State v. Noriega

• Decision Date: 29 October 1984
• Docket Number: No. 5964,5964
• Citation: 142 Ariz. 474,690 P.2d 775
• Parties: STATE of Arizona, Appellee, v. Vivian Rhea NORIEGA, Appellant.
• Court: Arizona Supreme Court

Page 775

690 P.2d 775

142 Ariz. 474

STATE of Arizona, Appellee, v. Vivian Rhea NORIEGA, Appellant.

No. 5964.

Supreme Court of Arizona, In Banc.

Oct. 29, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Steve Sherick and Frank P. Leto, Tucson, for appellant.

HAYS, Justice.

Defendant-appellant, Vivian Rhea Noriega, and codefendants, Charles Clemens and Jerry Wilkerson, were charged with burglary in the first degree in violation of A.R.S. § 13-1508, a class-2 felony. The defendant was also charged with aggravated assault in violation of A.R.S. § 13-1204(A)(2), a class-3 felony. For each of Noriega's offenses the state filed punishment enhancement allegations of: the dangerousness of the offenses charged, A.R.S. § 13-604(G); prior felony convictions, A.R.S. § 13-604(B) and (D); and committing a nondangerous felony while on probation, parole, work furlough, or any other release from confinement, A.R.S. § 13-604.01(B). The jury found appellant guilty on both counts and found each crime to be a dangerous offense.

Appellant admitted her two prior convictions: one for procuring or obtaining narcotics by fraud or deceit, a class-4 felony, and another for attempting this offense on another occasion, a class-5 felony. But she denied committing the first degree burglary and aggravated assault while on probation from these two prior felony convictions. Before submission of this disputed question to the jury, the prosecution successfully moved to amend the indictment to charge the defendant under subsection (A) rather than subsection (B) of A.R.S. § 13-604.01. Pursuant to the mandatory sentencing provisions of A.R.S. § 13-604.01(A), the trial court sentenced Noriega to two concurrent terms of life imprisonment without possibility of parole for 25 years. She appeals from her convictions and sentences. We take jurisdiction pursuant to the Arizona Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4035. We affirm. We find no fundamental error in our search of the record.

The issues we must resolve on appeal are:

1. Whether appellant validly waived her Miranda rights.

2. Whether the trial court erred in refusing to instruct the jury on simple assault or threatening or intimidating as lesser included offenses within aggravated assault.

3. Whether refusal to give an instruction on self-defense constitutes error.

4. Whether the post-conviction amendment of the indictment to charge A.R.S. § 13-604.01(A) was untimely.

5. Whether the post-conviction amendment of the indictment to charge A.R.S. § 13-604.01(A) was barred by a presumption of prosecutorial vindictiveness.

6. Whether the imposition of a life sentence constitutes cruel and unusual punishment or a denial of equal protection.

The essential facts in this case are as follows. On the afternoon of October 1, 1982, the defendant lunched at a Tucson restaurant with Chuck Clemens and Jerry Wilkerson, her accomplices in the burglary. The trio decided to drive to the house of Pat Laughlin, an alleged drug dealer. Although Noriega testified that the purpose of the trip was for Wilkerson and Clemens to buy drugs from Laughlin, the circumstances indicate that the burglary may well have been planned. Clemens parked the vehicle in Laughlin's driveway and raised the hood to simulate car trouble. Clemens remained outside by the vehicle, apparently acting as a lookout. Noriega and Wilkerson broke into the house and began ransacking it. Jim White, a friend of Pat Laughlin's, drove to the house and saw the unfamiliar car in the driveway. He approached Clemens. Clemens explained to White that his car had overheated and that he had pulled it into the driveway to cool it off. Clemens then started the vehicle and drove away.

White went to the door of the house, noticed that it was slightly ajar, and went inside. He noted the disarray in the house, the apparent result of a ransacking, and heard noise coming from the back of the house. He crept to the doorway of the bedroom. There he saw a black man, Wilkerson, with a .45-caliber gun in his hand. Wilkerson appeared to be instructing Noriega what to look for as she rummaged through the closet. White left the house undetected, ran to a neighbor's house, and directed them to call the police.

