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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ANTHONY DELANTO REED, Appellant.

                             No. 1 CA-CR 19-0131
                               FILED 2-13-2020


           Appeal from the Superior Court in Maricopa County
                      No. CR2017-134200-001 DT
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                             STATE v. REED
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge David B. Gass joined.


W I N T H R O P, Judge:

¶1            Anthony Delanto Reed appeals his convictions for two counts
of organized retail theft and the resulting sentences. Reed raises two issues
on appeal, arguing the trial court (1) erred in denying his motion to
suppress statements he made based on alleged Miranda1 violations, and (2)
violated Arizona Rule of Criminal Procedure (“Rule”) 18.5 in its
management over jury selection. For the following reasons, we affirm
Reed’s convictions and sentences.

                FACTS AND PROCEDURAL HISTORY2

¶2           On July 25, 2017, at 2:20 p.m. and again at 4:41 p.m., a black
male carrying a black-and-orange backpack entered a downtown Phoenix
convenience store, then walked out of the store each time with at least two
24-packs of Budweiser beer, each time without paying.3 The store’s
assistant manager, M.G., witnessed the first theft. Another store employee,
G.R., witnessed both thefts.4

¶3           Shortly after the second theft, Phoenix Police Officers
Valenzuela and Erickson stopped at the same convenience store to purchase


1     Miranda v. Arizona, 384 U.S. 436 (1966).

2      We view the facts presented at trial in the light most favorable to
sustaining the verdicts and resolve all reasonable inferences against Reed.
See State v. Kiper, 181 Ariz. 62, 64 (App. 1994).

3      Both thefts were recorded on the store’s video surveillance and later
played for the jury. Still photos produced from the video surveillance were
also admitted and later shown to the jury.

4       Although at trial G.R. could recall only some parts of the second
theft, she remembered and described the thief and what he had been
wearing in both instances.


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                              STATE v. REED
                            Decision of the Court

a drink. M.G. and G.R. told the officers about the thefts and described the
thief. The officers began patrolling the nearby area, and approximately two
blocks away, observed a man who closely matched the employees’
descriptions. The man (later identified as Reed) had a backpack and was
walking on the sidewalk while carrying two 24-packs of Budweiser beer on
his shoulders.

¶4           Officer Valenzuela asked Reed where he had obtained the
beer, and Reed stated that he got it from the convenience store up the street.
Reed also told the officer “a higher power” took care of payment. Officer
Valenzuela subsequently handcuffed Reed and advised him of his Miranda
rights. Reed said he understood his rights and agreed to answer Officer
Valenzuela’s follow-up interview questions.5

¶5            Reed then admitted he took beer from the convenience store
twice—two 24-packs of Budweiser beer the first time, and two 24-packs and
one 8-pack of Budweiser beer the second time. Reed further admitted he
sold the beer from the first theft and intended to sell the beer from the
second theft.

¶6            Officer Valenzuela searched Reed’s backpack incident to
arrest and found an 8-pack of Budweiser beer, which was in addition to the
two 24-packs Reed had been carrying. The backpack was photographed,
impounded, and admitted into evidence.6

¶7            A few minutes after Reed’s arrest, a police officer drove M.G.
and G.R., individually, from the store to where Reed had been detained two
blocks away. In separate one-on-one identifications, each of the store
employees positively, and with one hundred percent confidence, identified
Reed as the thief.

¶8               The State charged Reed by information with two counts of
organized retail theft. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1819(A)(1). Before
trial, the trial court granted defense counsel’s Rule 11 motion for a mental
competency evaluation. Reed was later determined to be competent.

¶9            Reed then moved to suppress his statements to Officer
Valenzuela, arguing the officer had deliberately undermined his Miranda
rights by asking questions designed to elicit incriminating responses while

5      A subsequent interview was recorded and played at trial.

6      Both M.G. and G.R. identified the backpack at trial as the one the
thief had been wearing.


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                              STATE v. REED
                            Decision of the Court

delaying advising him of his rights until he made incriminating statements.
Reed further argued that, after receiving his incriminating responses, the
police immediately arrested him, read him his Miranda rights, and re-
interviewed him, resulting in a deliberate and improper two-step
interrogation process and rendering the Miranda warnings ineffective, in
violation of Missouri v. Seibert, 542 U.S. 600 (2004). The State responded,
and the trial court held an evidentiary hearing. After taking the matter
under advisement, the trial court denied the motion to suppress, noting:

             Police may validly ask a suspect what happened
       without making the encounter a custodial interrogation. The
       Court finds no credible evidence that the police withheld the
       Miranda warning to obtain incriminating statements.

