State v Henry William Hall
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FILED MAR 2 52003 NOEL K. DESSAINT CLERK SUPREME COURT BY SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, Arizona Supreme Court No. CR 00 0447 AP Appellee,) Maricopa County Superior CourtNo. CR1997 011695 v. HENRY WILLIAM HALL, Appellant.) OPINION Appeal from the Superior Court in Maricopa County The Honorable Thomas W. O Toole, Judge AFFIRMED IN PART; REVERSED ~ND REMANDED IN PART JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL by Kent E. Cattani, Chief Counsel, Capital Litigation Section and James P. Beene, Assistant Attorney General Attorneys for Appellee Phoenix Thomas A. Gorman Attorney for Appellant B E R C H, Flagstaff Justice On September 22, 1999, a jury William Hall guilty of felony murder, and theft. charge, found armed robbery, Henry kidnapping, The trial judge sentenced him to death for the murder and to terms of years for the other offenses. Defendant was sentenced to death for the murder, this court is automatic. (2001) Defendant (renumbered A.R.S. Ariz. § Rev. Stat. 13 703.04 jurisdiction pursuant to Article 6, Section direct appeal to ( A.R.S. ) (Supp. Because § 13-703.01 2002)). We have 5(3), of the Arizona Constitution, A.R.S. § 13 4031 (2001), and Arizona Rule of Criminal Procedure 31.2 (b) FACTS ¶2 In May of 1997, the Phoenix Police received a report that seventy-six year old Ted Lindberry was missing. He has never been seen since. On May 17, 1997, Lindberry s new Chrysler Sebring was the of subject two traffic stops. On the first occasion, Lee Mileham was stopped and arrested for an outstanding warrant. The officer left the Sebring where it was stopped, intending to return after processing Mileham. hour later, When the officer returned just over an the car was gone. Later that evening, Defendant was approached by officers ¶3 while he was in the car. curb, He drove away, crashed the car into a and was apprehended after attempting to foot. He was arrested and booked for flee the scene aggravated assault on and escape. ¶4 raised Defendant s arrest while in possession of Lindberry s car the Lindberry s suspicion that disappearance. he might When have questioned been involved by members of with the Phoenix Police Department, Defendant denied any knowledge regarding Lindberry s disappearance. We view the sustaining the verdict. P.2d 1097, 1105 (1994) Indeed, Defendant denied knowing either facts in the light most favorable to State v. Gallegos, 178 Ariz. 1, 9, 870 2 Lindberry or Mileham. During their investigation of Lindberry s disappearance, ¶5 the police learned that Lindberry had last been seen on April 25, 1997, leaving Shorty s, a bar on Grand Avenue in Phoenix, with Lee Mileham. On April 26, Lindberry s credit card was used at several locations in the valley, including a Super 8 Motel, which charged the card for a room, a bedspread, and sheets. That charge began a trail of activity on the card that led through Tucson, Arizona, El Paso, Texas, and Deming and Las Cruces, New Mexico. The credit card trail ended in Las Cruces, where a clerk seized the card after being alerted that it was stolen. Further investigation showed that between April 26 and May 5, Lee Mileham had forged Lindberry s signature on at least two credit card receipts and a New Mexico hotel register recovered by the police. Additionally, on April 26, Mileham forged Lindberry s signature to gain access to Lindberry s storage unit. ¶6 In July 1997, the police were contacted by L.C., an inmate who was incarcerated with Defendant Hall at Madison Street Jail. L.C. called the police several times from the jail to provide information regarding the crimes of various inmates. eventually Detective to 2 arranged to meet with a Phoenix Police He Defendant and Lee Mileham were both subsequently charged with the murder of Ted Lindberry. In a separate trial, Mileham was found guilty of first degree murder and sentenced to life in prison. 3 discuss information regarding Lindberry s disappearance. Defendant s involvement in During a series of interviews between July 29 and October 1, 1997, L.C. reported that Defendant told him he had kidnapped, also reportedly robbed, beaten, and killed Lindberry. told L.C. that after killing Defendant Lindberry, he and Mileham had wrapped the body in sheets and dumped it in the desert somewhere between Phoenix and New Mexico. Lindberry s body has never been recovered. In the trunk of Lindberry s ¶7 car, the police discovered some blood and a plastic jug containing urine, which indicated that the victim had met with foul play. The police compared DNA samples from that blood with DNA samples taken from a pillowcase found in Lindberry s apartment and with DNA samples from one of Lindberry s brothers. The DNA samples recovered from the trunk were consistent with both the DNA samples from Lindberry s pillowcase and the DNA samples from his brother. that Lindberry met a While this evidence strongly suggested violent end, it did not directly link Defendant to Lindberry s disappearance and death. ¶8 To connect presented five Defendant had Defendant witnesses, made to Lindberry s including incriminating L,C., L.C., credibility. each One of had the a other split State testified that statements regarding his See infra ¶30-31, 51-54. witnesses personality 4 the who involvement in Lindberry s disappearance. Like murder, had and questionable was under the - influence of marijuana when she overheard