State v. Zinsmeyer

• Citation: 218 P.3d 1069,222 Ariz. 612
• Decision Date: 30 October 2009
• Docket Number: No. 2 CA-CR 2008-0369.,2 CA-CR 2008-0369.
• Parties: The STATE of Arizona, Appellee, v. Dean William ZINSMEYER, Appellant.
• Court: Court of Appeals of Arizona

218 P.3d 1069

222 Ariz. 612

The STATE of Arizona, Appellee, v. Dean William ZINSMEYER, Appellant.

No. 2 CA-CR 2008-0369.

Court of Appeals of Arizona, Division 2, Department B.

October 30, 2009.

Terry Goddard, Arizona Attorney General by Kent E. Cattani and Laura P. Chiasson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender by Michael J. Miller, Tucson, Attorneys for Appellant.

OPINION

BRAMMER, Judge.

¶ 1 Appellant Dean Zinsmeyer appeals his convictions and sentences for theft of a means of transportation and third-degree burglary. He argues the trial court improperly admitted statements he had made during interviews with police because he had invoked his right to counsel and had not knowingly and voluntarily waived his right to remain silent. He additionally asserts the prosecutor improperly vouched for witnesses and the court had considered invalid aggravating factors in sentencing. Zinsmeyer also contends his conviction for third-degree burglary was unsupported by the evidence and, alternatively, the third-degree burglary statute, A.R.S. § 13-1506(A)(1), is unconstitutionally vague. Finally, he argues the court at sentencing improperly entered a criminal restitution order including attorney fees and an indigent assessment fee. We vacate the criminal restitution order and Zinsmeyer's sentence for theft, but affirm both of his convictions and his sentence for third-degree burglary.

Factual and Procedural Background

¶ 2 On appeal, we view the facts in the light most favorable to sustaining Zinsmeyer's convictions and sentences. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). In September 2005, law enforcement officers located a truck that had been stolen several days earlier. Several items present when the truck was taken were missing when it was recovered, including racks installed in the truck's bed, the spare tire, and a tow hitch. The truck was found parked near a trailer home that Zinsmeyer had been visiting. Zinsmeyer told a Tucson Police Department (TPD) detective he had seen the truck and noticed it apparently had been stolen because the ignition had been removed. He admitted he had started the truck with a screwdriver and had driven it to pick up a friend, despite his belief that it probably had been stolen. He also acknowledged he had not been given permission to take the truck.

¶ 3 A grand jury charged Zinsmeyer with theft of a means of transportation, third-degree burglary, and possession of burglary tools. After a two-day trial, the jury found him guilty of theft and burglary but acquitted him of possessing burglary tools. The jury also found Zinsmeyer had a prior felony conviction and had committed these offenses while on probation. The trial court sentenced him to an enhanced, partially aggravated, eight-year prison term for theft and to a concurrent, presumptive, 4.5-year term for burglary. This appeal followed.

Discussion

Motion to Suppress Statements

¶ 4 Zinsmeyer first contends the trial court erred in denying his motion to suppress the statements he had made to investigating detectives. In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court's ruling and consider only the evidence presented at the suppression hearing. See State v. Ellison, 213 Ariz. 116, ¶ 25, 140 P.3d 899, 909 (2006). We review the factual findings underlying the court's ruling for an abuse of discretion, but we review its legal conclusions de novo. See State v. Newell, 212 Ariz. 389, ¶ 27, 132 P.3d 833, 841 (2006).

¶ 5 On September 13, 2005, Zinsmeyer participated in two interviews with detectives from TPD. During his first interview with detectives Ridgeway and Soltero, Ridgeway advised Zinsmeyer of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked if he would be willing to answer questions. At first, Zinsmeyer merely replied, "Possibly." Zinsmeyer told Ridgeway he would "let [the detectives] know if [he was] not going to answer something" and then responded to Ridgeway's questions. During the interview, Zinsmeyer noted he used crack cocaine and would "probably [better] know what was going on" if he could have some, because it helped him think clearly. Later in the interview, he told the detectives, "[I t]hink I need a lawyer." After the detectives did not respond, Zinsmeyer asked them, "Do I need a lawyer?" The detectives responded that it was "up to [Zinsmeyer]." When Zinsmeyer repeated the question, the detectives emphasized it was "[his] decision" and they "c[ould not] make that decision for [him]." Zinsmeyer said nothing further about an attorney and resumed answering the detectives' questions.

