State v. Mauro

Decision Date01 December 1988
Docket NumberNo. CR-84-0195-AP,CR-84-0195-AP
Citation159 Ariz. 186,766 P.2d 59
PartiesSTATE of Arizona, Appellee, v. William Carl MAURO, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel Crim. Div., Georgia B. Ellexson, Diane D. Hienton, Asst. Attys. Gen., Phoenix, for appellee.

Whalen, Baggot, Wieser, Bowers & Rubenstein by Kathleen Kelly Walsh, Phoenix, for appellant.


Appellant William Carl Mauro (defendant) was convicted after jury trial of first degree murder, in violation of A.R.S. § 13-1105, and child abuse, in violation of A.R.S. § 13-3623. The convictions arose from charges that he had brutally killed his 7-year-old son, David, on November 23, 1982. Defendant unsuccessfully raised the insanity defense, contending he had believed his son was possessed by the devil. He was sentenced to death for the murder conviction and to a consecutive 28-year term of imprisonment for the child abuse conviction. Defendant appealed from his convictions and sentences, raising many constitutional, evidentiary, and procedural issues.

This is the second time this appeal has been before this court. We initially reversed the convictions, vacated the sentences, and remanded to the trial court for further proceedings. State v. Mauro, 149 Ariz. 24, 716 P.2d 393 (1986). Our reversal was based on our conclusion that admission at trial of a tape-recorded conversation between defendant and his wife violated his fifth amendment privilege against self-incrimination. The United States Supreme Court subsequently reversed that decision and remanded to this court for further proceedings. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

On remand, we must decide the remaining issues not addressed in our prior opinion. Because the facts were described in detail in both our previous opinion and the Supreme Court opinion, we will not restate the factual background here. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033 and -4035.

Based on our conclusion that defendant's constitutional rights were not violated and that no prejudicial evidentiary or procedural errors occurred at trial, we uphold the convictions for first degree murder and child abuse. However, because we find that defendant's mental impairment was a substantial mitigating factor in this case, we reduce his sentence for first degree murder from death to life imprisonment.

1. Defendant's Self-Incrimination Claims

A. Defendant's Statements to His Wife.

(1) Arizona Constitution art. 2, § 10. This court previously held that because the tape-recorded conversation between defendant and his wife was obtained in violation of his fifth amendment privilege against self-incrimination, it was not admissible at trial. State v. Mauro, 149 Ariz. 24, 31, 716 P.2d 393, 400 (1986). The United States Supreme Court reversed that decision, holding that the conversation between defendant and his wife did not constitute the "functional equivalent" of custodial interrogation; therefore, the police conduct did not violate defendant's fifth amendment right. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

Defendant argues on remand that this court did not previously address whether the tape recording was obtained in violation of the protection afforded by the Arizona Constitution, art. 2, § 10, which provides No person shall be compelled in any criminal case to give evidence against himself,....

This provision is worded similarly, but not identically, to the fifth amendment of the United States Constitution, which provides:

No person ... shall be compelled in any criminal case to be witness against himself,....

Defendant cites a litany of cases for the proposition that this court has the prerogative to interpret provisions of the Arizona Constitution more expansively than the United States Supreme Court interprets the federal counterparts. This court has done so in cases involving state counterparts to the fourth amendment's protection against unreasonable search and seizure and the fifth amendment's protection against double jeopardy. See, e.g., State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986) (search and seizure, Ariz.Const. art. 2, § 8); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984) (double jeopardy, Ariz.Const. art. 2, § 10). Thus, in deciding the state constitutional issue, this court is not bound to the analysis and conclusions in this case made by the United States Supreme Court on the federal constitutional issue. See generally Marcus, State Constitutional Protection for Defendants in Criminal Prosecutions, 20 Ariz.St.L.J. 151 (1988); Feldman & Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 Ariz.St.L.J. 115 (1988). In Pool, we reasoned:

We would ordinarily interpret art. 2 § 10 of the Arizona Constitution ... in conformity to the interpretation given by the United States Supreme Court to the same clause in the federal constitution.... The decisions of the United States Supreme Court are binding with regard to the interpretation of the federal constitution; interpretation of the state constitution is, of course, our province.... We acknowledge, with respect, that decisions of the United States Supreme Court have great weight in interpreting those provisions of the state constitution which correspond to the federal provisions. We acknowledge that uniformity is desirable. However, the concept of federalism assumes the power, and duty, of independence in interpreting our own organic law. With all deference, therefore, we cannot and should not follow federal precedent blindly.

139 Ariz. at 108, 677 P.2d at 271.

Although the state constitution refers to giving "evidence" while the federal constitution refers to being a "witness," defendant does not argue that this difference in wording should make any difference in the scope of protection available in this case. Rather, defendant argues that this court has adopted a standard different from that used by the Supreme Court in determining when police conduct constitutes "custodial interrogation," during which a defendant is entitled to constitutional protection against self-incrimination. The Supreme Court in Arizona v. Mauro applied the standard set forth in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), that interrogation includes a " 'practice that the police should know is reasonably likely to evoke an incriminating response from a suspect.' " Arizona v. Mauro, 107 S.Ct. at 1934, quoting Rhode Island v. Innis, 446 U.S. at 301, 100 S.Ct. at 1690. Innis clarified the meaning of "custodial interrogation," which had been previously referred to as "questioning initiated by law enforcement officers" in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). The Innis court expanded the protections of Miranda to cover not only express questioning by the police, but also its "functional equivalent." 446 U.S. at 301, 100 S.Ct. at 1690.

Defendant argues that this court has used a different standard from Innis in applying the state constitutional protection against self-incrimination. Defendant points to our decision in State v. Finehout, 136 Ariz. 226, 230, 665 P.2d 570, 574 (1983), in which we said: "The focus in ascertaining whether particular police conduct amounts to interrogation, then, is not on the form of words used, but the intent of the police officers and the perceptions of the suspect." Additionally, defendant points out that in State v. Mauro we said, "Since the intent of the detectives is so clear, we need not address appellant's perceptions." 149 Ariz. at 31, 716 P.2d at 400.

Neither case supports defendant's contention that the state constitutional standard is different from the federal one. In both Finehout and State v. Mauro, this court addressed both appellants' federal fifth amendment claims and state constitutional claims together, not separately. In both cases, we applied the standard from Innis and Finehout interchangeably.

The Innis standard requires that, for police conduct to constitute "interrogation," the police must know that their words or actions are reasonably likely to result in an incriminating response. 446 U.S. at 301, 100 S.Ct. at 1690. This standard clearly involves two prongs: the perceptions of the suspect and the intent of the police. Indeed, the Supreme Court pointed out that, although

[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police, ... [t]his is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.

Innis, 446 U.S. at 301 & n. 7, 100 S.Ct. at 1690 & n. 7. Indeed, in Arizona v. Mauro, the Supreme Court focused heavily on police intent. See 107 S.Ct. at 1935-36. We find no relevant distinction between the Innis and Finehout standards. Defendant has not convinced us to adopt a standard that would change the result in this case on the basis of separate state constitutional protections greater than those afforded under the fifth amendment.

(2) Waiver. Defendant alternatively argues that, even if the tape-recorded conversation is not suppressed as incriminating statements under the Arizona Constitution, it should be suppressed because no evidence was presented to show that he had made a knowing, intelligent, and voluntary waiver of his Miranda rights before making the incriminating statements to his wife. Defendant contends that because of his...

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