FILED BY CLERK JAN 23 2007 IN THE COURT OF APPEALS COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2004-0306 Appellee, ) DEPARTMENT A ) v. ) OPINION ) ANTHONY SHARIFF GAY, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20011542
Honorable Cindy Jorgenson, Judge Honorable Nanette M. Warner, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Nicholas D. Acedo Phoenix Attorneys for Appellee
Robert J. Hooker, Pima County Public Defender By John F. Palumbo Tucson Attorneys for Appellant
H O W A R D, Presiding Judge. ¶1 After a jury trial, appellant Anthony Gay was convicted of one count each of
first-degree murder and first-degree burglary. The trial court sentenced him to natural life
imprisonment for the murder conviction and a concurrent, presumptive term of 10.5 years
in prison for the burglary conviction. On appeal, Gay argues the trial court erred by denying
his motion to suppress evidence obtained during a search of his apartment, his Batson1
challenge to the state’s peremptory strikes of two prospective jurors, and his motion to
suppress statements he made to police. He also argues the court erred by granting the state’s
motion to preclude expert testimony regarding the reliability of his statements to police at
the hearing on his motion to suppress those statements. Finding no reversible error, we
affirm.
Background
¶2 We view the evidence in the light most favorable to sustaining the convictions.
See State v. Newnom, 208 Ariz. 507, ¶ 2, 95 P.3d 950, 950 (App. 2004). On April 10,
2001, a Tucson police officer responding to a “check welfare” call discovered Stacy
McKeown stabbed to death in her apartment. Police began looking for Gay, a former
neighbor of McKeown’s, after learning that his fingerprints matched those on a telephone
in McKeown’s apartment. Police arrested Gay at the apartment he shared with his girlfriend,
Veronica Fresby. Police later searched the apartment pursuant to a search warrant, finding
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
2 a ring and a shirt that belonged to McKeown, as well as a pair of jeans with both Gay’s and
McKeown’s blood on them.
¶3 Other evidence incriminated Gay: his blood was found in various places in
McKeown’s apartment; his semen was found on her vagina; his semen and blood were found
on her nightgown; his fingerprints were found on a beer can in her kitchen; and he pawned
several compact discs and videocassettes, at least one of which had both his and McKeown’s
fingerprints on it. Following his arrest, Gay admitted being in McKeown’s apartment in the
early morning of April 10, but insisted he did not kill McKeown. Toward the end of his
interrogation by police, however, Gay stated he “just went crazy.”
Search of Gay’s Apartment
¶4 Gay first argues the trial court erred by denying his motion to suppress
evidence obtained during a search of his apartment. When reviewing a trial court’s denial
of a motion to suppress, we review only the evidence presented at the hearing on the motion
to suppress, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), and we view
it in the light most favorable to sustaining the trial court’s ruling, State v. Rosengren, 199
Ariz. 112, ¶ 2, 14 P.3d 303, 306 (App. 2000). We review the court’s decision “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).
¶5 Several days after the murder, police obtained a warrant for Gay’s arrest after
learning that fingerprints taken from a telephone in McKeown’s apartment matched Gay’s.
3 Police went to Fresby’s apartment in order to inform her of the arrest warrant for Gay and
in an attempt to obtain consent to search the apartment, which she shared with Gay. They
did not think Gay would be there. Detectives Thompson and Olivas entered the apartment
with Fresby’s permission, and Fresby agreed to give a tape-recorded statement. She refused
to consent to a search of the apartment, so other officers left to obtain a search warrant.
Olivas remained in the apartment to finish taking Fresby’s statement.
¶6 At some point, Fresby stopped talking and asked Olivas to leave. He refused
to leave because he was concerned Fresby might destroy evidence. He permitted Fresby to
go back to her bedroom after she asked to call her lawyer and to change clothes, but he
asked her to keep the door slightly open. Fresby came out of the room and eventually told
Olivas that Gay was in the apartment and would surrender. Gay came out and was arrested
without incident. Meanwhile, the detectives who had left to obtain a search warrant
returned in response to the arresting officer’s page notifying them of Gay’s arrest. Following
the arrest, police obtained a warrant to search the apartment. A search of the apartment
revealed the incriminating evidence.
