State v. Potter, 2 CA-CR 2008-0299 (Ariz. App. 11/23/2009)

• Decision Date: 23 November 2009
• Docket Number: 2 CA-CR 2008-0299.
• Parties: THE STATE OF ARIZONA, Appellee, v. JEFFREY POTTER, Appellant.
• Court: Arizona Court of Appeals

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THE STATE OF ARIZONA, Appellee, v. JEFFREY POTTER, Appellant.

2 CA-CR 2008-0299.

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

November 23, 2009.

Appeal from the Superior Court of Pima County, Cause No. CR-20074813, Honorable Frank Dawley, Judge, Honorable John S. Leonardo, Judge.

AFFIRMED

Terry Goddard, Arizona Attorney General By Kent E. Cattani and David A. Sullivan Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By David J. Euchner Tucson, Attorneys for Appellant.

MEMORANDUM DECISION.

BRAMMER, Judge.

¶ 1 Appellant Jeffrey Potter appeals from his conviction and sentence for sexual conduct with a minor. He argues the trial court erred by denying his motion to suppress evidence of telephone calls the victim made to him at the request of law enforcement. He also contends the court violated his right to "confront and cross-examine his accuser" by excusing her as a witness before impeachment evidence—a case file from Child Protective Services (CPS)—had been produced, erred in denying his motions to continue the trial, and by excluding other impeachment evidence under A.R.S. § 13-1421. Potter further argues § 13-1421 is unconstitutional on its face and as applied to him. Finally, he contends the court's erroneous denial of his motion for acquittal on several charged counts created a "real possibility that the jury returned a non-unanimous verdict" on the charge of which he was convicted. We affirm.

Factual and Procedural Background

¶ 2 On appeal, we view the facts in the light most favorable to sustaining Potter's conviction and sentence. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In August 2007, S., who was then beginning her junior year of high school, reported that her stepfather, Potter, had been sexually abusing her since the beginning of her sophomore year. Potter was arrested following a forensic interview of S. and two telephone calls she made to him at the behest of officers in which Potter made incriminating statements.

¶ 3 A grand jury charged Potter with four counts of sexual conduct with a minor and one count of attempted sexual conduct with a minor, and the case proceeded to trial. On the fifth day of the eight-day trial, after the close of the state's case, the trial court granted Potter's motion for a judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., on one count of sexual conduct with a minor, but it denied the motion as to the remaining counts. The jury found Potter guilty of one count of sexual conduct with a minor but failed to reach a verdict on any of the remaining counts. Pursuant to a plea agreement on the remaining counts, Potter then pled no contest to an amended count of attempted sexual conduct with a minor. The court sentenced him to a substantially mitigated, three-year prison term for sexual conduct with a minor. For attempted sexual conduct with a minor, the court suspended the imposition of sentence and placed Potter on probation for a ten-year term. This appeal followed.

Discussion

Evidence of Telephone Conversations with S.

¶ 4 Potter first argues the trial court erred in denying his motion to suppress evidence of telephone conversations with S. in which he had made incriminating statements. When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, and we view that evidence in the light most favorable to upholding the trial court's findings of fact. State v. Guillen, 222 Ariz. 81, ¶ 2, 213 P.3d 230, 231 (App. 2009). After S. reported that Potter had been sexually abusing her, Pima County sheriff's detective Erin Gibson contacted Potter and asked that he provide an interview. Potter agreed, but when he later contacted Gibson and told her he wanted an attorney present, Gibson cancelled the interview. At least two weeks later at Gibson's request, S. came to her office to "conduct a confrontation call" with Potter. S. called Potter twice from the police substation, and Potter made several incriminating statements during those calls. Gibson recorded both calls.

¶ 5 Potter moved to suppress evidence of those telephone conversations, arguing that, because he had invoked his right to counsel and S. had called him at Gibson's request, the calls violated his Sixth Amendment right to counsel. The state conceded S.'s telephone calls to Potter were the "functional equivalent to an interrogation" but argued Potter's Sixth Amendment right to counsel had not attached because he had not yet been arrested. The trial court agreed and denied the motion on that ground.¹ We review the court's decision for an abuse of discretion, but we review constitutional and purely legal issues de novo. See Guillen, 222 Ariz. 81, ¶ 2, 213 P.3d at 231.

