Opinion
No. 1 CA-CR 13-0050
01-14-2014
State of Arizona, Appellee, v. Chance Burgess, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Criss Candelaria Law Office, P.C., Pinetop By Criss E. Candelaria Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Navajo County
No. S0900CR20110423
The Honorable Ralph E. Hatch, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Criss Candelaria Law Office, P.C., Pinetop
By Criss E. Candelaria
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe, presiding, delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
HOWE, Presiding Judge:
¶1 Chance Burgess appeals his conviction and sentence for second-degree murder, arguing that his confession was involuntary and that the trial court erred in instructing the jury that heat-of-passion manslaughter was a lesser included offense of second-degree murder. For the following reasons, we affirm.
FACTS & PROCEDURAL HISTORY
¶2 Burgess was indicted on one count of first-degree murder for stabbing Cody C. during an altercation outside a party in Winslow. Burgess admitted stabbing Cody, but claimed that he did so in self-defense. At trial, Burgess testified that Cody followed him from the party and pushed him from behind several times before shoving him to the ground. He also testified that Cody lunged toward him after he had pulled out his knife, but he had not realized that the knife had even nicked Cody. The medical examiner testified, however, that the knife penetrated about five inches into Cody's chest and perforated his heart, causing his death.
¶3 The jury convicted Burgess of second-degree murder as a lesser-included offense of first-degree murder, and the trial court sentenced him to an aggravated term of 20 years in prison.
DISCUSSION
I. Voluntariness of Confession
¶4 Burgess first argues that the trial court abused its discretion by denying his motion to suppress his confession, claiming that the evidence demonstrated that his will was overborne by the officers' threats and promises, coupled with his shock at his friend's death and the photographs depicting the wound, his lack of sleep, alcohol intoxication, and his many hours in jail, four of them without water or a bathroom break.
¶5 Trial courts presume confessions to be involuntary, State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994), but we review a trial court's ruling on a motion to suppress for an abuse of discretion, State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012). In our review, "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, 76 ¶ 8, 179 P.3d 954, 956 (App. 2008). 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). In evaluating voluntariness, we "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). Coercive police activity is a necessary predicate to a finding that a statement is involuntary. State v. Smith, 193 Ariz. 452, 457 ¶ 14, 974 P.2d 431, 436 (1999) (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
¶6 The interrogating officers testified at the evidentiary hearing. After considering their testimony and reviewing the videotaped confession, the trial court found that Burgess had been advised of his Miranda rights and waived them. The court also found that Burgess was (1) "coherent and thinking clearly even though he may have been tired and had consumed alcoholic beverages"; (2) that he made the statements "without force, threats or promises"; (3) that his "will was not overborne"; and (4) that his statements were voluntary.
¶7 After reviewing the videotape and the transcript of the testimony at the voluntariness hearing, we find nothing impermissibly coercive in the officers' interrogation, nor any indication that Burgess's will was overborne. Burgess identifies as "direct and implied promises/threats" the officers' comments: "Help your brother, if not him, the parents," "You're just making this harder on yourself," "This is your one chance," and "I guarantee he's watching what you do right now." Under Arizona law, however, these statements are neither promises nor threats. A police officer's statement does not constitute a "promise" when it does "not offer any benefit to the defendant in exchange for information." State v. Hensley, 137 Ariz. 80, 87, 669 P.2d 58, 65 (1983). The officers did not promise any benefit to Burgess if he admitted stabbing Cody. Rather, the appeals to Burgess's conscience were akin to advice "that it would be better . . . to tell the truth," which is not impermissible. Amaya-Ruiz, 166 Ariz. at 165, 800 P.2d at 1273 (holding that officer's warning, among others, "if you want any forgiveness, you should tell the truth" was not impermissibly coercive). Nor was it impermissible to tell Burgess that this was his "one chance" to tell the truth (before anything he said afterward would be suspect), and he was "just making this harder" on himself. See State v. Walton, 159 Ariz. 571, 579, 769 P.2d 1017, 1025 (1990) (not impermissible to suggest "[g]ive yourself a chance," and "to lie isn't going to help."). Finally, Burgess is wrong in claiming that one of the officers threatened to have an autopsy performed if Burgess did not confess. The videotape demonstrates instead that the officer told Burgess that an autopsy would be performed, and it would show that a knife had caused Cody's death.
