State v. Barrett

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL BARRETT, Appellant.

No. 1 CA-CR 19-0330
FILED 6-16-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201701595
The Honorable Billy K. Sipe Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. BARRETT
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

M O R S E, Judge:

¶1 Michael Barrett appeals his convictions and sentences for ten
counts of sexual exploitation of a minor. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view these facts in a light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Barrett. See State v.
Payne, 233 Ariz. 484, 509, ¶ 93 (2013). On October 18, 2017, law enforcement
executed a search warrant at Barrett's home to investigate reports that he
had inappropriately touched several minors. When detectives searched
Barrett's cell phone, they found forty-seven explicit images of minors under
the age of fifteen engaging in sexual conduct or exhibition.

¶3 The State charged Barrett with ten counts of sexual
exploitation of a minor, class two felonies and dangerous crimes against
children. After a two-day trial, a jury convicted Barrett as charged. The
trial court sentenced Barrett to ten consecutive, slightly mitigated terms of
13.5 years in prison, resulting in an aggregate sentence of 135 years. We
have jurisdiction over Barrett's timely appeal pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, -4033(A)(1), and (A)(4).

DISCUSSION

I. Barrett's Motions to Suppress

¶4 Barrett argues that the trial court erred by denying two
motions to suppress: the first addressing incriminating statements Barrett
made to detectives when he was in jail; and the second concerning
statements Barrett made to his wife, L.B., in a patrol car on the day of his
arrest. We review the trial court's denial of a motion to suppress evidence
for abuse of discretion. Brown v. McClennen, 239 Ariz. 521, 524, ¶ 10 (2016).
We defer to the trial court's factual findings but review the court's legal and
constitutional conclusions de novo. See State v. Moody, 208 Ariz. 424, 445, ¶
62 (2004). We consider only the evidence presented at the suppression

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hearing and view the facts in a light most favorable to sustaining the trial
court's ruling. State v. Maciel, 240 Ariz. 46, 49, ¶ 9 (2016).

¶5 Police must stop asking questions when a suspect invokes his
right to remain silent during a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). "The exclusionary rule requires the suppression
at trial of evidence gained directly or indirectly as a result of a government
violation of the Fourth, Fifth or Sixth Amendments." State v. Hackman, 189
Ariz. 505, 508 (App. 1997) (citation omitted).

¶6 "The necessity of giving Miranda warnings to a suspect relates
not to the voluntariness of a confession but to its admissibility." State v.
Morse, 127 Ariz. 25, 29 (1980). "Voluntariness and Miranda are two separate
inquiries." In re Jorge D., 202 Ariz. 277, 281, ¶ 19 (App. 2002) (quotation
marks omitted). "Preclusion of evidence obtained in violation of Miranda is
based on the Fifth Amendment privilege against self-incrimination." Id.
(citations omitted). "Preclusion of involuntary confessions is based on the
Due Process Clause of the Fourteenth Amendment and applies to
confessions that are the product of coercion or other methods offensive to
due process." Id. (citations omitted); see also State v. Ellison, 213 Ariz. 116,
127, ¶ 30 (2006) ("To be admissible, a [defendant's] statement must be
voluntary, not obtained by coercion or improper inducement."). A
confession is "prima facie involuntary and the state must show by a
preponderance of the evidence that the confession was freely and
voluntarily made." State v. Montes, 136 Ariz. 491, 496 (1983). When
evaluating voluntariness, "the trial court must look to the totality of the
circumstances surrounding the confession and decide whether the will of
the defendant has been overborne." State v. Lopez, 174 Ariz. 131, 137 (1992).
"A trial court's finding of voluntariness will be sustained absent clear and
manifest error." State v. Poyson, 198 Ariz. 70, 75, ¶ 10 (2000).

A. Statements to Law Enforcement

¶7 Before trial, Barrett moved to suppress statements he made to
law enforcement. He argued that the detectives ignored his post-Miranda
invocation of the right to remain silent and, further, that the statements
were involuntary because the detectives obtained them by making
impermissible promises.

