State v. Mincy

• Decision Date: 22 July 1992
• Docket Number: No. 910190-CA,910190-CA
• Citation: 838 P.2d 648
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Keith MINCY, Defendant and Appellant.

Page 648

838 P.2d 648

STATE of Utah, Plaintiff and Appellee, v. Keith MINCY, Defendant and Appellant.

No. 910190-CA.

Court of Appeals of Utah.

July 22, 1992.

Certiorari Denied Oct. 20, 1992.

Hans M. Scheffler, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Todd A. Utzinger, Salt Lake City, for plaintiff and appellee.

Before BENCH, GREENWOOD and ORME, JJ.

GREENWOOD, Judge:

Defendant Keith Mincy appeals his conviction of second degree murder, a first degree felony, in violation of Utah Code Annotated section 76-5-203 (1990). We affirm.

BACKGROUND

At about 1:30 a.m. on September 23, 1990, defendant and two friends were standing beside defendant's parked car, a 1981 black Suzuki Sidekick, listening to music and visiting outside Club DV8, a dance club in Salt Lake City. Lorenzo Thompson and two of his friends drove up and parked in front of defendant's car. Thompson remained in the driver's seat while his friends got out of the car to see if the club was still open. Thompson's car began rolling backward and almost hit defendant's car. When one of defendant's friends yelled out to warn Thompson, Thompson responded that he did not care if he hit defendant's car because it was only worth $7000 and he had more money than that in his pocket. An argument ensued between the two groups during which Thompson got out of his car, hit defendant's friend, and then jumped on defendant. Thompson repeatedly pounded defendant's head into the street while threatening to kill him. Thompson's two friends began fighting with defendant's two friends. Thompson was stabbed with a knife during the incident and died after his friends took him to Holy Cross Hospital.

Detective Johnson, a homicide detective for the Salt Lake City Police Department, spoke with two eyewitnesses, Melinda Clarkson and Laura Cade. They told Johnson that three men, all of whom were black, were involved in the altercation with Thompson and his friends. They did not know any of the men's names but said that the man who stabbed Thompson was between five feet nine inches and five feet eleven inches, with a medium build, a large nose and a bowl haircut. They also said he drove a black Suzuki and worked at Hill Air Force Base.

Based on this information, Johnson located defendant at Hill Air Force Base and conducted three pre-arrest interviews with him. The first interview took place at Hill Air Force Base, the second and third at the Salt Lake City Police Station.

The day after the incident, Clarkson and Cade went to the police station and viewed defendant and the two friends he was with during the fight. Both witnesses identified defendant as the one who stabbed Thompson. Later, another eyewitness, Michael Springer, identified defendant as the assailant from a photo spread.

Defendant was arrested and charged with second degree murder. Before trial, defendant filed a motion to suppress statements he made to police during the three pre-arrest interviews on the basis that the interviews violated his right to counsel. He also moved the court to suppress evidence of Clarkson's and Cade's identification of him at the police station because he claimed the procedure was a lineup and he was not advised of his right to have counsel present. Additionally, he argued Springer's identification of him should be suppressed because the photo spread was unduly suggestive. The trial court denied the motion to suppress in its entirety. In its findings of fact and conclusions of law, the court found that the first two pre-arrest interviews were not custodial interrogations and defendant therefore did not have the right to have counsel present. It found that the third interview was custodial, but that defendant had waived his right to counsel. Additionally, the court found that the in-person identification procedure at the police station was a showup, rather than a lineup, and therefore defendant did not have the right to have counsel present. It also found the photo spread was not unduly suggestive.

A jury convicted defendant of second degree murder. Following his conviction, but prior to sentencing, defendant made a post-conviction motion requesting the court to

set aside the conviction and impose a sentence for the next lower category of offense. The trial court denied the motion and sentenced defendant to five years to life at the Utah State Prison. This appeal followed.

ISSUES

On appeal, defendant argues the trial court erred in: (1) denying his motion to suppress his pre-arrest statements to police; (2) denying his motion to suppress the witness identification of him at the police station because the procedure violated his right to counsel; (3) denying his motion to suppress Clarkson's identification of him at the police station because it was unreliable; (4) failing to instruct the jury on the lesser included offense of negligent homicide; and (5) denying his post-conviction motion. ¹

MOTION TO SUPPRESS

Defendant contends the trial court erred in denying his motion to suppress statements he made to police during three pre-arrest interviews. He argues that the interviews were custodial interrogations and because he was not advised of his right to counsel, admission of statements he made during the interviews violated his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 12 of the Utah Constitution. ²

In reviewing a trial court's ruling on a motion to suppress, this court will not disturb the factual findings underlying the ruling unless they are clearly erroneous. State v. Morck, 821 P.2d 1190, 1192 (Utah App.1991). In assessing the trial court's legal conclusions, however, this court applies a correction of error standard of review. Id.

"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Such procedural safeguards include advising the defendant of his or her right to have an attorney present. Id.

The United States Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. "[T]he ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). The determination of whether an interrogation was custodial is to be made objectively. "[T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984).

This court and the Utah Supreme Court have identified five factors to consider in determining whether a defendant "who has not been formally arrested is in custody." Salt Lake City v. Carner, 664 Utah courts also place "a great deal of emphasis on the form of the questioning" used in the interview. Sampson, 808 P.2d at 1105. If the questioning is merely investigatory, courts have not found custody. Id. "However, when investigatory questioning shifts to accusatory questioning, custody is likely and Miranda warnings become necessary." Id. "The change from investigatory to accusatory questioning occurs when the 'police have reasonable grounds to believe that a crime has been committed and also reasonable grounds to believe that the defendant committed it.' " Id. at 1105-06 (quoting Carner, 664 P.2d at 1171).

P.2d 1168, 1171 (Utah 1983). They are " '(1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; ... (4) the length and form of interrogation'; and (5) whether the defendant came to the place of interrogation freely and willingly." State v. Sampson, 808 P.2d 1100, 1105 (Utah App.1990) (quoting Carner, 664 P.2d at 1171), cert. denied, 817 P.2d 327 (Utah 1991), cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992). The fifth criterion included in Sampson was adopted from State v. Herrera, 49 Or.App. 1075, 621 P.2d 1209, 1212 (1980).

A. Questioning at Hill Air Force Base

The first time police questioned defendant was at Hill Air Force Base (Hill), the morning after the fight. After receiving a description of the man who stabbed Thompson from eyewitnesses Clarkson and Cade, Detective Johnson called Hill security police and inquired whether a man fitting the description was stationed there. In response to Johnson's call, Hill security police went to defendant's residence and took him to the security office. Johnson and another detective drove to Hill and interviewed defendant. Defendant testified that he did not answer any of the questions, but instead, told Johnson that he would like some legal advice before he spoke with them. Johnson testified that defendant did not ask for legal advice and admitted he drove a black Suzuki Sidekick and had been in Salt Lake the night before, but that he could not remember who he was with or where they went. Johnson also testified that defendant said he was not involved in a fight. Defendant asked if he was under arrest and when the officers told him he was not, defendant left.

The interview took place in a partitioned office at the Hill security police office. Defendant was not under arrest, nor was he handcuffed or read his Miranda rights. The interview lasted about five minutes and the questions were investigatory, rather than accusatory in nature. The trial court found:

Neither officer brandished a weapon or in any...