State v. Waller

• Decision Date: 29 August 2014
• Docket Number: No. 2 CA–CR 2013–0315.,2 CA–CR 2013–0315.
• Citation: 235 Ariz. 479,333 P.3d 806,694 Ariz. Adv. Rep. 8
• Parties: The STATE of Arizona, Appellee, v. David J. WALLER, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 479

333 P.3d 806

694 Ariz. Adv. Rep. 8

The STATE of Arizona, Appellee,

v.David J. WALLER, Appellant.

No. 2 CA–CR 2013–0315.

Court of Appeals of Arizona, Division 2.

Aug. 29, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee.

Natasha Wrae, Tucson, Counsel for Appellant.

Judge ESPINOSA authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge HOWARD concurred.

OPINION

ESPINOSA, Judge.

¶ 1 After a jury trial, appellant David Waller was convicted of aggravated assault with a deadly weapon or dangerous instrument and was sentenced to a mitigated prison term of five years. On appeal, he argues the trial court erred by failing to suppress his pretrial statements and his in-court identification, and by denying his motion for new trial. He also contends the court committed fundamental error by precluding evidence of the nature of the victim's prior felony conviction and denying his motion for change of judge.

Factual and Procedural Background

¶ 2 “We view the facts in the light most favorable to sustaining the conviction[ ].” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). One evening in October 2011, J.C. was working on transforming his residence into a “haunted house” for Halloween. To add to the effect, he set up three outside speakers and played rock music. Waller, a neighbor, walked to J.C.'s home to request that the music be turned down. He also brought a handgun, intending to “scare” J.C. “because he did not believe that he was going to turn down the music.”

¶ 3 J.C. was standing in the driveway of his residence when Waller approached him from behind, tapped him on the shoulder, and asked him to turn down the music. J.C. responded, “Sure, not a problem,” and “started to turn around and go into the garage to turn the music down.” As he turned, Waller again tapped him and repeated his request. J.C. said, “Yes, I was going to turn the music down.” Waller “glared” at J.C., and with the back of his hand hit him in the face and “flicked” his ball cap off his head. J.C. picked up his cap and protested, saying: “Sir, you don't have to come over here acting like that. I was going to turn the music down.” As J.C. spoke, Waller pressed a black handgun “straight in [his] gut.”

¶ 4 J.C. raised his hand and backed up, saying, “I will just turn the music off. I will ... just kill the music period.” He went into his garage and did so. Waller then left, and J.C. called 9–1–1. Waller was subsequently arrested, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Suppression of Statements

¶ 5 Waller first argues the trial court should have suppressed statements he made to sheriff's deputies at his residence the day following the incident because they were made as part of a two-stage custodial interrogation technique prohibited under Missouri v. Seibert, 542 U.S. 600, 611–13, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We review the denial of a motion to suppress evidence for an abuse of discretion. State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App.2011). In our review, we look only to the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007), deferring to the court's determination of facts and witness credibility but reviewing de novo its legal conclusions, State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

¶ 6 The sole witness at the suppression hearing was Pima County Sheriff's Deputy Hernandez. He testified that the day following the incident, he and another deputy, both in uniform, went to Waller's residence. After Waller answered his front door, the officers stood outside his doorway and explained they were investigating a “loud-music incident” and “wanted to get more information as far as his side of the story, to what happened.”

¶ 7 After first denying that any “incident” had occurred, Waller told the deputies he would apologize to J.C. for what had happened. He explained he had been drinking and upon hearing loud music, “had gone over there ... and asked him to turn the music down.” Not believing J.C. “was going to listen to him,” Waller admitted displaying a handgun but denied pointing it at J.C. Hernandez testified the conversation at the doorway lasted about seven minutes. Following Waller's admission, Hernandez read him the Miranda¹ warnings, asked if he understood his rights, and placed him in the back seat of a patrol car where he asked more questions about the incident and recorded the interview.

