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State v. Pesqueira

Court of Appeals of Arizona, Second Division, Department A

August 22, 2013

THE STATE OF ARIZONA, Appellee,
v.
ROCCO COLAVITO PESQUEIRA, Appellant.

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103778001 Honorable Teresa Godoy, Judge Pro Tempore.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Diane Leigh Hunt Tucson Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant.

MEMORANDUM DECISION

MICHAEL MILLER, Judge.

¶1 Rocco Pesqueira was convicted after a jury trial on two counts of aggravated assault and one count of simple assault. Pesqueira appeals from his convictions and sentences, and claims the trial court erred with respect to certain evidentiary rulings and pretrial motions and by permitting a state's witness, Pesqueira's mother, to testify in jail attire. Finding no error, we affirm the convictions and sentences but vacate the criminal restitution order (CRO).

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In October 2010, Pesqueira accompanied codefendant Renea Tebo to the home of her former boyfriend, B.R., to collect Tebo's property. When B.R. answered the door, a physical altercation began between Tebo, B.R., and Pesqueira. During the scuffle, Pesqueira stabbed B.R. in the heart.

¶3 Pesqueira was charged by information with aggravated assault with a deadly weapon, aggravated assault involving serious physical injury, aggravated assault after entering a private home, burglary in the first degree, and attempted first degree murder. The jury found Pesqueira guilty of two counts of aggravated assault and a count of simple assault. He was sentenced to concurrent prison terms, the longest of which was five years. Pesqueira timely appealed his convictions and sentences.

Discussion

I. Statements Made After Pesqueira Requested Counsel

¶4 Pesqueira first contends the trial court erred in denying his motion to suppress statements made during a police interview. Pesqueira argues, as he did below, that the statements should have been suppressed because they were made after he had requested counsel in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and they were involuntary, as his consent to continue with the interview arose from a threat to detain him. When reviewing a trial court's denial of a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). We review the court's decision to admit a defendant's statement "for abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).

A. Miranda Claim

¶5 In Miranda, the Supreme Court established certain procedural safeguards to protect against compelled self-incrimination "'that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.'" Florida v. Powell, 559 U.S. 50, 59 (2010), quoting Duckworth v. Eagan, 492 U.S. 195, 201 (1989). The right to the presence of an attorney is one of the four now-familiar warnings required under Miranda. Id. at 59-60. When a criminal suspect invokes his right to counsel, all questioning must cease until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). "However, if the suspect reinitiates contact with the police, he waives his rights and questioning can continue." State v. Smith, 193 Ariz. 452, ¶ 22, 974 P.2d 431, 437 (1999). In Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), the Supreme Court held that the defendant's question, "Well, what is going to happen to me now?" demonstrated "a desire for a generalized discussion about the investigation." Thus, the defendant in Bradshaw initiated further contact with the police after invoking his right to a lawyer. Id.; see also State v. Burns, 142 Ariz. 531, 535, 691 P.2d 297, 301 (1984) (holding that defendant reinitiated contact when he said, "Well, I want to tell you what happened.").

¶6 The transcript of Pesqueira's pretrial interview, admitted at the suppression hearing, reflects that before questioning he expressly waived his Miranda rights. Several minutes into the interview, Pesqueira invoked his right to counsel, stating in response to a question that he "[didn't] really want to say much else" and "want[ed] to talk to an attorney." As a result of Pesqueira's invocation, one of the interviewing officers indicated that he'd "fully respect [Pesqueira's] rights" and would "get out of the room." Pesqueira responded by asking, ". . . but what happens to me then?" The interviewing officer indicated that he still had unanswered questions but if Pesqueira wanted an attorney the interview was "done, " whereupon Pesqueira then asked, "Can I go?" The officer told Pesqueira that he was "not free to go right now, " which prompted the following exchange:

A. [Pesqueira] I can answer . . . .
Q. You can?
A. Yeah. Q. So you still want to talk?
A. Yeah.
Q. Okay. Give me one second? Okay. Because you said you wanted an attorney, we're done in here okay. So just sit tight.
A. Well, I can answer questions.
Q. Well, you've already said ...

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