Opinion
Case No. 20030881-CA.
Filed November 10, 2005. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 021404487, The Honorable Fred D. Howard.
Dana M. Facemyer, Provo, for Appellant.
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Orme.
MEMORANDUM DECISION
Vinanti argues that the trial court erred in admitting into evidence two statements he made to a police officer while in custody at the hospital, without receiving a sufficient Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (1966). We disagree.
We assume, without deciding, that Vinanti was in custody and that an inadequate Miranda warning was given. Nevertheless, Vinanti was not being interrogated by the officer when he made his incriminating statements. "[T]he Miranda safeguards come into play whenever a person in custody is subjected to either [interrogation] or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980); see also State v. Riggs, 1999 UT App 271, ¶ 16, 987 P.2d 1281. "[A]n express question from police to a suspect does not amount to interrogation if, under the circumstances, the question was not reasonably likely to elicit an incriminating response." Layton City v. Aragon, 813 P.2d 1213, 1215 (Utah Ct. App. 1991) (emphasis added) (citations omitted). "The likelihood of incrimination must be determined from all of the circumstances; the same question may constitute interrogation in one situation but not in another." Id.
Although the trial court determined that the officer gave a "casual" Miranda warning, we review neither the sufficiency of the Miranda warning given, nor the question of custody.
The trial court properly determined that Vinanti was not being interrogated by the officer at the time he made his incriminating statements. The officer's inquiries regarding Vinanti's well-being, whether he would like to talk in general, and what he would like to talk about, did not constitute interrogation likely to induce incriminating responses.
The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that [Vinanti] invoked and there would be no occasion to determine whether there had been a valid waiver [of his Miranda rights].
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981) (emphasis added). Further, Vinanti's incriminating statements, given hours after the officer's general inquiry, were volunteered and spontaneous. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [the Miranda decision]." Innis, 446 U.S. at 300 (citation and quotations omitted).
Additionally, the trial court's admission of Vinanti's incriminating statements into evidence was not prejudicial. "It is well established that the admission of statements obtained in violation of Miranda can be harmless error." State v. Velarde, 734 P.2d 440, 444 (Utah 1986) (footnote omitted). The alleged error in this case was harmless to Vinanti because he conceded at trial that he killed the victim. At trial, Vinanti argued only that he lacked the necessary criminal intent. Vinanti's statements, "Did I kill her?" and "God, what have I done?" are actually consistent with his trial strategy rather than inimical to it. Therefore, even if erroneously admitted, the statements were not prejudicial to Vinanti's defense.
Vinanti also argues that the trial court erred in admitting into evidence his prior criminal record and prior acts of domestic violence against the victim, in violation of rule 404(b) of the Utah Rules of Evidence. See Utah R. Evid. 404(b). We reject Vinanti's arguments because he failed to provide an adequate transcript of the relevant hearing. Without a transcript, "[Vinanti's] assignment of error stands as a unilateral allegation which the review[ing] court has no power to determine. [An appellate court] simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record." State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982).
Accordingly, we affirm.
WE CONCUR: Pamela T. Greenwood, Judge, and Gregory K. Orme, Judge.