Opinion
No. 2 CA-CR 2019-0149
10-29-2020
THE STATE OF ARIZONA, Appellee, v. KATHRYN SINKEVITCH, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Michael T. O'Toole, Acting Section Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson 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NOT FOR PUBLICATION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. S1100CR201603399
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Michael T. O'Toole, Acting Section Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Kathryn Sinkevitch appeals from her conviction and sentence for first-degree murder. She argues the trial court erred in (1) denying her motion to suppress statements she made, while out of custody, during a recorded one-party consent phone call; (2) providing the jury with a flight instruction; and (3) admitting as evidence certain documents found in her vehicle. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the conviction, drawing all reasonable inferences against Sinkevitch. State v. Paxton, 186 Ariz. 580, 582 n.1 (App. 1996). In October 2016, several months after the end of her romantic relationship with victim M.A., Sinkevitch gave birth to a child. M.A. sought to establish his paternity and to gain visitation rights. Sinkevitch was "not very happy" about M.A.'s efforts to establish paternity; one co-worker testified that Sinkevitch once questioned whether she could "borrow" another person's newborn "for the day for the DNA test." A different co-worker testified that Sinkevitch and B.H., another co-worker, would "say that it would be easier if [M.A.] wasn't around."
Results from the DNA test indicated that M.A. was, in fact, the biological father of the child.
¶3 In December 2016, while the paternity and visitation dispute was ongoing, M.A. was shot to death in his vehicle just after he pulled into his garage. M.A.'s sister, who had been speaking to him on the phone when he was shot, testified that he had just returned home after taking a DNA test for the paternity lawsuit. She heard him say, "[H]oly shit," followed by three gunshots. Police responding to a call from M.A.'s neighbor reporting gunshots found M.A. slumped over in the driver's seat. He had suffered an apparent gunshot wound near the back of his head from a bullet that had also left "a gunshot hole through the rear drive[r]'s side window."
¶4 The jury viewed footage collected from several surveillance cameras trained on the area outside M.A.'s residence. The footage showed that around 2:00 p.m., just after M.A.'s vehicle pulled into his garage, a person ran toward M.A.'s house from a white van parked across the street. The person wore a hooded sweatshirt and dark pants and carried what appeared to be papers in one hand. The individual ran toward M.A.'s garage, then ran away from the house about eleven seconds later, driving away in the van. A neighbor testified to hearing three gunshots, then observing a white van speed away.
¶5 Police also recovered video footage showing the exterior of Sinkevitch's workplace on the day of M.A.'s murder. That footage showed that at 12:33 p.m., Sinkevitch left the building wearing a hooded sweatshirt. One minute later, a white van belonging to B.H. left the parking lot. Around that same time, footage from another camera captured B.H. eating lunch in the office break room.
¶6 Cell phone location tracking recorded that Sinkevitch had left her workplace around 12:30 p.m. on the day of the murder. She traveled to an area near her residence, and then the phone dropped from the cellular communication network around 1:30 p.m. The phone did not reappear on the cellular network until approximately five minutes before video surveillance showed the white van returning to the parking lot at Sinkevitch's workplace at 3:19 p.m. and Sinkevitch re-entering the building one minute later.
¶7 Police searched B.H.'s van and found a dark-colored hooded sweatshirt with gunshot residue on it. A different hooded sweatshirt, which police seized from Sinkevitch on the date of M.A.'s murder, also had gunshot residue on it. A search of Sinkevitch's laptop computer revealed that she had received a report from a private investigator containing M.A.'s address and that she had searched for that address in Google maps.
¶8 After a nine-day trial, a jury found Sinkevitch guilty of first-degree murder. The trial court sentenced her to natural life in prison. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Third-Party Phone Call Statements
¶9 Sinkevitch first claims the trial court abused its discretion in denying her motion to suppress statements she made while on a phone call with B.H. That call occurred three days after she had been released from police custody. She was not informed that police were listening to or recording the conversation. Sinkevitch now argues that because she had invoked her right to counsel while in police custody, the admission of those statements violated her constitutional right to counsel as protected by Miranda v. Arizona, 384 U.S. 436 (1966). We review a trial court's ruling on a motion to suppress for abuse of discretion, "considering only the evidence presented at the suppression hearing." State v. Manuel, 229 Ariz. 1, ¶ 11 (2011).