White then returned to a vantage point in front of the house. Clemens drove past the house again, loudly honked the horn twice, and then drove away. Minutes later, Noriega emerged from the house, carrying a silver jewelry box, and walked toward the driveway. Wilkerson followed ten yards behind her carrying a blue suitcase. As White confronted the defendant and began to say something to her, Wilkerson ran in the opposite direction. When White attempted to grab Noriega, she pulled out a .25-caliber handgun from her back pocket and screamed, "Stay back or I'll shoot." Noriega then tried to escape by running alongside the road. White followed her in his pickup truck. Each time he drew near, she stopped and pointed the gun at him, causing him to halt his pursuit. She eventually eluded White by running through a neighbor's yard. She was found by Officer Albert Lara hiding in a storage shed in the same neighborhood. She was arrested.

Noriega was advised of her Miranda rights and agreed to talk with Officer Lara. After first denying that she had a gun, she showed Officer Lara where she had hidden the gun in the storage shed. The silver jewelry box taken from the Laughlin home was also later found in this shed. Noriega told Officer Lara that she heard glass breaking while looking for a friend's house across the street from the Laughlin residence. As she crossed the street to investigate the reason for the noise, two burglars ran by her from the house. One of the burglars dropped a .25-caliber pistol in the street, which she picked up. When White suddenly appeared on the scene and attempted to grab her, she used the gun to threaten him because she believed he was one of the burglars.

Appellant was interviewed at the Tucson Police Department by Sgt. Robert Mayer. She acknowledged that she had been advised of her constitutional rights and again agreed to make a statement. According to Officer Mayer, during this interview Noriega admitted her participation in the burglary and implicated Wilkerson and Clemens. Specifically, she admitted breaking into Laughlin's home while armed with a .25-caliber pistol and ransacking the house thereafter.

Appellant told a different story at trial. She conceded that the story she told Officer Lara after her arrest was a complete fabrication. She denied admitting her participation in the burglary to Sgt. Mayer. She testified that Clemens and Wilkerson proposed to go to Laughlin's house to make an illegal drug buy. She went along for the ride. When they arrived at the Laughlin home, she initially remained in the car with Clemens. After waiting ten minutes for Wilkerson, she knocked on the front door to see what was taking him so long. Wilkerson let her in and told her to wait in the living room because he was busy in the bedroom. She sat down in a living room chair. She maintained that it did not occur to her that a burglary was in progress until she saw the disarray in the rest of the house. She confronted Wilkerson in the bedroom with this accusation. He ordered her to shut up and told her to wait in the living room. She did so. They left the house a few minutes later. As they were leaving the house, Wilkerson handed her a silver jewelry box and asked her to hold it for him. She walked to the driveway, only to find the car gone. In the driveway, near where Clemens parked the car, she found the .25-caliber revolver. When White suddenly appeared and tried to grab her, she threatened him with the gun, allegedly out of fear for her personal safety. According to her testimony, she believed that White was a dangerous associate of the drug dealer-owner of the home and that White intended to harm her.

I. APPELLANT VALIDLY WAIVED HER MIRANDA RIGHTS

Appellant received Miranda warnings after her arrest, and she indicated that she understood these rights. She further indicated her willingness to make a statement to the police. Appellant now attacks the voluntariness of this waiver on the ground that she never specifically waived her right for counsel to be present during questioning. This precise contention was considered and rejected by the United States Supreme Court in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). This court has repeatedly rejected this contention as well. State ex rel. Berger v. Superior Court, 109 Ariz. 506, 513 P.2d 935 (1973); State v. Pineda, 110 Ariz. 342, 345, 519 P.2d 41, 44 (1974). We find no error.

Appellant also contends that the failure of Sgt. Meyer to readvise her of her constitutional rights at her second interrogation, two hours after she initially received Miranda warnings, renders this statement involuntary and inadmissible. We do not agree.

Further warnings are not required in the absence of circumstances between the arrest and interrogation which would alert the officers that the accused may not be fully aware of her rights. State v. Miller, 110 Ariz. 597, 598, 522 P.2d 23, 24 (1974); State v. Gilreath, 107 Ariz. 318, 319, 487 P.2d 385, 386 (1971). There were no such circumstances in this case. Before questioning appellant, Sgt. Mayer first ascertained from the arresting officer that appellant had been advised and understood her rights. This interrogation lasted twenty minutes. She freely answered all the questions put to her, without attempting to limit or terminate the officer's questioning. There is no allegation or evidence of intensive or intimidating interrogation, improper promises or threats, or other evidence of coercion. There was every reason for the officers to believe appellant validly waived her Miranda rights....