Opinion
No. 1 CA-CR 15-0583
12-20-2016
STATE OF ARIZONA, Appellee, v. ROBERT JAMES BURKE, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kevin D. Heade 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2014-110639-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Jon W. Thompson and Judge John C. Gemmill joined. JOHNSEN, Judge:
The Honorable John C. Gemmill, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3, of the Arizona Constitution.
¶1 Robert James Burke appeals his convictions and sentences for multiple sexual offenses committed against a minor. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Burke, a friend of the female victim's father, JV, would babysit the victim, and on at least one occasion, the victim spent the night at Burke's home. PV, the victim's mother, called police to report that the victim had made "allegations" against Burke. After the victim underwent a forensic interview, JV made a confrontation telephone call to Burke, during which Burke made incriminating statements about sexually touching the victim. In a subsequent interview at the police station, Burke made other incriminating statements.
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2 (App. 2015).
¶3 The State charged Burke with two counts of sexual conduct with a minor, both Class 2 felonies and dangerous crimes against children ("Counts 1 and 2"); three counts of molestation of a child, all Class 2 felonies and dangerous crimes against children ("Counts 3-5"); and one count of indecent exposure, a Class 6 felony.
¶4 The State dismissed Count 4 at trial, and the jury returned guilty verdicts on the remaining charges. The court imposed prison terms, including consecutive life sentences with the possibility of parole after 35 years for Counts 1 and 2. With the superior court's permission, Burke timely filed a delayed notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033(A)(1) (2016).
The jury found the victim was under the age of 12 at the time of the conduct charged in Counts 1 and 2. It found the victim was under the age of 15 at the time of the conduct charged in Counts 3, 5 and 6.
Absent material revision after the date of an alleged offense, we cite a statute's current version.
DISCUSSION
A. Fair and Impartial Jury.
¶5 Four days before trial was to begin, Burke submitted a supplemental jury questionnaire and asked the court to use it during voir dire. Burke argued written responses were necessary to ensure a fair and impartial jury because, based on the charged offenses, potential jurors would be hesitant to publicly discuss whether they or any close acquaintances were victims of similar crimes or had been accused of committing similar offenses. The State objected, arguing a written questionnaire was unnecessary and Burke's late request would make it unduly burdensome to create questions mutually satisfactory to the parties and the court. After hearing argument, the court denied Burke's motion. On the second day of voir dire, Burke unsuccessfully moved to strike the panel based on some jurors' emotional accounts given in open court of personal stories relating to sexual crimes. Burke argues the court's rulings denied him a fair and impartial jury.
¶6 "We will not disturb the trial court's selection of the jury in the absence of a showing that a jury of fair and impartial jurors was not chosen." State v. Walden, 183 Ariz. 595, 607 (1995) (quoting State v. Tison, 129 Ariz. 546, 551 (1981)). "We review a trial court's decisions regarding the use and content of jury questionnaires for abuse of discretion." State v. Naranjo, 234 Ariz. 233, 241, ¶ 24 (2014). We also review the court's ruling on a motion to strike a jury panel for abuse of discretion. See State v. Carlson, 202 Ariz. 570, 579, ¶ 29 (2002). A defendant has the burden of proving the jury was not fair and impartial. See State v. Hickman, 205 Ariz. 192, 201, ¶ 41 (2003). "Unless there are objective indications of jurors' prejudice, we will not presume its existence." Tison, 129 Ariz. at 535.
The parties disagree about the applicable standard of review regarding the court's denial of the motion to strike. The State relies on State v. Walton, 159 Ariz. 571 (1989), for the proposition that passing the panel for cause forfeits appellate review except for fundamental error. In that case, however, the defendant never objected to the panel before passing it. Id. at 580-81. Here, on the other hand, Burke moved to strike the panel. We construe his argument as a challenge to the superior court's denial of his motion to strike. Thus, we review for abuse of discretion.
¶7 The superior court allowed Burke to conduct individual voir dire and informed the potential jurors that any of their comments during voir dire could be made in private. Under these circumstances, we discern no abuse of discretion in denying Burke's request for a supplemental jury questionnaire. See State v. Moody, 208 Ariz. 424, 452, ¶ 98 (2004) ("This court has consistently upheld trial courts' refusals to use jury questionnaires when counsel were provided an opportunity to voir dire potential jurors."); State v. Canez, 202 Ariz. 133, 148, ¶ 37 (2002); see also Naranjo, 234 Ariz. at 241, ¶ 23.
¶8 As for his argument that comments by potential jurors during voir dire tainted the jurors who were selected for the jury, Burke offers no objective indication that the jury was tainted. As an example of a number of comments potential jurors made during voir dire, he cites a statement by one: "I will say, when I was listening to what people were saying, I kind of transferred that feeling to my twin daughters that I'm very close with." The juror who made that statement was struck for cause, however, and the record contains no reason to conclude other jurors were tainted by that juror's comments.