Defendant s incriminating statements; Defendant another was a convicted felon who was on heroin when made the incarcerated and, incriminating like L.C., statements; hoping for a reduction based upon his testimony against Defendant; convicted felon incriminating who had been statements the drinking and was third in sentence and the fourth was a when Defendant angry was with made Defendant the for purportedly stealing his property. The only other pieces of evidence linking Defendant ¶9 to Lindberry s disappearance were two surveillance videos taken at the convenience store in Las Cruces, credit card was confiscated. individual with glasses stolen credit card. video was New Mexico, The grainy, where Lindberry s unclear video shows an and a hat attempting to use Lindberry s The State argued that the individual Defendant. Defendant contested the in the identification, claiming to have been in Phoenix during the last part of April and the beginning of May, not with Mileham.3 The store clerk who confiscated the credit card was not allowed to make an in court identification because he had been unable to pick Defendant from a photo line-up when he was first interviewed by the police. Therefore, whether Defendant was the individual in the videos was a contested fact and a focus of Defendant s case. At trial, Defendant called the administrator of the 7th Avenue Hotel, who testified that room 22 was rented to Defendant from April 24 to May 7, 1997. 5 DISCUSSION A. Trial Issues 1. Did the trial court abuse its discretion by denyina Defendant s motion for a new trial on the issue of juror misconduct? - a. ¶10 Juror misconduct Defendant background argues that he must be granted a new trial because of prejudicial juror misconduct stemming from the bailiff s presentation of extrinsic evidence to the jury. ¶11 On case, September the trial Defendant moved response to a 13, court s for a 1999, the day the bailiff quit from Defendant was not in custody. a her job. claiming mistrial, question jury received the that juror, had The the next day, bailiff, told the juror in that The trial judge acknowledged that he had heard such a story but ruled that, even if such an exchange had occurred, it was not prejudicial. ¶12 After trial, setting misconduct, motion, the verdict, forth several Three. weeks supported during the trial by Defendant issues, later, affidavits filed a motion for a new including Defendant from possible filed two jurors, a juror supplemental alleging the bailiff had told jurors that Defendant that had tattoos around his wrists that looked like bracelets, a fact not part the of the evidence presented at trial, and that discussed this information during their deliberations. jurors The trial court held an evidentiary hearing at which ten of the twelve jurors 6 who found Defendant guilty testified. Two jurors who deliberated were not present at the hearing. ¶13 During the hearing, it was revealed that while the trial was in progress, the bailiff had told at least that Defendant had tattoos on his wrists. that the bailiff pointed to other jurors overheard regarding the tattoos. the during the trial, Testimony revealed that five bailiff s conversation E.C. three admitted that they later learned of the evidence, and a fourth, that he was with Of the remaining six jurors who were not present during the conversation with the bailiff, testified E.C., Another juror testified Defendant s wrist indicating the presence of tattoos. one juror, not aware of G.C., who the extrinsic evidence, was impeached by an investigator who testified that G.C. told him about the conversations concerning the tattoos. Further evidence revealed that some of the jurors spent time during deliberations methodically watching surveillance videos from the Quick Mart in New Mexico looking for tattoos on the individual who used Ted Lindberry s credit card. ¶14 In response to questions from the trial judge, the ten jurors testified that they did not see any tattoos on the person in the videos. At the evidentiary hearing, Defendant s counsel played one of the videos from the Quick Mart to show that a tattoo could be seen. For the record, the trial judge indicated that Defendant has barbed wire tattoos on each wrist. 7 ¶15 In a detailed minute entry, [u]ndisputed evidence established the trial judge that the jury found that engaged in misconduct by receiving and considering extrinsic information that was not admitted at trial. He also observed that when the Quick Mart examined videos bracelet, are carefully watch or bracelet [Defendant s] left wrist. the visible wrist mark, for tattoos could jurors be . despite said that seen . . on tattoo can . be . seen . a on the the topic subject was said they of whether any tattoos discussed saw any tattoos. amongst the Therefore, the court s having seen what might have been a bracelet a evidence reasonable that judge denied Defendant s motion, doubt [Defendant] that the extrinsic that he extrinsic finding and inadmissible had tattoos around his wrists did not contribute to the jury verdicts of guilty. to show framed The court noted, however, that despite [though] type tattoo, the trial beyond stop all jurors who testified that they looked nobody , type and suffered actual information being [Defendant] has failed prejudice by this presented to improper and considered and by the jury. b. ¶16 Standard of review A trial court s decision to grant based on alleged jury misconduct absent an abuse of discretion. 