¶7 Gay moved to suppress the evidence obtained during the search. The trial
court denied the motion, determining that the search was reasonable under Illinois v.
McArthur, 531 U.S. 326, 121 S. Ct. 946 (2001). Gay argues that once Fresby asked the
officer to leave and he refused, a seizure in violation of the Fourth Amendment began.
4 ¶8 The United States and Arizona Constitutions protect persons from
unreasonable searches and seizures. See U.S. Const. amends. IV, XIV; Ariz. Const. art. II,
§ 8. Police generally may not search a home or seize evidence without a warrant supported
by probable cause. McArthur, 531 U.S. at 330, 121 S. Ct. at 949; State v. Smith, 208 Ariz.
20, ¶ 6, 90 P.3d 221, 223 (App. 2004); Mehrens v. State, 138 Ariz. 458, 460, 675 P.2d 718,
720 (App. 1983). Evidence seized as a result of a violation of the Fourth Amendment
generally must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct.
407, 416 (1963); State v. Soto, 195 Ariz. 429, ¶ 9, 990 P.2d 23, 25 (App. 1999). But there
are exceptions to the warrant requirement, including the exigent circumstances exception.
McArthur, 531 U.S. at 331, 121 S. Ct. at 950; Mazen v. Seidel, 189 Ariz. 195, 197, 940
P.2d 923, 925 (1997).
¶9 In McArthur, police refused to allow McArthur to reenter his home without
a police escort for about two hours, while they obtained a warrant to search the home for
drugs. 531 U.S. at 328-29, 121 S. Ct. at 948-49. When McArthur did enter, a police officer
stood just inside the door and watched what McArthur did. Id. at 329, 121 S. Ct. at 949.
An Illinois appellate court upheld the trial court’s decision to suppress the drug evidence
obtained after a search pursuant to the warrant. Id. at 329-30, 121 S. Ct. at 949. The
Supreme Court reversed. Id. at 337, 121 S. Ct. at 953. In upholding the search, it relied on
the exigent circumstances exception to the warrant requirement. Id. at 331, 333, 121 S. Ct.
5 at 950, 951. The Court considered four circumstances “in combination.” Id. First, the
police had probable cause to believe the residence contained contraband. Id.
Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant. . . .
Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact–until a neutral Magistrate, finding probable cause, issued a warrant. . . .
Fourth, the police imposed the restraint for a limited period of time, namely, two hours.
Id. at 332, 121 S. Ct. at 950-51.
¶10 Gay’s challenge centers on the second and third circumstances announced in
McArthur.2 We conclude those requirements were met here. Because Gay and Fresby
shared the apartment, it was reasonable for the detectives to believe there might be evidence
incriminating Gay in the apartment, and Fresby might have incentive to destroy it. See
McArthur, 531 U.S. at 331, 121 S. Ct. at 950 (police claim of “specially pressing or urgent
law enforcement need” must be “plausible”). Furthermore, the police made a reasonable
attempt to accommodate Gay’s privacy by not searching the apartment until they had
2 Gay concedes that police had probable cause to search the apartment and does not argue that the restraint was excessive in duration.
6 obtained a warrant. See id. at 332, 121 S. Ct. at 950 (decision not to search prior to
obtaining warrant a factor in reasonableness of temporary seizure). And Gay cannot raise
any violation of Fresby’s privacy interests here. See State v. Papineau, 146 Ariz. 272, 273,
705 P.2d 949, 950 (App. 1985) (“Only one whose own rights have been violated may seek
the remedy of exclusion.”).
¶11 But Gay argues, citing State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986), that
any exigent circumstance stemming from concern that Fresby might destroy evidence was
created by police because they failed to obtain a search warrant prior to going to the
apartment. In Ault, the police went to the defendant’s house with the ultimate intention of
arresting him. Id. at 464, 724 P.2d at 550. Our supreme court held that police could not
enter the residence to secure it out of concern that the defendant might destroy evidence
because, by not obtaining an arrest warrant and arresting the defendant at the front door of
his home when they had the opportunity and probable cause to do so, the police created the
exigency. Id. at 463-64, 724 P.2d at 549-50. The court concluded the evidence the police
had seized without a warrant while accompanying Ault inside the house should have been
suppressed. Id. at 462, 466, 724 P.2d at 548, 552.
