State v. Mendivil-Corral

• Decision Date: 25 September 2012
• Docket Number: 1 CA-CR 11-0060
• Parties: STATE OF ARIZONA, Appellee, v. JUAN DEDIOS MENDIVIL-CORRAL, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee,

v.JUAN DEDIOS MENDIVIL-CORRAL, Appellant.

1 CA-CR 11-0060

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Dated: September 25, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication -

Rule 111, Rules of the

Arizona Supreme Court)

Appeal from the Superior Court in Maricopa County

Cause No. CR2009-163164-005DT

The Honorable Colleen L. French, Judge Pro Tempore

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Chief Counsel

Criminal Appeals/Capital Litigation Section

and Craig W. Soland

Attorneys for Appellee

Phoenix

Thomas A. Gorman, Attorney at Law

By Thomas A. Gorman

Attorney for Appellant

Sedona

KESSLER, Judge

¶1 This appeal was filed pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Clark, 196 Ariz. 530, 2 P.3d 89(App. 1999), following Juan Dedios Mendivil-Corral's ("Mendivil-Corral") convictions for kidnapping, conspiracy to commit kidnapping and theft by extortion. Finding no arguable issues to raise, counsel requested that this Court search the record for fundamental error. Mendivil-Corral was given the opportunity to, but did not file, a pro per supplemental brief. In response to our order, counsel for the parties submitted Penson briefing on multiple issues.

¶2 After reviewing the entire record, we conclude the evidence is sufficient to support the verdicts and sentences for kidnapping and conspiracy to commit kidnapping, there was no reversible error as to those charges and accordingly affirm his conviction and sentences on those charges. However, the evidence is insufficient to support the verdict and sentence for theft by extortion and we therefore reverse that conviction and remand this matter to the superior court to modify the convictions and sentences accordingly.

FACTUAL AND PROCEDURAL HISTORY¹

¶3 On September 28, 2009, as V.G. and his wife, I.G., were leaving a store in Phoenix, a green car and a white truck pulled into the parking lot. Multiple individuals got out ofthe vehicles and forced V.G. into the car at gunpoint. In a nearby neighborhood, V.G. was transferred from the car into the truck. V.G. was taken to a house where he was bound, blindfolded, and assaulted by the people at the house. V.G. was asked to provide the names of family members who may be able to pay a ransom in the form of $40,000 and his truck for his safe return. Persons in the house told V.G. he and his family members would be killed if they did not provide ransom. The kidnappers called V.G.'s brother-in-law, M.M., and asked him to provide a ransom. The caller demanded $40,000 and V.G.'s truck. The caller instructed M.M. to leave the truck with the money inside, and a ransom location was selected by the caller.

¶4 V.G.'s truck was taken to the ransom location and placed in the parking lot. A Ford Mustang arrived at the location, pulled up to the vehicle and dropped off someone, and then the Mustang left. ² The Mustang was later stopped. Mendivil-Corral was inside the Mustang with his two-year-old child, and a woman who was driving.

¶5 Shortly thereafter, Detectives S.D. and P.G. separately arrived at the scene. Mendivil-Corral was already taken into custody by SWAT and placed in a patrol car in handcuffs. Detective S.D. confronted Mendivil-Corral, aSpanish-speaker, about the kidnapping, and Mendivil-Corral told Detective S.D. that he knew where V.G. was being held and was willing to show the police. Mendivil-Corral accompanied police and directed them to the location of two neighboring houses in the west valley that he said belonged to his boss Juan.³ Later that evening V.G. was recovered by police in one of the houses that Mendivil-Corral showed police.

¶6 Back at the police station the same night (and into the early hours of September 29, 2010), Detective S.D. interviewed Mendivil-Corral in Spanish. The interview was audiotaped and videotaped. Mendivil-Corral was read his Miranda rights⁴ and indicated that he understood them. Detective S.D. asked Mendivil-Corral if he knew why he was at the police station and according to the detective, Mendivil-Corral responded, "because he dropped off the other guy in the truck." Mendivil-Corral said that Juan/Alfredo told him to drop off the individual. Mendivil-Corral told the detective that he worked for Juan/Alfredo by running errands for him. When Detective S.D. asked Mendivil-Corral whether he was aware V.G. was kidnapped, Mendivil-Corral replied that he became aware of the kidnapping when Juan/Alfredo called and told him to pick upanother person to collect the money. According to the detective, Mendivil-Corral said the individual he was dropping off was going to pick up money and/or a truck. ⁵ The detective also read a portion of the interview transcript into the record wherein in the context of discussing payment for the kidnapping, Mendivil-Corral stated, "I think they were going to pay for him with that truck."⁶ Mendivil-Corral told the detective that he was not involved in planning or participating in the initial kidnapping, and he denied being inside the house where V.G. was held. The jury convicted Mendivil-Corral of kidnapping, conspiracy to commit kidnapping, and theft by extortion.⁷ After a plea-type colloquy, see State v. Morales, 215 Ariz. 59, 61, ¶¶ 7-8, 157 P.3d 479, 481 (2007), Mendivil-Corral stipulated to two prior convictions at sentencing. All counts were found to be "Non Dangerous - Repetitive" felonies. Mendivil-Corral was concurrently sentenced to an aggravated term of 25 years' imprisonment for kidnapping, a presumptive term of 15.75 years'imprisonment for conspiracy, and a presumptive term of 15.75 years' imprisonment for theft by extortion.