917 P.2d 200, 213 (1996) . or deny a new trial generally will not be reversed State v. Jones, 185 Ariz. 471, 484, However, 8 a trial court may order a new trial if jurors receive extrinsic evidence not properly admitted during the trial. Ariz. R. Crim. P. 24.1(c) (3) (i) This court . has adopted the Ninth Circuit s standard of review for such issues, which entitles a defendant to a new trial if the jury receives extrinsic evidence and it cannot be concluded beyond a reasonable doubt that verdict. (1982) Cir. the extrinsic evidence State v. Poland, [a]ny private communication, gives a rise tainted. (1994) Vasguez, In applying that standard, . to strong contribute to 597 F.2d 192, 193 (9th this court observed that that 178 Ariz. the 645 P.2d 784, 798 contact or tampering with a presumption State v. Miller, (citing Remmer v. not 132 Ariz. 269, 283, (citing United States v. 1979)) did the verdict juror has been 555, 557, 875 P.2d 788, United States, 347 U.S. 227, 229, 790 74 S. Ct. 450, 451 (1954); Mattox v. United States, 146 U.S. 140, 148 50, 13 S. Ct. 50, 52 53 warrants a new trial (1892)) . We concluded that juror misconduct if the defense shows actual prejudice or if prejudice maybe fairly presumed from the facts. P.2d at 791 391, 393 received (citing State v. (1981)) and presumed and . Once considered a new trial Id., at 558, 875 Vasquez, 130 Ariz. 103, the defendant extrinsic granted shows evidence, unless the that 105, 634 P.2d the jury prejudice prosecutor must has be proves beyond a reasonable doubt that the extrinsic evidence did not taint the verdict. Id. at 558 60, 875 P.2d at 791 93. 9 c. ¶17 Extrinsic evidence At the evidentiary hearing in the case before us, the trial court correctly noted that Defendant bore the initial burden of proving that the jurors received and considered extrinsic the trial court stated that Defendant evidence. In its ruling, failed show that he suffered actual prejudice. to While the court s finding was correct as far as it went, the court failed to address the second part of the inquiry, whether prejudice could be fairly presumed from the facts of the case. Id. at 558, 875 P.2d at 791. ¶18 In this case, prejudice may be presumed from the facts, for [i]n a criminal case, tampering[,] any private communication, directly or indirectly, contact or with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial. 92 Id. at 558-59, 875 P.2d at 791 (quoting Remmer, 347 U.S. at 229, 74 S. Ct. at 451); cf. Ford v. Wainwright, 477 (plurality) ( In demanded that U.S. 399, capital factfinding 712 (1984) 106 5. proceedings standard of reliability. ); 675 P.2d 710, 411, 2595, generally, procedures State v. Ct. aspire Vickers, 2602 this to a 138 Ariz. (1986) Court has heightened 450, 452, (observing that death penalty cases are treated differently from non-death penalty cases, and finding an appearance of impropriety when a judge who sentenced a defendant to death in a prior case also tried the same defendant in a subsequent -10- capital case) considered . it Most of the jurors received extrinsic evidence and during deliberations. The improper provided to the jury by the trial court s bailiff. evidence was And, of course, we cannot know what effect the extrinsic evi~encemight have had on the two jurors who could not be found, or otherwise did not appear, for the evidentiary hearing. Thus, we cannot avoid the presumption of prejudice to Defendant. ¶19 factors This the determining verdict. conclusion Ninth whether is Circuit strengthened has extrinsic by identified evidence analyzing to assist has several courts contributed to in a Those factors are as follows: 1. whether the prejudicial ambiguously phrased; statement was 2. whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; 3. whether a curative instruction was given or some other step taken to ameliorate the prejudice; 4. the trial context; and 5. whether the statement was insufficiently prejudicial given the issues and evidence in the case. United States v. Keating, (citing Jeffries v. Wood, 147 F.3d 895, 902 03 114 F.3d 1484, 1491 92 Factor four, the trial context, (9th Cir, (9th Cir. 1997)). includes whether the material was actually received, and if so, how; the length of time it was available to the jury; the extent to which the -11- 1998) jurors discussed and considered it; whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict. Id. (quoting Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988)) ¶20 We While find these the first third, factors factor does instructive not apply, in the case at bar. analysis and fourth factors raises a significant of the second, concern regarding the impact of the extrinsic evidence on the outcome of this case. The tattoo admitted evidence may and would been admissible, have not have been merely evidence presented at trial. the Quick Lindberry s Mart in credit court s bailiff New it cumulative was of not other The only evidence tying Defendant to Mexico cards but was and therefore the video told several jurors, to the evidence.4 outside the trial use of The trial setting, that Defendant had tattoos on his wrists, a fact never introduced into evidence and one that might have assisted the jurors in identifying Defendant as the person at the Quick Mart who was using Lindberry s credit cards. Several jurors considered and discussed this evidence and looked for tattoos on the individual by viewing the Quick Mart videos and still shots several times over