¶12 Here, the police did not believe Gay would be at the apartment and did not
go there to arrest Fresby or Gay. Instead, they intended to inform Fresby of the arrest
warrant for Gay and gain her consent to search the apartment. Consent is a valid exception
to the warrant requirement. State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996).
7 The police did not act unreasonably in attempting to acquire her consent. Additionally,
when Fresby did not consent to a search, officers left to get a warrant rather than attempt to
“circumvent the warrant requirement.” Ault, 150 Ariz. at 463, 724 P.2d at 549. And, in
contrast to the police in Ault, they did not seize any evidence pending the arrival of the
warrant. Thus, an exigency existed, and police did not create it.
¶13 Gay next argues that, unlike in McArthur, Olivas was inside the residence, and
this made the seizure unreasonable. Gay emphasizes the following language from McArthur:
“Temporarily keeping a person from entering his home, a consequence whenever police stop
a person on the street, is considerably less intrusive than police entry into the home itself in
order to make a warrantless arrest or conduct a search.” 531 U.S. at 336, 121 S. Ct. at 953.
But, in McArthur, the Supreme Court noted that the officers entered the apartment with the
defendant, id. at 329, 121 S. Ct. at 949, which is basically what occurred here. And Fresby
had allowed the officers to enter originally and she, not Gay, was the person interacting with
the officers. Additionally, Olivas did not remain in the apartment “to make a warrantless
arrest or conduct a search,” id. at 336, 121 S. Ct. at 953, but rather, to prevent Fresby from
destroying evidence while officers obtained a warrant. And the Court in McArthur did not
state that its ruling turned on the fact that the officer remained outside, instead noting more
generally that “the police made reasonable efforts to reconcile their law enforcement needs
with the demands of personal privacy.” Id. at 332, 121 S. Ct. at 950. The police did that
here. Olivas did not follow Fresby to the bedroom when she requested to call her attorney
8 and change clothes. Neither did he attempt to search the apartment; as in McArthur, Gay’s
home and belongings were left intact. See id. at 332, 121 S. Ct. at 950.
¶14 Gay cites no case holding that McArthur turns on the fact that the officer
remained outside unless accompanying the defendant inside. Indeed, cases from other
jurisdictions interpreting McArthur do not support Gay’s position. See, e.g., In re Elizabeth
G., 105 Cal. Rptr. 2d 811, 813, 816 (Ct. App. 2001) (search reasonable where “police
ordered [residents] into the living room and explained that they would have to be escorted
through the residence”); Byrd v. State, 780 A.2d 1224, 1226, 1228 (Md. Ct. Spec. App.
2001) (search reasonable where police “impounded the home for three hours, while awaiting
issuance of [a search] warrant”); People v. Ellison, 773 N.Y.S.2d 860, 862, 866 (Sup. Ct.
2004) (search reasonable where police “‘breach[ed] and h[e]ld’ the subject apartment while
. . . obtain[ing] a search warrant”).
¶15 In order to comply with Gay’s interpretation of McArthur, Olivas would have
had to exit the apartment upon Fresby’s request, but then Olivas, in turn, could have
demanded that Fresby also exit the apartment. From that point until police obtained a
warrant, Olivas could have prevented Fresby from returning to the apartment without him
escorting her. We do not believe it was any less reasonable for Olivas simply to remain
9 inside the apartment and allow Fresby to return to the bedroom while he observed her from
his vantage point.3
Batson Challenge
¶16 Gay next argues the trial court erred by “denying [his] Batson challenges to
the state’s peremptory strikes of two African-American jurors.” When reviewing a trial
court’s ruling on a Batson challenge, we defer to its factual findings unless clearly
erroneous, but review its legal determinations de novo. State v. Lucas, 199 Ariz. 366, ¶ 6,
