State v. Pesqueira
| Decision Date | 22 August 2013 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ROCCO COLAVITO PESQUEIRA, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISIONNot for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller
Tucson
Attorneys for Appellant
¶1 Rocco Pesqueira was convicted after a jury trial on two counts of aggravated assault and one count of simple assault. Pesqueira appeals from hisconvictions and sentences, and claims the trial court erred with respect to certain evidentiary rulings and pretrial motions and by permitting a state's witness, Pesqueira's mother, to testify in jail attire. Finding no error, we affirm the convictions and sentences but vacate the criminal restitution order (CRO).
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In October 2010, Pesqueira accompanied codefendant Renea Tebo to the home of her former boyfriend, B.R., to collect Tebo's property. When B.R. answered the door, a physical altercation began between Tebo, B.R., and Pesqueira. During the scuffle, Pesqueira stabbed B.R. in the heart.
¶3 Pesqueira was charged by information with aggravated assault with a deadly weapon, aggravated assault involving serious physical injury, aggravated assault after entering a private home, burglary in the first degree, and attempted first degree murder. The jury found Pesqueira guilty of two counts of aggravated assault and a count of simple assault. He was sentenced to concurrent prison terms, the longest of which was five years. Pesqueira timely appealed his convictions and sentences.
¶4 Pesqueira first contends the trial court erred in denying his motion to suppress statements made during a police interview. Pesqueira argues, as he did below,that the statements should have been suppressed because they were made after he had requested counsel in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and they were involuntary, as his consent to continue with the interview arose from a threat to detain him. When reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). We review the court's decision to admit a defendant's statement "for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).
A. Miranda Claim
¶5 In Miranda, the Supreme Court established certain procedural safeguards to protect against compelled self-incrimination "'that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.'" Florida v. Powell, 559 U.S. 50, 59 (2010), quoting Duckworth v. Eagan, 492 U.S. 195, 201 (1989). The right to the presence of an attorney is one of the four now-familiar warnings required under Miranda. Id. at 59-60. When a criminal suspect invokes his right to counsel, all questioning must cease until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). "However, if the suspect reinitiates contact with the police, he waives his rights and questioning can continue." State v. Smith, 193 Ariz. 452, ¶ 22, 974 P.2d 431, 437 (1999). In Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), the Supreme Court held that the defendant's question, "Well, what isgoing to happen to me now?" demonstrated "a desire for a generalized discussion about the investigation." Thus, the defendant in Bradshaw initiated further contact with the police after invoking his right to a lawyer. Id.; see also State v. Burns, 142 Ariz. 531, 535, 691 P.2d 297, 301 (1984) ().
¶6 The transcript of Pesqueira's pretrial interview, admitted at the suppression hearing, reflects that before questioning he expressly waived his Miranda rights. Several minutes into the interview, Pesqueira invoked his right to counsel, stating in response to a question that he "[didn't] really want to say much else" and "want[ed] to talk to an attorney." As a result of Pesqueira's invocation, one of the interviewing officers indicated that he'd "fully respect [Pesqueira's] rights" and would "get out of the room." Pesqueira responded by asking, ". . . but what happens to me then?" The interviewing officer indicated that he still had unanswered questions but if Pesqueira wanted an attorney the interview was "done," whereupon Pesqueira then asked, "Can I go?" The officer told Pesqueira that he was "not free to go right now," which prompted the following exchange:
A. [Pesqueira] I can answer . . . .
Q. You can?
A. Yeah.
Q. So you still want to talk?
A. Yeah.
Q. Okay. Give me one second? Okay. Because you said you wanted an attorney, we're done in here okay. So just sit tight.
A. Well, I can answer questions.
Q. Well, you've already said those words.
A. I didn't say I wanted an attorney.
Q. Okay.
Q. [Other interviewing officer] What did you say then?
A. I said I think I need an attorney. I was just thinking out loud. I don't know. I will answer your questions.
Q. Okay, well. Give me, give me one second. I want to take a few minutes and then we'll be right back, okay.
¶7 The interviewing officers subsequently left the room and returned several minutes later with a third officer, who reread Pesqueira his Miranda rights. Pesqueira once again waived his rights and confirmed that he was not requesting an attorney. The officers gave Pesqueira numerous opportunities to stand by his initial request to end the interview and obtain counsel. Pesqueira confirmed that he wished to waive his Miranda rights and continue answering questions.
¶8 Pesqueira argues that he unambiguously invoked his right to counsel and only after continued badgering by detectives did he agree to continue the interview. We disagree. Pesqueira initiated further contact with the officers after invoking his right to a lawyer and therefore questioning could continue. See Smith, 193 Ariz. 452, ¶ 22, 974 P.2d at 437. Here, as in Bradshaw, Pesqueira's question, ". . . but what happens to me then?" evidenced a "desire for a generalized discussion about the investigation." 462 U.S.at 1045. Moreover, the interviewing officers gave Pesqueira several minutes to think about his options after he initiated further contact. He was then again advised of his rights, explicitly waived those rights, and expressed a desire to continue with the interview. Contrary to his argument, the record reflects that the officers scrupulously honored Pesqueira's initial invocation of the right to counsel before resuming questioning.
¶9 Pesqueira further contends that his statements to the police were not voluntary because they were based on a belief that he would be released if he answered more questions. We review a trial court's ruling on a motion to suppress for an abuse of discretion and we will not disturb the court's determination of the voluntariness of a defendant's statements absent clear and manifest error. See State v. Navarro, 201 Ariz. 292, ¶ 12, 34 P.3d 971, 974 (App. 2001).
¶10 A defendant's statement to police is admissible if it is voluntary and not obtained by coercion or improper inducement. Haynes v. Washington, 373 U.S. 503, 513 (1963). "In assessing voluntariness, we consider the totality of circumstances to determine whether the statements were or were not the product of a 'rational intellect and a free will.'" State v. Hoskins, 199 Ariz. 127, ¶ 28, 14 P.3d 997, 1007 (2000), quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) ().
¶11 Pesqueira contends that the interviewing officer implied he would be free to go if he answered more questions. However, as outlined above, the record reflects that Pesqueira's statements to police were voluntary and not the result of improper inducement. To the extent Pesqueira did believe that he would be free to go if he answered more questions, such a belief was not based on anything the police said or did. The officers informed Pesqueira unequivocally that he was not free to go; therefore, his willingness to continue the interview was not the result of police coercion.
¶12 The trial court did not err in denying Pesqueira's motion to suppress his statement to police.
¶13 Pesqueira next argues the trial court erred in denying his motion to exclude the officers' opinions and accusations in the pretrial interview that Pesqueira was lying. We review a court's ruling on the admissibility of evidence for an abuse of discretion. State v. Aguilar, 209 Ariz. 40, ¶ 29, 97 P.3d 865, 874 (2004).
¶14 Officers' questions during an interview are admissible not to prove the truth of the matter asserted but to give meaning and context to a defendant's responses....
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