State v. Perea, 6202

• Decision Date: 01 November 1984
• Docket Number: No. 6202,6202
• Citation: 690 P.2d 71,142 Ariz. 352
• Parties: STATE of Arizona, Appellee, v. Joseph Paul PEREA, Appellant.
• Court: Arizona Supreme Court

Page 71

690 P.2d 71

142 Ariz. 352

STATE of Arizona, Appellee, v. Joseph Paul PEREA, Appellant.

No. 6202.

Supreme Court of Arizona,

In Banc.

Nov. 1, 1984.

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

Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Joseph P. Perea, was convicted by a jury on 22 December 1983 of second-degree murder, A.R.S. § 13-1104; kidnapping, A.R.S. § 13-1304; and sexual assault, A.R.S. § 13-1406. Each offense was found to be of a dangerous nature, A.R.S. § 13-604, and the defendant was sentenced for each to life imprisonment without possibility of parole or release for 25 years, A.R.S. § 13-604.01. The kidnapping and sexual assault sentences were to be served concurrently but consecutive to the sentence for murder. We have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035.

Defendant raises six issues on appeal:

1. Did the trial court err in not suppressing statements made by defendant to the police?

2. Was the defendant subjected to an unduly suggestive photographic lineup such that subsequent in-court identifications should have been suppressed?

3. Did the trial court commit reversible error by admitting an allegedly gruesome photograph into evidence?

4. Did the trial court err in overruling defendant's objection to testimony about the defendant "sniffing a substance"?

5. Did the prosecutor improperly comment on defendant's assertion of his right to counsel?

6. Did the trial court err by imposing consecutive sentences?

The facts follow. On 12 August 1983 the defendant and the 12-year-old victim attended a party in East Phoenix. The party lasted from about 9:00 P.M. until 4:00 A.M. and as many as 80 people may have attended. The defendant was observed hugging and kissing the victim and otherwise spending a good deal of time with her at the party. According to witnesses, the defendant and the victim left the party shortly before 4:00 A.M., walking in the direction of a nearby schoolyard.

At 7:35 in the morning, a young boy signaled a passing police car to stop. He then led officers to the schoolyard and the nude body of the victim. An autopsy revealed that the victim died as a result of manual strangulation and that her vagina contained seminal fluid and spermatazoa. She had also suffered a stab wound to the cheek which penetrated into the gum.

A homicide investigation ensued during which several of the guests at the party were interviewed. Because the guests indicated that the defendant was seen with the victim at the party, Detectives Billy F. Butler and Gus Oviedo of the Phoenix Police Department requested, in a phone conversation with the defendant, that he come to the Department later that day to be interviewed. Oviedo testified that he told defendant that he and Butler wished to talk to the defendant to determine if he had been present at the party. Defendant broke the scheduled appointment but came in voluntarily the next day. Defendant was interviewed for approximately one-half hour and then left. Defendant told the officers that he had danced with the victim only once and that he later spoke with her for only a brief time. Defendant stated that he left the party at approximately 1:30 to 2:00 o'clock A.M. on the following morning. He maintained that he left alone and that he proceeded to the home of his friend, Anthony "Porky" Schultz, to sleep. Defendant's account differed from information later obtained from other witnesses. Schultz's girlfriend, Karen Salas, for example, stated that the defendant arrived at the Schultz home at 4:30 A.M. Defendant was arrested the following day. After being read his Miranda rights, defendant volunteered the location of the clothes that he had worn on the night of the party. Lab tests confirmed the presence of trace amounts of blood on the shirt and pants worn. Furthermore, lab tests conducted on fingernail scrapings and hair found on the decedent showed characteristics similar to those of samples taken from defendant. Defendant appeals from jury verdicts and judgments of guilt as to the crimes charged.

MOTION TO SUPPRESS STATEMENTS

Defendant moved to suppress the statements made to the police officers the day before his arrest. After a hearing on the motion to suppress, the court denied the motion. Defendant claims that he was subjected to custodial interrogation when he was first interviewed by Detectives Butler and Oviedo and that he should have been informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Undeniably, defendant was being interrogated, but Miranda warnings are only required when a defendant is subject to custodial interrogation. Id. Whether a defendant is in custody such that Miranda warnings are required to be given is determined by an objective test of whether a reasonable person would feel deprived of his freedom in a significant way. E.g., Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, 719 (1977); Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; State v. Morse, 127 Ariz. 25, 28, 617 P.2d 1141, 1144 (1980); State v. Dickey, 125 Ariz. 163, 168, 608 P.2d 302, 307 (1980); State v. Barnes, 124 Ariz. 586, 589, 606 P.2d 802, 805 (1980). Our Court of Appeals has indicated that the factors indicative of custody are:

1) the site of the interrogation, 2) whether the investigation has focused on the accused, 3) whether the objective indicia of arrest are present, and 4) the length and form of the interrogation.

State v. Riffle, 131 Ariz. 65, 67, 638 P.2d 732, 734 (App.1981) (citations omitted). In Riffle, supra, the court concluded that because the defendant was only briefly interviewed, the investigation had not yet focused on her, and no handcuffs, drawn guns or search of defendant's person or belongings were used, the defendant was not in custody such that Miranda warnings were required. Similarly, the instant case lacks such coercive elements.

Defendant in this case, however, emphasizes the fact that he was interviewed at the Phoenix Police Department and that he was identified as the person who had left the party with the victim. We do not believe that these added factors necessitate a finding that the defendant was in custody. In Barnes, supra, we stated that:

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

124 Ariz. at 589, 606 P.2d at 805 (quoting Oregon v. Mathiason, supra, 429 U.S. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719). See also State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978). We find no error.

THE PHOTOGRAPHIC LINEUP

Before trial a hearing was held pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). The trial court refused to suppress the in-court identification of the defendant. Defendant contends that he was subjected to an unduly suggestive photographic lineup, which tainted the in-court identification. He claims that the lineup was defective in four regards: (1) he was the only one pictured who had a facial tattoo, (2) his photograph appeared first, (3) his photograph was blurrier than the others, and (4) he was the only person whose photograph appeared who was also present at the party.

a. Tattoo

The defendant has a small tattoo of a cross under his left eye. This tattoo is not perceptible in his photograph. In fact, one person present at the party, Frank Ramirez, told the police that the defendant had a tattoo, but he was unable to pick out the defendant's photograph. From our view of the photograph, the cross is barely visible and would be apparent only to a viewer expressly looking for the tattoo.

In a similar case from California, the distinguishing characteristic was an irregular reddish brown birthmark, smaller than a dime, on defendant's left cheek. A group of black and white photographs were selected for inclusion in a photographic lineup. The other subjects shown generally resembled the defendant except that the defendant's photograph showed a spot on defendant's left cheek which could have been a birthmark. Despite this unique identifying characteristic, the court found that the photographic lineup was not unduly suggestive. People v. Castellano, 145 Cal.Rptr. 264, 268, 79 Cal.App.3d 844, 851-52 (1978).

In the instant case, the defendant was pictured in a black and white photograph. His tattoo was small and barely, if at all, perceptible. The tattoo appears to have played little, if any, role in the eyewitnesses' identifications, and we do not believe it was unduly suggestive. We note also that Appellant argues that his mark is unique. Every individual is unique. The mouth, the lips, the teeth, the chin, the cheeks, the nose, the eyes, the forehead, the ears, the hair, or any combination of two or more of those and other features, make every individual unique. They make him different from all others. They are the basis upon which any person is visually distinguished from other persons. The more subtle the distinctions, the more difficult the identification, and the greater the potential for error. If the burglar in this...