18 P.3d 160, 162 (App. 2001).
¶17 The Equal Protection Clause of the Fourteenth Amendment prevents
peremptory strikes of prospective jurors solely based upon race. Batson v. Kentucky, 476
U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986). A Batson challenge involves three steps. First,
the party challenging the strike must make a prima facie showing that the strike was based
on race. Lucas, 199 Ariz. 366, ¶ 7, 18 P.3d at 162. Second, the party making the strike may
then offer a race-neutral explanation. Id. That explanation “must be more than a mere
denial of improper motive, but it need not be ‘persuasive, or even plausible.’” Id., quoting
Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995). Third, the party
challenging the strike must persuade the trial court that the proffered race-neutral
3 Gay appears to argue that Fresby did not voluntarily consent to a search of the apartment. But Fresby’s consent is irrelevant because the search was conducted pursuant to a warrant, not consent. And, because we conclude that the police did not conduct an illegal search or seizure, we necessarily reject Gay’s further claim that the search warrant was tainted by this alleged violation.
10 explanation is pretextual. Id. During the third step, the trial court evaluates the credibility
of the state’s proffered explanation, considering factors such as “the prosecutor’s demeanor;
. . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell (Miller-El I), 537
U.S. 322, 339, 123 S. Ct. 1029, 1040 (2003). Because the “trial court is in a better position
to assess” credibility than we are, its “finding at this step is due much deference.” State v.
Newell, 212 Ariz. 389, ¶ 54, 132 P.3d 833, 845 (2006).
¶18 During jury selection, Gay challenged the state’s peremptory strikes of African-
American venirepersons Barnard and Parker. The prosecutor offered the following reasons
for striking Barnard: (1) she was “not at all happy” with how police handled the
investigation of her nephew’s murder; (2) she seemed “stern looking” and “angry,” with
“kind of a glare”; and (3) she did not make eye contact with the prosecutor. The prosecutor
offered the following reasons for striking Parker: (1) she disliked the death penalty; (2) she
“had problems with graphic details and gruesome photos”; (3) she was “sympathetic
according to [the state’s] drug user question”; and (4) she would be distracted by upcoming
medical tests. The trial court ruled that the state’s explanations were race-neutral and not
pretextual4 and denied Gay’s Batson challenges.
4 In doing so, the trial court implicitly found that Gay had made a prima facie case under step one of Batson. Cf. State v. Hernandez, 170 Ariz. 301, 304, 823 P.2d 1309, 1312 (App. 1991) (assuming trial court found defendant had made a prima facie case where trial court asked state to explain its strikes). The state does not appear to challenge this implicit finding, although four African-Americans served as either jurors or alternates. And,
11 ¶19 The trial court did not err by finding the state’s explanations facially race-
neutral. See State v. Roque, 213 Ariz. 193, ¶ 15, 141 P.3d 368, 379 (2006) (“Antipathy
toward the police alone may constitute a valid reason to strike jurors when the State’s case
relies on police testimony.”); Newell, 212 Ariz. 389, ¶ 58, 132 P.3d at 845-46 (decision to
strike juror for “contradictory responses about whether [the juror] could vote to impose the
death penalty . . . was facially race-neutral”); State v. Hernandez, 170 Ariz. 301, 305, 823
P.2d 1309, 1313 (App. 1991) (“It is permissible to rely on a prospective juror’s mode of
answering questions as a basis for peremptory selections.”). And determining the validity
of those explanations required the court to evaluate the sincerity of the prosecutor as well
as the behavior of the jurors. These are credibility determinations that the court was in the
best position to make. See Newell, 212 Ariz. 389, ¶ 54, 132 P.3d at 845; cf. State v.
Hansen, 156 Ariz. 291, 297, 751 P.2d 951, 957 (1988) (“[T]he trial court is in a better
position to judge whether [a] prosecutor is unduly sarcastic, his tone of voice, facial
expressions, and their effect on the jury, if any.”). We defer to those determinations here.
¶20 Gay cites the statistical disparity between the percentage of African-American
panelists struck (thirty-three percent) and the percentage of African-Americans in the venire
after the parties exercised their peremptory strikes (seventeen percent), in support of his
because the prosecutor offered an explanation for her strikes, this preliminary issue became moot in any event. See Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 1866 (1991) (plurality opinion); State v. Rodarte, 173 Ariz. 331, 333, 842 P.2d 1344, 1346 (App. 1992).
