Opinion
No. 2 CA-CR 2018-0254
08-08-2019
THE STATE OF ARIZONA, Appellee, v. MICHELLE ANN BUTLER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Michael F. Valenzuela, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201600010
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Michael F. Valenzuela, Assistant Attorney General, Phoenix
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Judge Brearcliffe and Judge Espinosa concurred. VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Michelle Butler was convicted of second-degree murder, and the trial court sentenced her to a twenty-three-year prison term. On appeal, Butler argues the court erred in denying her motion to suppress her statements to police, because officers continued questioning her after she had invoked her right to counsel pursuant to Miranda. Butler also argues her statements were involuntary because, in addition to the Miranda violation, she was sleep deprived and emotionally distraught. For the following reasons, we affirm.
Miranda v. Arizona, 384 U.S. 436 (1966).
Factual and Procedural Background
¶2 We view the evidence and all reasonable inferences therefrom in the light most favorable to affirming Butler's conviction. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). One morning in December 2015, Butler and her partner, K.S., got into a verbal altercation that turned physical. During the altercation, Butler shot K.S. in the neck. When K.S. tried to leave, Butler followed her outside and shot her again in the chest. Butler returned to the house, leaving K.S. outside. K.S. was transported by ambulance to the hospital where she died later that day.
¶3 Neighbors called 9-1-1 and reported hearing gunshots at Butler and K.S.'s house. When the responding officers arrived, Butler refused to leave her home, and the deputies used their vehicle loudspeaker to persuade Butler to come out of her house. Shortly after, Butler came outside and was handcuffed and transported to a nearby fire station, where she was questioned by Detective Shawn Wilson.
¶4 A grand jury indicted Butler for first-degree murder. The jury found her guilty of the lesser-included offense of second-degree murder, and the trial court sentenced her as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶5 Butler argues the trial court abused its discretion by admitting her statements into evidence because Detective Wilson had "violated her Miranda rights by not honoring her request for counsel and to stop questioning . . . [and] under the totality of the circumstances [Butler's] statement was not voluntary because of the combination of Miranda violations, she was sleep deprived and emotionally distraught." We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Cornman, 237 Ariz. 350, ¶ 10 (App. 2015); State v. Kinney, 225 Ariz. 550, ¶ 13 (App. 2010). "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8 (App. 2008).
¶6 Before trial, Butler requested a voluntariness hearing to suppress her statements during her interview with Detective Wilson. She claimed that she requested "an attorney more than [five] times" during the interview and was never provided one. The state argued it sought to introduce at trial only the first thirty-six minutes of the video recording of the interview, and, during that time, Butler's apparent references to counsel did not constitute "unambiguous request[s] for an attorney." At the voluntariness hearing, the trial court ruled the first thirty-six minutes of the interview admissible "at least in terms of being voluntary and not in violation of Miranda." The court reasoned that Butler had been given her Miranda rights before questioning and proceeded to answer Wilson's questions absent any showing that Butler had been threatened, coerced, or made any promises to induce or force her to answer. The court determined that Butler's two references to counsel, during that time frame, did not amount to an unambiguous request for an attorney. The court explained that Butler's statement, "I need to contact somebody in California that can get me a lawyer," was a "suggestion that [getting an attorney was something] she wants to take care of in the near future, but not immediately during the course of th[e] interview." And it stated Butler's additional statement, "I shouldn't even be talking without a lawyer, but okay," was "a reference to, apparently, her hesitation to be speaking without a lawyer, but she proceed[ed] to go ahead and answer the question and never ma[de] an unambiguous request to have counsel appointed."
¶7 The trial court additionally assessed the totality of the circumstances and determined the video recording of the interview and transcript, together, indicated that Butler's answers were not a result of "any threats or force or coercion of any kind." The court concluded the transcript and video, combined, established that the interview was not conducted under a "particularly high-pressure situation," and Butler, "by appearance, was fairly casual and seemingly free of any unusual distress" while answering questions, despite her statements that she was tired during the interview. Miranda Violation
¶8 Before any custodial interrogation, a suspect must be advised of her rights as set forth in Miranda. State v. Kennedy, 116 Ariz. 566, 568-69 (App. 1977) (custodial interrogation is one initiated by police); see also Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Once a suspect has requested counsel under Miranda, the interrogation must stop. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, "[n]ot every reference to an attorney must be construed by police as an invocation of the suspect's right to counsel." State v. Nevarez, 235 Ariz. 129, ¶ 14 (App. 2014) (quoting State v. Ellison, 213 Ariz. 116, ¶ 26 (2006)). For questioning to stop, the assertion must be unambiguous. State v. Spears, 184 Ariz. 277, 286 (1996); see also Nevarez, 235 Ariz. 129, ¶ 14 (defendant must articulate desire to have counsel present so that reasonable officer under circumstances understands it as request for counsel).