¶10 Generally, to reduce the coercive effect of police custody, police may not re-interrogate "a suspect who initially requested counsel" unless there has been "a break in custody" of at least fourteen days or the suspect has re-initiated contact with the police. Maryland v. Shatzer, 559 U.S. 98, 109-10 (2010) (discussing limits of Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). However, the protections stemming from Miranda and Edwards apply only when a suspect is subjected to custodial interrogation, or "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. Absent custodial interrogation, the protections under Miranda and Edwards "do not apply; nor do they govern other, noninterrogative types of interactions between the defendant and the State." Montejo v. Louisiana, 556 U.S. 778, 795 (2009).
¶11 Sinkevitch concedes that she was no longer in police custody when she made the contested statements. Further, the conversation occurred between Sinkevitch and B.H., with no direct questioning by police. And, when Sinkevitch suspected police might have motivated the call, she freely ended the conversation. Therefore, no custodial interrogation occurred to trigger the protections guaranteed by Miranda, and we find no error in the court's admission of these statements.
Flight Instruction
¶12 Sinkevitch next argues the trial court erred in providing the jury with a flight instruction, over her objection. She maintains "there was no evidence in the trial record to support the prosecutor's claims" that she fled. She argues the instruction therefore "allowed an inference of guilt from flight that never happened," violating her due process right to a fair trial.
¶13 We review the trial court's provision of a flight instruction for abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 44 (2013). We review constitutional issues de novo. State v. Glassel, 211 Ariz. 33, ¶ 78 (2005). Flight indicates "a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest." State v. Shields, 26 Ariz. App. 121, 123 (1976). A jury may consider evidence of a defendant's flight as raising an inference of guilt. State v. Edwards, 136 Ariz. 177, 184 (1983). Evidence of flight must either support "a reasonable inference that the flight or attempted flight was open, such as the result of an immediate pursuit," or it must "support the inference that the accused utilized the element of concealment or attempted concealment." State v. Smith, 113 Ariz. 298, 300 (1976). And, a flight instruction is appropriate only when "jurors can infer a defendant's consciousness of guilt" from the evidence of flight. State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014).
¶14 The state presented sufficient evidence that Sinkevitch tried to conceal an attempt to flee the area to merit the trial court's provision of a flight instruction. M.A. was murdered on December 16, and Sinkevitch was released from police custody after questioning on December 17. The following Monday, December 19, Sinkevitch went to work. Police attempted to locate her at her Tempe apartment, but "she was no longer there." Sinkevitch did not work the next day, December 20. That afternoon, police recorded the one-party consent call between Sinkevitch and B.H.
¶15 Police attempted to trace Sinkevitch's location using cell phone data, but her phone "kept dropping, kept disappearing." The search of Sinkevitch's laptop revealed that the day after M.A. was killed, Sinkevitch searched "how to turn off emergency 911 tracking on cell phones" in an internet browser.
¶16 Eventually, police received a call reporting that Sinkevitch was in a location in the northwest outskirts of Phoenix, and they arrested her there. A post-arrest search of her car revealed two hidden license plates that had been stolen from locations within walking distance from her residence. A large, plastic bin was in the backseat of her vehicle, apparently packed with clothes.
However, the license plate that had been on Sinkevitch's car on December 16 was still attached to her vehicle at the time she was arrested on December 21.
¶17 Sinkevitch argues that "no evidence" supported the flight instruction. Although the evidence supporting an inference of flight was not overwhelming, there was not an "absence of any evidence," Smith, 113 Ariz. at 300 (emphasis added), supporting the inference that Sinkevitch planned to leave the area after she suspected police were listening to her one-party consent call with B.H. The evidence supporting that inference included Sinkevitch's internet search for how to avoid cell phone location detection; the subsequent appearance and disappearance of her phone from the cellular network as she traveled toward the Phoenix outskirts; and the presence of stolen license plates and a packed bin in her vehicle.
