The State of Ariz. v. KINNEY

• Decision Date: 28 October 2010
• Docket Number: No. 2 CA-CR 2010-0004.,2 CA-CR 2010-0004.
• Citation: 241 P.3d 914,225 Ariz. 550
• Parties: The STATE of Arizona, Appellee, v. Nathan Douglas KINNEY, Appellant.
• Court: Arizona Court of Appeals

225 Ariz. 550

241 P.3d 914

The STATE of Arizona, Appellee,

v.Nathan Douglas KINNEY, Appellant.

No. 2 CA-CR 2010-0004.

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

Oct. 28, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By David J. Euchner and Yana Krassilnikova, a student certified pursuant to Rule 38(d), Ariz. R. Sup.Ct., 17A A.R.S., Tucson, Attorneys for Appellant.

OPINION

HOWARD, Chief Judge.

¶ 1 After a jury trial, appellant Nathan Kinney was convicted of possession of a deadly weapon by a prohibited possessor. The trial court suspended the imposition of his sentence and placed Kinney on two years of probation. On appeal, Kinney argues the court erred in denying his motion to suppress a statement he made to a police officer after he was arrested. And, he contends, without that statement, there was insufficient evidence to support his conviction. For the following reasons, we affirm.

Factual and Procedural Background

[1] ¶ 2 In reviewing the denial of a motion to suppress evidence, we consider only the evidence that was presented at the suppression hearing, which we view in the light most favorable to sustaining the trial court's ruling. State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d 392, 394 (App.2000). In January 2009, two police officers went to a residence to look for Bobby Balentine, who was the subject of a felony warrant. Upon arriving at the residence, they found a person matching Balentine's description standing in the street near a truck. This person was later determined to be Kinney.

¶ 3 After repeatedly asking Kinney to show his hands, one officer drew a weapon. In response, Kinney reached into the cab of the truck and the officers responded by moving to take “control of him.” As Kinney was moved toward the back of the truck, a weapon was observed in a bag on the front seat and Kinney was then handcuffed. Kinney was escorted to a waiting patrol car and, when asked, responded that his name was Nathan Kinney and gave permission to check his wallet to verify his identity.

¶ 4 One of the officers read Kinney the Miranda ¹ warning, advising him of his constitutional rights and Kinney indicated he was “willing to waive those rights.” The officer asked Kinney if the weapon belonged to him and whether he had any prior convictions. Kinney responded that he had a prior conviction for armed bank robbery and that he had the weapon in the truck because he was going to sell it for a friend. Kinney also stated he did not believe his civil rights had been restored after the conviction. Kinney's conviction was confirmed and he subsequently was transported to the police station where he was interviewed by Detective Leikem.

¶ 5 Before trial, Kinney moved to suppress evidence obtained at the time of his arrest, claiming the arrest had been illegal. The trial court granted his motion, suppressing “all statements made by ... Kinney in connection with his ... arrest.” Kinney also moved in limine to preclude the state from mentioning that his prior felony conviction was for bank robbery. At a hearing on the motion in limine, Kinney's attorney asserted that, while at the station after his arrest, Kinney had made additional statements to Leikem about his prior conviction; counsel asked the court to suppress the statements as unduly prejudicial. The court denied counsel's oral motion to suppress and, because Kinney did not admit the prior conviction, permitted the state to introduce his statement to Leikem. The court further agreed to sanitize the prior conviction. During the first trial, a witness testified that Kinney had been sentenced previously to fifteen years in prison. Because the length of the sentence had been excluded, the court then granted Kinney's motion for mistrial. Kinney was convicted and sentenced after a second jury found him guilty of the charged offense. This appeal followed.

Motion to Suppress

A. Proper Standard of Review

¶ 6 Kinney first argues the trial court erred in denying his motion to suppress his statement to Leikem, claiming the police officers lacked reasonable suspicion to detain him after they had asked him his name and determined he was not Balentine. Thus, Kinney contends, his subsequent statement to Leikem at the police station should have been suppressed because it was tainted by his prolonged detention in violation of the Fourth Amendment. See U.S. Const. amend. IV; Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (evidence obtained directly or indirectly in violation of Fourth Amendment not admissible against victim of illegal search or seizure).

