State v. Tapia, CR-87-0266-AP

• Decision Date: 08 December 1988
• Docket Number: No. CR-87-0266-AP,CR-87-0266-AP
• Citation: 159 Ariz. 284,767 P.2d 5
• Parties: STATE of Arizona, Appellee, v. Reynaldo TAPIA, Appellant.
• Court: Arizona Supreme Court

Page 5

767 P.2d 5

159 Ariz. 284

STATE of Arizona, Appellee, v. Reynaldo TAPIA, Appellant.

No. CR-87-0266-AP.

Supreme Court of Arizona.

Dec. 8, 1988.

[159 Ariz. 285] Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Div., Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.

Constance L. Trecartin, Tucson, for appellant.

GORDON, Chief Justice.

JURISDICTION

Appellant, Reynaldo Tapia, appeals from his convictions for first-degree murder, armed robbery, and second-degree burglary. The trial court imposed concurrent sentences of life imprisonment without the possibility of parole for 25 years for first-degree murder, 10.5 years for armed robbery and four years for burglary. This Court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033, and -4035.

FACTS

This case arises from the murder of Lyllis Wilson during the burglary of her home at 423 North Main Street in Tucson.

Marie Williamson lives at 419 North Main and owns the houses at 419 and 423 North Main. She and Mrs. Wilson, both in their 80's, were friends and neighbors for nearly 50 years.

On June 15, 1983, Mrs. Williamson hired appellant and Frank Martinez (Spike) to do yard work at both residences. That same day, appellant helped Mrs. Wilson and her daughter, Marilyn Schenck carry groceries to the Wilson residence.

During the late evening hours of June 18 or the early morning of June 19, intruders entered, ransacked and burglarized Mrs. Wilson's home. They brutally beat her with a pair of pruning shears. She died two weeks later without ever regaining consciousness.

Detective Perry Lowe of the Tucson Police Department investigated the case and first interviewed appellant on July 11, 1983. At that time, appellant admitted to doing yard work at the victim's residence, but denied any knowledge of the burglary and the murder. He also denied entering and carrying groceries into the victim's house on June 15.

On October 24, 1983, Officer Fuentes of the Tucson Police Department arrested appellant on an unrelated aggravated assault charge. He advised appellant of his Miranda rights at the scene and appellant indicated that he understood. When Officer Parella arrived at the scene he asked if

[159 Ariz. 286] Officer Fuentes gave appellant his Miranda rights, both Officer Fuentes and appellant acknowledged that he had. Because Detective Lowe previously indicated his desire to speak with appellant on the Wilson murder, Officer Fuentes transported appellant to the Tucson Police Department. On arrival, Officer Fuentes brought appellant to an interview room. Appellant again acknowledged receipt of his Miranda rights when Detective Lowe entered the room and spoke with Officer Parella

Officer Parella remained in the room while Detective Lowe interviewed appellant. In a tape-recorded interview, Detective Lowe told appellant that two witnesses implicated appellant in the burglary and the murder. In appellant's first statement to Detective Lowe, he denied any involvement and stated that Frank Martinez (Spike) committed the burglary and assault on the victim.

Detective Lowe then turned the tape recorder off and told appellant that he did not believe him and that he thought appellant was lying. Detective Lowe told appellant that the punishment for first-degree murder was life imprisonment or death. Appellant stated "Well, if you are going to charge me, charge me." At that, Detective Lowe left the room for several minutes and returned with the case file and a booking slip. He began to fill out the booking slip with appellant's name and date of birth. When he wrote first-degree murder as the charge, appellant told him to stop--that he would tell him what really happened.

Again, Detective Lowe turned on the tape recorder and appellant gave a second statement. Appellant admitted his participation in the burglary and gave a detailed description of the inside of Mrs. Wilson's house. He stated that he and Spike entered the house together. Appellant was in the process of taking $80 to $90 from the victim's purse when Spike discovered that someone was in the house. Appellant said he fled immediately and that later, Spike came to his house and told him that he "beat up the old lady."

The entire interview lasted approximately an hour and a half. Officer Fuentes then drove appellant to the county jail. He reminded appellant of his Miranda rights in the patrol car and appellant repeated his second statement, again admitting his participation in the burglary.

