State v. Olague

• Decision Date: 16 August 2016
• Docket Number: No. 2 CA–CR 2015–0056,2 CA–CR 2015–0056
• Citation: 240 Ariz. 475,745 Ariz. Adv. Rep. 4,381 P.3d 269
• Parties: The State of Arizona, Appellee, v. Jamonte Lawrence Olague, Appellant.
• Court: Arizona Court of Appeals

240 Ariz. 475

381 P.3d 269

745 Ariz. Adv. Rep. 4

The State of Arizona, Appellee,

v.Jamonte Lawrence Olague, Appellant.

No. 2 CA–CR 2015–0056

Court of Appeals of Arizona, Division 2.

Filed August 16, 2016

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee

Dean Brault, Pima County Legal Defender, By Scott A. Martin and Stephan McCaffery, Assistant Legal Defenders, Tucson, Counsel for Appellant

Chief Judge Eckerstrom authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.

OPINION

ECKERSTROM, Chief Judge:

¶ 1 Following a jury trial, appellant Jamonte Olague was convicted of first-degree murder and armed robbery. On appeal, he challenges the denial of his motion to suppress his statements to law enforcement officers, his motion to dismiss, and his motions for a new trial. We affirm for the reasons that follow.

Factual and Procedural Background

¶ 2 The issues presented on appeal mainly involve procedural facts that we develop as needed in the discussion sections below. Viewed in the light most favorable to upholding the convictions, the evidence at trial established the following. State v. Tamplin , 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). On December 30, 2011, Olague and several codefendants arranged to buy one pound of marijuana from the victim. The next day they robbed and fatally shot him.

¶ 3 After Olague's arrest, a detective provided him the advisory required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and conducted an interview. Before trial, Olague filed a motion to suppress the statements from the interview, which the trial court denied, finding that Olague knowingly, voluntarily, and intelligently had waived his constitutional rights and had properly been advised of those rights pursuant to Miranda. In addition, the court denied Olague's motion to dismiss the indictment, rejecting his argument that he had been “selectively prosecuted” for murder because he and his codefendants were minorities, yet several “white” people who had assisted the victim in the attempted drug sale had not been similarly charged.

¶ 4 After the jury found Olague guilty of the charges, he filed two motions for a new trial based on alleged juror misconduct. The trial court denied the motions and prohibited Olague from initiating further contact with jurors absent the court's prior approval. The court then sentenced Olague to concurrent prison terms, the longer of which is life without the possibility of release for twenty-five years. We have jurisdiction over his delayed appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1) and (2).

Motion to Suppress

¶ 5 Olague first contends the trial court erred in denying his motion to suppress his statements to detectives because he did not validly waive his Miranda rights. A waiver of such rights must be voluntary, meaning the product of “free and deliberate choice rather than intimidation, coercion, or deception.” Berghuis v. Thompkins , 560 U.S. 370, 382, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), quoting Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ; accord In re Andre M. , 207 Ariz. 482, ¶ 7, 88 P.3d 552, 554 (2004).¹ Olague asserts his statements were inadmissible because he did not answer the detectives' questions or spontaneously speak to the officers; instead, he merely responded to a law enforcement command to tell his side of the story, which he characterizes as an “inherently coercive order.”

¶ 6 We review a trial court's ruling on a motion to suppress for an abuse of discretion, State v. Villalobos , 225 Ariz. 74, ¶ 10, 235 P.3d 227, 231 (2010), and defer to the court's factual determinations. State v. Maciel , 238 Ariz. 200, ¶ 10, 358 P.3d 621, 624 (App. 2015). “In assessing a waiver, courts examine the totality of the surrounding circumstances, ‘including the defendant's background, experience, and conduct.’ The defendant's prior interactions with law enforcement are relevant to this inquiry.” State v. Naranjo , 234 Ariz. 233, ¶ 7, 321 P.3d 398, 403 (2014) (citation omitted), quoting State v. Montes , 136 Ariz. 491, 495, 667 P.2d 191, 195 (1983). Our appellate review is limited to the evidence presented at the suppression hearing, State v. Newell , 212 Ariz. 389, ¶ 22, 132 P.3d 833, 840 (2006), which we view in the light most favorable to upholding the trial court's ruling. Naranjo , 234 Ariz. 233, ¶ 4, 321 P.3d at 403.