[2] [3] ¶ 7 To preserve an argument for review, the defendant must make a sufficient argument to allow a trial court to rule on the issue. ² See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999) (“An objection is sufficiently made if it provides the judge with an opportunity to provide a remedy.”). “And an objection on one ground does not preserve the issue [for appeal] on another ground.” State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App.2008).

[4] ¶ 8 In his initial motion, Kinney specifically identified “the gun, the heroin, the paraphernalia and the fact ... Kinney was a prohibited possessor” but did not refer to any statements among the items of evidence he sought to suppress. He relied on Wong Sun, 371 U.S. 471, 83 S.Ct. 407, as authority for the suppression of the named items but did not cite any authority that would have alerted the trial court that he was seeking suppression of the statements he made at the police station. In its response to the motion to suppress, the state noted Kinney's statements to Leikem, but in the supplemental authority Kinney submitted in support of the motion to suppress, he only mentioned the statements he had made while he was in the back of the patrol car and asked the court to suppress these statements. None of the testimony presented at the hearing related to Kinney's statement to Leikem at the police station.

¶ 9 In its minute entry ruling on the motion, the trial court made findings of fact and conclusions of law that only related to the events surrounding Kinney's initial apprehension. The court did not mention Kinney's subsequent interrogation by Leikem or even the fact that Kinney later was taken to the police station. In its ruling on the motion to suppress, the court stated that it would suppress “all statements made by ... Kinney ... in connection with his defacto arrest.” But the testimony at the hearing did not include the statements Kinney had made at the station. Nor did the motion address any such statements. Therefore the minute entry ruling suppressing certain evidence did not encompass the statement made at the station.

¶ 10 Comments subsequently made by the trial court and defense counsel reinforce that neither believed this ruling encompassed the statements Kinney had made at the police station. Defense counsel asked the court, at a later hearing on a different motion, whether it was going to suppress Kinney's statement to Leikem. At that point, defense counsel argued the prejudicial effect of the statement outweighed the probative value but did not claim the statement was tainted as a result of the illegal arrest. In ruling, the court also addressed the admissibility of the statement in terms of its probative value versus its prejudicial effect and concluded it was admissible because it was “an admission against interest.” Moreover, before Kinney's second trial, the newly-assigned judge tried to clarify the parties' and the court's understanding of the previous ruling. Defense counsel did not assert that the previous judge had ruled the statements were inadmissible or that the statements were inadmissible because they resulted from an illegal arrest. And, again, Kinney's counsel did not cite any relevant authority to support the argument that the statements were tainted by an illegal arrest or to address the issue of attenuation.

¶ 11 Neither the trial court nor defense counsel made any statements during any of the proceedings relating to the inadmissibility of the statements based on the illegal arrest. Although the court ruled that the probative value of the statements outweighed their prejudicial effect, it did not decide whether the statements to Leikem at the police station were tainted by the illegal arrest. Kinney's objection based on the prejudicial effect of the statements outweighing the probative value did not preserve the issue of whether the statements were tainted by the illegal arrest. See Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d at 683. Therefore, Kinney has forfeited the right to seek relief for all but prejudicial, fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error).

B. Suppression of Statement

[5] [6] ¶ 12 Fundamental error is “ ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’ ” Id. ¶ 19, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). A defendant is entitled to relief only if he establishes that: (1) an error occurred; (2) the error was fundamental; and (3) the error resulted in prejudice. See id. ¶¶ 19-20.

[7] ¶ 13 In determining whether any error occurred, we review a trial court's decision whether to grant a motion to suppress for an abuse of discretion. See State v. Dean, 206 Ariz. 158, ¶ 9, 76 P.3d 429, 432 (2003). “[B]ut we review de novo mixed questions of law and fact and the trial court's ultimate legal conclusions as to whether the totality of the...