several Recall that the signatures were Mileham s. -12- on the credit card receipts days. court And finally, no curative instruction was given because the did not know of the situation until after the verdict been returned. had Because Defendant claimed not to have been at the Quick Mart, and because the State offered no other evidence placing Defendant there, his identification as the person in the video was a contested fact that helped tie him to Lindberry s disappearance. ¶21 - The fifth factor whether the evidence was insufficiently prejudicial given the issues and evidence in the case context of the The identity of the person in the video was vital case. State s given asks us to the case. to consider the evidence in the Given Defendant s claim the lack of other evidence tying that it was not he, Defendant and to Lindberry s disappearance, we cannot say that the evidence was insufficiently prejudicial. ¶22 Thus, conclusion that three the of the four evidence might applicable have factors affected favor the the verdict. Certainly nothing presented allows us to discount that possibility. ¶23 In assessing juror misconduct, this court accords deference to the trial judge who held the evidentiary hearing and was in the best evidence. position to assess the effect See State v. Bible, 1201 (1993). 175 Ariz. 549, of the extrinsic 598, 858 P.2d 1152, Although cognizant of the trial court s advantage on this point, we are also mindful that two jurors who sat on the jury that convicted Defendant did not -13 testify at the evidentiary - hearing. We have held that the improper influence of even one juror taints a verdict. 791. Miller, 178 Ariz. at 558, 875 P.2d at Thus we cannot underestimate the possible improper effect of the evidence on the missing two jurors. jurors evidence did not statements that the Moreover, sway despite them, the [t]he effect of extrinsic prejudicial evidence on a juror s deliberation may be substantial even though it is not perceived by the juror and a juror s good faith cannot counter this effect. F.3d at 1491 ¶24 of Jeffries, 114 (internal quotation marks omitted). The trial judge found and it is clear from the transcript the inquiry that jurors received extrinsic evidence of Defendant s tattoos and considered it during their deliberations. Indeed, the record shows that, individually and in small groups, the jurors scrutinized the videos looking for tattoos on the person in the Quick Mart videos. expressly found that in The record suggests and the trial judge a portion of the Quick Mart videos a bracelet tattoo can be seen on the person using Lindberry s credit card. This extrinsic evidence was improperly jurors attention by the court s own bailiff. brought to the The identity of the subject in the Quick Mart videos was in question, as the defense at trial was that Defendant was not the perpetrator of the crimes at issue. These factors, coupled with the court s inability to provide a curative instruction or otherwise mitigate the impact of the extrinsic evidence, support rather than defeat the presumption -14- of prejudice. ¶25 Although Defendant is not entitled to a perfect trial, only a fair one, Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 5. Ct. 1431, is strong. doubt, 1436 (1986), in this case the appearance of impropriety Dispositively, cannot say, beyond a reasonable that the improperly introduced extrinsic evidence did not contribute to the verdict. at 798. at See Poland, 132 Ariz. at 283, Under these circumstances, jury demands Ariz. we that 560, 875 [we] [t]he right to an impartial err in favor of defendant. P.2d at 793. 645 P.2d Therefore, we Miller, must 178 reverse Defendant s conviction and remand for a retrial. - 2. ¶26 made Did the trial court err in denying Defendant s motion to suppress statements he made to L.C. on or after August 31, 1997? Before trial, Defendant moved to suppress statements he to L.C. while Street Jail. Defendant the two were housed together at the Madison The court ultimately denied the motion, a ruling that challenges as error on appeal. Because this issue may arise on retrial, we address it as follows. a. ¶27 Background of statements During Defendant s stay at Madison Street Jail following his May 17 arrest for assault on the police officers at the time of his arrest, he housing block. talked with L.C., another detainee in the same On May 23, 1997, Defendant was taken to the Arizona Department of Corrections, but was returned to the Madison Street -15- Jail on July 12, 1997. On July 22, Defendant was released on his own recognizance. ¶28 Before Defendant was released on July 22, Phoenix Police Detective Daily disappearance. interviewed Ct. 1602 regarding Ted Lindberry s Before commencing questioning, Detective Daily read Defendant his Miranda rights. S. him (1966) Miranda v. Arizona, 384 U.S. 436, 86 Defendant initially answered questions, . but then stopped answering and invoked his right to remain silent.5 ¶29 A week interviewed L.C. silent witness later, as on July 29, 1997, a follow-up to a call L.C. program from jail. The Detective Daily had made to interview the concerned incriminating statements Defendant had reportedly made regarding Ted Lindberry s death while Defendant and L.C. were incarcerated together again in May 1997. L.C. was interviewed on because of a faulty recording of the July 29 interview. was out of jail from July 22, but was arrested aggravated Soon assault thereafter, statements silent. 