¶ 7 Although Olague bases his argument on the precise language the detective used to secure the waiver here, our record on appeal does not include the exhibits admitted at the suppression hearing. An appellant has the burden of ensuring the appellate record contains the necessary items for the arguments presented. State v. Jessen , 130 Ariz. 1, 8, 633 P.2d 410, 417 (1981). Despite the fact that the state's answering brief noted this deficiency, Olague has taken no steps to cure it. Instead, he asserted in his reply brief that a recording of the interview was properly admitted at the suppression hearing and should have been included automatically in the record on appeal pursuant to Rule 31.8(a)(1), Ariz. R. Crim. P. He therefore urged this court to supplement the record “with no negative ramifications for [him].” It is an appellant's duty to supplement an incomplete record, however, not this court's. State v. Kerr , 142 Ariz. 426, 430, 690 P.2d 145, 149 (App. 1984).

¶ 8 At the suppression hearing, a detective testified that he read a verbatim Miranda advisory to Olague at the beginning of the custodial interview. That advisory informed Olague of his right to remain silent and to have an attorney present before and during any questioning. See Miranda , 384 U.S. at 444, 469–70, 86 S.Ct. 1602. After Olague stated he understood his rights, the detective sought a waiver by asking if he was “cool with” their discussion continuing. The detective testified that he had brief conversations with Olague in the past and that he had phrased his question as he did both to tailor it to Olague's level of understanding and to create a relaxed atmosphere. Similarly, the detective removed Olague's handcuffs to create a less stressful environment. Thus, on the record properly before us, we find no abuse of discretion in the trial court's ruling that Olague understood and voluntarily waived the Miranda protections. Cf. Thompkins , 560 U.S. at 375, 385, 130 S.Ct. 2250 (reasoning that defendant who understood rights chose not to invoke or rely on rights when he did speak); State v. Zimmerman , 166 Ariz. 325, 330, 802 P.2d 1024, 1029 (App. 1990) (finding statements admissible when detective told defendant he “wanted to ... get his information, get the story over with,” reminded defendant of Miranda advisory, then asked if defendant wanted to talk).

¶ 9 As the parties point out, a recording of the interview was admitted at trial, and a transcript was attached to one of the state's pretrial motions. Yet even if we considered these additional items, we still would find no basis to disturb the trial court's determination that Olague had not been coerced. In context, the detective's preliminary questions—“All right?” and “You cool with that?”—implied that any further discussion on the topic of “what went down” would be voluntary and subject to termination if Olague invoked the Miranda rights the detective had explained only moments earlier. The full record shows an absence of law enforcement overreach or compulsion. See State v. Carrillo , 156 Ariz. 125, 135, 750 P.2d 883, 893 (1988) (stating voluntariness of waiver depends on objective evaluation of police conduct).

Motion to Dismiss

¶ 10 Before trial, Olague joined a motion to dismiss his murder charge due to selective prosecution based on impermissible racial discrimination. The trial court denied the motion because it rested on the faulty legal premise that a person could be charged with felony murder for the sale of marijuana below the two-pound threshold amount set forth in A.R.S. § 13–3401(36)(h).

¶ 11 Our felony-murder statute, A.R.S. § 13–1105(A)(2), enumerates the predicate offenses that will support a first-degree murder charge. The list includes “marijuana offenses under § 13–3405, subsection A, paragraph 4, dangerous drug offenses under § 13–3407, subsection A, paragraphs 4 and 7, [and] narcotics offenses under § 13–3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses .” § 13–1105(A)(2) (emphasis added). On appeal, Olague continues to argue that this threshold-amount clause in the felony-murder statute applies only to specified narcotics offenses, the clause's last antecedent. He maintains that threshold amounts do not apply to marijuana offenses, dangerous drug offenses, or the various other disparate offenses enumerated in § 13–1105(A)(2), such as child molestation and terrorism.

¶ 12 We review questions of statutory interpretation de novo, striving to give effect to the intent of the enacting legislature. State v. Jones , 235 Ariz. 501, ¶ 6, 334 P.3d 191, 192 (2014). We look first to the statute's language to determine its meaning. State v. Williams , 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When that language is susceptible to more than one reasonable interpretation, as is the relevant clause of § 13–1105(A)(2), we employ secondary methods of construction to determine its meaning. See State ex rel. Polk v. Campbell , 239 Ariz. 405, ¶ 5, 372 P.3d 929, 930 (2016).

¶ 13 The history of § 13–1105(A)(2) resolves the question of legislative intent. See Campbell , 239 Ariz. 405, ¶ 5, 372 P.3d at 930 (recognizing context and historical background of statute as tools for interpretation). In 1987, the only drug crimes that served as predicate felonies for first-degree murder were certain “narcotics offenses,” with no minimum amount...