¶ 6 Later that day, TPD detective Spencer interviewed Zinsmeyer. At the start of the interview, Zinsmeyer told Spencer that Ridgeway had not informed him of his constitutional rights. Spencer then read Zinsmeyer the Miranda warnings, which Zinsmeyer stated he understood before he began answering Spencer's questions. Zinsmeyer told Spencer he had found the truck "sitting in [a] trailer park," the ignition had already been pulled out, he could tell it had been stolen, and he did not know who originally had stolen it. He admitted he had started the truck with a screwdriver he found on the seat and had used the truck for several days, knowing he was "st[ealing] a stolen car."

¶ 7 Before trial, Zinsmeyer moved to suppress his statements to Spencer, arguing that he had invoked his right to counsel during his previous interview with Ridgeway or, in the alternative, that he had not waived his rights knowingly and voluntarily. At the hearing on his motion, Zinsmeyer testified he had "stat[ed] that I think I need a lawyer" during the first interview but had not done so during the second. He also admitted that Spencer had read him the Miranda warnings during the second interview, that he understood his rights, and that he had waived them at that interview. Zinsmeyer testified, however, that he was "high" on the day of the interviews from having used crack cocaine and methamphetamine earlier that day, which he said had impaired his memory and cognition. He also stated that he had smoked crack cocaine the night before the interviews and during the interviews was experiencing withdrawal, which had affected his memory and understanding. After considering the testimony and reviewing the transcripts of Zinsmeyer's interviews, the court denied Zinsmeyer's motion, finding he knowingly, intelligently, and voluntarily had waived his rights and had not invoked his right to counsel.

¶ 8 Zinsmeyer asserts the trial court abused its discretion in refusing to suppress statements because he had "invoked his right to counsel by saying he thought he needed an attorney, and ..., if he did not, ... his waiver was [in]voluntary [and not knowing], in light of the fact that he was withdrawing from having used crack [cocaine] the night before." A person is entitled to Miranda warnings before being subjected to custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 434, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "The right to the presence of an attorney is one of the rights of which a person subject to custodial interrogation must be informed under Miranda." Newell, 212 Ariz. 389, ¶ 24, 132 P.3d at 841. And, if the person asserts his or her right to counsel, "all questioning must cease until an attorney is present or the [person] reinitiates communication." Id. If, however, "the accused has been given his Miranda warnings and makes a voluntary, knowing, and intelligent waiver of those rights[,] ... statements [made to police officers] are admissible." State v. Smith, 193 Ariz. 452, ¶ 29, 974 P.2d 431, 438 (1999); see generally State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988) ("Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct.").

¶ 9 The state does not dispute the trial court's implicit finding that Zinsmeyer's interviews constituted custodial interrogation, and the record supports such a finding. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (custodial interrogation is "questioning initiated by law enforcement officers after a person has been ... deprived of his freedom of action in any significant way"). Miranda's procedural protections applied and, if Zinsmeyer indeed invoked his right to counsel, the court would have abused its discretion by not suppressing his subsequent statements. See Newell, 212 Ariz. 389, ¶ 28, 132 P.3d at 841.

¶ 10 "Not every reference to an attorney," however, "must be construed by police as an invocation of the suspect's right to counsel." Ellison, 213 Ariz. 116, ¶ 26, 140 P.3d at 910. Rather, an officer must only cease questioning if the defendant's request for counsel is "unambiguous[]." Newell, 212 Ariz. 389, ¶ 25, 132 P.3d at 841; see Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). "If a reasonable officer in the circumstances would have understood only that the defendant might want an attorney, then questioning need not cease." Newell, 212 Ariz. 389, ¶ 25, 132 P.3d at 841 (emphasis removed); see Davis, 512 U.S. at 459, 114 S.Ct. 2350.

¶ 11 Zinsmeyer's statement that he "th[ought]" he needed an attorney, together with his questions about whether the detectives thought he needed one, do not constitute an unambiguous request for counsel. See, e.g., Davis, 512 U.S. at 455, 462, 114 S.Ct. 2350 (finding suspect's equivocal statements, "Maybe I should talk to a lawyer" and "I think I want a lawyer before I say anything else," did not require questioning to cease); Ellison, 213 Ariz. 116, ¶ 29, 140 P.3d at 910 (deeming "I think I might want an attorney" equivocal request for counsel); State v. Eastlack, 180 Ariz. 243, 250-51, 883 P.2d 999, 1006-07 (1994) (finding statement "I think I better talk to...