State v. Curtis

THE STATE OF ARIZONA, Appellee, v. GEORGE FRANCIS CURTIS, Appellant.

2 CA-CR 2012-0164

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Filed: June 4, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20111289001

Honorable Michael O. Miller, Judge

Honorable Javier Chon-Lopez, Judge

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Kathryn A. Damstra

Tucson

Attorneys for Appellee

Jeffrey G. Buchella

Tucson

Attorney for Appellant

ECKERSTROM, Presiding Judge.

¶1 After a jury trial, appellant George Curtis was convicted of two counts of molestation of a child. He was sentenced to concurrent prison terms of ten years. On appeal, he asserts the trial court erred in denying his motion to suppress his confessions on various grounds. For the following reasons, we affirm Curtis's convictions and sentences, but vacate the criminal restitution order (CRO) entered at sentencing.

Factual and Procedural Background

¶2 In reviewing a trial court's decision on a motion to suppress, we consider only the facts presented at the suppression hearing, and we view them in the light most favorable to upholding the court's decision. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007).¹ In April of 2011, at approximately one o'clock in the morning, Officers Brian Neuman and Randy Korth of the Marana Police Department came to Curtis's home and rang the doorbell. Curtis's wife, Tara, answered the door. The officers asked to be admitted to the residence to check on the welfare of her child, and she allowed them to enter.¶3 The officers explained to Tara that they had received an anonymous tip that her daughter, E., had been molested by Curtis. While the officers were talking to Tara, they saw Curtis standing at the top of the staircase and invited him to join the conversation. Curtis seated himself on a sofa, between his wife and Officer Neuman. Neuman explained again why he and Officer Korth had come, and initially, Curtis did not respond. Tara asked Curtis if the allegation was true and reminded him to tell the truth. Neuman continued to ask Curtis questions. Officer Korth, noting that Curtis and his wife were wearing Brigham Young University shirts, and seeing religious items around the house, stated that "honesty, integrity is—and truthfulness is an important factor within [Mormon] religion and all religions." Curtis then admitted the allegations were true.

¶4 After Curtis confessed, Officer Neuman advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), arrested him, and brought him to a police station. At the station, he was interrogated by Detective Joseph Castillo. The detective asked Curtis if he had been read his Miranda rights and if he understood them, and Curtis replied that he had. During Detective Castillo's interrogation, Curtis essentially repeated his earlier confession.

Motion to Suppress

¶5 On appeal, Curtis asserts the trial court erred in not suppressing his first and second confessions. He argues both were obtained without the benefit of a Miranda warning, that the second confession was the tainted product of the illegally obtained first confession, and that both confessions were involuntary. We review a trial court's denialof a motion to suppress for an abuse of discretion. State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App. 2009).

Miranda Warnings

¶6 Curtis first contends the statements he made in his home and at the police station should have been suppressed as the product of a custodial interrogation without the benefit of a Miranda warning. We defer to the trial court's factual findings, but review any legal conclusions de novo. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d at 532.

¶7 Once a suspect has been taken into custody, "if the State wants to admit statements the person may make in response to questioning, the police must first inform him of certain constitutional rights." Id. ¶ 10. A person is in custody if, "in light of all the circumstances, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Id., quoting State v. Wyman, 197 Ariz. 10, ¶ 7, 3 P.3d 392, 395 (App. 2000). An interrogation conducted in a suspect's home is not per se custodial; in fact, it is generally non-custodial absent circumstances that turn the home into a "'police-dominated atmosphere.'" United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008), quoting Miranda, 384 U.S. at 445. Craighead listed four factors to examine in determining whether an in-home interrogation is custodial:

(1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.

Id. at 1084.

¶8 In Craighead, eight law enforcement officers entered the home, some wearing protective gear and some with their weapons unholstered. Id. at 1085. By contrast, here only two officers were present, both wearing the standard police uniform, and although both were armed, neither drew any weapons. Curtis was not physically restrained until after he had confessed.

¶9 As evidence of restraint, Curtis emphasizes that he was seated "as far away from the entrance to the home as possible," with an officer standing between him and the door. However, Curtis chose to seat himself on the couch. The record does not indicate the officers told him where to sit, or even instructed him to sit down. Curtis was also not isolated from others. His wife was present throughout the entire interview. Curtis asserts his wife's presence "heightened his isolation" because of her conduct. But the officers did not enlist his wife as an agent, ask her to aid in the interrogation, or give her any instructions on how to conduct herself. While Curtis was not told that he was free to leave or to terminate the interview, this is the only factor that would weigh toward a finding of custody; the other three factors weigh against such a finding.

¶10 Although the four factors articulated in Craighead support a finding that Curtis was not in custody, that list was intended to be illustrative, not exhaustive, id. at 1084, and so we consider the other arguments Curtis raises. Curtis maintains that the officer's use of religion to elicit a confession was coercive and contributed to a "police dominated atmosphere." But Curtis does not explain how the officer's observationsabout religion, however effective in securing a confession, affected Curtis's perception of whether he was free to leave.

¶11 Curtis also suggests the officers' secret use of a recording device made the environment coercive. However, the analysis of whether a person is in custody focuses on "objective indicia of custody." State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371 (1983). Curtis acknowledges he was unaware of the recording device. Therefore, it could not have indicated to him that he was not free to leave or terminate the interview.

¶12 Finally, Curtis posits the officers "employed subterfuge" because they stated they had come to check on the welfare of E., but they did not make any attempt to see E. or ask any questions about her immediate well being. Assuming arguendo that we agreed with Curtis's characterization, "The fact that the police procured defendant's cooperation and presence by using a ruse does not necessarily change the interrogation from non-custodial to custodial in nature." State v. Carrillo, 156 Ariz. 125, 133, 750 P.2d 883, 891 (1988).

¶13 Because the officers' conduct did not render the home a police-dominated atmosphere, Curtis was not in custody when he made his first confession and a Miranda warning was not required. The trial court did not abuse its discretion in denying his motion to suppress the first confession.

¶14 Curtis also argues his second confession, which took place at the police station, was made without a sufficient Miranda warning. He claims that neither the Miranda warning read to him by Officer Neuman upon arrest nor the reminder of hisMiranda rights provided by Detective Castillo advised Curtis of his right to the presence of an attorney and to have an attorney provided for him if he could not afford one.

¶15 Curtis bases his contention that the Miranda warning provided by Officer Neuman was insufficient on the fact the audio recording of the interview is not entirely clear, and there are inaudible parts of the recording during the officer's recitation. However, Officer Neuman testified that he read Curtis the Miranda rights verbatim from his "cheat book." This recitation properly advised Curtis of the right to an attorney and, if he could not afford one, the right to have an attorney provided for him prior to any questioning. Curtis did not present any testimony or other evidence contradicting Officer Neuman's testimony.

¶16 Although Detective Castillo did not provide Curtis with another full Miranda warning, he asked Curtis if he had been "read [his] rights," and Curtis responded that he had. Officer Neuman's Miranda warning was given just before leaving the Curtis residence at 1:46 a.m. Detective Castillo began questioning Curtis less than an hour later, at 2:35 a.m. Our supreme court has repeatedly held that "once a defendant has been fully and fairly appraised of his rights, there is no requirement that the warnings be repeated each time the questioning is commenced." State v. Miller, 110 Ariz. 597, 598, 522 P.2d 23, 24 (1974). Because Curtis was fully...