¶10          At trial, M.G., G.R., Officer Valenzuela, and the officer who
transported the store’s employees to the one-on-one identifications
testified. Reed declined a lesser-included shoplifting instruction, and a
twelve-person jury found him guilty as charged of both counts. The trial
court sentenced Reed as a Category 3 offender to fully mitigated,
concurrent six-year terms of imprisonment.7

¶11            We have jurisdiction over Reed’s timely appeal. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A).

                                 ANALYSIS

       I.     Reed’s Motion to Suppress Statements

¶12            Reed argues the trial court abused its discretion in denying
his motion to suppress statements he made to Officer Valenzuela during
the initial investigative stop. He further argues that if his initial statements
should have been suppressed, we should conclude that statements he made
after receiving Miranda warnings were the result of a deliberate and
improper two-step interrogation process, rendering his post-Miranda
warning statements inadmissible as well. See generally Seibert, 542 U.S. at
611-12; United States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006). Because
the initial stop did not constitute custodial interrogation for Miranda
purposes, we find no abuse of the trial court’s discretion.


7      The court also stated it believed the mandated minimum sentences
were clearly excessive and granted Reed permission to petition the board
of executive clemency for a commutation of sentence. See A.R.S. § 13-
603(L).


                                       4
                              STATE v. REED
                            Decision of the Court

              A.     Standard of Review & Applicable Law

¶13           We review for an abuse of discretion the trial court’s ruling
denying Reed’s motion to suppress based on the evidence presented at the
suppression hearing. See State v. Ellison, 213 Ariz. 116, 126, ¶ 25 (2006). We
view that evidence in the light most favorable to upholding the court’s
ruling. See id. In our review, we defer to the trial court’s credibility
determinations, but review de novo its legal conclusion. State v. Gonzalez–
Gutierrez, 187 Ariz. 116, 118 (1996).

¶14            Although police officers are free to ask questions of a person
who is not in custody without providing Miranda warnings, once a person
is in custody, the police must advise the individual of certain constitutional
rights; otherwise, statements made in response to questioning generally
will be inadmissible at trial. See Miranda, 384 U.S. at 444; State v. Zamora,
220 Ariz. 63, 67-68, ¶ 9 (App. 2009). An individual is considered “in
custody” for purposes of Miranda when, in light of all the circumstances,
there is “a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322
(1994) (citations and internal punctuation omitted).

¶15            In evaluating whether a person was subjected to custodial
interrogation, Arizona courts have historically analyzed three primary
factors: (1) the site of the questioning, (2) the presence of objective indicia
of arrest,8 and (3) the length and form of the interrogation. State v. Maciel,
240 Ariz. 46, 49, ¶ 11 (2016). The restraint on a suspect’s freedom of
movement does not alone establish Miranda custody. Id. at ¶ 12. Instead,
the inquiry is focused not only on whether the suspect’s freedom of action
was significantly curtailed, but also on “whether the environment in which
he was questioned presented inherently coercive pressures similar to a
station house interrogation.” Id. at 49-50, ¶¶ 12-13. Additionally, “the
initial determination of custody depends on the objective circumstances of
the interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.” Stansbury, 511 U.S.
at 323.

¶16            When a defendant makes inculpatory statements in response
to custodial interrogation before being read his rights, and then repeats the


8      Objective indicia of arrest may include the display of weapons, the
use of physical restraints such as handcuffs, whether (and the manner in
which) police have transported a suspect, and the booking process. See State
v. Cruz-Mata, 138 Ariz. 370, 373 (1983).


                                      5
                              STATE v. REED
                            Decision of the Court

incriminating information in response to questions after being read his
rights, the latter statements may also be inadmissible. See Seibert, 542 U.S.
at 616-17; Zamora, 220 Ariz. at 69, ¶ 15.

              B.     Analysis

¶17             “A person’s freedom of movement has been significantly
curtailed if a reasonable person would have felt he or she was not at liberty
to terminate the interrogation and leave.” Maciel, 240 Ariz. at 50, ¶ 14
(citations and internal quotations omitted). In determining how a suspect
would have interpreted his freedom of movement, we consider all
circumstances surrounding the interrogation, and not necessarily just the
three factors previously identified. Id. (citations omitted).

