State v. Peterson

• Decision Date: 28 December 2011
• Docket Number: No. 2 CA–CR 2010–0309.,2 CA–CR 2010–0309.
• Parties: The STATE of Arizona, Appellee, v. Pamela Lynn PETERSON, Appellant.
• Court: Arizona Court of Appeals

228 Ariz. 405

267 P.3d 1197

574 Ariz. Adv. Rep. 9

The STATE of Arizona, Appellee,

v.Pamela Lynn PETERSON, Appellant.

No. 2 CA–CR 2010–0309.

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

Dec. 28, 2011.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender by Scott A. Martin, Tucson, Attorneys for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 After a jury trial, appellant Pamela Peterson was convicted of theft of means of transportation by control or by controlling stolen property. The trial court suspended imposition of her sentence, placing her on probation for two years and ordering restitution of $1,392. On appeal, Peterson argues the court erred in denying her motion to suppress without a hearing and in admitting certain evidence at trial over her hearsay and confrontation objections. She also challenges the restitution order. For the following reasons, we stay in part, vacate in part, and remand for further proceedings.

Factual Background and Procedural History

¶ 2 In January 2010, Linda V. was delivering newspapers in her GMC Canyon pickup truck in Tucson. She stopped at a restaurant to make a delivery, turning off the truck's engine but leaving the keys in the ignition. When she came back outside, she saw a man opening the driver's side door. She jumped in the truck on the passenger's side and tried to grab the keys while the man attempted to start the engine. The man then displayed a weapon, and she “threw [her]self out onto the curb.” At trial, she testified she did not know the man but was certain Peterson did not steal her truck.

¶ 3 Approximately two weeks later a Tucson police officer responded to a call reporting a man and woman arguing in a drugstore parking lot. Upon arrival, the officer encountered a man who identified himself as Jeffrey Peterson ¹ standing beside “a newer model truck” that contained furniture and household goods. After about five minutes, Peterson came out of a store and the officer spoke to her. She explained she had been evicted and was moving her belongings; the officer allowed her and the man to leave together in the truck.

¶ 4 As Peterson drove away with Jeffrey in the passenger seat, the officer conducted a routine check of the truck's license plate number, which indicated the truck had been stolen. The officer caught up to the truck, pulled it over, and asked Peterson to get out and sit against a wall. He asked Peterson who owned the truck, and she answered it belonged to a friend of her husband's named Linda. A detective searched the truck and found items bearing Linda V.'s name mixed among items bearing Peterson's name. After advising Peterson of her Miranda² rights, another detective, Eric Brown, interviewed her before arresting her and having her taken to jail.

¶ 5 Peterson was charged with theft of means of transportation by control and/or by controlling stolen property. Before trial, she moved to suppress certain statements she had made to Brown, arguing they had been taken involuntarily and in violation of Miranda. The trial court denied the motion. The jury found Peterson guilty, and she was sentenced as outlined above. We have jurisdiction over her appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1), (4).

Discussion

Motion to Suppress

¶ 6 Peterson argues the trial court abused its discretion “in summarily denying, without a hearing, [her] Motion to Suppress her statements made to Detective Brown.” ³ We review a trial court's ruling on a motion to suppress for an abuse of discretion. See State v. Stanley, 167 Ariz. 519, 523, 809 P.2d 944, 948 (1991) (ruling on motion to suppress not disturbed on appeal absent “clear and manifest error”); see also State v. Jones, 203 Ariz. 1, ¶ 8, 49 P.3d 273, 277 (2002) (equating clear-error standard with abuse-of-discretion standard). However, we review the court's legal conclusions de novo. State v. Newell, 212 Ariz. 389, ¶ 27, 132 P.3d 833, 841 (2006); State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App.2009). Peterson maintains, as she did below, that the statements she sought to suppress were taken in violation of Miranda and were made involuntarily. These issues are related but are legally discrete; we therefore discuss them separately. See State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983).

¶ 7 Peterson first assigns error to the trial court's failure to hold a hearing before ruling on her Miranda motion. She contends, as she did below, that Detective Brown continued questioning her after she had invoked her right to remain silent and she subsequently made incriminating statements. In its answering brief, the state does not address the issue of whether Peterson was entitled to a hearing, but argues only that the court correctly ruled on the merits of her motion.

