State v. Lucero

• Decision Date: 10 December 2009
• Docket Number: No. 1 CA-CR 08-0616.,1 CA-CR 08-0616.
• Parties: STATE of Arizona, Appellee, v. Reynel Amador LUCERO, Jr., Appellant.
• Court: Arizona Court of Appeals

220 P.3d 249

STATE of Arizona, Appellee, v. Reynel Amador LUCERO, Jr., Appellant.

No. 1 CA-CR 08-0616.

Court of Appeals of Arizona, Division 1, Department E.

December 10, 2009.

Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Theresa M. Armendarez, Phoenix, Attorney for Appellant.

OPINION

KESSLER, Judge.

¶ 1 Reynel Amador Lucero Jr. ("Lucero") appeals from his conviction of two counts of sexual misconduct with a minor in violation of Arizona Revised Statutes ("A.R.S.") section 13-1405 (Supp.2008). We hold that the superior court did not err in admitting Lucero's confession to a military investigator, that the investigator was a law enforcement official for voluntariness analysis and that Lucero did not invite an erroneous response to a jury question by merely acquiescing to the court's response. However, we affirm Lucero's convictions and sentences because he suffered no prejudice.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 A grand jury indicted Lucero for two counts of sexual conduct with a minor. The State's evidence included statements Lucero made to Special Agent Todd V., a sergeant in the United States Army and member of the Army's Criminal Investigations Division ("CID").

¶ 3 The superior court conducted a voluntariness hearing and held that Lucero freely and voluntarily made his incriminating statements to V. V. testified that he first advised Lucero of his Miranda¹ rights, that Lucero voluntarily waived those rights, and that V. conducted the subsequent interview by asking open ended questions with no threats or promises of leniency in exchange for cooperation. Lucero testified that he had been ordered to participate in the interview by his commanding officer and that he had affirmatively answered V.'s leading questions only because V. promised Lucero that he would not go to prison, that he would be able to remain in the military, and that his failure to cooperate would result in the Army making the investigation "ugly". The superior court found V. more credible, adopted his version of the disputed facts, and ruled that the confession was voluntary.

¶ 4 The superior court permitted the State to present evidence of Lucero's statements to V. at trial. V. testified that he interviewed Lucero in response to a request for assistance by the Phoenix Police Department. He also testified that during the interview, Lucero confessed committing sexual acts with a minor, J, by going into her room at night, removing her undergarment, and rubbing his penis between her buttocks. Finally, V. testified that Lucero confessed placing his penis in J's mouth on another occasion. The State also introduced into evidence a tape of a confrontation call made by Lucero's wife to Lucero during which Lucero admitted committing the same acts of sexual misconduct with J. At trial, V. and Lucero both testified consistently with their voluntariness hearing testimony regarding whether V. induced Lucero's confession with any threats or promises. The superior court instructed the jury that it should not consider any statement Lucero made to a law enforcement officer unless it found that the statement was freely and voluntarily made.

¶ 5 During deliberation, the jury asked the court whether V. was a law enforcement officer. The superior court consulted counsel for both sides. The State agreed with the court's proposed answer that whether V. was a law enforcement officer was a question of fact for the jury to decide on the basis of the evidence. Lucero's counsel stated that he was unclear as to the law whether a military criminal investigator was a law enforcement officer, but he had no objection to the proposed response and he assumed it was correct. The court instructed the jury to determine whether V. was a law enforcement officer as a fact question.

¶ 6 The jury convicted Lucero of both counts and the superior court sentenced him to consecutive sentences of twenty years on the first count and life imprisonment on the second. Lucero filed a timely notice of appeal. This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-120.21(A)(1)(2003) and § 13-4033(A)(1)(Supp.2008).

ANALYSIS

¶ 7 Lucero contends that the superior court erred in: (1) admitting evidence of his confession to V. and (2) instructing the jury that it should determine, as a factual matter, whether V. was a law enforcement officer for constitutional purposes.

I. The Confession Was Admissible

¶ 8 We review the superior court's determination of the admissibility of confessions for clear and manifest error. State v. Eastlack, 180 Ariz. 243, 251, 883 P.2d 999, 1007 (1994); State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). We consider the evidence in the light most favorable to sustaining the holding of the superior court. State v. Garcia Garcia, 169 Ariz. 530, 531, 821 P.2d 191, 192 (App.1991). This Court defers to the superior court's determination of witness credibility. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review de novo whether the superior court invoked the correct legal standard. Id.