12 argument that these two strikes “were not racially neutral, and were purposefully
discriminatory in violation of Batson.” A statistical disparity can constitute evidence of
purposeful discrimination. See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 240-41,
125 S. Ct. 2317, 2325 (2005). But the fact that four African-Americans served as either
jurors or alternates is “‘indicative of a nondiscriminatory motive.’” State v. Cañez, 202 Ariz.
133, ¶ 23, 42 P.3d 564, 577 (2002), quoting State v. Eagle, 196 Ariz. 27, 30, 992 P.2d
1122, 1125 (App. 1998). Thus, the statistical disparity alone does not suggest the trial court
erred.
¶21 Gay further argues the prosecutor questioned African-American jurors more
aggressively on their attitudes toward the death penalty and law enforcement than other
jurors and that non-African-American jurors with similar answers were not struck. In
Miller-El II, the Court found evidence of intentional discrimination in “side-by-side
comparisons of some black venire panelists who were struck and white panelists allowed to
serve.” 545 U.S. at 241, 125 S. Ct. at 2325. The Court noted that, “[i]f a prosecutor’s
reason for striking a black panelist applies just as well to an otherwise-similar non-black who
is permitted to serve, that is evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.” Id.
¶22 Barnard, an African-American female, responded to a group voir dire question
by the trial court that she “had a nephew killed in . . . [a] drive-by shooting . . . [and
13 n]obody was ever held accountable for that.”5 The trial court then further explored her
attitudes toward law enforcement, and Barnard expressed that her family was not satisfied
with how police handled the situation but that she would be able to separate that experience
from jury service in Gay’s case. During individual voir dire, the prosecutor further
questioned Barnard about her attitude toward law enforcement, and she responded that it
would not affect her ability to serve as a juror in Gay’s case.
¶23 Gay compares this questioning with voir dire of three other jurors, all non-
African-Americans who served on the jury. During group voir dire, juror David responded
that three of his family members were assaulted by the husband of one of the family
members. Juror Painter responded that she had been the victim of a crime for which the
assailant was never prosecuted. And juror Kinsella responded that a close friend of hers had
been charged with murder and, as she said, found “guilty of murder by insanity.” None of
these jurors expressed a negative attitude toward law enforcement during group voir dire,
and the prosecutor did not question any of them about attitudes toward law enforcement
during individual voir dire.
¶24 We disagree with Gay that the prosecutor’s disparate questioning suggests
discriminatory purpose. Barnard was the only panelist among those discussed who
5 The transcript of group voir dire reflects that this response came from venireperson number 41, and Barnard was venireperson number 49. But the transcript of individual voir dire with Barnard suggests—and the parties appear to agree—that the response was Barnard’s.
14 suggested during group voir dire that she had a negative attitude toward law enforcement.
In fact, David and Kinsella stated that the perpetrators of the crimes they discussed had been
arrested and convicted. And although Painter responded that her assailant had never been
prosecuted, she said nothing during group voir dire that suggested she had a negative attitude
toward law enforcement. Thus, the prosecutor may not have felt she needed to explore the
attitudes of these three toward law enforcement.
¶25 Parker, an African-American female whom the state struck, explained during
group voir dire that her cousin’s husband murdered her cousin, and the husband was
executed for the crime. Although she said that crime would not affect her jury service and
that she “felt [death] . . . was an appropriate sentence” in that case, she had answered in a
questionnaire that “as a nurse, mother and Christian [the death penalty] would be a difficult
decision for [her].” The trial court later probed her reservations about the death penalty,
and she answered that she could “[f]ollow the law.”
¶26 Gay compares these responses6 of Parker with those of jurors Bernard and
Kinsella, both non-African-Americans who served on the jury. Bernard responded in a
questionnaire that she “could vote to impose the death penalty if [she] believed it was
warranted in a particular first degree murder case, depending on the evidence along with
what [she] learned about the defendant.” During voir dire, she stated she “fe[lt] that [her]
Gay also cites Parker’s responses to other questions involving other topics, but he 6
does not cite comparable responses of Bernard and Kinsella.