¶8 Detectives first interviewed Barrett at his residence on the day
of his arrest and again two days later, after Barrett was incarcerated. At the
evidentiary hearing held on the motion, the parties referred to the three
interviews at Barrett's home as "Scenes One, Two, and Three." The parties

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referred to the two jail interviews as "Jail One" and "Jail Two." For clarity,
the trial court adopted these terms in its ruling.

¶9 A defendant's right to terminate a custodial interrogation
must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 105 (1975)
(quoting Miranda, 384 U.S. at 479). But invocation of Miranda does not
"create a per se proscription of indefinite duration upon any further
questioning by any police officer on any subject . . . ." Id. at 102-03.
Furthermore, when a statement made in an earlier interrogation is found to
be involuntary, voluntary statements made in a later interrogation may be
admitted so long as the subsequent statements are "sufficiently attenuated"
from the prior interrogation. State v. Conde, 174 Ariz. 30, 35-36 (App. 1992)
(citation omitted). "To determine whether coercive pressures have been
dispelled we undertake an independent examination to see if there was a
break in the stream of events sufficient to insulate the confession from the
effect of everything that preceded it." State v. Strayhand, 184 Ariz. 571, 581
(App. 1995) (citation omitted). Factors to consider include "how much time
elapsed . . . , whether there was any change in the place of interrogation,
and whether there was a change in the identity of the interrogators." Id.
(citation omitted).

¶10 After serving the search warrant, law enforcement took
Barrett into custody, placed him in a patrol car, and read him the Miranda
advisement. Barrett answered the detective's questions during Scene One
but made no inculpatory statements. Shortly after Scene One, another
detective returned to speak with Barrett. The detective told Barrett that
they wanted to help him with "therapy" and a "psychiatrist," not put him in
jail. Barrett clearly invoked his right to remain silent during Scene Two.
Despite that invocation, detectives kept questioning Barrett in Scenes Two
and Three. During that questioning Barrett made incriminating admissions
about viewing the images.

¶11 Two days later, detectives contacted Barrett at the jail to
interview him about new allegations of child molestation that law
enforcement learned of after his arrest. After reading Barrett the Miranda
advisement, Barrett agreed to answer the detectives' questions and did not
invoke his right to remain silent. During the Jail One interview, Barrett
made a few brief, general statements in which he indicated that he had
looked at images of child pornography on the internet. Barrett began to cry
as the detectives departed and he told them, "[t]here's more, I want to talk
to you." A long Jail Two interview followed in which Barrett confessed to
many child molestation allegations. Barrett also made a few isolated
admissions that he looked at images of child pornography.

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¶12 After a two-day evidentiary hearing, the trial court found a
Miranda violation "as to Scene Two, seven (7) minutes and twenty-two (22)
seconds and . . . as to Scene Three" and suppressed the statements from
those interviews. The court further found that the statements in Scenes Two
and Three were involuntary because the detectives made direct and implied
promises to help Barrett and that he would not go to jail if he answered
honestly. These rulings are not contested on appeal.

¶13 The court, however, denied Barrett's motion for Scene One,
Jail One, and Jail Two. Regarding Jail One, the court found "the taint no
longer exist[ed]" because the interview took place "two days later" about a
"completely different case or allegation." Regarding Jail Two, the court
recognized that Barrett freely initiated the interview and found "no
voluntariness issues as to Jail [Two] at all." The court emphasized that it
heavily weighed "actually listen[ing] to the recordings, because reading
[the transcripts] just doesn't do a lot of things justice" and the recordings
capture voice inflection, tone, and context. The State did not admit any
evidence related to Scenes One, Two, or Three at trial but admitted redacted
parts of the Jail One and Jail Two audio recordings. Barrett argues that the
trial court erred because the Jail One and Jail Two interviews were
impermissibly tainted by the violations during Scene One and Scene Two.

¶14 We discern no error. The passing of two days, the lack of
contact from the detectives, and the different location sufficiently broke the
stream of events to negate any taint from the earlier violations. See Oregon
v. Elstad, 470 U.S. 298, 300-03, 317-18 (1985) (holding that the failure to give
Miranda warnings before an interrogation that resulted in an admission did
not taint a subsequent confession that followed a proper Miranda
advisement approximately one hour later). Moreover, Barrett had been
arrested, charged, and incarcerated for the sexual exploitation offenses after
the earlier interviews. His arrest and incarceration are significant
intervening circumstances. Conde, 174 Ariz. at 35-36.