¶ 6 On appeal, Potter renews his argument that, because he had invoked his right to counsel, law enforcement officers "must honor that demand and cannot make further attempts to initiate questioning." What Potter does not do, however, is articulate the constitutional basis for the right to counsel he purportedly invoked. He concedes his Sixth Amendment right to counsel had not yet attached because he had not been indicted. See State v. Fulminante, 161 Ariz. 237, 246, 778 P.2d 602, 611 (1988) ("The sixth amendment right to counsel does not attach during pre-indictment questioning."). And he cites no authority suggesting the Fifth Amendment right to counsel applies to noncustodial interrogations.² Albeit under different circumstances and without explicitly stating that the Fifth Amendment does not apply to noncustodial questioning, our supreme court has stated that, "even though a suspect invokes his right to decline further interrogation until he has spoken to a lawyer, the police may continue to question him in a non-custodial setting." State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). The United States Supreme Court has stated, "The Fifth Amendment right identified in Miranda [v. Arizona, 384 U.S. 436 (1966),] is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that [the defendant] invoked and there would be no occasion to determine whether there had been a valid waiver." Edwards v. Arizona, 451 U.S. 477, 485-86 (1981); see also Alexander v. Connecticut, 917 F.2d 747, 751 (2d Cir. 1990) ("Absent a police dominated interrogation, the fifth amendment right to counsel does not attach."); Collier v. Municipality of Anchorage, 138 P.3d 719, 720 (Alaska Ct. App. 2006) ("The right to counsel under the Fifth Amendment only arises during custodial interrogation."); People v. Goyer, 638 N.E.2d 390, 396 (Ill. App. Ct. 1994) ("The fifth amendment right to counsel relates only to custodial interrogation."); Hunt v. State, 687 So. 2d 1154, 1159-60 (Miss. 1996) ("Fifth Amendment right to counsel . . . not implicated" in noncustodial setting); State v. Hoadley, 651 N.W.2d 249, ¶ 26 (S.D. 2002) ("A person is not entitled to counsel if the interrogation is noncustodial."); State v. Bradshaw, 457 S.E.2d 465, 467 (W. Va. 1995) ("[T]he Miranda right to counsel has no applicability outside the context of custodial interrogation."). Plainly, S.'s telephone calls to Potter did not constitute custodial interrogation, and Potter does not argue otherwise. Therefore, because he was not in custody and his Sixth Amendment right to counsel had not attached either when he spoke to Gibson or during the telephone conversations with S., Potter had no right to counsel to invoke.

¶ 7 Moreover, even assuming Potter's Fifth Amendment right to counsel would apply to the telephone calls, he cites no authority for the proposition that a defendant who is not in custody may invoke his or her right to counsel under the Fifth Amendment prior to an interrogation, much less a noncustodial interrogation. As the Supreme Court noted in McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991), if Miranda rights could be invoked before custodial interrogation, they could be invoked prior to arrest or "even prior to identification as a suspect." It observed that "[m]ost rights must be asserted when the government seeks to take the action they protect against" and that "[t]he fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect." Id.; see also Wilson v. Commonwealth, 199 S.W.3d 175, 179 (Ky. 2006) ("[I]t is clear that the Fifth Amendment rights protected by Miranda attach only after a defendant is taken into custody and subjected to interrogation. Any attempt to invoke those rights prior to custodial interrogation is premature and ineffective."). At the time Potter invoked his right to counsel, he was not being interrogated in any fashion. Thus, his invocation of his right to counsel two weeks before his telephone conversations with S. would have been ineffective in any event, even were such a right applicable to those calls.

¶ 8 Potter also asserts Gibson's conduct in asking S. to call him rendered his statements involuntary because they "overc[a]me [his] will to exercise his constitutional rights." But, as we have explained, Potter had no constitutional right to counsel, and thus there was no valid assertion of that right to be "overcome" by police conduct. Moreover, to the extent the conversations may implicate Potter's Fifth Amendment right to remain silent, the trial court found his statements were voluntary, and Potter identifies no evidence produced at the suppression hearing, or makes any argument here, suggesting this finding was incorrect.³

¶ 9 Additionally, none of the three cases he cites in support of this argument is applicable. His reliance on People v. Bowman, 782 N.E.2d 333, 337, 343 (Ill. App. Ct. ...