Opinion
No. 1 CA-CR 18-0356
08-22-2019
STATE OF ARIZONA, Appellee, v. FRANCISCO SERRANO HERNANDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Nicholas Chapman-Hushek Counsel for Appellee Yuma County Legal Defender's Office, Yuma By Joshua James Cordova Co-counsel for Appellant The Law Offices of Ryan C. Hengl Esq. PLC, Yuma By Ryan Christopher Hengl Co-counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yuma County
No. S1400CR201600151
The Honorable David M. Haws, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee Yuma County Legal Defender's Office, Yuma
By Joshua James Cordova
Co-counsel for Appellant The Law Offices of Ryan C. Hengl Esq. PLC, Yuma
By Ryan Christopher Hengl
Co-counsel for Appellant
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined. WEINZWEIG, Judge:
¶1 Francisco Serrano Hernandez appeals his convictions and sentences for first degree murder, kidnapping and conspiracy to commit first degree murder. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the evidence and all reasonable inferences in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, 476, ¶ 2 (App. 2005). Hernandez shared a trailer with three roommates in January 2016, including L.D., A.S. and J.M. A mutual friend, Emmanuel, often visited the trailer to drink alcohol. Emmanuel visited one afternoon when only Hernandez and J.M. were home. An argument ensued and Emmanuel left. A.S. heard about the argument when he returned home and told Hernandez to lure Emmanuel back to the trailer. A.S. warned it would be Emmanuel's "last day."
¶3 Emmanuel drove back to the trailer. A.S. met Emmanuel outside with Hernandez. A.S. shot Emmanuel at least three times with a handgun. L.D. heard the gunshots and ran outside. Emmanuel was sprawled out in the parking lot, barely alive and mortally wounded. A.S. and Hernandez stood near the body. A.S. continued pointing the gun at Emmanuel and warned L.D. not to call the police. A.S. and Hernandez lifted Emmanuel's body from the pavement and tossed him into the trunk of his own car. A.S. then drove Emmanuel's car and body from the scene, dumping the body in a ditch near a cauliflower field and discarding the car in a parking lot. Later that night, Hernandez became concerned about his fingerprints on Emmanuel's clothing. A.S. and Hernandez left the trailer together and were seen returning with Emmanuel's clothes. Hernandez later blamed A.S., insisting that A.S. threatened violence if Hernandez did not help cover-up the murder.
¶4 A farmer found Emmanuel's body the next morning and called the police. An autopsy revealed that Emmanuel died from gunshot wounds.
¶5 Police arrested Hernandez a few days later on false identification charges. Because Hernandez was "extremely intoxicated," however, police waited until the next morning before interviewing him. The interview was conducted in Spanish by Sergeant Edgar Guerra of the Yuma County Sheriff's Office. Guerra's first language was Spanish and he spoke it at home. Sergeant Guerra read Hernandez his Miranda warnings in Spanish. Guerra testified that he "actually took the time to explain what his rights were several times before going into the interview." He also asked questions to clarify Hernandez's responses. In one continuous nearly two-hour interview, Hernandez answered questions about the false identification allegations and his involvement in Emmanuel's murder.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶6 The State charged Hernandez with first degree murder (count 1), kidnapping (count 2), conspiracy to commit first degree murder (count 3), and attempted first degree murder (count 4).
¶7 Before trial, Hernandez moved to suppress any incriminating statements he made during his interview with Sergeant Guerra. Hernandez argued that he unequivocally invoked his right to remain silent, which Guerra ignored, rendering his statements involuntary and in violation of Miranda. The superior court held a suppression hearing on the motion and heard testimony from Sergeant Guerra and an interpreter. Sergeant Guerra testified that Hernandez never asked to end the interview. The court listened to an audio recording of the interrogation, although not in open court. Based on the evidence, the court denied the motion to suppress, concluding that Hernandez had been advised of his Miranda rights and never unambiguously invoked his right to remain silent.
¶8 After a 15-day trial, the jury returned guilty verdicts on all counts except count 4. The court sentenced Hernandez to concurrent terms of life imprisonment without the possibility of release for count 1, and life imprisonment with a possibility of release after 25 years for count 3, followed by a term of 10.5 years for count 2. Hernandez timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
A. Hernandez Did Not Invoke His Right to Remain Silent
¶9 Hernandez first argues that the superior court abused its discretion by denying his motion to suppress any incriminating statements he made to Sergeant Guerra because Guerra violated his Miranda rights by failing to honor Hernandez's "unequivocal and unambiguous" invocation of his right to remain silent and continued to question him.
