State v. Navarro

• Decision Date: 13 November 2001
• Docket Number: No. 2 CA-CR 00-0294.,2 CA-CR 00-0294.
• Citation: 34 P.3d 971,201 Ariz. 292
• Parties: The STATE of Arizona, Appellee, v. Victor NAVARRO, Appellant.
• Court: Arizona Court of Appeals

34 P.3d 971

201 Ariz. 292

The STATE of Arizona, Appellee, v. Victor NAVARRO, Appellant.

No. -0294.

Court of Appeals of Arizona, Division 2, Department A.

November 13, 2001.

Janet Napolitano, Arizona Attorney General By Randall M. Howe and Cynthia A. Ryan, Tucson, for appellee.

Law Offices of Thomas Jacobs By Thomas Jacobs, Tucson, for appellant.

OPINION

PELANDER, J.

¶ 1 After a jury trial, appellant Victor Navarro was convicted of attempted second-degree murder, as a lesser-included offense of attempted first-degree murder, and two counts of aggravated assault. The trial court sentenced him to concurrent, presumptive prison terms, the longest of which was 10.5 years for the attempted murder conviction.

¶ 2 Navarro raises two issues on appeal: (1) whether the trial court erroneously denied his pretrial motion to suppress police photographs taken of him and all evidence derived therefrom, including subsequent out-of-court and in-court identifications, and (2) whether A.R.S. § 13-604(I) is unconstitutional as applied to him because its sentencing range fails to differentiate between defendants convicted of attempted second-degree murder and those convicted of attempted first-degree murder. We affirm.

I. Motion to Suppress

¶ 3 The only pertinent facts are those relating to the suppression issue. "In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court's ruling... [and consider] only the evidence presented at the suppression hearing." State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d 392, ¶ 2 (App.2000) (citation omitted). In the early morning hours of July 11, 1999, Tucson Police Department Detective Joseph Godoy investigated a shooting that had occurred outside a residence during a party. Godoy and all other responding officers went to the scene in unmarked police cars and were dressed in street clothes. The victim had been shot six times. Godoy learned during the investigation that witnesses had described the shooter as a "thin, Hispanic male with a red shirt and some Levis."

¶ 4 Several hours into the investigation, at approximately 5:20 a.m., a white Camaro pulled up behind Godoy's unmarked car, which was parked near the residence. At that time, Godoy was inside his vehicle interviewing a witness. Godoy saw two other detectives walking quickly toward the Camaro. After escorting the witness away from his car and returning moments later, Godoy saw three individuals in handcuffs, including Navarro, standing by the Camaro. Godoy also noticed a large quantity of beer in that car. The detective who had made initial contact with the occupants of the Camaro told Godoy that Navarro, who had been a passenger in the Camaro, fit the description of the shooter. Sergeant Rodriguez directed Godoy to take Navarro to the police station to interview him about the shooting. Rodriguez wanted the interview conducted away from the scene because he was concerned about prior interruptions in the investigation there.¹

¶ 5 Godoy walked Navarro from the back of Godoy's unmarked car to the passenger side. Godoy identified himself, told Navarro there had been a shooting, and stated that he wanted to talk with Navarro about it. Godoy asked Navarro if it was "okay if we go to the police station, get away from the crowd," and Navarro said it was. Godoy did not tell Navarro that he was under arrest or that he had to go with him, nor did Navarro tell Godoy that he did not want to go with him. At some point after Godoy's initial contact with Navarro and before Navarro seated himself in Godoy's vehicle, Godoy removed Navarro's handcuffs. Godoy could not definitively recall, however, whether he had removed the handcuffs before, during, or after Navarro had agreed to accompany him downtown. Godoy quickly did a visual search of Navarro for weapons but did not pat him down. Godoy had Navarro sit in the front seat of his car and asked him to use the seat belt. Godoy then drove with Navarro to the station.

¶ 6 Upon their arrival there, Navarro remained unhandcuffed as he accompanied Godoy to a third-floor interview room. Navarro was unattended while he used a restroom at the station and was left alone in the interview room while Godoy made a telephone call and bought Navarro a soft drink. Godoy testified that Navarro never asked to leave at any point and was very friendly throughout their interaction.

