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State v. Olague

Court of Appeals of Arizona, Second Division

August 16, 2016

The State of Arizona, Appellee,
Jamonte Lawrence Olague, Appellant.

         Appeal from the Superior Court in Pima County No. CR20120104002 The Honorable Teresa Godoy, Judge Pro Tempore

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee

          Dean Brault, Pima County Legal Defender By Scott A. Martin and Stephan McCaffery, Assistant Legal Defenders, Tucson Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.


          ECKERSTROM, Chief Judge:

         ¶1 Following a jury trial, appellant Jamonte Olague was convicted of first-degree murder and armed robbery. On appeal, he challenges the denial of his motion to suppress his statements to law enforcement officers, his motion to dismiss, and his motions for a new trial. We affirm for the reasons that follow.

         Factual and Procedural Background

         ¶2 The issues presented on appeal mainly involve procedural facts that we develop as needed in the discussion sections below. Viewed in the light most favorable to upholding the convictions, the evidence at trial established the following. State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). On December 30, 2011, Olague and several codefendants arranged to buy one pound of marijuana from the victim. The next day they robbed and fatally shot him.

         ¶3 After Olague's arrest, a detective provided him the advisory required by Miranda v. Arizona, 384 U.S. 436 (1966), and conducted an interview. Before trial, Olague filed a motion to suppress the statements from the interview, which the trial court denied, finding that Olague knowingly, voluntarily, and intelligently had waived his constitutional rights and had properly been advised of those rights pursuant to Miranda. In addition, the court denied Olague's motion to dismiss the indictment, rejecting his argument that he had been "selectively prosecuted" for murder because he and his codefendants were minorities, yet several "white" people who had assisted the victim in the attempted drug sale had not been similarly charged.

         ¶4 After the jury found Olague guilty of the charges, he filed two motions for a new trial based on alleged juror misconduct. The trial court denied the motions and prohibited Olague from initiating further contact with jurors absent the court's prior approval. The court then sentenced Olague to concurrent prison terms, the longer of which is life without the possibility of release for twenty-five years. We have jurisdiction over his delayed appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1) and (2).

         Motion to Suppress

         ¶5 Olague first contends the trial court erred in denying his motion to suppress his statements to detectives because he did not validly waive his Miranda rights. A waiver of such rights must be voluntary, meaning the product of "free and deliberate choice rather than intimidation, coercion, or deception." Berghuis v. Thompkins, 560 U.S. 370, 382 (2010), quoting Moran v. Burbine, 475 U.S. 412, 421 (1986); accord In re Andre M., 207 Ariz. 482, ¶ 7, 88 P.3d 552, 554 (2004).[1] Olague asserts his statements were inadmissible because he did not answer the detectives' questions or spontaneously speak to the officers; instead, he merely responded to a law enforcement command to tell his side of the story, which he characterizes as an "inherently coercive order."

         ¶6 We review a trial court's ruling on a motion to suppress for an abuse of discretion, State v. Villalobos, 225 Ariz. 74, ¶ 10, 235 P.3d 227, 231 (2010), and defer to the court's factual determinations. State v. Maciel, 238 Ariz. 200, ¶ 10, 358 P.3d 621, 624 (App. 2015). "In assessing a waiver, courts examine the totality of the surrounding circumstances, 'including the defendant's background, experience, and conduct.' The defendant's prior interactions with law enforcement are relevant to this inquiry." State v. Naranjo, 234 Ariz. 233, ¶ 7, 321 P.3d 398, 403 (2014) (citation omitted), quoting State v. Montes, 136 Ariz. 491, 495, 667 P.2d 191, 195 (1983). Our appellate review is limited to the evidence presented at the suppression hearing, State v. Newell, 212 Ariz. 389, ¶ 22, 132 P.3d 833, 840 (2006), which we view in the light most favorable to upholding the trial court's ruling. Naranjo, 234 Ariz. 233, ¶ 4, 321 P.3d at 403.

         ¶7 Although Olague bases his argument on the precise language the detective used to secure the waiver here, our record on appeal does not include the exhibits admitted at the suppression hearing. An appellant has the burden of ensuring the appellate record contains the necessary items for the arguments presented. State v. Jessen,130 Ariz. 1, 8, 633 P.2d 410, 417 (1981). Despite the fact that the state's answering brief noted this deficiency, Olague has taken no steps to cure it. Instead, he asserted in his reply brief that a recording of the interview was properly admitted at the suppression hearing and should have been included automatically in the record on appeal pursuant to Rule 31.8(a)(1), Ariz. R. Crim. P. He therefore urged this court to supplement the record "with no ...

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