¶10 After hearing the evidence, listening to live testimony and assessing credibility, the superior court found that Hernandez did not invoke his right to remain silent. We review that decision for an abuse of discretion, "considering the facts in the light most favorable to sustaining the ruling," State v. Valenzuela, 239 Ariz. 299, 302, ¶ 9 (2016), and deferring to the court's assessment of witness credibility, State v. Estrada, 209 Ariz. 287, 292, ¶ 22 (App. 2004). Our inquiry is limited to the evidence offered at the suppression hearing. State v. Rushing, 243 Ariz. 212, 225, ¶ 56 (2017).
¶11 Police questioning must cease when a suspect invokes his right to remain silent during a custodial interrogation. Miranda, 384 U.S. at 473-74. Evidence obtained in violation of a suspect's right to remain silent is subject to suppression at trial. State v. Rosengren, 199 Ariz. 112, 119-20, ¶¶ 20, 22-23 (App. 2000). But the invocation must be unequivocal and unambiguous, and police need not cease interrogating a suspect who might be invoking the right to remain silent. Davis v. United States, 512 U.S. 452, 459 (1994); see Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (standards for invoking right to remain silent are same as those for invoking right to counsel). The suspect must invoke his rights with sufficient clarity "from the perspective of a reasonable officer under the totality of the circumstances." State v. Payne, 233 Ariz. 484, 501, ¶ 40 (2013). Police need not clarify an ambiguous request. Davis, 512 U.S. at 461-62.
¶12 The evidence from the suppression hearing supports the superior court's finding that Hernandez did not unequivocally and unambiguously invoke his right to remain silent and terminate the interview. A transcript of the interview confirms that Sergeant Guerra informed Hernandez two or three times of his rights to remain silent and hire counsel. Hernandez responded that he understood his rights and agreed to answer Sergeant Guerra's questions. At the same time, Hernandez made clear that he might have no relevant information in response to the questions because Sergeant Guerra had not explained the interview's purpose, and asked what the questions were "about," observing "[w]hat would I say, if I don't know anything?" Sergeant Guerra answered that the questions were "about [the] investigation we're doing that I'm going to tell you about right now."
The State and Hernandez each provided transcripts of the interview, which contained slight interpretation differences. The superior court compared both transcripts in making its determination.
¶13 Hernandez's responses to police questions "were not unambiguous invocations of his right to remain silent." Rushing, 243 Ariz. at 226, ¶ 59. A reasonable police detective could have viewed Hernandez's "words, demeanor, and body language," id., to show he first wanted to know what the interrogation was about and then determine if he had information and needed to exercise his right to remain silent.
¶14 We are not persuaded that Hernandez unambiguously invoked his right to remain silent at any point in the interview. Hernandez points to his inconclusive "uh-huh" response to an ambiguous question as his unambiguous invocation of rights, but just second later, Hernandez answered "yes" to "I'm asking you if you're willing to answer questions?" Hernandez then reconfirmed his willingness after Sergeant Guerra mentioned the false identification charges, responding "Uh-huh, those I can answer." But even if "uh-huh" might be construed as an affirmative response and invocation of rights, the superior court did not abuse its discretion on this record when it found that Hernandez did not invoke his right to remain silent after hearing and weighing the evidence. See Estrada, 209 Ariz. at 292, ¶ 22.
¶15 Nor was Sergeant Guerra required to reread Hernandez his Miranda rights as the interview moved from one topic to the next. State v. Trostle, 191 Ariz. 4, 14 (1997) ("[A]bsent circumstances suggesting that a suspect is not fully aware of his rights, there is no obligation to repeat them."). We find no abuse of discretion.
B. Alleged Prosecutorial Misconduct
¶16 Hernandez argues the superior court erred in denying his motion for new trial based on prosecutorial misconduct and non-disclosure violations related to L.D.'s testimony at trial. We review for an abuse of discretion, State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006), and will overturn the ruling only on an affirmative showing that the court acted arbitrarily, State v. Arvallo, 232 Ariz. 200, 201, ¶ 7 (App. 2013). We examine each argument in turn.
