State v. Spink

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SHAWN TERRY SPINK, Appellant.

No. 1 CA-CR 22-0390
FILED 4-16-2024

Appeal from the Superior Court in Maricopa County
No. CR2018-145662-001
The Honorable Roy C. Whitehead, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee

Law Office of Stephen M. Johnson, Phoenix
By Stephen M. Johnson
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Anni Hill Foster and Judge Brian Y. Furuya joined.

H O W E, Judge:

¶1 Shawn Terry Spink appeals from the seven convictions and
sentences resulting from his sexual assault and attempted murder of his ex-
wife. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2018, Spink’s soon-to-be ex-wife relocated from Indiana to
Arizona to restart her life away from him. While she did not disclose her
new address, he discovered it, following and stalking her. She became
aware of Spink’s presence and contacted police about obtaining an order of
protection. She also confided her worries to her brother, who called Spink
and threatened to kill him.

¶3 Undeterred, Spink formulated a plan to attack his ex-wife. His
internet search history from the weeks before the attack included “the
fastest way to kill someone . . . what happens when you stab someone in
the eye . . . how to keep someone from yelling,” and other related phrases.
Spink also searched for information on how to rape a woman.

¶4 In September 2018, Spink traveled to his ex-wife’s apartment
in Phoenix and restrained, stabbed, and sexually assaulted her. She and
Spink left the apartment together in her mother’s car; she escaped by
jumping out of the car while Spink was driving. She suffered numerous
injuries from Spink’s assault, including an orbital bone fracture, a torn
rotator cuff, and permanent blindness in her right eye.

¶5 Spink fled the area but was apprehended in Yavapai County
later that day by Yavapai County Sheriff’s Office deputies, who were
mobilized to assist Phoenix police in the investigation. While being read his
rights under Miranda v. Arizona, 384 U.S. 436 (1966), he insisted that he was
framed. He was taken to the Yavapai County Jail for an initial interview by
Phoenix police before being extradited to Maricopa County. That initial
interview ended when Spink invoked his right to silence by stating “I think
we’re done here.”

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¶6 Spink was indicted on charges of attempted murder, sexual
assault, kidnapping, three counts of aggravated assault, and unlawful use
of means of transportation. The court found him indigent and appointed
counsel.

¶7 In early October—while in custody in Maricopa County—
Spink asked to speak to the “Maricopa County Police Department” to tell
them that he had received death threats from his former brother-in-law. A
Maricopa County Sheriff’s Office detective came to interview him but did
not read Spink any Miranda rights, and Spink’s counsel was not present. In
explaining his complaint that his former brother-in-law had threatened
him, he noted that he had “use[d] the zip ties on [his] wife” and “put the
knife in her eye.” Once the detective understood that he was describing
events for which Spink had been arrested, she stated: “Let’s not think about
that right now. . . . I’m sorry for sort of asking you that. Okay? Um, so are
you willing to aim prosecution for the threats?” The detective did not have
any knowledge of Spink’s case before the interview, which lasted just over
twenty minutes.

¶8 Before trial, Spink moved to suppress his statements, claiming
that the detective violated Miranda and his Sixth Amendment rights under
the United States Constitution by not reading him his rights. The court
denied the motion, finding that Spink had reinitiated contact with law
enforcement and that his statements were voluntary.

¶9 Spink was found guilty on all counts. The jury also found the
aggravating factors of emotional harm to the victim, ambush, domestic
violence, causing the victim to require surgery, and intentional or knowing
infliction of serious physical injury. The trial court sentenced Spink to
concurrent terms of imprisonment, the longest of which is a life sentence
with possibility of parole after 25 years. Spink timely appealed, and this
court has jurisdiction. Ariz. Const. art. II, § 24; A.R.S. § 13–4033(A).

DISCUSSION

¶10 Spink argues that the trial court erred in denying his motion
to suppress, claiming that the police violated Miranda and the Sixth
Amendment in obtaining his incriminating statements during his interview
in jail. We review the denial of a motion to suppress for an abuse of
discretion and will reverse only for clear error. State v. Cornman, 237 Ariz.
350, 354 ¶ 10 (App. 2015) (citation omitted). “In reviewing a ruling on a
motion to suppress, we view the facts in the light most favorable to
upholding the trial court’s ruling.” Id. (citation omitted).

