatio on him, and assaulted Chris anally. Defendant subsequently offered to provide Chris with a girl for intercourse if Chris would allow another man to perform fellatio on him.

The state presented the testimony of three other witnesses who had sexual contact with defendant. One witness, Andy, testified that he had met defendant ten years earlier, when he was 14. Defendant invited Andy into his apartment while he was on his paper route and promised him employment with an organization that placed teenagers in yard care jobs. Over the next four to six months, defendant had sexual relations with Andy. He performed fellatio on Andy, forced Andy to perform fellatio on him, and sodomized Andy. Defendant gave Andy marijuana and beer and, on two occasions, provided him with a woman for sex. The woman's name was Lydia. Defendant pled guilty to a criminal charge regarding his sexual activity with Andy and was imprisoned.

A second witness, David, testified that he met defendant in Tucson in 1987 when he was 16 and went to work selling candy door-to-door. While defendant was alone with David, he took him into the desert and told him a sexually explicit story. He then performed fellatio on David and placed David's hand on his penis so that David could masturbate him. He also promised to procure a woman from Phoenix with whom he and David could have sex.

The third witness, Alex, also met defendant in Tucson when Alex was selling candy. He was 14. Defendant told Alex sexual stories and told him he would get a girl for him. While Alex was alone with defendant in his truck in November 1987, defendant grabbed Alex's penis. Immediately, Alex leapt from the truck, ran to a telephone and called police.

Tucson police investigated allegations made by Alex and David and subsequently arrested defendant in Phoenix. He was appointed a deputy Pima County public defender. While defendant was in custody in Tucson on March 21, 1988, he was interviewed by Phoenix police detective Emilio Soto, who was investigating the allegations made by Chris. Defendant received Miranda warnings and agreed to talk to the detective. He admitted having a sexual relationship with a 14-year-old boy named Andy. He denied making any sexual advances toward Alex. Regarding Chris, he said "nothing had happened to [Chris] that [Chris] didn't want." He also said that he had only had anal sex with two people and that Chris was not one of them.

Defendant was convicted of all counts and was sentenced to six consecutive presumptive sentences of 20 years imprisonment. He filed a timely notice of appeal, raising four issues:

1. Were his statements to detective Soto improperly admitted?

2. Did the court err in allowing evidence of other conduct to show a continuing emotional propensity toward aberrant sexual conduct?

3. Was the introduction of expert testimony improper?

4. Did the court erroneously restrict impeachment of David, a prosecution witness?

Discussion

ADMISSION OF DEFENDANT'S STATEMENT

1. Fifth amendment violation ³

An accused in custody, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him." Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). If the accused has invoked the right to counsel, statements are admissible only if the state shows that the defendant initiated further discussions with the police and knowingly and intelligently waived the right previously asserted. Id. at 485, 486 n. 9, 101 S.Ct. at 1885. Defendant contends that he invoked his right to counsel in this case when he told Detective Soto: "My attorney would shit bricks if he knew I was talking to you right now. He told me not to discuss this case with anyone." ⁴ Implicitly, he asserts that no subsequent waiver of the right to counsel occurred.

The Supreme Court has recognized that, "[o]n occasion, an accused's asserted request for counsel may be ambiguous or equivocal." Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). In Smith, the Supreme Court noted that courts have taken various paths when presented with a statement that may be viewed as equivocal. Some courts have held that all questioning must cease upon any request for or reference to counsel, however ambiguous. E.g., People v. Superior Court, 15 Cal.3d 729, 735-36, 125 Cal.Rptr. 798, 802-03, 542 P.2d 1390, 1394-1395 (1975), cert. denied, 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76 (1976). Other courts have held that when an accused makes an equivocal statement that "arguably" can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to "clarify" the earlier statement and the accused's desires respecting counsel. E.g., Thompson v. Wainwright, 601 F.2d 768, 771-72 (5th Cir.1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App.1983). Still other courts have embraced a third approach, attempting to define a "threshold" standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. E.g., People v. Krueger, 82 Ill.2d 305, 311, 45 Ill.Dec. 186, 189, 412 N.E.2d 537, 540, (1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 390 (1981) ("[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity," but not "every reference to an attorney, no matter how vague, indecisive, or ambiguous, should constitute an invocation of the right to counsel").

In State v. Staatz, 159 Ariz. 411, 768 P.2d 143 (1988), the Arizona Supreme Court stated that Arizona employs the second, or "clarifying" approach. The court held that the statement "Maybe I should be talking to a lawyer" was an ambiguous request that required police to either cease questioning or attempt to clarify the defendant's request. Id. at 414, 768 P.2d at 146. The supreme court cited State v. Inman, 151 Ariz. 413, 728 P.2d 283 (App.1986), in which we held that the defendant's statement, "When can I get a lawyer?" was at least an ambiguous request that required clarification before police could proceed with questioning. 151 Ariz. at 416, 728 P.2d at 286. See also State v. Flower, 161 Ariz. 283, 778 P.2d 1179 (1989) (defendant's silence following Miranda warning created ambiguity which permitted only questions to clarify his intent); State v. Finehout, 136 Ariz. 226, 665 P.2d 570 (1983) ("I ain't going to say any more," if an ambiguous assertion of right to remain silent, permitted only clarifying questions).

Other Arizona cases, however, appear to have embraced the "threshold" approach in analyzing requests for counsel, and have found that various statements mentioning an attorney fail to qualify even as "equivocal." In State v. Linden, 136 Ariz. 129, 664 P.2d 673 (App.1983), we considered whether a suspect's inquiry of police as to "who a good attorney would be" was sufficient to invoke his right to counsel. We analyzed the statement in the context in which it was made. We noted that the suspect, a former police officer, had been given Miranda warnings on three occasions and had testified that he understood them. Moreover, he had not refused to talk to investigating officers and, in fact, had requested the presence of a prosecutor so that he, and not an attorney, could attempt to negotiate a "deal." We concluded: "The record shows that the defendant clearly understood his right to counsel and did not make a specific request for assistance of counsel." Id. 136 Ariz. at 134, 664 P.2d at 678. Subsequently, the supreme court has cited Linden in holding that references by suspects to counsel did not amount to an invocation of that right. See State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989) ("Do you think I should get a lawyer?"); State v. Moorman, 154 Ariz. 578, 584-85, 744 P.2d 679, 685-86 (1987) ("I wonder if I need an attorney. I will leave...