Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103108002 Honorable Richard S. Fields, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Joseph L. Parkhurst Tucson Attorneys for Appellee
Barton & Storts, P.C. By Brick P. Storts, III Tucson Attorneys for Appellant
PHILIP G. ESPINOSA, Judge
¶1 After a jury trial, appellant Heulon Brown was convicted of first-degree felony murder, first-degree burglary, four counts of attempted armed robbery, and five counts of aggravated assault. He was sentenced to concurrent prison terms, the longest being life with the possibility of release after twenty-five years. On appeal, he argues the trial court erred by failing to suppress his pretrial statements and failing to give certain jury instructions. He also contends Arizona's felony-murder statute is unconstitutional. Finding no error, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). One evening in August 2010, four armed, masked men, including Brown, went to the door of an apartment and a fifth man, E.V., who was not masked, was forced to enter the apartment at gunpoint ahead of them. Immediately after opening the door, E.V., who was known to the apartment's occupants, dropped to the floor, placed his hands on his head, and curled into a ball while the gunmen ordered the occupants to "get on the ground." One of those occupants, J.J., had a gun and shot at the masked men, killing Michael White and injuring Brown. During the exchange, J.J. and A.B., a minor who was in the apartment, also were shot and injured.
¶3At trial, Brown's defense was that he, like E.V., had been forced to participate in the home invasion. He was convicted and sentenced as described above and now appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Suppression of Statements
¶4 Brown argues the trial court erred by not suppressing statements he had made to police while he was hospitalized after surgery immediately following the incident. We review the denial of a motion to suppress evidence for an abuse of discretion. See State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App. 2011). In our review, we look only to the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling, see State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), deferring to the court's determination of facts and witness credibility but reviewing de novo its legal conclusions, see State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
¶5 Following the home invasion, Brown, who had been shot in the chest, was taken to Tucson's University Medical Center where he underwent emergency surgery. The same day, approximately six hours after the surgery, police detectives questioned him about the incident (the August 26 interview). At the beginning of the interview, Detective Diaz informed Brown that he was being detained and advised him of his rights pursuant to Miranda, after which Brown said, "I'll answer your questions." Although Brown had been given medication, Detective Cassel noted that the conversation was "normal" and "coherent, " and "nothing . . . was limiting [Brown's] ability to communicate." Diaz similarly noted that Brown was lucid and able to engage in active conversation. At the conclusion of the interview, Brown was informed he was under arrest.
¶6 At approximately two o'clock the following morning, Diaz returned to the hospital and continued questioning Brown (the August 27 interview). The detective asked, "Obviously, you remember your rights from yesterday and you still understand them, we're still good with that? Yeah?" Brown responded, "Ah-[h]ah, " and proceeded to answer questions. At no point during either interview did Brown invoke his right to remain silent or his right to counsel. Finally, seven days later, while still hospitalized, Brown initiated a conversation with Diaz (the September 3 interview). The detective did not remind him of his rights, and Brown made additional statements. Before trial, Brown moved to suppress all of his statements on the ground he had not given them voluntarily. The trial court denied the motion after conducting an evidentiary hearing, and statements from the three interviews were introduced at trial.
On appeal, Brown maintains that his statements were involuntary and should have been suppressed. We will not overturn a trial court's determination of voluntariness absent clear error. See State v. Graham, 135 Ariz. 209, 211, 660 P.2d 460, 462 (1983). Confessions are presumed to be involuntary, and the state has the burden of demonstrating voluntariness by a preponderance of the evidence. State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988). In considering whether a confession is voluntary, a court must determine whether, under the totality of the circumstances, the will of the defendant was overborne. State v. Hall, 120 Ariz. 454, 456, 586 P.2d 1266, 1268 (1978). A defendant's mental or physical condition is relevant to the inquiry, but generally is insufficient by itself to render a statement involuntary. State v. Smith, 193 Ariz. 452, ¶ 14, 974 P.2d 431, 436 (1999); cf. Mincey v. Arizona, 437 U.S. 385, 398-402 (1978) (confession involuntary where ...