¶9 Alternatively, a suspect may choose to waive her rights. See State v. Olague, 240 Ariz. 475, ¶¶ 5-6 (App. 2016). A valid waiver may be accomplished by the suspect's words or conduct as long as it is: (1) a "free and deliberate choice rather than intimidation, coercion, or deception," id. ¶ 5 (quoting Berghuis v. Thompkins, 560 U.S. 370, 382 (2010)), and (2) "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it," Moran v. Burbine, 475 U.S. 412, 421 (1986); see also State v. Tapia, 159 Ariz. 284, 287 (1988) ("Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct.").
¶10 Butler contends the crux of the issue on appeal rests on whether she "waived her invocation of her right to counsel after asserting it." Butler, however, incorrectly assumes she effectively "asserted" an unambiguous request for counsel to stop questioning.
¶11 Butler concedes she had been advised of her rights, as required by Miranda, before the interview began. At the beginning of the interview, Butler stated that she understood her right to remain silent and to have counsel present during questioning, and she nonetheless started speaking to Detective Wilson. See Moran, 475 U.S. at 421; Tapia, 159 Ariz. at 287. Butler then answered Wilson's questions for over ten minutes until Wilson asked her if she had shot K.S. Butler denied knowing what happened to K.S. and stated, "I need to contact somebody in California that can get me a lawyer" and further asked, "If they can't get me a lawyer . . . then do I get one appointed for me?" Wilson affirmatively clarified that "[counsel] will be appointed to [her a]t a court hearing." Butler's reference to counsel, however, was a request to contact a third party, who would potentially call a lawyer for her—not an immediate request for counsel. See Spears, 184 Ariz. at 286 ("If the request for counsel is not sufficiently clear, the interview may continue."); see also Nevarez, 235 Ariz. 129, ¶ 14 (reasonable officer under circumstances must understand defendant's request for counsel). Because Butler's question did not indicate an immediate request for counsel, it was, at best, ambiguous. Notably, Wilson asked Butler to clarify whether she wanted to continue the interview, "do you want to continue answering questions or what do you want to do?" And after some hesitation, Butler continued to answer his questions.
¶12 Butler answered Detective Wilson's questions for another twenty-two minutes until Wilson asked her if she had gone outside that morning. Butler then suggested Wilson was "put[ting words] in [her] mouth" and made a second reference to counsel, "I shouldn't even be talking without a lawyer, but okay." Again, she did not unambiguously request counsel, which Butler concedes on appeal. See Spears, 184 Ariz. at 286. Indeed, Butler acknowledged to Wilson that she could have a lawyer present and should not be talking without one—suggesting the negative consequences for doing so—and yet she continued to explain to Wilson that she did not leave her house that morning.
Butler argues that multiple other requests for counsel were unambiguous: "I need a lawyer or whatever," "No[t] without a lawyer," "I need to speak with a lawyer," and "I need to have somebody present to help me[ because] I'm too upset." These requests for counsel, however, were made after the thirty-six-minute mark, and none of Butler's statements thereafter were admitted at trial. See Spears, 184 Ariz. at 286 (no evidence erroneously admitted at trial because state did not introduce any statement defendant made after unambiguous request for counsel).
¶13 Neither reference to counsel during the first thirty-six minutes of the interview video recording was unambiguous, as no reasonable officer would have construed them as unequivocal requests for counsel. See Nevarez, 235 Ariz. 129, ¶ 14. Wilson was therefore not required to cease questioning after those two references. Spears, 184 Ariz. at 286. Accordingly, we cannot say the trial court abused its discretion in ruling the first thirty-six minutes of the interview video recording admissible at trial as Butler's Miranda rights were not violated. See Kinney, 225 Ariz. 550, ¶ 13.
Involuntary Statement
¶14 Butler argues that in combination with the alleged Miranda violation, her lack of sleep "le[]d to confusion and an inability to make rational decisions about whether to continue talking or not, [and] whether to demand an attorney or not." And, according to Butler, her lack of sleep was "a significant factor" weighing against her free will.
Butler argues that in addition to the Miranda violation and her lack of sleep, she was emotionally distraught after Wilson revealed to her for the first time that K.S. had died that morning. Butler further contends that her alleged distraught demeanor must be considered in the totality-of-the-circumstances assessment of whether her statements were voluntary. Wilson, however, revealed to Butler that K.S. had died after the first thirty-six minutes of the video recording. Butler's alleged emotional state during the later portion of the recording, which was not admitted as evidence, is not relevant to our determination of the voluntariness of her admitted statements, and we therefore do not consider it. --------
¶15 Confessions are prima facie involuntary, and the state must prove by a preponderance of the evidence the statement was voluntary. Tapia, 159 Ariz. at 287; see also State v. Bush, 244 Ariz. 575, ¶ 49 (2018) (to be admissible, statement "must be [voluntary and] not obtained by coercion or improper inducement" (quoting Ellison, 213 Ariz. 116, ¶ 30)).
