Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2009-153106-001 The Honorable Lisa Flores, Judge
Thomas C. Horne, Attorney General Joseph T. Maziarz, Section Chief Counsel Criminal Appeals and Linley Wilson, Assistant Attorney General Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender by Margaret M. Green, Deputy Public Defender Attorneys for Appellant.
RANDALL M. HOWE, Presiding Judge.
¶1 Gunn appeals his sentences and convictions, arguing that his pre-Miranda, pre-arrest silence in response to police questioning at the scene of a car collision should not have been admitted at trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Gunn and K were in a relationship and living together. After attending lunch with K and her daughter, Gunn drove K to work. While driving, Gunn and K began to argue. The argument escalated, and K suggested that they end their relationship. Gunn threatened to kill everyone at K's office. K responded, "okay" and then Gunn said, "Fuck this, I'm going to kill both of us." He then turned the car into the oncoming lane and crashed into another car. The collision injured K and the driver of the other car.
¶3 Police arrived at the scene and questioned the witnesses. K spoke to Officer J, but did not report Gunn's threats to her or state that Gunn did anything to intentionally cause the collision. Officer J asked Gunn what had happened, and Gunn responded that the brakes locked up and he could not turn the steering wheel. Gunn told Officer J that he had overshot his turn. When Officer J asked why Gunn did not just turn around and come back after he missed his turn, Gunn did not answer.
¶4 At the hospital, K spoke with her family and they encouraged her to tell police exactly what had happened. Officer J came to the hospital to interview K and she told him that Gunn had intentionally turned into oncoming traffic.
¶5 Gunn was tried for three counts of aggravated assault, one count of criminal damage and one count of endangerment. During Officer J's testimony, and when he was about to be questioned about his interview with Gunn, defense counsel objected, believing that the prosecutor would ask Officer J to testify about Gunn's silence after being asked "Why didn't you just turn around and go back?" During the sidebar, defense counsel argued that Gunn had exercised his right to remain silent and that commenting on Gunn's silence at the accident scene was inappropriate. The prosecutor argued that Gunn was not under arrest at the accident scene and had not been read Miranda rights, and nothing indicated that Gunn's constitutional rights had been violated. The court determined that Gunn was not in custody and that Officer J was simply investigating the accident, and allowed the prosecutor to ask the question.
¶6 The prosecutor asked the officer, "And you indicated that you asked him why didn't you just continue driving eastbound and turn around if he knew he'd already overshot his turn?" Officer J responded "yes" and the prosecutor asked, "And did he provide an explanation for that?" Officer J responded that Gunn had not.
¶7 The jury found Gunn guilty on all counts except the count of endangerment, and he was sentenced to six years' imprisonment. Gunn timely appealed his convictions and sentences. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ...