State v. Urbina
| Decision Date | 20 June 2017 |
| Docket Number | No. 2 CA-CR 2016-0022,2 CA-CR 2016-0022 |
| Parties | THE STATE OF ARIZONA, Appellee, v. GENARO URBINA JR., Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Deborah Bernini, Judge
AFFIRMED AS CORRECTED; REVERSED IN PART
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Dean Brault, Pima County Legal Defender
By Scott A. Martin and Stephan J. McCaffery, Assistant Legal
Defenders, Tucson
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Miller concurred.
¶1 After a jury trial, Genaro Urbina was found guilty of three counts of child abuse and felony murder arising from the death of a three-month-old baby in his care. On appeal, he challenges his convictions and sentences, arguing the trial court erred in admitting, as well as excluding, certain evidence at trial, and alleges there was insufficient evidence to support his convictions. For the reasons that follow, we affirm his convictions and sentences for two counts of child abuse, reverse his conviction for child abuse based on failure to seek medical attention, and affirm his felony murder conviction and sentence as corrected.
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Dann, 205 Ariz. 557, n.1, 74 P.3d 231, 236 n.1 (2003). On the morning of May 13, 2013, Urbina woke his girlfriend, Candyce Ramirez, to inform her that the infant they were babysitting was "not waking up." Candyce took the limp baby, I.G., called 9-1-1, and told Urbina to call Candyce's mother, the infant's legal custodian. Urbina went to Candyce's mother's apartment to inform her "what was going on," and Candyce performed CPR1 on I.G. while on the phone with 9-1-1 dispatch.
¶3 At the hospital, I.G. was diagnosed with old and new bilateral subdural hematomas and an anoxic brain injury, both consistent with trauma to the head. He also had preretinal and subretinal hemorrhages, and retinoschisis of the eyes, with traumathe "most likely explanation" of the injuries. An ophthalmologist testified the eye injuries could have been caused by shaking, and a radiologist opined that I.G.'s brain injuries were consistent with trauma "induced [by] rapid acceleration, deceleration." A pediatric hospitalist testified that I.G. had rib fractures of various ages "related to squeezing," and upon consideration of all the injuries, provided a "differential diagnosis" that "someone had hurt [I.G.] and that he had been shaken." After three days in the hospital, I.G.'s life support was removed and he was pronounced dead.
¶4 Police detectives interviewed Urbina the day I.G. was taken to the hospital, and he initially claimed he did not remember the baby being at Candyce's house the previous evening. After being informed this was inconsistent with what Candyce had already told police, Urbina changed his story several times, ultimately describing an incident early that morning in which I.G. "threw his head back" and hit the corner of the wall. Urbina indicated he attempted to revive the baby by squeezing and shaking him.
¶5 Detectives interviewed Urbina again two days later, and he again described I.G. "bump[ing] his head" when Urbina had gotten up to change him. Following the second interview, Urbina was arrested and charged with three counts of child abuse and first-degree murder. A jury found him guilty on all charges after an eight-day trial, and the trial court sentenced him to life in prison.2
¶6 On appeal, Urbina argues the trial court erred in denying his motion to suppress the two police interviews, in admitting video evidence from his second interview, in sustaining an objection by the state and thereby prohibiting an answer "essential" to his defense theory, and in allowing medical experts to testify that I.G. died from "child abuse." He also raises a sufficiency of the evidence claim, andargues that fundamental error occurred when the prosecutor suggested to the jury that "punishment for felony murder would be less serious than for premeditated murder." We have jurisdiction over Urbina's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶7 Before trial, Urbina sought to suppress statements made during police interviews, arguing he was "subjected to [a] day-long incommunicado detention" that "deprived [him] of his freedom of action in a number of significant ways." He asserted his "multiple statements and ultimate[] 'confession' were obtained through the strategic exploitation of [an] illegal day-long constitutionally unreasonable . . . detention," and as such must be suppressed as "fruit" of an improper de facto arrest. The state countered that Urbina "was not in custody before" he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and argued the facts were "indicative of an ongoing investigation" and "not tantamount to custodial investigation" requiring warnings pursuant to Miranda.