All but two of the 34 panel members whose comments Burke cites were excused and did not serve on the jury.
¶9 Burke also argues that another juror who was struck for cause tainted the jury by improperly providing an "expert-like" opinion regarding the veracity of child victims who report sexual offenses committed against them. See State v. Doerr, 193 Ariz. 56, 62, ¶ 19 (1998). After describing an uncle who sexually abused other family members, the juror at issue said, "That messes up the rest of their lives. It's just like - they're innocent, you know, children." This statement, however, does not rise to the "expert-like" level of the improperly suggestive comment discussed in Doerr. Rather, the potential juror here simply disclosed his opinion that children are "innocent," not in the sense that, in his experience, children never lie when alleging sexual abuse.
¶10 Burke further argues the court's references during voir dire to the "victim" in this case and to potential jurors' acquaintances as "victims" of sexual crimes amounted to improper comments on the evidence that prejudiced the jury. Although it would have been preferable to refer to the victim in this case as the "alleged victim," Burke cannot establish that the court's choice of words meant the jury was not fair and impartial; he merely speculates that he suffered prejudice. "We will not, however, indulge in such guesswork." Doerr, 193 Ariz. at 61, ¶ 18. Additionally, Burke did not object to the court's use of the term. See State v. Gonzales, 105 Ariz. 434, 437 (1970) ("Our refusal to reverse because of the prosecutor's remarks is further supported by defense counsel's failure to object to the remarks at the time they were made."). And the court instructed the jury on the presumption of innocence and the applicable burden of proof, thus presumably mitigating whatever harmful effect might have occurred.
¶11 In sum, the superior court did not abuse its discretion in denying Burke's motion to strike the panel. The statements made during voir dire that Burke argues tainted the jury merely reflected the prospective jurors' own biases; without providing objective indicia of the jurors' lack of fairness or impartiality, Burke merely speculates about the harmful effects the statements had on the jury. See Doerr, 193 Ariz. at 62, ¶ 20 (excused panel member's statement during voir dire regarding his personal bias did not improperly taint jury).
B. Denial of Motion for Voluntariness Hearing.
¶12 PV testified that, when the victim disclosed Burke's improper sexual conduct, she asked whether the girl had touched Burke's penis, and the victim denied doing so. During Burke's police interview, however, Burke said the victim did touch him. This touching by the victim led to the charge of molestation of a child in Count 3.
The victim did not testify about inappropriately touching Burke.
¶13 During a break in the direct examination of the police detective who interviewed him, Burke requested a voluntariness hearing to determine whether PV or the victim told the detective before he interviewed Burke that the victim did not touch Burke inappropriately. According to Burke, if the detective knew there were no accusations that the victim touched Burke, "that potentially could be improper influence." Burke added he has a hearing loss that he disclosed to the detective, which he argued was additional evidence that the detective improperly influenced Burke's admission to the touching. To justify the untimeliness of his request for a hearing, Burke explained he had first learned that the victim did not disclose the touching to her mother when the victim and PV testified two trial days before. Burke argues the court's denial of his motion for a voluntariness hearing constitutes reversible error.
¶14 "To be admissible, a [defendant's] statement must be voluntary, not obtained by coercion or improper inducement." State v. Ellison, 213 Ariz. 116, 127, ¶ 30 (2006). We will not find a statement involuntary unless there exists both "coercive police behavior" and "a causal relation between the coercive behavior and the defendant's overborne will." State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008). Although a request for a hearing on the voluntariness of a statement or confession is generally required no later than 20 days before trial, Arizona Rule of Criminal Procedure 16.1(b), a superior court has discretion to conduct a hearing at trial outside the jury's presence if either counsel or the evidence raise a question as to voluntariness. State v. Alvarado, 121 Ariz. 485, 488 (1979).
¶15 The court did not abuse its discretion in denying Burke's request for a voluntariness hearing. Burke seems to argue that, knowing the victim had said nothing about touching Burke's penis, the detective improperly caused Burke to admit the improper touching. But a videotape of the interview reveals the detective questioned Burke in a calm, quiet manner and did not suggest to Burke that the victim had said she touched him improperly. See State v. Conde, 174 Ariz. 30, 35 (App. 1992) (voluntariness is determined by objective review of allegedly coercive police conduct). Nor did the detective's knowledge that Burke was hard of hearing affect the voluntariness of Burke's admissions. See State v. Stanley, 167 Ariz. 519, 524 (1991) ("[W]hile personal circumstances, such as intelligence and mental or emotional status, may be considered in a voluntariness inquiry, the critical element necessary to such a finding is whether police conduct constituted overreaching."); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."); State v. Hoskins, 199 Ariz. 127, 137, ¶ 28 (2000) ("In assessing voluntariness, we consider the totality of circumstances to determine whether the statements were or were not the product of a 'rational intellect and a free will.'") (quoting Mincey v. Arizona, 437 U.S. 385, 398 (1978)).