15 answer [wa]s the same,” but also stated she “would be more against the death penalty just
because [she] d[id]n’t feel that any person should lose their life in the hands [sic] of another
human.” She ultimately said she could follow the law. Kinsella said she had not thought
about having to make the decision to impose the death penalty, and from her experience
working in an emergency room, she “never kn[e]w how something [wa]s going to affect [her]
until [she was] introduced to it.” She also stated she could follow the law.
¶27 Although there is some similarity among the answers of Parker, Bernard, and
Kinsella, we note that it was only Parker who was personally affected by a death sentence.
Additionally, the trial court was in a better position than we are to evaluate both the
sincerity of the jurors’ responses and the prosecutor’s explanations. See Newell, 212 Ariz.
389, ¶ 54, 132 P.3d at 845. We defer to those determinations.
¶28 Even were we to agree with Gay that these comparisons provided some
evidence of discriminatory purpose, that evidence alone would be insufficient to sustain
Gay’s Batson challenge. In Miller-El II, the Supreme Court relied not only on
“remarkable” statistical disparities and “side-by-side comparisons” of jurors, 545 U.S. at
240-41, 125 S. Ct. at 2325, but also emphasized “broader patterns of practice,” including
“shuffling the venire panel” and “widely known evidence of the general policy of the Dallas
County District Attorney’s Office to exclude black venire members from juries at the time
Miller-El’s jury was selected.” Id. at 253, 125 S. Ct. at 2332. The Court recognized that
“at some points the significance of Miller-El’s evidence [wa]s open to judgment calls, but
16 when this evidence on the issues raised [wa]s viewed cumulatively its direction [wa]s too
powerful to conclude anything but discrimination.” Id. at 265, 125 S. Ct. at 2339.
¶29 Finally, Gay suggests the prosecutor’s justifications for striking Barnard and
Parker were simply implausible. But, as discussed above, the trial court was in a better
position than we are to evaluate the veracity of the prosecutor’s claims and the sincerity of
the jurors’ answers. See Newell, 212 Ariz. 389, ¶ 54, 132 P.3d at 845. The record supports
the court’s determinations, and we defer to them. Accordingly, the court did not err by
denying Gay’s Batson challenge.
Miranda Waiver
¶30 Gay next argues the trial court erred by denying his motion to suppress
statements he made to police because he did not knowingly, intelligently, and voluntarily
waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). We
review the court’s decision for an abuse of discretion. See State v. Schinzel, 202 Ariz. 375,
¶ 12, 45 P.3d 1224, 1227 (App. 2002). We consider only the evidence presented at the
suppression hearing, and we view that evidence in the light most favorable to sustaining the
trial court’s ruling. Id. But we review the court’s legal conclusions de novo. Id.
¶31 After arresting Gay, Detectives Olivas and Thompson took a statement from
him. After Olivas informed Gay of his Miranda rights, Gay asked: “Well, when is it possible
to have an, an attorney appointed to me?” The following exchange then occurred:
[Olivas]: If, if you want an attorney, at this point, I’m not gonna ask you any questions at all. What’s
17 gonna happen is you’re gonna go to the jail, tomorrow you’re gonna have arraignment, and then an attorney will be appointed for you. If you can’t afford, if you cannot afford one.
[Gay]: But would I get an attorney anyway? I mean . . . ?
[Olivas]: Yes.
[Gay]: Oh, okay.
[Olivas]: Do you understand that?
[Gay]: Yeah, I, I guess.
[Olivas]: Well, there can’t be no [sic] guessing. I need to, either you don’t understand them, or you do. If you wanna talk to us, everything you say can be used against you in a court of law. If you don’t wanna talk to us, you don’t have to talk to us, basically is [sic] what’s gonna go, happen is, I’m gonna, I will ask you information on a booking form, nothing about the case and then you’re going to jail. At the jail, within the next few days or, or a week or so, you, you’ll, they’ll appoint you a lawyer if you cannot afford one.
[Thompson]: Actually they’ll appoint him the, the attorney at his initial appearance, which will be tomorrow at two.
[Olivas]: They’ll tell you who your attorney is.
[Thompson]: Right.
[Olivas]: You may not have a chance to talk to him, but you’ll have an attorney.
