Court of Appeals of Arizona, First Division, Department E
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County Cause No. S0300CR201200242, The Honorable Mark R. Moran, Judge
Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee
H. Allen Gerhardt, Coconino County Public Defender Flagstaff by Brad Bransky, Deputy Public Defender Attorneys for Appellant
LAWRENCE F. WINTHROP, Presiding Judge
¶1 Stephen James Bruni ("Appellant") appeals his conviction and sentence for sexual conduct with a minor under twelve years of age, a dangerous crime against a child.
¶2 A grand jury indicted Appellant on four counts of sexual conduct with a minor for acts that he committed against his eight-year-old nephew during a camping trip in the summer of 2008. The jury convicted Appellant of one count and found it was a dangerous crime against a child, and acquitted him of the three other counts. The trial court sentenced Appellant to life in prison without the possibility of release until he had served thirty-five years. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") 12-120.21(A)(2) (West 2013),  13-4031, and 13-4033(A).
I. Admission of Confrontation Call at Trial
¶3 Appellant argues that the trial court erred in admitting the recording of a confrontation call made by the victim's father ("Father") because the court (1) erroneously found that the Father was not acting as a state agent during the call, (2) violated his due process rights and erred in applying A.R.S. § 13-3988 by finding that his statements during the call were not coerced by Father's prior assault of him, and (3) the court erred in failing to consider whether he had counsel present and whether he had been informed of his right to have counsel present and had waived such right pursuant to A.R.S. § 13-3988(3), (4), and (5).
¶4 "To be admissible, a [defendant's] statement must be voluntary, not obtained by coercion or improper inducement." State v. Ellison, 213 Ariz. 116, 127, ¶ 30, 140 P.3d 899, 910 (2006). The State has the burden of proving, by a preponderance of the evidence, that a statement was voluntary. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). We will not find a statement involuntary unless there exists (a) "coercive police behavior" and (b) "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). "The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." Colorado v. Connelly, 479 U.S. 157, 166 (1986). In evaluating voluntariness, "the trial 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). If the taint of illegal conduct is sufficiently attenuated because of intervening circumstances or the passage of time, a statement may be admitted as an otherwise voluntary confession. See State v. Fulminante, 161 Ariz. 237, 246, 778 P.2d 602, 611 (1989) (citation omitted). Arizona Revised Statute section 13-3988 also identifies factors a judge should consider as a matter of state law in determining voluntariness of a defendant's confessions under the totality of the circumstances. See A.R.S. § 13-3988(B).
¶5 The criminal conduct in question occurred in June 2008. Approximately a week later, the victim disclosed the incident to his parents. The victim's father physically confronted Appellant, who made incriminating statements and apologized to the victim. Father and Appellant exchanged several punches, which led Appellant to seek medical treatment at an emergency room.
¶6 Several weeks later, the parents contacted the police and reported the sexual misconduct. Detective Larry Thomas of the Coconino County Sheriff's Office suggested Father participate in a taped phone call with Appellant and coached him on the proper techniques of such a confrontation call, including a neutral approach and proper demeanor. Detective Thomas was not aware of the earlier verbal and physical confrontation between Father and Appellant. At the time the call was placed, Appellant had not been arrested or otherwise detained. During the call, Appellant made arguably incriminating statements.
¶7 After formal charges were brought, Appellant moved to suppress the statements on the basis that the statements were involuntary and therefore inadmissible. Following an evidentiary hearing, the trial court found the statements by Appellant during the earlier physical altercation to be involuntary, and suppressed them. That ruling is not at issue on appeal. The court further found the statements in the phone confrontation several weeks later to be voluntarily made.
¶8 On appeal, Appellant challenges the voluntariness of the phone statements, arguing primarily that the factors listed in A.R.S. § 13-3988(B) compel the conclusion that his statements were not voluntary. Appellant did not make this argument to the trial court and, therefore, we only review the court's decision for fundamental error. The factors listed in § 13-3988(B), however, only apply after the speaker has been arrested and/or detained. See A.R.S. § 13-3988 (C). At the time of the ...