¶18 Even had no evidence supported a flight instruction, any error would be harmless. Sinkevitch relies on the outcome in Smith, in which our supreme court held that a contested flight instruction given despite an absence of any evidence constituted prejudicial error. 113 Ariz. at 300. But since the 1976 ruling in Smith, our supreme court has instructed appellate courts to review trial error for harmlessness, rather than presuming prejudice. See Solis, 236 Ariz. 285, ¶¶ 8-9, 12 (finding erroneous flight instruction harmless "despite the Smith suggestion that prejudicial error would result if there was no evidence to support the instruction"). Under now-settled law, error is harmless only if, beyond a reasonable doubt, it "did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). Given the overwhelming evidence presented at trial, as set forth above, we conclude beyond a reasonable doubt that the flight instruction did not affect the jury's finding of guilt in this case. Thus, any error in providing this instruction was harmless and did not violate Sinkevitch's right to due process.
Admission of Documents
¶19 Finally, Sinkevitch argues the trial court erred in admitting certain documents found in her car after her arrest. These documents related to the ongoing paternity and visitation dispute between Sinkevitch and M.A. In its closing argument, while discussing Sinkevitch's potential motivation to kill M.A., the state highlighted that the figure seen entering M.A.'s garage before his murder carried papers in one hand. The prosecutor postulated that Sinkevitch "wanted to say something . . . wave [the papers] in his face right before she executed him." The prosecutor then reminded the jury that "those papers, or some papers, related to the paternity dispute [we]re found in [Sinkevitch's] vehicle."
Sinkevitch was originally detained on December 16, the day of M.A.'s murder. The contested documents were not found during a search of her vehicle at that time. Rather, they were found in her vehicle and seized after her arrest, which occurred on December 21. --------
¶20 On appeal, Sinkevitch renews her argument that this evidence was irrelevant. Specifically, she argues that the state could not prove the papers held by the figure in the surveillance video were the same as those found in Sinkevitch's car. And, she maintains that the content of the papers did not go toward proving that M.A. had taken his paternity test on the day he was murdered and were not necessary to prove that a paternity and visitation dispute existed because the dispute was established by other evidence.
¶21 We review the admission of evidence for abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 60 (2004). "We may affirm on any basis supported by the record." State v. Robinson, 153 Ariz. 191, 199 (1987). Evidence is relevant when it has any tendency to make a fact more or less probable than it would have been without the evidence. Ariz. R. Evid. 401(a); see also State v. Fulminante, 193 Ariz. 485, ¶ 57 (1999). The threshold for relevance is low. State v. Champagne, 247 Ariz. 116, ¶ 87 (2019).
¶22 We find no abuse of discretion in the admission of these documents. The papers were relevant to the state's theory that Sinkevitch killed M.A. over the paternity dispute because they allowed the prosecutor to argue that "she carried the paternity papers to the murder." The presence of these documents in Sinkevitch's vehicle made the state's theory that the ongoing paternity lawsuit provided motivation for Sinkevitch to kill M.A. at least somewhat more probable. See Ariz. R. Evid. 401(a). The low threshold for relevance is met here.
¶23 Further, although Sinkevitch is correct the state did not prove the papers carried by the hooded figure in the video were the same documents as those found in her vehicle, this objection goes to the weight of the evidence rather than its admissibility. See State v. Amaya-Ruiz, 166 Ariz. 152, 169 (1990) ("Even if identification is not positive, this fact goes to the weight of the evidence, not its admissibility."). It is for the jury, not the judge, to weigh the evidence. State v. Money, 110 Ariz. 18, 25 (1973) ("[I]t is the jury's function to weigh the evidence as a whole, to resolve any inconsistencies therein, and then to determine whether or not a reasonable doubt exists.").
¶24 Finally, even had the trial court erred in admitting these documents, such error would have been harmless given the substantial evidence supporting the jury's verdict. See Henderson, 210 Ariz. 561, ¶ 18.
Disposition
¶25 For the foregoing reasons, we affirm Sinkevitch's conviction and sentence.