Court of Appeals of Arizona, First Division, Department A
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2004-036702-001SE The Honorable Joseph C. Welty, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Division And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee.
Theresa M. Armendarez Manteo, NC Attorney for Appellant.
JOHN C. GEMMILL, Presiding Judge
¶1 Defendant Shawnte Shuree Jones appeals her convictions and resulting sentences for two counts of child abuse and one count of felony murder arising from the death of her ten-month- old child. She argues the trial court committed reversible error by admitting her involuntary statements to police, denying her motion for judgment of acquittal on two counts, and entering a judgment of conviction on a facially unconstitutional charge. For the reasons that follow, we affirm her convictions. We also affirm her sentences with the exception that we order the sentence for Count 2 child abuse modified so that her prison term shall be served concurrently with her sentence for felony murder (Count 3). Because only our resolution of this sentencing issue merits publication, we address all other issues in this memorandum decision. See Ariz. R. Sup. Ct. 111(h). In a separate, published opinion issued contemporaneously with this decision, we explain our resolution of the sentencing issue.
¶2 A grand jury indicted Jones in Count 1 for child abuse, a class two felony and dangerous crime against children, for failing to provide nourishment and/or medical attention to her infant; in Count 2, for child abuse, a class two felony and dangerous crime against children, for causing head injuries to the infant; and in Count 3, for first-degree murder, a class one felony and dangerous crime against children, for causing the death of the child in the course and in furtherance of the child abuse alleged in Count 2. Jones waived her right to a trial by jury. After a 20-day bench trial, the court found Jones guilty on Count 1 of the lesser-included offense of reckless child abuse, a class three felony, and guilty of the charged offenses in Count 2 and Count 3. The court sentenced Jones to 3.5 years on Count 1, 17 years on Count 2, and life with possibility of release after 35 years on Count 3, with the sentences on Counts 1 and 3 to be served concurrently, and the sentence on Count 2 to be served consecutively to the other sentences. Jones timely appeals, and we have jurisdiction in this matter pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
Voluntariness of Defendant's Statements
¶3 Jones argues that her statements to police were involuntary, based on her experts' testimony that Jones had low intellectual functioning and that the "motivational strategy" used by an interrogating officer was "psychologically coercive" and "was the reason why Appellant 'adopted' the story he set forth." Police questioned Jones on three occasions: twice on the date her infant was hospitalized; and then four days later, when Jones was arrested, and she admitted slamming the infant's head several times on the floor. Because this was a bench trial, the court did not hold a separate voluntariness hearing but determined that after hearing all the relevant evidence it would decide whether Jones' statements were admissible "for purposes of verdict determination."
¶4 The court subsequently found "that the Defendant voluntarily participated in the interview and that her statements were not the result of violence, coercion, threats or promises implied, " and her statements were therefore voluntary and admissible. The court explained it had considered the opinion of the defense expert "with respect to an implied promise, " and having reviewed the circumstances of this particular interrogation, it did not "find any implied promise existed, and [did] not believe that the defendant provided statements subject to any implied promise." In announcing the guilty verdict, the court noted it had found the statement made the day of Jones' arrest, in which she admitted assaulting the child because she was frustrated, not only voluntary, but credible and reliable, explaining in pertinent part:
I went over that statement very carefully. I listened to it, I read it, I re-read it. I looked for leading, suggestive questions to suggest that the statements made by the defendant were not her own, but rather that of parroting what the officer was saying. I came to the conclusion that she was not parroting what the officer was saying.
¶5 In evaluating voluntariness, the court must "look to the totality of the circumstances surrounding the confession and decide whether the will of the defendant has been overborne." State v. Lopez, 174 Ariz. 131, 137, 847 P.2d 1078, 1084 (1992). We will not find a statement involuntary unless there exists "both coercive police behavior and a causal relation between the coercive behavior and defendant's overborne will." State v. Boggs, 218 Ariz. 325, 336, ¶ 44, 185 P.3d 111, 122 (2008). We review the trial court's ruling admitting a defendant's statements for abuse of discretion, viewing the evidence in the light most favorable to upholding the ruling. State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140 P.3d 899, 909 (2006).
¶6 After reviewing the interrogations, we cannot say the trial court erred in its ruling. We find nothing coercive or impermissible in the detective's manner of questioning Jones. As an initial matter, the detective testified he made no threats or promises to Jones during questioning. See Boggs, 218 Ariz. at 335, ¶ 44, 185 P.3d at 121 (stating the state meets its burden of proving the confession voluntary when the detective testifies that it was obtained without threat, coercion, or promises). Our review of the record also confirms that, contrary to the opinion of Jones' expert on police interrogation, the detective made no threats or promises of leniency, explicit or implied, to induce Jones' confession. The detective's mode of questioning primarily consisted of trying to build rapport with Jones, telling her that the medical reports conflicted with her story, and suggesting she should tell the truth so people would understand "why it happened the way that it did" and not unfairly judge her. As evidence of psychologically coercive tactics, Jones' expert pointed to the detective's statements pressuring Jones to tell the truth to avoid being unfairly judged or "locked in with a bunch of other people who were in the same situation as [her], " or to "head it off before it gets too big." Under Arizona law, however, "advice from the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." State v. Amaya-Ruiz, 166 Ariz. 152, 165, 800 P.2d 1260, 1273 (1990). The detective's interrogation strategy did not impermissibly convey either threats or promises of leniency in exchange for information.
¶7 Jones' expert also singled out as coercive the detective's act of filling out a charging sheet during the final interrogation, after telling Jones she gave him little choice "because you're still not telling me the whole truth." At the time the detective started filling out the charging sheet, however, Jones had already confessed to slamming the infant's head on the floor. Moreover, although Jones may have felt pressured by this act, the detective never suggested he would consider a lesser charge if Jones would give him more detail. Under these circumstances, the record fails to support Jones' claim that the detective used coercion as ...