[Gay]: Okay. That’s even, when, if we do talk?
18 [Olivas]: Right.
[Gay]: Okay.
[Olivas]: Okay?
[Gay]: Yeah.
[Olivas]: You understand that?
[Gay]: Mmm hmm [positive response].
[Olivas]: Are you willing to talk with me?
¶32 Gay first argues his question about when a lawyer would be appointed for him
was an unambiguous request for counsel, and the police violated his Miranda right to
counsel by continuing questioning him. When an accused invokes the Miranda right to
counsel, police must cease questioning and may not further question the accused “until
counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451
U.S. 477, 484-85, 101 S. Ct. 1880, 1885 (1981). For an invocation of the Miranda right
to counsel to be effective, the accused “‘must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.’” State v. Eastlack, 180 Ariz. 243, 250, 883
P.2d 999, 1006 (1994), quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct.
2350, 2355 (1994).
19 ¶33 A “reasonable police officer in the circumstances” would not have understood
Gay’s question as a request for an attorney, especially because Olivas prefaced his reading
of Gay’s Miranda rights by saying: “If you have any questions at all, I want you to ask them
and if you don’t understand [the Miranda rights], I want you to tell me. Okay?” Because
Gay’s question was not an unambiguous invocation of his Miranda right to counsel, police
did not violate that right by continuing questioning him to clarify whether he wished to
invoke his rights.
¶34 Gay cites People v. Harris, 552 P.2d 10 (Colo. 1976), and State v. Inman,
151 Ariz. 413, 728 P.2d 283 (App. 1986), in support of his argument that his question was
an unambiguous invocation of his Miranda right to counsel. In Harris, the Colorado
Supreme Court held that the question, “When can I get a lawyer?” was an invocation of the
accused’s Miranda right to counsel. 552 P.2d at 235-37. In Inman, Division One of this
court cited Harris in holding that a similar question was, “[a]t [the] very least[,] . . . an
ambiguous request for counsel that, without more, should have stopped all questioning
except that which would have been necessary to clarify whether [the accused] wanted a
lawyer before questioning.” Inman, 151 Ariz. at 416, 728 P.2d at 286.
¶35 Inman, however, did not conclude that a question like Gay’s was an
unambiguous invocation of Miranda rights. See id. Moreover, both Inman and Harris
preceded Davis, in which the Supreme Court clarified that an invocation of Miranda rights
must be “sufficiently clear[] that a reasonable police officer in the circumstances would
20 understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459, 114 S.
Ct. at 2355.
¶36 Gay next contends that, even if his question was ambiguous, the police still
violated Miranda by failing to clarify sufficiently whether he was in fact requesting counsel,
and thus, he failed to understand the scope of his Miranda rights. In Arizona, when a
request for counsel is ambiguous, police must limit any further questioning to clarify
defendant’s request. See State v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983);
see also Inman, 151 Ariz. at 416, 728 P.2d at 286. Here, following Gay’s ambiguous
assertion, Olivas limited his questioning to explaining what would happen to Gay if he
requested an attorney and when he would be able to access that attorney. Although Olivas
and Thompson had some difficulty explaining exactly when Gay’s attorney would be
appointed, they did make clear that if he asked for an attorney, they would cease questioning
and an attorney would be appointed for him. Because Olivas and Thompson limited this
further questioning to clarifying Gay’s statement, there was no Miranda violation.
Voluntariness and Reliability of Confession
¶37 Finally, Gay argues the trial court erred by precluding Dr. Jacquelyn St.
Germaine from offering expert testimony regarding the effects of crack cocaine on the human
body at a hearing on Gay’s motion to suppress statements he made to police. We review a
trial court’s decision to preclude expert testimony for an abuse of discretion. State v.
Speers, 209 Ariz. 125, ¶ 13, 98 P.3d 560, 564 (App. 2004).
21 ¶38 In his motion to suppress, Gay argued his statements were involuntary. At the
evidentiary hearing on the motion, Gay sought to introduce expert psychological testimony
from St. Germaine on the effects crack cocaine, or withdrawal from crack cocaine, may have
had on Gay’s state of mind during the police interview. The state moved to preclude St.