6 again on charge L.C. The trial Defendant 1997, August 31 Defendant through August of that year, 31 in connection and returned to Madison again July contacted Detective with Street the Jail.6 Daily, who court did not allow into evidence any made after he invoked his right to remain This charge stemmed from Defendant s arrest, during which he purportedly drove Lindberry s car toward a police officer. The charge had nothing to do with the assault, kidnapping, and murder for which he received the death sentence at issue in this case. -16- - interviewed him on September 29 and October 1, 1997 regarding additional statements Defendant had purportedly made. ¶30 At the suppression hearing, L.C. testified that he had been incarcerated with Defendant in May of 1997 and that Defendant had revealed information contacted prosecutor learning the police on his and case. additional about a murder he had committed. asked Detective The Detective information during Daily to talk agreed to do Defendant s so. L.C. to the After subsequent incarceration for the assault charge, L.C. called Detective Daily again. ¶31 L.C. testified that during the July 29 and 31 interviews he provided most of the information he had learned from Defendant, but after Defendant was re arrested he learned specific details of how the victim was beaten, door, that a key broke off in Lindberry s and that Lindberry s credit card was used at a hotel, Some of L.C. s later conversations with Defendant took place while both were allegedly drunk from home-made prison wine. while Defendant initiated the conversation, L.C. stated that, he encouraged it and did not act at the direction of the police, who had told him that he could not serve as a police agent. In November, 1997, the State rewarded L.C. for his information by dismissing an allegation of a prior conviction at sentencing in exchange for his testimony at Defendant s trial. -17- b. ¶32 The statements at trial Defendant conceded the admissibility of any statements he made to L.C. before July 22, the day he was read his Miranda rights and questioned by Detective Daily, but he moved to suppress any statements made after he was re-arrested on August 31. The trial court granted the motion and suppressed statements Defendant made to L.C. after August 31, 1997, as an agent for the State. on the ground that L.C. was acting The court also found, however, that Defendant s statements were voluntarily made and that there was no evidence that [Defendant s statements] were in any way the result of any coercion, ¶33 threats, pressure, promises, et cetera. Before L.C. testified at trial, he was instructed that he could testify only about conversations he had with Defendant before During Defendant August 31, 1997. L.C. s testimony, objected and moved for a mistrial, claiming that L.C. statements Defendant made after August 31, the court s instructions. The trial 1997, court testified to in violation of denied the motion, stating that Defendant could cross-examine L.C. about when he heard the various statements. ¶34 During cross examination of L.C., the State stipulated that L.C. testified regarding some matters not included in the July 29 and 31 interviews. On re-direct, L.C. claimed he had known that information but held it back during the first two interviews. ¶35 The trial court considered -18- additional arguments and briefing on whether Defendant s Fifth Amendment Miranda rights were violated. On September 2, 1999, 496 U.S. 292, 110 S. Ct. 2394 relying on Illinois v. (1990), Perkins, the trial court reversed its previous ruling and held that admitting into evidence Defendant s conversations with to L.C. occurring after August 31, 1997, did not violate Defendant s Fifth Amendment rights. as in Perkins, admission into evidence of jailhouse admissions made by an uncharged defendant to his applicable reaffirmed Fifth its The court found that, Amendment finding that [an informant] rights. 7 Miranda there did not violate was court evidence no The that [Defendant s statements to L.C.] were induced by or the result of any coercion, threats, pressure or promises of any sort, direct or indirect[,] by [L.C.]. ¶36 trial The Defendant s right court incarceration with Lindberry and any crimes therefore counsel had not attached. 5. for the found that, assault, his at the time of Sixth Amendment to counsel was not violated because Defendant had not been charged 106 also Ct. 477, 489 relating to Defendant s the disappearance Sixth Amendment of right Ted to See Maine v. Moulton, 474 U.S. 159, 180, (1985) (stating that to exclude evidence The court stated that the State and L.C. had reached an understanding that L.C. could act as an agent of the State. This finding contradicts the trial court s earlier recognition that Detective Daily had no idea that Defendant would ever turn up in the jail again after his initial interviews with L.C. Moreover, the record reflects that the police had told L.C. that he could not be a police agent. -19- pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public s interest in the investigation of criminal activities ); State v. Hitch, 772 P.2d 1150, c. ¶37 agent 1152 54 160 Ariz. 297, 299 301, (App. 1989). Standard of review Defendant maintains that any statements made to L.C., an of the State, after July 22, 1997, should not have been admitted because Defendant invoked his Miranda rights during the July 22 interview regarding Lindberry s disappearance. This court reviews a trial court s ruling on a motion to suppress evidence for abuse of discretion. 