DISCUSSION⁸

I. Miranda warnings

¶7 At trial, police testimony established that after being pulled over by police and taken into custody, Detective S.D. confronted Mendivil-Corral about the kidnapping. Mendivil-Corral offered to show police where V.G. was being held, accompanied police to the houses where he thought V.G. was at, and later, the police recovered V.G. from one of the houses. The prosecution also presented evidence in its case-in-chief of the discussions that police had with Mendivil-Corral about V.G.'s whereabouts after locating the houses but before going to the police station.⁹ Although Detective S.D. testified thatMendivil-Corral voluntarily provided information about V.G.'s whereabouts, there was no evidence presented that Mendivil-Corral was given Miranda warnings until he participated in a formal interrogation at the police station later in the evening wherein he indicated that he understood his rights and proceeded to answer questions about his involvement in the kidnapping.

¶8 "Voluntariness and Miranda are two separate inquiries. '[T]he necessity of giving Miranda warnings . . . [relates directly to the] admissibility [of a confession].'" State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983) (quoting State v. Morse, 127 Ariz. 25, 29, 617 P.2d 1141, 1145 (1980)); cf. State v. Pettit, 194 Ariz. 192, 196, ¶¶ 17, 19, 979 P.2d 5, 9 (App. 1998) (When Miranda warnings are required but not given, that factor weighs against a finding of voluntariness). Subject to exceptions not applicable here, "[u]nless law enforcement officers advise a defendant in custody of the Miranda rights before questioning him, any statement made by that person in custody is inadmissible against him at trial 'even though the statement may in fact be wholly voluntary.'" Montes, 136 Ariz. at 494, 667 P.2d at 194 (quoting Michigan v. Moseley, 423 U.S. 96, 100 (1975)).

¶9 Here, the record does not show that Mendivil-Corral was given Miranda warnings at any time before going to the police station. However, assuming warnings were not given, reversal is not required if we can say that admission of the pre-warning statements was harmless error. See id. at 497, 667 P.2d at 197 (applying harmless error analysis after determining trial court committed error by failing to suppress a pre-warning statement and stating "[t]he question is whether the appellate court can say beyond a reasonable doubt that the jury would have found the defendant guilty without the evidence").

¶10 Here, the police testified that Mendivil-Corral led them to the house in which V.G. was being held. Such evidence was admissible regardless of a Miranda violation. See United States v. Patane, 542 U.S. 630, 636-37, 642 (2004) (determining that the Self-incrimination Clause of the Fifth Amendment is not implicated by the admission of nontestimonial evidence obtained as a result of voluntary statement where police failed to warn, and declining to apply the fruit of the poisonous tree doctrine). Moreover, the court did not reversibly err in admitting Mendivil-Corral's later pre-warning statements to police because those statements did not affect the verdict given the non-testimonial evidence and the post-warning testimonial statements implicating Mendivil-Corral in the kidnapping. Nor did the post-warning statements become suspect because therecord does not objectively establish that the police intended to obtain statements from Mendivil-Corral before giving him warnings and then to repeat their questions after giving him his Miranda warnings. See Missouri v. Seibert, 542 U.S. 600, 616 (2004) (determining objective measures showed a police strategy to undermine Miranda warnings); State v. Zamora, 220 Ariz. 63, 69-71, ¶¶ 15-20, 202 P.3d 528, 534-36 (App. 2009) (explaining that under Seibert to show error in admission of statements there must be evidence that police deliberately failed to warn in order to elicit statements and then police re-elicited the same statements after giving warnings).

¶11 Accordingly, admission of the pre-warning statements, even if erroneous, was harmless error.

II. Vo...