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¶11 The trial court denied Spink’s motion to suppress on the
grounds that he had re-initiated contact with law enforcement. See Edwards
v. Arizona, 451 U.S. 477, 484–85 (1981) (holding that after invoking the right
to counsel, questioning must cease “unless the accused himself initiates
further communication, exchanges, or conversations with the police”).
However, the court’s analysis did not determine whether Miranda applied
in the first place.

¶12 Miranda applies to custodial interrogations by state agents.
384 U.S. at 455. “Police are free to ask questions of a person who is not in
custody without having to give the person any warnings under Miranda.”
State v. Zamora, 220 Ariz. 63, 67 ¶ 9 (App. 2009) (citing Florida v. Bostick, 501
U.S. 429, 434–35 (1991); State v. Pettit, 194 Ariz. 192, 195 ¶ 15 (App. 1998)).
“Custodial interrogation” is “[q]uestioning 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.

¶13 “‘Custody’ for Miranda purposes ‘is a term of art that specifies
circumstances that are thought generally to present a serious danger of
coercion.’” State v. Maciel, 240 Ariz. 46, 49 ¶ 12 (2016) (quoting Howes v.
Fields, 565 U.S. 499, 508–09 (2012)). This requires both that one’s freedom of
action is significantly curtailed and the presence of coercive pressures in the
interrogation. Id. at 50 ¶ 13. Freedom of movement is significantly curtailed
if a reasonable person would not have felt free to terminate the questioning
and leave. Id. at 50 ¶ 14 (citation omitted). A “coercive atmosphere” is
determined by, among other factors, whether the interview takes place in
public or isolation, whether the questioning occurred in unfamiliar
surroundings, how long the person was interrogated, and the nature of the
circumstances that lead to the questioning. Id. at 50–51 ¶¶ 17–20.

¶14 Questioning becomes an “interrogation” for Miranda
purposes if the officer should know that the questioning is reasonably likely
to evoke an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301
(1980). This “refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Id.; see also State v. Londo, 215 Ariz. 72, 74 ¶ 6 (App. 2006).

¶15 Here, Spink was not in custody for Miranda purposes because
his freedom of movement was not significantly curtailed nor was the
questioning coercive. Spink himself voluntarily requested the interview
and could have ended it at any time. That the questioning took place in a

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jail does not categorically mean that Spink’s freedom of movement was
restricted. See Howes, 565 U.S. at 514–15 (finding that a prisoner’s freedom
of movement was not restricted where questioning took place in a
conference room because he was not restrained and could freely choose to
return to his cell). Nor were coercive pressures present—Spink’s interview
was short and arose not out of his charges but out of his own request to
report his brother-in-law’s threats. And while the record does not indicate
exactly where the interview took place, background noise from other
inmates can be heard on the recording, indicating that Spink was not
completely isolated. Because Spink was neither denied his freedom of
movement nor coerced, the interview was not custodial, and Miranda thus
did not apply.

¶16 Nor was Spink’s interview an interrogation. He was
interviewed not as a defendant, but as a victim of a possible crime. The
detective’s questions were merely tangentially related to Spink’s offense,
and she steered the discussion back to the threats after Spink revealed
details of his crime. Her reaction suggests that she did not reasonably
expect Spink to incriminate himself.

¶17 Spink’s Sixth Amendment right to counsel did apply,
however, because by the time of the October interview, he had been
indicted on formal charges. See State v. Sallard, 247 Ariz. 464, 468 ¶ 11 (App.
2019). Nevertheless, the right to counsel can be waived by the voluntary
reinitiation of contact with law enforcement. See, e.g., State v. Smith, 193
Ariz. 452, 459 ¶ 31 (1999) (finding right to counsel waived when a defendant
initially requested a lawyer, but subsequently volunteered information
after saying “I don’t see why I shouldn’t just tell you”); State v. Jones, 203
Ariz. 1, 5–6 ¶¶ 10–14 (2002), supplemented, 205 Ariz. 445, 448–49 ¶¶ 10–14
(2003) (finding right to counsel waived where a defendant requested
counsel but returned and confessed an hour later and after speaking with
his mother); State v. Yonkman, 231 Ariz. 496, 499 ¶¶ 15–17 (2013) (finding
right to counsel waived where a defendant invoked the right but requested
and voluntarily traveled to a police station for an interview a day or two
later).

¶18 Here, Spink’s request to speak with a detective several days
after initially being read his Miranda rights was voluntary and uncoerced.
The trial court was well within its discretion in finding he had waived his
right to counsel, and his argument accordingly fails.

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CONCLUSION

¶19 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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