273, 277 State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d (2002) d. ¶38 Suppression argument Defendant argues first that the State must show that he voluntarily Arizona, waived his 451 U.S. 477, prohibited statement. from rights 101 S. Ct. reinitiating Edwards and, second, 1880 contact held that once a citing Edwards v. (1981), that the State was with person him to invokes obtain the a Fifth Amendment right to counsel, the police cannot ask further questions until that person is provided counsel. at 1885. the Edwards is inapplicable transcript of Defendant s Id. at 484 85, 101 5. Ct. in this case, July -20- 22, 1997 however, because interview with Detective Daily clearly shows that Defendant invoked only his right to remain Mosley, silent, 423 U.S. not his right 96, 104 n.lO, counsel.8 to See Michigan 96 5. Ct. 321, 326 n.10 (1975) v. In . Miranda, the Court distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that the interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney. 1628) . Id. (quoting Miranda, 384 U.S. at 474, 86 S. Ct. at Because Defendant never requested an attorney, the State could have reinitiated questioning and Defendant s statements would have been admissible as long as the State could show that he knowingly and voluntarily waived his rights. ¶39 Inmate L.C. did not read Defendant before their jail cell conversation, his Miranda rights nor was Defendant aware that L.C. might have been an agent of the State. But the Supreme Court has held that Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. at 2394. Perkins, 496 U.S. at 294, 110 S. Ct. For example, in United States v. Stubbs, the court held that Miranda warnings are not required when the cellmate is not actually an undercover law enforcement agent but instead is at The State fails to make this distinction and Defendant s briefs state that Defendant invoked his rights, implying that he invoked all relevant rights. But the transcript of the interview shows that Defendant invoked only his right to remain silent. -21- best a confidential informant. 1991) (footnote omitted) 944 F.2d 828, 831 32 (11th Cir. Nor are Miranda warnings necessary when . a jail visitor acts as an agent of the State. Connecticut, Court 917 F.2d 747, 750 51 (2d Cir. See Alexander 1990) The Supreme . has reasoned that the concerns underlying Miranda implicated in such ingredients of a circumstances because police-dominated atmosphere v. [t]he are not essential and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. 110 S. chose Ct. to at 2397. speak to Perkins, 496 U.S. at 296, The same is true in this fellow inmate L.C. Thus case. there Defendant has been no violation of Defendant s right to remain silent. ¶40 Defendant argues that Perkins is distinguishable because, unlike the defendant Miranda rights.9 in Perkins, he had previously invoked his Defendant relies on Justice Brennan s statement in concurrence in Perkins that [i]f respondent had invoked either [his right to remain silent or his right to counsel], would focus right. whether 496 U.S. at 300 concurring) however, on . have Courts applied he ~ that subsequently waived the 110 5. Ct. at 2399 n.* have Perkins even addressed if a the inquiry (Brennan, J., similar suspect particular arguments, had previously Recall, however, that Defendant had invoked only his right to remain silent, not his right to counsel. Counsel s statement that Defendant had invoked his rights is therefore somewhat misleading. -22- invoked both the right to remain silent and the right to counsel. See Stubbs, 944 F.2d at 832 n.3; Alexander, v. Guilmette, 2 Cal. Rptr. 2d 750, 753 54 the analysis custodial is the Supreme interrogation, Court s there 917 F.2d at 751; People (App. 1991) reasoning cannot be Critical to . that, a absent violation of a a defendant s Fifth Amendment Miranda rights and thus there would be no occasion to determine whether there had been a valid waiver of those rights. Defendant s Edwards, 451 U.S. at 486, 101 S. Ct. at 1885. conversations interrogations. with L.C. Consequently, this were not court custodial need not Here, police determine whether Defendant validly waived his rights before speaking to L.C. because Defendant s Miranda rights were not implicated. ¶41 Defendant also argues that his statements See id. ° to L.C. were not voluntary because some of the conversations took place while drinking home made prison wine. record supports, that there But the trial court found, and the was no evidence that [Defendant s statements to L.C.] were induced by or the result of any coercion, threats, pressure or promises of any sort, from [L.C.]. The trial court did not direct or indirect[,] err in admitting into The heading in Defendant s opening brief claims that allowing L.C. s testimony regarding Defendant s statements after August 31 also violated Article 2, Sections 4 and 24, of the Arizona Constitution. This argument is not addressed further in the brief, nor was it raised below. Only one state has rejected Perkins on state law grounds. Boehm v. State, 944 P.2d 269, 271 & n.1 (Nev. 1997) We do not address the question because Defendant has presented no argument to support it. See State v. Kemp, 185 Ariz. 52, 57, 912 P.2d 1281, 1286 (1996) . -23- evidence all of L.C. s testimony about his conversations with Defendant. 