¶18           Under the circumstances presented here, a reasonable person
might not have felt he was at liberty to end the initial encounter with Officer
Valenzuela and leave. Both officers were in a marked City of Phoenix patrol
car and wore standard-issue police uniforms with guns, badges, and tasers.
Upon noticing Reed walking down the sidewalk, Officer Valenzuela turned
on his overhead lights, pulled over, exited the patrol car, and summoned
Reed, asking if he would speak with the officer “for a moment.” Reed then
stopped, turned around, and walked back to speak with the officer, who
“kind of met him halfway.” Although Reed was not asked to produce
identification, submit to a pat-down search, or sit in the back of the patrol
car during questioning, and was not otherwise physically restrained, we
find it unlikely a reasonable person would have felt free to simply walk
away.

¶19           Nevertheless, even if Reed’s freedom of movement was
significantly curtailed, custody for Miranda purposes “also requires an
environment presenting inherently coercive pressures that threaten to
subjugate the individual to the examiner’s will.” Id. at ¶ 16 (citations and
internal quotations omitted). No one factor controls; we consider the
surroundings in which a defendant is questioned, whether a defendant has
been isolated before questioning, and the length of interrogation. Id. at 50-
51, ¶¶ 16-19. “[I]nvestigative stops conducted in public often do not
constitute Miranda custody.” Id. at ¶ 18 (citation omitted). The ultimate
question is whether the police officers increased the likelihood of self-
incrimination by engaging in an unreasonable delay to gain an advantage
over Reed. See id. at 51, ¶ 20.

¶20         Here, Reed was not questioned in isolation or in unfamiliar
surroundings. Officer Valenzuela first questioned Reed exactly where he



                                      6
                             STATE v. REED
                           Decision of the Court

found him—standing on a sidewalk in downtown Phoenix. Reed was not
transported to a different location, much less to a police-dominated
atmosphere like a station house. See id. at ¶ 21. Further, the entire
encounter occurred in public and was always visible to any passersby. See
id. at ¶ 22. No unreasonable delay occurred in the investigation. See id. at
¶ 23. The investigative detention—from the time Officer Valenzuela
summoned Reed to the time Reed was arrested—lasted at most a couple of
minutes. Moreover, other objective factors indicative of Miranda custody
are absent here. See id. at 52, ¶ 26. The police presence was quite modest;
only Officer Valenzuela questioned Reed, and only one other officer—
Officer Erickson—was present. The police never told Reed his detention
was not temporary,9 and the length of the initial “questioning” before Reed
was formally detained and Mirandized was quite brief, consisting of two
short questions designed to ascertain what happened; namely, where Reed
had obtained the beer he was carrying and whether he had paid for it. The
police did not promise Reed anything, draw a weapon or otherwise
threaten Reed with force, make exaggerated displays of authority or
physical intimidation, or otherwise employ coercive tactics that might be
associated with objective indicia of arrest. See id. at ¶ 27. Reed appeared
calm and cooperative in answering the questions and gave no indication he
wanted to stop talking and leave. In sum, the objective circumstances of
Reed’s sidewalk questioning fail to support either that the questioning was
coercive or that Reed’s will was overborne.10

¶21           Accordingly, the trial court did not abuse its discretion in
concluding Reed was not in custody at the time he made the incriminating
statements before his arrest. Because we agree with the trial court’s
ultimate ruling, we need not address Reed’s argument that, because his
earlier statements violated Miranda, his post-arrest statements should also
have been suppressed based on Seibert.




9      In fact, after his recorded interview—which occurred after he had
been Mirandized—Reed asked Officer Valenzuela if the officer “could just
write him a citation and let him go.”

10    Moreover, whether Officer Valenzuela would likely have followed
or chased Reed had he attempted to run is of no consequence because
Miranda custody does not turn on an officer’s undisclosed intentions,
knowledge, or suspicions. See Maciel, 240 Ariz. at 52, ¶ 28.


                                     7
                                 STATE v. REED
                               Decision of the Court

       II.    Jury Selection

¶22           Reed also argues the trial court violated Rule 18.5(f) by
requiring the parties to conduct their peremptory strikes before concluding
the “for cause” examination of the jury. He maintains the court’s decision
to allow defense counsel to conduct additional “for cause” examination
after peremptory strikes had been completed caused confusion in the jury
selection process that “tainted” the trial and requires reversal.