Germaine from testifying at the hearing, arguing that expert testimony regarding Gay’s state
of mind would be irrelevant to a voluntariness determination in the absence of any evidence
of police coercion.
¶39 The trial court agreed with the state, finding “no evidence of police coercion
during the taping of the defendant’s statements” and determining that St. Germaine’s
testimony would not aid the court in determining voluntariness. See Ariz. R. Evid. 702, 17A
A.R.S. (expert testimony admissible “[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue”). It also
ruled that testimony by St. Germaine about Gay’s mental state at the time of questioning was
precluded by State v. Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996), in which our
supreme court held that expert psychological testimony is “not appropriate . . . to show the
actual mental state of a defendant at a given time.”
¶40 Although the Due Process Clause of the Fourteenth Amendment prohibits the
admission of involuntary confessions, police coercion “is a necessary predicate to the finding
that a confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct.
515, 522 (1986). Thus, a defendant’s state of mind cannot prove a confession involuntary
22 “by itself and apart from its relation to official coercion.” Id. at 164, 107 S. Ct. at 520; see
State v. Stanley, 167 Ariz. 519, 524, 809 P.2d 944, 949 (1991) (“critical element” in
voluntariness analysis is “whether police conduct constituted overreaching”). The trial
court found that there was no evidence of police coercion in this case, and the record
supports that finding. Without evidence of police coercion, St. Germaine’s testimony could
not have aided the court in determining voluntariness. Accordingly, the court did not abuse
its discretion in precluding her testimony.
¶41 Gay further argues St. Germaine’s testimony could have been relevant to a
determination that his statement was unreliable, as he argued in his motion for
reconsideration below.7 Relying on Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142
(1986), he contends that “the legal issue of whether a confession is voluntary is separate
from the factual issue of whether a confession is reliable.” But the issue in Crane was the
admissibility at trial of testimony regarding the reliability of a confession. Id. at 684, 106
S. Ct. at 2143. The Court noted that “‘questions of credibility, whether of a witness or of
a confession, are for the jury.’” Id. at 688, 106 S. Ct. at 2145, quoting Jackson v. Denno,
378 U.S. 368, 386 n.13, 84 S. Ct. 1774, 1786 n.13 (1964). On the other hand, “the purpose
that a voluntariness hearing is designed to serve has nothing whatever to do with improving
7 Following the assignment of his case to a different judge, Gay moved for reconsideration of Judge Jorgenson’s ruling on St. Germaine’s testimony. Judge Warner denied that motion, explicitly approving Judge Jorgenson’s reliance on Hyde and Connelly, but not discussing the Rule 702 analysis.
23 the reliability of jury verdicts.” Lego v. Twomey, 404 U.S. 477, 486, 92 S. Ct. 619, 625
(1972).
¶42 The state only challenged Gay’s attempt to introduce St. Germaine’s testimony
at the voluntariness hearing; it expressly stated it would not object to the use of her
testimony at trial. But Gay did not attempt to introduce her testimony at trial and does not
allege any trial error regarding the reliability of his statements to police. Accordingly, Gay’s
reliance on Crane is misplaced.
¶43 Gay also challenges the trial court’s reliance on Hyde, arguing that St.
Germaine would not have testified regarding Gay’s mental state during questioning, but
rather, would have testified regarding “the general effects of crack cocaine and withdrawal
from crack and that [Gay’s] statements were consistent with those of a person who is
addicted to crack and ‘crashing.’” But to the extent that he argued she would testify about
the general effects of crack cocaine or withdrawal from crack cocaine on the human body,
that testimony would have been irrelevant to the voluntariness analysis. Furthermore, her
report was insufficient to establish that his statements were “so unreliable that they [should
have] be[en] excluded under the evidentiary laws of the forum.” State v. Tucker, 157 Ariz.
433, 445-46, 759 P.2d 579, 591-92 (1988). Accordingly, we find no error in the court’s
decision to preclude St. Germaine’s testimony.
Conclusion
¶44 For the foregoing reasons, Gay’s convictions and sentences are affirmed.
24 ____________________________________ JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________ JOHN PELANDER, Chief Judge
____________________________________ GARYE L. VÁSQUEZ, Judge