Prior to appellant's first trial in 1984, defense counsel moved to suppress appellant's statements. After a hearing, the trial court denied the motion and admitted the statements into evidence. At his first trial, appellant testified that his statements made to police on July 11, 1983, and October 24, 1983, were lies.

The jury convicted appellant at his first trial. He appealed and asserted ineffective assistance of counsel. We agreed, reversed and remanded the case for a new trial. State v. Tapia, 151 Ariz. 62, 725 P.2d 1096 (1986).

On remand, defense counsel reasserted the motion to suppress all of appellant's statements, but offered no new evidence. The trial court considered the testimony taken at the hearing along with the testimony of police officers at the first trial and again denied the motion.

At the second trial, the jury convicted appellant of first-degree murder, armed robbery, and burglary. Appellant now appeals and asserts that his confessions were involuntary.

MIRANDA WARNINGS

Voluntariness and Miranda violations are two separate inquiries. State v. Montes, 136 Ariz. 491, 494, 667 P.2d 191, 194 (1983). The necessity of giving Miranda warnings relates to the admissibility of a confession based upon defendant's being apprised of his right to counsel and waiving that right and not to its voluntariness. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Montes, 136 Ariz. at 494, 667 P.2d at 194.

Although appellant does not specifically raise the Miranda issue on appeal, because of suggestions of a possible violation in the record, we address the validity of the Miranda warnings given.

To satisfy Miranda, the State must show that appellant understood his rights and intelligently and knowingly relinquished

[159 Ariz. 287] those rights before custodial interrogation began. State v. Rivera, 152 Ariz. 507, 513, 733 P.2d 1090, 1096 (1987)

Officer Fuentes testified that he gave appellant his Miranda rights at the scene and appellant indicated he understood. At his second trial, appellant testified that although he stated he understood his rights at the time, he really didn't. Appellant was 18 years old at the time of his arrest, speaks English poorly and never completed the eighth grade. He acknowledged having received his Miranda rights many times before, but because of his admitted "wise guy attitude" he wasn't paying attention. Appellant also asserts that he would be unable to explain his rights if asked to do so.

Officer Parella testified that he discussed appellant's Miranda rights at the arrest scene with both Officer Fuentes and appellant. Appellant again indicated he understood his rights. Detective Lowe testified that appellant acknowledged that he had received and understood his rights at the start of the interview. Following the interview, Officer Fuentes reminded appellant of his rights on the way to the county jail and appellant again indicated he understood.

Authorities advised and reminded appellant of his Miranda rights at least four times. Each time, appellant acknowledged he understood his rights. He had ample opportunity to ask questions and clarify anything he did not understand, yet he failed to do so. Instead, appellant freely answered questions, never attempted to terminate questioning and never asked for a lawyer. Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct. State v. Knapp, 114 Ariz. 531, 538, 562 P.2d 704, 711 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).

We also note that the interrogation by Detective Lowe was not excessive and lasted, at most, an hour and a half. In addition, appellant's prior criminal record indicates a familiarity with the criminal process. In fact, appellant admits to having received his Miranda rights on numerous occasions in the past. Moreover, appellant's eighth grade education and limited proficiency in English does not preclude a finding that appellant validly waived his Miranda rights. See Montes, 136 Ariz. at 495-96, 667 P.2d at 195-96; Rivera, 152 Ariz. at 513, 733 P.2d at 1096.

In State v. Curtis, 10 Ariz.App. 38, 455 P.2d 988 (1969), defendant asserted his youth, lack of education and difficulty with English rendered his confession involuntary. The court of appeals deferred to the trial court's determination of credibility and held the confession admissible.

Therefore, despite appellant's assertions at his second trial, we find ample evidence that police properly informed appellant of his Miranda rights and that appellant knowingly and intelligently waived his rights so as to render his confessions admissible.

VOLUNTARINESS OF CONFESSION

Appellant asserts that his confessions were involuntary because they were induced by: threats that appellant would receive the death penalty or life imprisonment; threats that appellant would never see his girl friend or son again; the coercive tactics of putting appellant's name on a booking slip for first-degree murder; and promises that if he helped convict Spike, he would only be charged with burglary. Appellant also asserts that his allegedly involuntary confession to Detective Lowe tainted his subsequent confession to Officer Fuentes so as to render that second confession involuntary as well. We will address each of these allegations separately.

In Arizona, confessions are prima facie involuntary. State v. Arnett, 119 Ariz. 38, 42...