State v. Smith
| Decision Date | 23 September 1999 |
| Docket Number | No. 2CA-CR98-0346-PR., No. 2CA-CR97-0130 |
| Citation | 197 Ariz. 333,4 P.3d 388 |
| Parties | The STATE of Arizona, Appellee/Respondent, v. Andre Scott SMITH, Appellant/Petitioner. |
| Court | Arizona Court of Appeals |
Janet Napolitano, Arizona Attorney General Tucson By Paul J. McMurdie and Diane M. Acosta, for Appellee/Respondent.
Timothy B. Dickerson, P.C. By Timothy B. Dickerson, Sierra Vista, for Appellant/Petitioner.
¶ 1 Appellant Andre Smith and his companions attacked and severely beat two men in a park in Sierra Vista, Arizona. An eight-person jury found Smith guilty of two counts of aggravated assault with a deadly weapon or dangerous instrument, and the trial court sentenced him to concurrent, presumptive, 7.5-year prison terms. After Smith filed a notice of appeal from his convictions and sentences, he sought post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S., claiming he had not waived the right to a twelve-person jury and had received ineffective assistance of counsel. We stayed the appeal pursuant to Rule 31.4(a)(1), Ariz. R. Crim P., and revested jurisdiction in the trial court for the post-conviction proceedings. See Ariz. R.Crim. P. 31.11 and 32.2. After an evidentiary hearing solely on the issue of whether Smith had waived his right to a twelve-person jury, the trial court denied post-conviction relief. Smith then filed a petition for review pursuant to Rule 32.9(c), Ariz. R.Crim. P. We vacated our stay, revested jurisdiction in this court, and consolidated the appeal and petition for review pursuant to Rule 31.4(b)(2), Ariz. R.Crim. P. We have jurisdiction over both matters pursuant to A.R.S. § 12-120.21.
¶ 2 On appeal, Smith contends the trial court incorrectly denied his motion to suppress the statements he made to police, arguing he was in custody at the time he made them and had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We review for clear and manifest error a trial court's ruling on a motion to suppress evidence, State v. Weinstein, 190 Ariz. 306, 947 P.2d 880 (App.1997), and will uphold its ruling absent an abuse of discretion. State v. Bentlage, 192 Ariz. 117, 961 P.2d 1065 (App.1998). We view the evidence presented at the suppression hearing and the reasonable inferences from that evidence in the light most favorable to upholding the trial court's ruling. State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996). Although the trial court determines the credibility of the witnesses, we review its legal decisions de novo. State v. Omeara, 297 Ariz. Adv. Rep. 3, 197 Ariz. 328, 4 P.3d 383 (Ct.App. June 15, 1999).
¶ 3 The evidence presented at the suppression hearing established that a detective and two uniformed police officers went to Smith's home to arrest him on the assault charges. The detective surreptitiously tape-recorded the conversations that took place at the home. The police were met at the door by Smith's younger brother, who let them in and directed them to the kitchen, where Smith was talking on the telephone while standing near the sink and shaving his head. After the detective told Smith they were there "investigating an assault that took place in the park a week ago," Smith responded: Smith added that he and his older brother had been at the movie theater and that they had arrived about 6:40 p.m. and saw the "Thin Line." After Smith answered a few additional questions, he was arrested on the assault charges and taken to the police station, where he was advised of his Miranda rights. Smith invoked his rights and refused to answer any further questions. After the trial court denied Smith's motion to suppress the statements made at home, it allowed the jury to hear the tape recording of Smith's pre-arrest statements.
¶ 4 Statements made by a defendant in custody are inadmissible at trial unless the defendant has been advised of and waived his or her Miranda rights. See State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
; State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991). An objective test is used to determine whether the defendant was in custody, that is, "whether under the totality of the circumstances a reasonable person would feel that he was in custody or otherwise deprived of his freedom of action in a significant way." State v. Carter, 145 Ariz. 101, 105, 700 P.2d 488, 492 (1985); see also Spreitz; Stanley. Smith argues that consideration of the factors set forth in Carter show that he was in custody when he made his pre-arrest statements. We disagree.
¶ 5 In Carter, the supreme court declared that "factors strongly indicative of custody include: 1) whether the objective indicia of arrest are present, 2) the site of the interrogation, 3) the length and form of the investigation, and 4) whether the investigation had focused on the accused." 145 Ariz. at 105,700 P.2d at 492; see also Stanley. Although the evidence at the suppression hearing clearly established the fourth factor (the investigation had focused on Smith), it failed to establish the remaining three factors. First, there was no evidence the police objectively indicated that Smith was under arrest before he made his statements. They did not draw any weapons, handcuff Smith, or otherwise deprive him of his freedom of action. Second, Smith's pre-arrest statements were made in his own home, rather than in the coercive environment of a police station. See Carter (questioning at police station enhances coercive nature of interrogation). And third, the detective's exchange with Smith was brief and noncoercive. The detective did not interrogate Smith, but simply stated he was investigating an assault that had taken place in the park; Smith promptly volunteered an explanation of his whereabouts. We thus conclude, based on the factors in Carter, that Smith was not in custody when he made his pre-arrest statements. A reasonable person in Smith's circumstances would not have felt "he was in custody or otherwise deprived of his freedom of action in a significant way." Carter, 145 Ariz. at 105,700 P.2d at 492. Accordingly, we affirm the trial court's denial of Smith's motion to suppress his statements.
¶ 6 Smith contends both on appeal and, more properly, in his petition for review that his trial before an eight-person jury constituted fundamental error. Smith argued in his Rule 32 petition he had a constitutional right to a twelve-person jury and had not waived that right. In response, the state claimed that, after consulting with Smith before jury selection, Smith's trial counsel had stipulated with the state to the imposition of concurrent sentences and, thus, to an eight-person jury. The trial court agreed with the state's position and summarily denied post-conviction relief, although the court acknowledged that Smith had not participated in the stipulation but "assume[d] defendant was informed and concurred [because] the issue was not thereafter raised prior to the selection of the jury." Smith moved for a rehearing pursuant to Rule 32.9, Ariz. R.Crim. P., asserting that he was entitled to an evidentiary hearing because the trial court could not assume he had been informed of and concurred with the stipulation. The trial court agreed and set the matter for a hearing.
¶ 7 At the hearing, the court admitted into evidence a partial transcript of the trial proceedings prior to jury selection and heard testimony from Smith and his trial attorney. The transcript reflects that the following transpired during a bench conference requested by the prosecutor after the trial court had announced it would seat eight jurors and an alternate:
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[PROSECUTOR]: Let's go with the 12-person jury, Your Honor. THE COURT: All right.
Almost immediately after this bench conference, Smith's counsel requested a bench conference at which the following occurred:
[SMITH'S COUNSEL]: ... [The prosecutor] raised the question if this pool is large enough to select a 12-person jury from.
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THE COURT: We have enough.
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Smith's counsel also testified that, before trial, he and Smith had discussed "the range of sentence that [his] charges carried," but not "the number of jurors that...
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