3. Did the State establish the corpus delicti and was there sufficient evidence to supoort the jury s verdict? - ¶42 At the close of the State s case, Defendant moved for a judgment of acquittal on the murder charge, arguing that the State had presented insufficient evidence, that the testimony of the witnesses should be discounted, that the State failed to establish the corpus delicti of the crimes charged, and that he could not be convicted solely by his own uncorroborated statements. R. Crim. P. 20(a). a classic See Ariz. The trial court denied the motion, calling this case of circumstantial evidence, and observing that there s more than substantial evidence to go to the jury on all of these counts. a. ¶43 Corpus Delicti The State must establish the corpus delicti of a homicide by showing that the alleged injury to the victim case death, in this occurred and that the injury was caused by criminal conduct rather than- by suicide or accident. State v. Atwood, 171 Ariz. 576, 598, 832 P.2d 593, 615 (1992), disapproved on other grounds by State v. Nordstrom, (2001) ; State v. (1983) . defendant 200 Ariz. 229, 241, Gillies, 135 Ariz. -500, ¶ 25, 25 P.3d 717, 506, 662 P.2d 1007, 729 1013 The corpus delicti doctrine incorporates the rule that a cannot be convicted of -24- a crime based solely upon an uncorroborated confession or admission. 348 U.S. 506, Smith v. United States, 147, 152, 75 S. Ct. 194, 197 (1954); Gillies, 662 P.2d at 1013. 135 Ariz. at But [o]nly a reasonable inference of the corpus delicti need exist before a confession may be considered. Gillies, 135 Ariz. at 506, 662 P.2d at 1013. that inference can be circumstantial. 99, 112, 297 P. 1029, State v. Hernandez, As as long 1034 (1931), 83 Ariz. 279, the State Burrows v. State, 38 Ariz. overruled on other grounds by 282, ultimately Evidence supporting 320 P.2d 467, submits adequate 469 proof (1958) of the corpus delicti before it rests, the defendant s statements may be admitted. (App. State v. Jones, 198 Ariz. 18, 23, ¶ 14, 6 P.3d 323, 328 2000) ¶44 In this case, the State showed the following facts. On April 25, 1997, Lindberry had attended a doctor s appointment. He was scheduled for another appeared. Shorty s Before April 25, 1997, Bar on received a call going Grand on May 2, 1997, but never Lindberry had been a regular at Avenue. On April 25, 1997, Lindberry from Lee Mileham and told a friend that to meet Mileham evening. appointment and one of Mileham s friends he was later that Lindberry was last seen leaving Shorty s with Mileham. Defendant and Mileham were later seen in Lindberry s car, without Lindberry, and both were arrested, driving Lindberry s car. Defendant, in separate incidents, while While riding in the car with Mileham and Mileham s son observed a gun in the car. -25- ¶45 Lindberry was a very clean and organized person who kept his car and storage unit in immaculate condition. police recovered Lindberry s car, it had been trashed door handles and speakers had been ripped out. unit was also found in disarray. left town, stated he usually earlier, Defendant s possession. the and the Lindberry s storage It was known that when Lindberry placed his car however, But when the car in his was storage eventually unit. As found in On April 26, 1997, Mileham signed into the storage unit, misspelling Lindberry s name. Lindberry s passport was found in the storage unit, suggesting that he had not left the country. ¶46 5 in Lindberry s credit card was used between April 26 and May Phoenix and Tucson, Arizona, Deming and Las Cruces, New Mexico, and El Paso, Texas. On May 5, the credit card was finally picked up someone as stolen, from convenience market in Las Cruces. card, clearly not Lindberry, in a One of the charges on the credit incurred at a Super 8 Motel in Goodyear, was for a missing bedspread and sheets. ¶47 play, To further demonstrate that Lindberry had met with foul the State presented evidence of blood stains consistent with Lindberry s brother s blood and a one gallon jug containing human urine found in the trunk of Lindberry s car. the trunk also matched six of seven sites Lindberry s pillowcase. Although -26- the The blood found in of DNA recovered police conducted from three searches, Lindberry s body was never found. This circumstantial evidence, taken together, provided a reasonable basis from which the jurors could infer that Lindberry was dead and that his death resulted from established criminal and conduct. Defendant s Thus, the statements corpus to was witnesses the delicti who testified were properly admitted. contends, - ¶48 Defendant hold that the body of the deceased must be found and identified to show corpus delicti. Crim. App. 1986) . however, that many jurisdictions Harris v. State, 738 S.W.2d 207, 220 This is incorrect. (Tex. The body of a missing person generally has not been required to establish the corpus delicti for homicide. E.g., & nn.11 12 Virgin Islands v. Harris, (3d Cir. 1991) 938 F.2d 401, (surveying cases 411, and noting that both federal and state cases observe the no body required rule) one notable found. Id. exception at 411 is n.10 Texas, which (citing requires Harris, 415 that 738 a S.W.2,d The . body be at 207). Defendant does not argue that Arizona should adopt such a rule and we decline to do so. b. ¶49 Sufficiency of the evidence Defendant considered, the maintains evidence that was even if his insufficient statements to are sustain his convictions and his motion for a judgment of acquittal should have been granted. is A judgment of acquittal pursuant to [R]ule 20 appropriate only when no substantial -27- evidence . warrants . a conviction. Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. 290, 908 P.2d 1062, physical evidence 1075 (1996) tying State v. Spears, 184 Ariz. 277, (citation omitted) Defendant to the crime Although the . was minimal, physical evidence is not required to sustain a conviction totality of the reasonable doubt. circumstances State v. 975 P.2d 75, 84 witnesses, guilt Fulminante, 193 Ariz. 485, beyond a 494, ¶ 26, (1999) ¶50 demonstrates if the Five incriminating statements including L.C., Defendant made. testified about See supra ¶(J[ 30 31 for L.C. s statements. ¶5]. V.C. testified that Defendant stated that he had beaten a guy with the butt of a gun and dumped the body between Phoenix and New Mexico. Defendant had added that Lindberry s car had not been reported stolen yet. ¶52 D.F. testified that he had confronted Defendant and told him that he knew that he had killed the guy who owned the car Defendant was driving and that he did not want to be involved, and Defendant had responded, [t]hat s cool. D.F. also testified that Defendant had told him that Mileham was dope sick and had not The State introduced substantial physical evidence: blood, urine, saliva, signed receipts, etc. But while this evidence tends to show that Lindberry met with foul play, it does not directly link Defendant to the crimes. 28 -- - participated in the killing and that Lindberry s body was dumped between Phoenix and New Mexico. ¶53 D.G. testified that Defendant brought the subject of the murder up on Defendant more made than the one occasion following while statements: in jail, Mileham and that arranged a meeting with an older person whom Mileham knew so that they could rob him. Defendant beat the man and they dumped the body on the east side of the Palo Verde power plant. The body was never found. The victim had a storage unit in which he kept items; Defendant went to the storage unit with someone to get the property and they had a code to get in. Defendant and Mileham used the victim s credit card, drove his car to Las Cruces, New Mexico and back, and one of them had gotten sick. Once they returned to Phoenix, the police had pulled Mileham over while he was driving the victim s car. ¶54 S.R. statements: testified that Defendant to get cigarettes. Defendant the following When S.R. saw Defendant in Lindberry s car, Defendant told him it belonged to an older man. going made into During the the car and robbery, Defendant and Mileham were rob the Mileham car s used owner a of his pistol and and Mileham directed Lindberry to drive to the desert. They gave Lindberry a shot of dope to calm him down, but he went into convulsions after the shot and died. the desert somewhere. They dropped the body in Mileham was too doped up to remember where -29- they left the body. took the car. Defendant grabbed Lindberry s wallet and they Defendant and Mileham used the credit card in the wallet to buy things like VCRs and sold them elsewhere. Defendant and Mileham using the credit then drove Lindberry s card to buy gas. briefcase of fake - car to New Mexico, Finally, Rolexes that he Defendant said claimed came to have a from Lindberry s Defendant s statements, storage unit. ¶55 The witnesses testimony of combined with the evidence that Lindberry had met with foul play, was sufficient to support the jury s verdict that Defendant guilty of felony murder, kidnapping, robbery, and theft. was Defendant maintains that the witnesses were not credible and their testimony must be discounted informants, felons, because the witnesses drug abusers, however, State v. 149, ¶ 39, The jury apparently 133, found either jailhouse or a combination of the three. The credibility of witnesses, Cañez, 202 Ariz. were these is a matter for the jury. 42 P.3d 564, witnesses 580 (2002) credible despite Defendant s counsel s meticulous impeachment of the witnesses with their prior felonies, their drug and alcohol use, how or whether their substance use affected their recollection of the events to which they testified, 4. ¶56 e.g., and one witness s split personality. Did the court s reasonable doubt instruction, approved in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), deprive Defendant of his right to due process of law by lowering the State s burden of oroof? This court has repeatedly rejected this argument. Cahez, 202 Ariz. at 156, ¶ 76, -30- 42 P.3d at 587; State v. See, Van Adams, 194 Ariz. B. 408, Sentencing ¶57 418, ¶~T 29 30, 984 P.2d 16, 26 (1999) Issues Because we reverse and remand this case for retrial, we do not reach the sentencing issues argued on appeal. C. Issues Raised to Avoid Preclusion ¶58 Defendant default raises several issues to avoid procedural and to preserve the issues for further review. Because this court has ordered reversal and remand for a new trial based on juror misconduct, we do not address these issues at this time. CONCLUS ION ¶59 We affirm Defendant s conviction for the theft of the vehicle, and, for the foregoing reasons, we reverse the convictions for murder, armed robbery, and kidnapping and the sentences thereon, and we remand the case for further proceedings consistent with this opinion. Rebecca White Berch, Justice CONCURRING: Charles S. Jones, Chief Justice Ruth V. McGregor, Vice Chief Justice Stanley G. Feldman, Michael D. Justice (retired) Ryan, Justice -31-
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