¶15 The detectives permissibly contacted Barrett to ask about new
allegations based on information they learned after Barrett's arrest. See
Mosley, 423 U.S. at 104-07 (holding that police did not violate Miranda in a
second interrogation for different charges when they provided the Miranda
advisement "more than two hours" after the suspect had invoked the right
to remain silent during the first investigation). Despite the violations
during the initial interviews, the new allegations of child molestation were
an important intervening purpose for contacting Barrett in jail and
dispelled the coercive pressure of the prior violations on these facts. Cf.
State v. Morgan, 149 Ariz. 112, 114 (App. 1986) ("The courts have held [that

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whether a second interview is on the same subject is not] of critical
significance, reasoning that the focus of the court's inquiry [under Mosley]
must be whether the object of the second interrogation is to wear down the
defendant's resistance to interrogation."). Moreover, detectives ended the
Jail One interview because it was "fruitless" and Barrett initiated the Jail
Two interview. Both facts support the conclusion that Barrett's resistance
to questioning was not overborne by the jail interviews. Id.

¶16 Therefore, like the trial court, we are persuaded that the
change in conditions adequately removed any coercive effect and
"insulated [Barrett's admissions] from the effect of everything that preceded
it." Strayhand, 184 Ariz. at 581. Finally, after "listen[ing] to the [audio
recordings of the] conversation in its entirety" the trial court was convinced
that Barrett spoke voluntarily. We must defer to the court's factual findings
and credibility determinations and nothing in the record overcomes that
deference. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996).

B. Conversation with L.B.

¶17 Barrett further moved to suppress the incriminating
statements he made to L.B. After speaking with detectives at his residence,
Barrett said that he "wanted to talk to his wife." She wanted to speak to him
as well. The detectives let them talk through a rolled-down window while
Barrett sat inside a patrol car. Barrett told L.B. that he had been looking at
"stuff" on the internet for about two years, but had touched no children and
wanted help. A detective was standing near the patrol car and recorded
their conversation. In his motion, Barrett argued that his statements were
"elicited based on the functional equivalent of interrogation and thus are
subject to Miranda and Fifth Amendment voluntariness."

¶18 The trial court found that Barrett "initiat[ed] the request" and
"it was clearly [Barrett] who requested to talk to his spouse." Further, the
trial court found no evidence that this "was some sort of a ruse" by law
enforcement to obtain a confession. The State played part of the recording
at trial.

¶19 "[T]he Miranda [procedural] safeguards come into play
whenever a person in custody is subjected to either express questioning or
its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 292 (1980).
Interrogation "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.

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¶20 "A due process claim must be based on 'state action.'" In re
Timothy C., 194 Ariz. 159, 162, ¶ 14 (App. 1998). "Whether a private person
acted as a state agent is a 'fact-intensive inquiry that is guided by common
law agency principles.'" State v. Yonkman, 233 Ariz. 369, 372-73, ¶ 8 (App.
2013) (quoting State v. Martinez, 221 Ariz. 383, 387, ¶ 14 (App. 2009)). "The
numerous factors to consider when determining agency include a person's
purpose or motive in acting and whether law enforcement provided any
reward." Id.

¶21 On this record, we find no error. Barrett adduced no evidence
that the detectives arranged the conversation, questioned Barrett, or
persuaded L.B. to obtain evidence. See Arizona v. Mauro, 481 U.S. 520, 526-
30 (1987) (finding no interrogation or functional equivalent under Miranda
or Innis when officers permitted defendant to speak with his wife in their
presence and recorded the conversation but did not ask questions about the
crime and did not arrange for the wife to elicit incriminating statements);
see also Innis, 446 U.S. 291. To the contrary, Barrett initiated the request and
spoke freely with L.B. Barrett argues that his conversation was
"confidential," but does not dispute that the detective was standing next to
the patrol car and the car's window was down during the conversation. See
Mauro, 481 U.S. at 526-30. Moreover, the record confirms that the couple
knew of the detective's presence; during the conversation, L.B. asked the
detective if Barrett was going to jail and for permission to use the phone.
Because the detectives did not orchestrate the conversation and L.B. was
not their agent, state action is absent and no constitutional violation
occurred. Yonkman, 233 Ariz. at 372-73, ¶¶ 7-9.