¶17 Hernandez first claims prosecutorial misconduct and a Brady violation based on L.D.'s trial testimony, where he provided additional details that inculpated Hernandez in the murder. L.D. testified that Hernandez voluntarily participated in luring Emmanuel to the trailer, helped place Emmanuel in the trunk, and tried to discard items linking him to the murder. L.D. had not provided the additional details to police in his prior interviews and the details had not been disclosed to Hernandez's counsel before trial.
Brady v. Maryland, 373 U.S. 83 (1963).
¶18 To show prosecutorial misconduct, a defendant must establish that "the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Goudeau, 239 Ariz. 421, 465, ¶ 193 (2016) (quotation omitted). "A conviction will be reversed for prosecutorial misconduct only if (1) the prosecutor committed misconduct and (2) a reasonable likelihood exists that the prosecutor's misconduct could have affected the verdict." Id. (quotation omitted). Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety," but "intentional conduct which the prosecutor knows to be improper and prejudicial." State v. Martinez, 221 Ariz. 383, 393, ¶ 36 (App. 2009) (quotation omitted).
¶19 Brady prohibits the prosecution from withholding material, exculpatory evidence from a defendant, including about the credibility of a witness. Giglio v. United States, 405 U.S. 150, 154 (1972); State v. Benson, 232 Ariz. 452, 460, ¶ 24 (2013). "The test for a Brady violation is whether the undisclosed material would have created a reasonable doubt had it been presented to the jury." State v. Jessen, 130 Ariz. 1, 4 (1981). The "mere possibility" that undisclosed evidence might have helped the defense or impacted the jury's verdict is not enough. United States v. Agurs, 427 U.S. 97, 109-10 (1976). More broadly, a prosecutor must comply with the disclosure obligations listed in Arizona Rule of Criminal Procedure 15, Ariz. R. Crim. P. 15.1 (initial and supplemental disclosure requirements), 15.6 (continuing disclosure requirements), which requires "adequate notification to the opposition of one's case-in-chief in return for reciprocal discovery so that undue delay and surprise may be avoided at trial by both sides." State v. Lawrence, 112 Ariz. 20, 22 (1975).
¶20 The court did not abuse its discretion in denying Hernandez's motion for new trial. The prosecutor, police detective and L.D. all avowed that the State knew nothing about L.D.'s new testimony until he took the stand and so testified. Police investigators twice interviewed L.D. in 2016 and the prosecutor disclosed both interviews to Hernandez. The prosecutor also told L.D. about Hernandez's request for a pretrial interview, but L.D. invoked his status as a victim under count 4 and refused to submit to a pretrial interview. See Ariz. Const. art. 2, § 2.1(A)(5) (victim's right to refuse defense interview). The court explained that testimonial inconsistencies are common in trial and the facts here show nothing nefarious. L.D. himself attributed the memory issues to his fear and emotion during initial interviews about a then-recent murder.
¶21 Moreover, Hernandez's counsel had every chance over three days to cross-examine L.D. about his memory issues and did so.
¶22 Hernandez next argues the State should have disclosed that L.D. was undocumented, had "overstayed" his visa and the prosecutor's office had "obtained documents for [L.D.] so he could legally remain" in the country for trial. On this record, Hernandez has not shown the prosecutor committed misconduct or withheld evidence in violation of Brady and Rule 15. The prosecutor should have disclosed any assistance with L.D.'s immigration status before jury selection, but the facts do not show the prosecutor withheld exculpatory evidence, see Benson, 232 Ariz. at 460, ¶ 24, committed misconduct that affected the jury verdicts, see Goudeau, 239 Ariz. at 465, ¶ 193, or caused undue delay or surprise, see Lawrence, 112 Ariz. at 22. Nor do they show prejudice. Here again, Hernandez's counsel thoroughly cross-examined L.D. on his immigration status and pending application for the "u visa" only available to crime victims.
CONCLUSION
¶23 We affirm Hernandez's convictions and sentences.
Hernandez filed a notice of supplemental authorities after oral argument, which the State moved to strike as untimely and improper. We accept the notice and deny the State's motion. --------