¶16 To the extent Burke argues the circumstances of his interview, particularly his impaired hearing, required the court to conduct a voluntariness hearing, our review of the recorded interview reveals Burke spoke voluntarily with the detective. Although Burke asked the detective to repeat or clarify some questions, his answers to the questions, when the detective repeated or clarified them, demonstrated he understood the questions. And regarding the specific conduct underlying Count 3, the detective did not initially ask whether the victim touched Burke inappropriately; instead, Burke described an incident of oral/vaginal contact with the victim and admitted on his own accord that the victim also touched his penis. Finally, consistent with the detective's trial testimony, he did not threaten or coerce Burke, nor did he make any promises to compel Burke's admissions. Indeed, the detective did not bring his duty weapon into the interview so as not to appear intimidating to Burke. Under these circumstances, the court properly exercised its discretion in deciding not to conduct a voluntariness hearing during trial.
¶17 Additionally, the jury was instructed to consider the statements Burke made to law enforcement officers only if it determined beyond a reasonable doubt that Burke made the statements voluntarily. During closing arguments, Burke reminded the jury that the victim denied touching his penis, and argued that his interview statements were involuntary due to his poor hearing. The jury's apparent rejection of Burke's argument bolsters our conclusion that the court did not err in denying his motion for a voluntariness hearing.
C. Purported Violation of Confrontation Rights.
¶18 In a related argument, Burke contends the court improperly denied him his right to cross-examine the detective on issues related to the voluntariness of his confession. Specifically, Burke argues the court violated his confrontation rights by precluding questions about what PV and the victim told the detective regarding the victim's account of the incident of touching that underlay Count 3. Burke argues the questioning was relevant to explain the detective's "custodial interrogation strategy."
In making this argument, Burke also mentions Count 4. However, Count 4 was dismissed. We therefore refer only to Count 3. --------
¶19 We review for fundamental error because Burke did not assert at trial that the court violated his confrontation rights by limiting his cross-examination of the detective. See State v. Alvarez, 213 Ariz. 467, 469, ¶ 7 (App. 2006); see also State v. Huerstel, 206 Ariz. 93, 102, ¶ 29 (2003) (hearsay rule and Confrontation Clause are not the same and serve different purposes). To obtain relief under fundamental error review, Burke must show that error occurred, the error was fundamental and that he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22 (2005). Fundamental error is error that "goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. at 568, ¶ 24. The showing required to establish prejudice "differs from case to case." Id. at ¶ 26. A defendant "must show that a reasonable jury, applying the appropriate standard of proof, could have reached a different result." Id. at 569, ¶ 27.
¶20 The Confrontation Clause of the Sixth Amendment protects a defendant's ability to prove a witness's motive or bias. U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 316-17 (1974). The Confrontation Clause, however, does not prevent a trial judge from imposing limits on defense counsel's cross-examination of a prosecution witness; courts retain wide latitude to do so based on, among other things, prejudice, confusion of the issues, relevance, and the applicable rules of evidence. United States v. Scheffer, 523 U.S. 303, 308 (1998); Canez, 202 Ariz. at 153, ¶ 62 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
¶21 As an initial matter, we reject the factual premise of Burke's argument, which is that the detective improperly influenced him to admit the touching. For that reason, whether the detective knew the victim had not said she touched Burke was irrelevant. Supra ¶¶ 15-16. Thus, the only other purpose in eliciting testimony from the detective regarding the victim's failure to mention the touching was to prove the victim had not said she touched Burke. Proving the fact of the matter asserted in such a manner is precisely what the rule against hearsay forbids. Ariz. R. Evid. 801(c) ("'Hearsay' [is] a statement . . . offer[ed] in evidence to prove the truth of the matter asserted in the statement."); Ariz. R. Evid. 802. Because Burke cross-examined PV regarding her daughter's failure to describe the touching, and he otherwise had the opportunity to cross-examine the detective regarding the circumstances of his interrogation, Burke's confrontation rights were not violated.
¶22 Burke also cannot establish prejudice. As noted, PV specifically testified the victim did not disclose that she touched Burke inappropriately, supra ¶ 12, and Burke argued this point during closing argument. The jury apparently believed Burke's admission as to the incident, notwithstanding that the victim had not told anyone about the touching. The detective's testimony would have been consistent with PV's account. No error, fundamental or otherwise occurred, let alone error that resulted in prejudice.
CONCLUSION
¶23 For the foregoing reasons, Burke's convictions and sentences are affirmed.