¶ 8 Although Waller sought to suppress both his pre- and post- Miranda statements, the trial court ruled them admissible, finding he was not in custody when he spoke to the deputies prior to the Miranda warning and that he had waived his rights as to the statements made afterwards.

¶ 9 Miranda warnings serve to “protect a suspect's Fifth Amendment right from the ‘inherently compelling pressures' of custodial interrogation.” Maryland v. Shatzer, 559 U.S. 98, 103, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010), quoting Miranda, 384 U.S. at 467, 86 S.Ct. 1602. The advisement is intended to “preserve the privilege during ‘incommunicado interrogation of individuals in a police-dominated atmosphere,’ ” Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), quoting Miranda, 384 U.S. at 445, 86 S.Ct. 1602, and is aimed at protecting against the “danger of coercion [that] results from the interaction of custody and official interrogation.” Id. Miranda 's protections, however, “apply only to custodial interrogation.” State v. Smith, 193 Ariz. 452, ¶ 18, 974 P.2d 431, 436 (1999); State v. Zamora, 220 Ariz. 63, ¶ 9, 202 P.3d 528, 532 (App.2009) (“Police are free to ask questions of a person who is not in custody without having to give the person any warnings under Miranda.”). “Custody” as used in Miranda “is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, ––– U.S. ––––, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012).

¶ 10 In determining whether an interrogation is custodial, we look to “the objective circumstances of the interrogation, not ... the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and whether the interviewee was released at the end of the questioning. Howes, 132 S.Ct. at 1181, 1189. “ ‘[T]he ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ ” Stansbury, 511 U.S. at 322, 114 S.Ct. 1526, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

¶ 11 Here, two uniformed deputies contacted Waller at his residence, stood outside his front door, and inquired generally about the incident. See State v. Thompson, 146 Ariz. 552, 556, 707 P.2d 956, 960 (App.1985) (normally no custodial interrogation when person questioned at home); cf. United States v. Craighead, 539 F.3d 1073, 1085–89 (9th Cir.2008) (custodial interrogation where eight armed law enforcement officers, some in protective gear, entered defendant's house and commenced searching his home, putting him in an unfurnished storage room in back of his house where an armed detective leaned against the closed door that was the only exit). Deputy Hernandez never directly accused Waller of any crime, nor did he suggest he was doing more than investigating the incident.²See State v. Mathis, 110 Ariz. 254, 255, 517 P.2d 1250, 1251 (1974) ( Miranda not applicable to officer's “clearly neutral, nonaccusatory” questions “in furtherance of proper preliminary investigation”).

¶ 12 The resulting interview lasted only seven minutes. See Thompson, 146 Ariz. at 556, 707 P.2d at 960 (police interview that was not protracted and was “investigatory rather than accusatory” tended to show that the defendant was not in custody). The deputies did not seek to enter Waller's home, draw their weapons, or in any way restrain him. See State v. Cruz–Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983) (objective indicia of arrest included whether officers had handcuffed defendant or drawn a weapon); State v. Riffle, 131 Ariz. 65, 67, 638 P.2d 732, 734 (App.1981) ( Miranda warnings not required where “none of the usual indicia of arrest—no handcuffs, no locked doors, no drawn guns, no search of appellant's person or belongings”).

¶ 13 As Waller points out, Deputy Hernandez testified that he did not consider Waller “free to leave” during the encounter, and that Waller “had already been identified ... [and there was] enough probable cause to arrest him at that moment.” The deputy's unexpressed, subjective views, however, were not determinative of whether Waller was in custody. See Stansbury, 511 U.S. at 324, 114 S.Ct. 1526 (officer's “evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry”); see also Cruz—Mata, 138 Ariz. at 373, 674 P.2d at 1371 (“[C]onfronting an accusedwith evidence of guilt does not necessarily require administering Miranda warnings.”). Nor did the existence of probable cause for Waller's arrest automatically necessitate the advisements. See State v. Kennedy, 116 Ariz. 566, 569, 570 P.2d 508, 511 (App.1977).

¶ 14 Waller argues, however, that both his pre- and post- Miranda statements ought to have been...