State v. Montes

• Decision Date: 17 June 1983
• Docket Number: No. 5598,5598
• Parties: STATE of Arizona, Appellee, v. Juan Garcia MONTES, Appellant.
• Court: Arizona Supreme Court

Page 191

667 P.2d 191

136 Ariz. 491

STATE of Arizona, Appellee, v. Juan Garcia MONTES, Appellant.

No. 5598.

Supreme Court of Arizona, In Banc.

June 17, 1983.

Rehearing Denied July 19, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee.

Glynn W. Gilcrease, Jr., Tempe, for appellant.

HAYS, Justice.

Juan Montes was tried and convicted of first degree felony murder, A.R.S. § 13-1105(A)(2) and armed robbery, A.R.S. § 13-1904. He was sentenced to life imprisonment on the murder charge and to fourteen years for the robbery. We have jurisdiction of the appeal pursuant to the Arizona Constitution, article 6, § 5 and A.R.S. § 13-4031.

In the Tivoli bar in downtown Phoenix on May 22, 1981, Montes and two companions, Bobby Saylor and Antonio Sapien, met their victim, Alfred Romero. Romero agreed to give the three men a ride home if they would purchase gasoline for his car. The events which then transpired are taken from appellant's testimony at trial and from his confession admitted into evidence. After a few deviations, the men eventually arrived in the area of 48th Avenue and Elliott. Sapien pulled a knife and forced Romero to drive off the road. Sapien and Saylor took Romero's wallet, tied him up and pulled his pants down, then stabbed and mutilated his body using knives and rocks. The three men drove off in Romero's car, leaving the victim in the desert where his body was later found by horseback-riders. Money taken from Romero's wallet was used to purchase gasoline for the car and to buy more beer. Two days later, appellant was driving the victim's vehicle with Sapien as passenger when he was involved in a wreck; appellant fled the scene of the accident. Five and one-half months later, appellant was located in the Winslow city jail where he was being held on an unrelated charge.

Appellant's defense at trial was that he did not plan or participate in the crimes, and that when he tried to stop his friends, he was told to be quiet. He testified that he was ordered to drive the car away from the scene with the headlights out and that for the days following, Sapien would not let him out of his sight.

I. MIRANDA ISSUE

A. Interrogation

Appellant raises the question whether the detective investigating the matter failed to timely advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant was in the Winslow city jail on an unrelated charge when first interviewed by Detective Dominguez. The detective introduced himself to Montes as the policeman assigned to investigate the Romero homicide, told Montes that a codefendant, Bobby Saylor, had been arrested in connection with the murder, and that a third subject, Sinaloa, had also been identified. The detective informed Montes that Bobby Saylor had made a statement implicating Montes in the crime. He next showed Montes a photograph of the victim's vehicle. Montes identified the vehicle as the victim's and stated he had driven the vehicle but didn't know anything about the murder. It was only then, after appellant had made this incriminating statement, that the detective advised Montes of his Miranda rights using the standard rights card issued by the department in English and Spanish translation. The trial court refused to suppress Montes' statement made in response to Detective Dominguez' words and actions, finding that "there was no force, there were no threats, there was [sic] no promises of immunity or otherwise, and that Miranda rights were read to Defendant before any questions were asked." We do not agree.

In Miranda v. Arizona, supra, the Court held that statements stemming from custodial interrogation of the defendant cannot be used against him unless the state demonstrates that the accused was advised of and waived his fifth and sixth amendment rights. The Court was careful to point out, however, that any volunteered statements, not prompted by interrogation, are admissible against the accused. "The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to police without the benefit of warning and counsel, but whether he can be interrogated." Id. at 478, 86 S.Ct. at 1630. Our threshold inquiry, then, is whether the statement elicited from appellant occurred during "custodial interrogation." For purposes of the Miranda requirements, it does not matter that appellant was in custody for an unrelated offense. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). The critical issue is whether appellant was subjected to an interrogation before Miranda warnings were given.

In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Court defined "interrogation" as referring "not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id. at 301-02, 100 S.Ct. at 1690.

Already in custody, Montes was brought into a room in the jailhouse to meet with Detective Dominguez. Without giving him any warnings, the detective confronted Montes with evidence which implicated him in the crime, then showed him a picture of the vehicle. Detective Dominguez should have known that such words and actions are reasonably likely to evoke an incriminating response from the suspect. The state characterizes the pre-warning words and actions of the detective as "introductory," made so that the appellant would know what the interview concerned, and argues that the issue is voluntariness, not Miranda. We find that the detective's words and actions go far beyond "those normally attendant to arrest and custody" and that Miranda warnings should have been given before the detective confronted appellant with the evidence.

Voluntariness and Miranda are two separate inquiries. "[T]he necessity of giving Miranda warnings to a suspect relates not to the voluntariness of a confession but to its admissibility." State v. Morse, 127 Ariz. 25, 29, 617 P.2d 1141, 1145 (1980). Unless 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." Michigan v. Moseley, 423 U.S. 96, 100, 96 S.Ct. 321, 325, 46 L.Ed.2d 313, 319 (1975). We hold that the detective's words and actions constituted interrogation and that the subsequent statement was taken in violation of Miranda. The trial court erred in not suppressing that statement. A discussion of the effect of this error will follow in a later portion of this opinion.

Immediately after Montes identified the victim's vehicle, Detective Dominguez advised him of his Miranda rights in Spanish using the standard card issued by the department. The detective asked Montes to sign the card, telling him it was his option to sign and was not an admission of guilt. Appellant refused to sign the card, then gave a taped statement to the detective. Appellant asserts that this confession should have been suppressed for two reasons: (1) it was obtained in violation of Miranda v. Arizona, supra, and (2) it was involuntary.

B. Waiver

Appellant contends that he invoked his right to remain silent by refusing to sign the rights card and that the detective did not honor this right. At the voluntariness hearing, the detective testified as follows:

A. It's a standard rights card. The Miranda warnings offered in English and Spanish, and it has my name and serial number affixed to it and the time and the date, and I wrote on there "He refused."

Q. What does that refer to?

A. That the subject refused to sign the rights card, indicating that I had written--excuse me, that I had read those rights to him on that card.

Q. All right. Let's talk about this refusal. Did you tell him to sign the card?

A. No.

Q. What did you tell him?

A. I told him that it was an option. He didn't have to sign it. It was not an admission of guilt.

I wanted to indicate to the Court, later, or to anyone who wanted to see the card, that I did actually read from this particular card.

Q. Did he indicate to you at the time that he refused to sign it that he had any question about his rights?

A. No.

Q. Did he indicate to you, verbally, that he understood his rights?

A. Yes, he did.

Q. In Spanish?

A. Yes, he had. [sic]

Q. Did he indicate to you why he didn't want to sign the card?

A. No, he didn't.

Q. But you specifically recall him indicating to you, verbally, that he understood his rights?

A. Yes.

Q. And, then, did he go on and answer your questions?

A. Yes, he did.

Q. Did there ever come a time in the questioning when he asked that the questioning cease or that he be allowed to see or speak with an attorney?

A. No.

Appellant does not contest the detective's version of the interview, but argues that his refusal to sign the rights card was an assertion of his right to remain silent and that, at that point, all interrogation should have ceased. We must undertake to determine whether Montes understood his right to remain silent and his right to counsel and whether he intelligently and knowingly relinquished those rights. This determination focuses on the particular facts and circumstances surrounding a case, including the defendant's background, experience and conduct. North Carolina v....