¶23           The State disputes whether Rule 18.5(f) was violated, arguing
the trial court concluded its voir dire examination and completed its “for
cause” strikes before the parties were given leave to exercise their
peremptory strikes, and any confusion in the jury selection process was
entirely due to defense counsel’s own mistake or misunderstanding, which
both caused her to waive the defense’s opportunity to voir dire the panel
further before exercising Reed’s peremptory strikes and required the trial
court to take additional measures to accommodate a belated voir dire by
the defense.

              A.      Standard of Review & Applicable Law

¶24            “A defendant is not entitled to be tried by any particular jury
but only by one which is fair and impartial.” State v. Hilliard, 89 Ariz. 129,
133 (1961) (citations omitted).

¶25             Rule 18.5 dictates the process to be used in jury selection.
Under Rule 18.5, the trial court is responsible for conducting and
controlling voir dire examination and determining the presence or absence
of juror prejudice. See Ariz. R. Crim. P. 18.5(c)-(e); State v. Smith, 114 Ariz.
415, 418 (1977). “Upon request, the court must allow the parties a
reasonable time, with other reasonable limitations, to conduct a further oral
examination of the prospective jurors,” Ariz. R. Crim. P. 18.5(d), but the
extent of the examination to determine the presence or absence of prejudice
is left to the sound discretion of the trial court, Smith, 114 Ariz. at 418.

¶26           Pursuant to Rule 18.5(f), “[a]ll challenges for cause must be
made and decided before the court may call on the parties to exercise their
peremptory challenges.” Unlike the right to an impartial jury guaranteed
by the Sixth Amendment, however, the right to exercise peremptory
challenges is not protected by either the federal or the state constitution.
United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000); State ex rel. Romley
v. Superior Court, 181 Ariz. 271, 274 (App. 1995).




                                        8
                              STATE v. REED
                            Decision of the Court

¶27            We review for an abuse of discretion a trial court’s rulings on
voir dire of prospective jurors. State v. Glassel, 211 Ariz. 33, 45, ¶ 36 (2005).
If such an error occurs, and the defendant has preserved the issue by
objecting at trial, we review for harmless error. State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005). Thus, a defendant’s use of a peremptory strike to
remove a prospective juror, whom the trial court should have removed for
cause, is subject to harmless error review. See Martinez-Salazar, 528 U.S. at
307-17; State v. Hickman, 205 Ariz. 192, 194, 196-97, 201, ¶¶ 6, 21, 39-40 (2003)
(overruling State v. Huerta, 175 Ariz. 262 (1993)). “Harmless error review
places the burden on the state to prove beyond a reasonable doubt that the
error did not contribute to or affect the verdict or sentence.” Henderson, 210
Ariz. at 567, ¶ 18 (citation omitted).

              B.      Analysis

¶28            We agree with Reed that, on this record, the jury selection
process became “convoluted” after the trial court concluded its initial “for
cause” jury strikes. We further agree that Reed properly preserved the
issue for review.

¶29           The convoluted process was, however, occasioned by defense
counsel’s apparent misapprehension of the jury selection process and/or
acknowledged misunderstanding of the trial court’s statements. These
issues resulted in the trial court’s misguided effort to remedy defense
counsel’s misapprehension and/or misunderstanding while attempting to
balance time considerations by allowing defense counsel to conduct further
oral examination of prospective jurors and additional “for cause” and
peremptory strikes after the “for cause” and peremptory strikes had been
completed. Regardless of its motive, the trial court’s inexplicably revised
approach to jury selection violated the plain language of Rule 18.5(f) and
was an abuse of that court’s discretion.

¶30           Nevertheless, we need not vacate Reed’s convictions on this
basis. Our complete review of the record makes clear the error was
harmless beyond a reasonable doubt because nothing in the record
indicates that any juror selected had indicated a prohibited bias or
partiality. Thus, on this record, Reed received that to which he was
entitled—the opportunity to be tried by a fair and impartial jury. Further,
the jury’s guilty verdicts were based on overwhelming evidence.
Accordingly, we can say beyond a reasonable doubt that the court’s error
did not contribute to or affect the verdicts.




                                       9
                     STATE v. REED
                   Decision of the Court

                      CONCLUSION

¶31   Reed’s convictions and sentences are affirmed.




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




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