¶16 To determine the voluntariness of a statement, the trial court must assess whether the suspect's will was overborne based on the totality of the circumstances. State v. Newell, 212 Ariz. 389, ¶ 39 (2006); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In making this determination, the court may consider factors such as the suspect's age, education, or intelligence level, the length of the detention, and deprivation of food or sleep. State v. Hatfield, 173 Ariz. 124, 126 (App. 1992). A statement, however, is involuntary if the court concludes in its totality-of-the-circumstances analysis that one of these factors exists: "(1) impermissible conduct by police, (2) coercive pressures not dispelled, or (3) confession derived directly from prior involuntary statement." State v. Gretzler, 126 Ariz. 60, 82 (1980).
¶17 As previously discussed, after being advised of her rights pursuant to Miranda, Butler voluntarily agreed to speak with Wilson. Although Butler stated she was tired during the interview, after each such expression she continued to answer Wilson's questions.
¶18 At no time during the interview was Butler's will overborne such that her statements were rendered involuntary. See Tapia, 159 Ariz. at 287. Butler, a fifty-four-year-old woman, agreed she understood her right to remain silent, and she continued to answer Wilson's questions throughout the pertinent time frame. We agree with the trial court's assessment: "this was not a particularly high-pressure situation; that [Butler], by appearance, was fairly casual and seemingly free of any unusual distress given the circumstances at the time of these statements." Indeed, while being questioned, Butler generally appeared to be physically and emotionally stable, even after Wilson asked her if she had shot K.S. After Wilson stated, "the sooner we talk, the sooner you can go to sleep," Butler gave a detailed account of her and K.S.'s recent romantic history that led to the events of that morning. Again, Butler appeared to be relaxed and discussed their relationship in a calm, conversational tone. Butler never appeared emotionally or physically tired, and she was alert enough to recognize that her statements could be incriminating, "I shouldn't even be talking without a lawyer," but continued to explain her whereabouts the morning of the incident anyway.
¶19 Because we are not persuaded by Butler's Miranda violation argument, we do not consider it in our assessment of the totality-of-the-circumstances analysis. Thus, we conclude that based on the combination of Butler's age, the duration of the interview, her calm emotional and physical appearance, and her awareness that she could have—and at times "should" have—remained silent, the state proved by a preponderance of the evidence that Butler's statements were in fact voluntary. See Newell, 212 Ariz. 389, ¶ 39; Hatfield, 173 Ariz. at 126. Therefore, we cannot say the trial court abused its discretion in concluding Butler's statements were voluntary and admitting into evidence the first thirty-six minutes of the interview video. See State v. Jones, 203 Ariz. 1, ¶ 8 (2002) (admissibility of defendant's statement reviewed for abuse of discretion).
Harmless Error
¶20 We do not find the trial court abused its discretion, but even assuming any error occurred, we are satisfied beyond a reasonable doubt that it would have been harmless. "Error is harmless if the reviewing court can say beyond a reasonable doubt that the error did not contribute to the verdict." State v. Davolt, 207 Ariz. 191, ¶ 39 (2004). Further, an error may be harmless if, as in this case, overwhelming evidence supports a defendant's guilt. Id. ¶ 64.
¶21 At trial, the state presented evidence that clearly rebutted Butler's conflicting accounts of how K.S. had been shot. Butler claimed she feared for her life when the gun "[went] off twice" inside the home during her argument with K.S., but in the same breath stated she "did not know" who shot K.S., nor did she remember the morning of the incident, and instead suggested a man in a green sweater may have killed K.S. Also, Butler never told the arresting officer that she was in fear for her life or safety, that K.S. had ever hurt her, or that Butler had acted in self-defense. Moreover, Butler's neighbor testified that he had been in front of his home when he heard a "distressed scream," saw K.S. run outside, then heard "gunshots," observed K.S. "hit the ground," all followed by a woman's voice that said, "I got you, bitch." Finally, DNA matching Butler's DNA profile was found on the gun used to kill K.S., Butler's hand tested positive for gunshot residue, and the two bullets recovered tested positive for K.S.'s blood and were located in the house and across the street—consistent with Butler shooting K.S. in the home and following her outside to shoot her once again. We conclude there was overwhelming evidence of Butler's guilt presented to the jury, and we are therefore confident beyond a reasonable doubt that the verdict was not affected by the admission of her statements. See Davolt, 207 Ariz. 191, ¶¶ 39, 64.
Disposition
¶22 For the reasons stated above, we affirm Butler's conviction and sentence.