¶8 Nor do we agree that the officers overreached or overbore Burgess's will by improperly exploiting his ostensible lack of sleep, alcohol intoxication, isolation, or shock that his childhood friend was dead. We evaluate police conduct "in light of what police should perceive from the objective manifestations of the suspect's physical or mental condition." State v. Carillo, 156 Ariz. 125, 137, 750 P.2d 883, 895 (1988). Burgess had been in jail for four hours before the interrogation, which lasted only two hours, interrupted by many breaks, including a bathroom break and other breaks to obtain fingerprints, draw blood, and collect other evidence. Burgess did not testify at the voluntariness hearing, and the videotape of the interrogation shows that he responded appropriately to questions, and did not appear tired or intoxicated or unduly shocked either by his friend's death, or the photographs that showed that the wound was unlikely to have been caused by anything other than a knife. When Burgess finally admitted stabbing his friend, in fact, he spoke loudly and forcefully. Under the totality of these circumstances, the trial court did not abuse its discretion in concluding that Burgess's statements were voluntary.
II. Jury Instruction on Manslaughter
¶9 Burgess next argues that that the trial court erred in instructing the jury that both reckless and heat-of-passion manslaughter were lesser included offenses of second-degree murder, and should have instead instructed on manslaughter separately, or alternatively, that manslaughter was a lesser included offense of second-degree murder only if committed recklessly. The court instructed the jury that it should consider the second-degree murder charge before addressing the manslaughter charge.
¶10 Burgess did not object at trial on the ground he raises on appeal thus limiting us to review for fundamental error only. Ariz. R. Crim. P. 21.3(c); see also State v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115 P.3d 601, 608 (2005). Burgess accordingly bears the burden of establishing that the court erred, that the error was fundamental, and that the error caused him prejudice. Id. at ¶¶ 23, 26. We review the adequacy of jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145 ¶ 75, 14 P.3d 997, 1015 (2000). The instructions must not mislead the jury. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996).
¶11 Manslaughter, whether committed recklessly or in the heat of passion, is a lesser included offense of second-degree murder. See State v. Gipson, 229 Ariz. 484, 485 ¶ 4, 487 ¶ 17, 277 P.3d 189, 190, 192 (2012); State v. Tucker, 157 Ariz. 433, 447, 759 P.2d 579, 593 (1988). Heat-of-passion manslaughter admittedly is an unusual type of lesser included offense in that "instead of deleting an element of the greater offense, it specifies a different circumstance as a requirement to find the lesser offense," that is, the commission of second-degree murder "upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim." Peak v. Acuna, 203 Ariz. 83, 84 ¶¶ 5-6, 50 P.3d 833, 834 (2002); A.R.S. § 13-1103(A)(2). The instructions the court gave, however, accurately reflected the law, and, in light of the judge's instruction to consider all of the instructions and not ignore any one, did not mislead the jury.
¶12 Finally, Burgess has not shown how the trial court fundamentally erred to his prejudice in instructing the jury on manslaughter as a lesser included offense of second-degree murder. Cf. State v. Garcia, 220 Ariz. 49, 50 ¶ 3, 51-52 ¶¶ 6-8, 202 P.3d 514, 515, 516-17 (App. 2008) (holding that court did not fundamentally err in instructing the jury "to consider whether to return a guilty verdict on second degree murder before considering the manslaughter charge"); State v. Eddington, 226 Ariz. 72, 81-82 ¶¶ 30-32, 244 P.3d 76, 85-86 (App. 2010) (holding that defendant had failed to show prejudice on fundamental error review from similar instruction to consider second-degree murder before considering a heat-of-passion manslaughter charge). We decline to reverse on this basis.
CONCLUSION
¶13 For the foregoing reasons, we affirm Burgess's conviction and sentence.
Miranda v. Arizona, 384 U.S. 436 (1966).