¶ 7 Godoy tape-recorded his interview with Navarro, and a transcript of the interview was admitted as an exhibit at the suppression hearing. The interview began with Godoy recapping their off-tape conversation in which Godoy had told Navarro what the police knew about the shooting and that Navarro fit the description of the shooter. Before Godoy began asking Navarro questions about the shooting and his possible involvement in it, Godoy read Navarro his Miranda² rights, stating, "because the cop put you in handcuffs, he put you under arrest for minor, and [sic] possession or, or whatever, I need to advise you of your rights."³ Godoy testified that, at the time of the interview, he had not known, but had believed, that Navarro possibly had been handcuffed either because he had been arrested for being a minor in possession of alcohol or simply for officer safety reasons. As Godoy later learned, Navarro was never cited for possessing alcohol.

¶ 8 Toward the end of the interview, Godoy asked Navarro if he was willing to be fingerprinted and photographed for identification purposes. Godoy testified that he had wanted to obtain Navarro's photograph and fingerprints because Navarro had said he had never been arrested before. Godoy also wanted photographs of Navarro in the clothes he was wearing at the time, which presumably were the same clothes he had been wearing at the party earlier that morning. Godoy told Navarro that he wanted to show photographs of him to people who had been at the party to see if they could identify him. Navarro agreed to have his photograph and fingerprints taken and signed two consent forms that stated, "I hereby authorize the Tucson Police Department to take my photograph, fingerprints and palmprints for the purposes of identification only."

¶ 9 The police took three photographs of Navarro: a single, "mug shot" photograph, with Navarro's clothing draped, for use in a photographic lineup, and two photographs of Navarro in his street clothes. After Navarro had been fingerprinted and photographed, another officer took him to an apartment because Navarro claimed to have been there earlier that morning and wanted the police to accompany him to verify that fact. Godoy later showed the photographic lineup to eyewitnesses of the shooting who identified Navarro as the shooter.

¶ 10 Godoy admitted that, if Navarro had refused to accompany him downtown to the police station, he had not had probable cause to arrest him and could not have forced him to go. Godoy further admitted that he could have interviewed Navarro at the scene but preferred to move him elsewhere for questioning because of past experience with witnesses. Navarro did not testify at the suppression hearing.

¶ 11 At the conclusion of the hearing, the trial court ruled:

I find that the Defendant was just momentarily detained at the scene of the investigation and that Detective Godoy was not the detective that originally placed the handcuffs on the Defendant, that Detective Godoy did take the handcuffs off of the Defendant and asked the Defendant whether he would accompany Detective Godoy to the police station for an interview.

The Defendant agreed to the detective's request. He sat in the front seat of an unmarked police vehicle, accompanied the detective to an interview room. He was informed that he was either a witness or possibly a suspect. He was advised of his Miranda rights.

He agreed to answer the questions that Detective Godoy asked concerning the homicide investigation. Detective Godoy never told him that he could not leave. Apparently, he never asked to leave.

Under all of those circumstances, the Court finds that he was not in custody or under arrest, that he voluntarily consented to participating in the investigation. The court finds that the consent to give the fingerprints and photos was not limited to identification for—well, it was not limited, period. It was for any identification purposes that the police would choose to use the items for. For those reasons, the motion to suppress the fingerprints and photographs is denied.

¶ 12 We review that ruling for a clear abuse of discretion, State v. Acinelli, 191 Ariz. 66, 69, 952 P.2d 304, 307 (App.1997), and will reverse "only for clear and manifest error ... [as to] questions of fact; the applicable standard of review on questions of law is `de novo.'" In re Maricopa County Juvenile Action No. JT30243, 186 Ariz. 213, 216, 920 P.2d 779, 782 (App.1996) (citations omitted). See also State v. Spreitz, 190 Ariz. 129, 144, 945 P.2d 1260, 1275 (1997)

. As he did below, Navarro contends his valid investigative detention at the scene became an illegal arrest when Godoy took him to the police station for questioning, requiring suppression of all photographs, fingerprints, and identification evidence obtained thereafter as fruit of an illegal arrest. Although "[w]e give great deference to the trial court's factual determination,... we review de novo the ultimate question whether an illegal arrest occurred." State v. Solano, 187 Ariz. 512, 516, 930 P.2d 1315, 1319 (App.1996).

¶ 13 The trial court found that Navarro was neither in custody nor under arrest when he voluntarily agreed to participate in the investigation by accompanying Godoy to the station for an interview and then consenting to have his picture and fingerprints taken. Navarro does not challenge the trial court's factual findings but argues that his agreement to accompany Godoy did not signify "voluntary consent, but rather[,] acceptance of an unavoidable course of conduct," ci...