¶ 9 A confession is admissible only if the State proves by a preponderance of the evidence that the confession was freely and voluntarily made. State v. Smith, 193 Ariz. 452, 457, ¶ 14, 974 P.2d 431, 436 (1999) (citing State v. Scott, 177 Ariz. 131, 136, 865 P.2d 792, 797 (1993)). Courts evaluate whether a confession is voluntary based on the totality of the circumstances. State v. Stanley, 167 Ariz. 519, 524, 809 P.2d 944, 949 (1991). "Coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Promises of benefits or leniency constitute impermissible coercion and render an inculpatory statement involuntary. State v. Lopez, 174 Ariz. 131, 138, 847 P.2d 1078, 1085 (1992).

¶ 10 The superior court properly admitted the confession after weighing conflicting evidence and making a credibility determination. At the voluntariness hearing, Lucero and the State presented conflicting evidence whether Lucero's incriminating statements were the result of threats, coercion, or promises of leniency. The superior court assessed the credibility of the witnesses, weighed the conflicting evidence and determined that V.'s testimony was credible. We find no clear error because credibility is an issue left to the trier of fact and there is evidence supporting the court's findings that Lucero's incriminating statements to V. were procured without promises or threats and that V. did nothing to coerce Lucero to make those statements. See Gonzalez-Gutierrez, 187 Ariz. at 118, 927 P.2d at 778. We therefore affirm the superior court's admission of Lucero's confession to V.

II. As a Matter of Law, V. was a Law Enforcement Officer

¶ 11 Lucero contends that his conviction should be overturned because the superior court committed fundamental error by instructing the jury to determine as a factual matter whether V. was a law enforcement officer for constitutional purposes before it considered whether the confession to V. was made freely and voluntarily. The State argues that this Court should not engage in a fundamental error analysis because Lucero invited the error. We hold that Lucero's express decision not to object to the court's proposed response to the jury question does not rise to invited error. Although the court's answer was erroneous, Lucero expressly waived any objection to it at trial and is not entitled to relief under the fundamental error standard because he suffered no prejudice. Therefore, we affirm the conviction and sentence under the fundamental error standard.

¶ 12 Before we may rule on an error under either the invited error standard or the fundamental error standard, we must first determine that there has been error. State v. Henderson, 210 Ariz. 561, 568, ¶ 23, 115 P.3d 601, 608 (2005) (fundamental error); State v. Armstrong, 208 Ariz. 345, 357 n. 7, ¶ 59, 93 P.3d 1061, 1073 n. 7 (2004) (invited error). If error exists we must determine whether it is invited error because if the error is invited, Lucero has no available remedy. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001). If the error is not invited and Lucero did not object to the response, he forfeited the right to appellate relief except for fundamental error review. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. To prevail under fundamental error analysis, Lucero must show that the error is so substantial that it goes to the foundation of the case and it caused him prejudice. Id. at 567-68, ¶ 20, 115 P.3d at 607-08.

¶ 13 Lucero argues that the superior court erred in informing the jury that it should determine, as a question of fact, whether V. is a law enforcement officer for constitutional purposes. We agree. Federal courts reviewing the actions of CID special agents consistently treat them as subject to the constitutional safeguards ordinarily applicable to actions of law enforcement officials. See, e.g., Brosius v. Warden, U.S. Penitentiary, Lewisburg, PA, 278 F.3d 239, 246 (3d Cir.2002) (reviewing conduct of CID special agent for compliance with constitutional restrictions on custodial interrogations); U.S. v. Weston, 66 M.J. 544, 549 (N-M.Ct.Crim. App.2008) (reviewing search conducted by CID special agents for compliance with Fourth Amendment) aff'd 67 M.J. 390 (U.S. Armed Forces 2009); U.S. v. Ford, 51 M.J. 445, 450-52 (U.S. Armed Forces 1999) (reviewing whether a confession made to a CID special agent was voluntary).

¶ 14 Further, holding a military criminal investigator to be covered by the requirements of the Due Process Clause comports with the...