¶ 8 “ Miranda requires law enforcement officers, when questioning a suspect in custody about criminal activity, to inform the suspect he or she has the right to remain silent.” State v. Szpyrka, 220 Ariz. 59, ¶ 4, 202 P.3d 524, 526 (App.2008). If the suspect indicates “ ‘ in any manner, at any time prior to or during questioning, that [s]he wishes to remain silent, the interrogation must cease.’ ” Id. (emphasis added in Szpyrka ), quoting Miranda v. Arizona, 384 U.S. 436, 473–74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The test for whether a statement is a clear invocation of the right is an objective one. Id.

¶ 9 When a defendant seeks to suppress statements on the ground they were taken in violation of Miranda, he or she must allege a prima facie case for suppression before being entitled to a hearing. See Ariz. R.Crim. P. 16.2(b). To meet this burden, a defendant need only make allegations which, if proved, would entitle him or her to suppression. Rodriguez v. Arellano, 194 Ariz. 211, n. 1, 979 P.2d 539, 540 n. 1 (App.1999). After the defendant has made this showing, the burden shifts to the state to prove “the lawfulness in all respects of the acquisition of all evidence which the prosecutor will use at trial.” Id. ¶ 7. Here, Peterson claims that, “[b]y dismissing [her] Miranda motion without a hearing, the trial court can only have ruled that [she] did not establish a prima facie case as required by Rule 16.2.”

¶ 10 In her motion to suppress, Peterson cited the following exchange with Brown, who she claimed had placed her in handcuffs and read her the Miranda warning before interviewing her.

Det. Brown: [ ]Okay, cause, cause he, he's saying that you guys went out. You know, you guys we[ ]re gonna get evicted. You guys were all stressed out about not being able to move your stuff. You get, decided to go use a friend's phone to, to make some phone calls and then lo[ ] and behold here you come with the truck and the keys, and he didn't question it at all whatsoever. So he assumed everything was good to go. You, you know, you said that you get the car for about a week or so when your friend was out of town. So that didn't happen? Pamela?

Ms. Peterson: No, not exactly like that.

Det. Brown: Okay, so how exactly did it happen? I ... would like to kind of understand how it happened. So who did you get the truck from?

Ms. Peterson: I, I don't have anything else to say about how it all happened.

Det. Brown: You don't have anything else to say or you don't want to say what else you have to say? So I think you know more about what's going on than what you're telling me.

Questioning continued after this exchange and, as Peterson indicated in her motion, she subsequently admitted Jeffrey had not borrowed the truck from a friend named Linda, but rather she herself had borrowed it from a neighbor named Maya, whose last name she did not know.

¶ 11 In her motion to the trial court, relying principally on Szpyrka, Peterson argued her statement, “I don't have anything else to say about how it all happened,” was an unequivocal invocation of her right to remain silent and the detective should have stopped questioning her at that point. 220 Ariz. 59, ¶ 6, 202 P.3d at 527 (after invocation of right to remain silent, subsequent statements may be used against defendant only if officers “scrupulously honored” right to terminate questioning). She maintained the statements she made after this alleged invocation should have been suppressed.

¶ 12 As noted above, to establish a prima facie case warranting a hearing, Peterson needed only to allege facts that, if proved, would entitle her to suppression. Arellano, 194 Ariz. 211, n. 1, 979 P.2d at 540 n. 1. Arizona courts have held that statements similar to Peterson's constitute an invocation of the right to silence. See State v. Castaneda, 150 Ariz. 382, 386, 724 P.2d 1, 5 (1986) (statement “I have nothing to say” invoked right to remain silent); Szpyrka, 220 Ariz. 59, ¶ 5, 202 P.3d at 526–27 (statement “I ain't got nothin' to say” unambiguous invocation of Fifth Amendment rights); State v. Strayhand, 184 Ariz. 571, 585, 911 P.2d 577, 591 (App.1995) (statement “Well, I don't want [to] answer anymore” clear invocation of Fifth Amendment rights); see also State v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983) (suggesting statement “I ain't going to say any more” unambiguously invoked Fifth Amendment). Thus, Peterson's argument that her right to silence was clearly invoked by her statement “I don't have anything else to say about how it all happened” is colorable under Arizona law. We therefore agree that Peterson met her burden of going forward by alleging that her statement invoked her right to remain silent, that questioning continued after this alleged invocation, and that she subsequently made incriminating statements, including that she “was the one who procured the stolen truck.”

¶ 13 The trial court distinguished Szpyrka because in that case “the suspect made the statement immediately, and repeatedly, after the officer gave the Miranda warnings.” But, at least for...