II. Mitigating Circumstances

¶22 Barrett also contends that the trial court abused its discretion
by rejecting several mitigating factors he presented at sentencing.
Generally, "[w]e will not disturb a sentence that is within the statutory
range absent an abuse of the trial court's discretion." State v. Joyner, 215
Ariz. 134, 137, ¶ 5 (App. 2007). Because Barrett failed to object to the trial
court's findings, we review his claim for fundamental, prejudicial error
only. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

¶23 At sentencing, Barrett argued that the trial court should
consider several mitigating factors: the offenses did not involve physical
contact with the minors; his candor to police; he was a "good provider" for
his family and his crimes did not harm his family directly; and his mental
health issues. The State requested presumptive sentences and did not
prove any aggravating factors to the jury.

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¶24 The trial court found only Barrett's lack of prior felony
convictions as a mitigating circumstance. Responding to Barrett's
mitigation arguments, the court first found that Barrett's criminal conduct
and imminent prison sentence rebutted his claims that he was a "good
provider" and had not harmed his family. Furthermore, the court found
that Barrett was not forthright with police, as his admissions only occurred
after he was confronted by law enforcement. As to the last alleged
mitigating factor, Barrett eventually conceded that he could not establish a
causal connection between his crimes and his mental health issues. See State
v. Jones, 185 Ariz. 471, 492 (1996) (noting that mental illness may serve as a
mitigating factor only when that illness is causally connected to the crime
committed).

¶25 The trial court acted fully within its wide discretion by
imposing slightly mitigated terms. See State v. Harvey, 193 Ariz. 472, 477, ¶
25 (App. 1998) (holding that when the trial court considers aggravating and
mitigating factors, the weighing of those factors is a matter within its sound
discretion). Barrett complains that the trial court failed to explain why it
did not find the lack of criminal contact as a mitigating circumstance, but
the court need not express its findings. See State v. Harrison, 195 Ariz. 1, 4,
¶ 12 (1999) (stating that the trial court need not recite a "specific litany" or
make "formal findings or conclusions" at sentencing). And, in any case, the
court implicitly rejected Barrett's argument by finding that his conduct
victimized and "sexually exploited" the minors "[e]ach time" he looked at
an image. Furthermore, we find the trial court acted within its discretion
when it found the absence of additional crimes did not compel mitigation.

III. Cruel and Unusual Punishment

¶26 Barrett claims that his 135-year aggregate sentence is grossly
disproportionate to the crimes he committed and violates the Eighth
Amendment's prohibition against cruel and unusual punishment. Because
Barrett did not raise this argument to the trial court, we review for
fundamental, prejudicial error only. See Escalante, 245 Ariz. at 140, ¶ 12.

¶27 Barrett was convicted of dangerous crimes against children.
Accordingly, the court sentenced Barrett pursuant to A.R.S. § 13-705, which
authorizes the sentences for such crimes. Each sentence fell within the
statutory range. A.R.S. § 13-705(D); see Joyner, 215 Ariz. at 137, ¶ 5. Under
A.R.S. § 13-705(M), consecutive sentences are mandatory for convictions of
specified felonies, including sexual exploitation of a minor. See A.R.S. § 13-
705(Q). Our supreme court has concluded that this sentencing scheme does
not violate the constitutional prohibition against cruel and unusual

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punishment. See State v. Berger, 212 Ariz. 473, 478-83, ¶¶ 23, 28, 36, 49, 51
(2006) (upholding an aggregate sentence of 200 years arising from the
imposition of 20 consecutive terms of 10 years' imprisonment for sexual
exploitation of a minor convictions). We have no authority to disregard a
decision of our supreme court. See State v. Long, 207 Ariz. 140, 145, ¶ 23
(App. 2004) ("This court is bound by decisions of the Arizona Supreme
Court and has no authority to overturn or refuse to follow its decisions.").
We find no error.

CONCLUSION

¶28 For the foregoing reasons, we affirm.

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

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