¶8 After a suppression hearing, the trial court found "there was not a detention of such length that it resulted in [an] unconstitutional deprivation of [Urbina]'s rights." The court noted the objective nature of the appropriate test, and concluded "[Urbina]'s freedom of movement was [not] so restricted . . . that he was in custody." We review the denial of a motion to suppress for an abuse of discretion, considering only the evidence presented at the suppression hearing and viewing that evidence in the light most favorable to upholding the trial court's ruling. State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 306-07 (App. 2000). Legal conclusions, including whether an illegal arrest occurred, are subject to our de novo review. State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996).
¶9 At the suppression hearing, Tucson Police Department (TPD) Officer Juan Rodriguez testified that he and TPD Sergeant Peter Cross went to Candyce's mother's apartment, I.G.'s primary residence, at about 9:30 in the morning to "secure possibly a second crime scene" because of the apparently varying ages of I.G.'s injuriesand not knowing where he had been injured. Sergeant Cross's report reflects they found Urbina at the apartment, he invited them in, and they informed him it needed to be "treated like a crime scene," which required him to wait outside until they completed their work.3 If he instead wished to remain on the couch inside, the officers would need to first check it for weapons. Officer Rodriguez testified "[he] was there to secure the crime scene" and was not under the impression he was to "detain" anyone who was at the apartment. Urbina consented to a check of the couch, where he remained for the next several hours, napping, watching television, and chatting with Officer Rodriguez about sports. Although Urbina was asked to place his cell phone on the table,4 he was not told he could not make calls or had to stay in the apartment, and he at no point asked to use his phone or leave.
¶10 Sometime after noon, Officer Rodriguez learned that detectives planned to come to the apartment to speak with Urbina. When Urbina inquired about the status of the investigation, Rodriguez informed him that he would have to "stick around." After detectives arrived about thirty minutes later, Urbina told them he and Candyce often babysat I.G., but said he did not remember I.G. being at their house the previous night. As the conversation continued, however, he admitted he remembered getting up to put a bottle in I.G.'s bassinet, and again changed his story, saying he remembered changing I.G.'s diaper at some point in the middle of the night. The detectives then left the room for a few minutes, during which Candyce entered and spoke with Urbina. Urbina was then advised of his rights, he consented to further questioning, and he made inculpatory statements, including the implausible assertion that I.G. accidentally hit his head on the corner of the wall and became unresponsive. He further admitted he had shaken the child in aneffort to revive him and squeezed the baby until it "felt like something broke."
¶11 On appeal, Urbina renews his argument that "[a]ll of his statements flowing from []his illegal de facto arrest should have been suppressed." Determining whether an arrest has occurred requires an objective evaluation of the surrounding circumstances, and depends on factors such as the extent to which a person's freedom of movement is curtailed, the degree and manner of force used, and whether there was a display of official authority such that a reasonable person would not feel free to leave. State v. Snyder, 240 Ariz. 551, ¶¶ 10-11, 382 P.3d 109, 113 (App. 2016). An arrest is effectuated when a reasonable person would reasonably believe he was being arrested, and turns on neither a defendant's nor an officer's subjective beliefs.5 Id. ¶ 10; State v. Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985).
¶12 In essence, Urbina argues that because he chose to remain inside the residence with the officers securing the scene, he was subject to a de facto arrest. In support, he relies on State v. Boteo-Flores, in which our supreme court concluded a thirty- to forty-minute handcuffed detention exceeded the permissible scope of an investigatory stop and became an arrest. 230 Ariz. 105, ¶¶ 16, 21, 280 P.3d 1239, 1242-43 (2012). But that case is distinguishable. Police had detained Boteo-Flores because they suspected he was acting as a lookout for an individual who drove away in a stolen vehicle, id. ¶ 13, not because he chose to remain at a potential...
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