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   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   MARKLEY ALLEN FOSTER, Appellant.

                              No. 1 CA-CR 16-0338
                               FILED 5-18-2017


              Appeal from the Superior Court in Yuma County
                         No. S1400CR201400733
                  The Honorable David M. Haws, Judge

                          AFFIRMED AS MODIFIED


                                     COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Zachary John Dumyahn
Counsel for Appellant
                            STATE v. FOSTER
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Margaret H. Downie and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1           Markley Allen Foster appeals his convictions and sentences
for two counts of second degree murder, one count of criminal damage, one
count of possession of marijuana, and one count of possession of drug
paraphernalia. He also challenges the restitution order related to the
criminal damage charge. For the reasons stated below, we affirm his
convictions and sentences but modify the restitution order.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In May 2014, Foster’s vehicle collided with another after
Foster ran a red light. The two people in the other car did not survive the
collision. Emergency personnel removed Foster from his vehicle and took
him to a Yuma hospital for treatment. Two law enforcement officers,
Captain GA and Trooper MC, questioned Foster for under an hour in the
Yuma hospital emergency room. During the conversation, Foster admitted
ingesting Ambien and smoking marijuana the previous night and running
a red light just before the collision. Two days after the collision, police
obtained a search warrant for Foster’s home where they found two used
glass pipes containing marijuana residue and a small bag of marijuana.

¶3           The State indicted Foster for two counts of second degree
murder, a class one felony; one count of criminal damage, a class four
felony; one count of possession of marijuana, a class six felony; and one
count of possession of drug paraphernalia, a class six felony. See Ariz. Rev.
Stat. (“A.R.S.”) §§ 13-1104(A)(3) (2009) (second degree murder); 13-
1602(A)(1) (2015) (criminal damage); 13-3405(A)(1) (2010) (possession of
marijuana); 13-3415(A) (2017) (possession of drug paraphernalia).1

¶4           Before trial, Foster moved to suppress statements he made to
police in the emergency room. Foster argued the statements were

1      We cite the current version of statutes unless changes material to this
decision have since occurred.



                                      2
                            STATE v. FOSTER
                            Decision of the Court

involuntary and taken in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article II, Sections 4, 8,
10, and 32 of the Arizona Constitution, as well as Miranda v. Arizona, 384
U.S. 436 (1966). After a suppression hearing, the court declined to suppress
Foster’s statements, finding that Foster was not in custody for Miranda
purposes and spoke voluntarily.

¶5            Foster also moved to preclude introduction of photographs
depicting the deceased victims, arguing the photographs were gruesome in
nature and so inflammatory as to prejudice him. He offered to stipulate to
the victims’ cause of death, but the State asserted the photographs were
necessary to show the impact injuries, establish the victims’ identities,
demonstrate the role of the medical examiner, and illustrate the accident
reconstructionist’s testimony. The court proposed that the State show the
photographs to the court and Foster before showing them to the jury,
reasoning Foster could “make a record as to particular photographs” and
the court could consider whether the photographs were too gruesome at
that time. The parties agreed, and the court separately considered each
photograph as it was presented. Despite Foster’s objections, the court
allowed admission of six of the seven offered photographs, finding they
were not gruesome and that their probative value was not outweighed by
the danger of unfair prejudice.

¶6            Following a nine-day trial, the jury convicted Foster of all
counts. After denying Foster’s motion for a new trial, the superior court
imposed presumptive, concurrent terms on all counts, crediting Foster 705
days of presentence incarceration. In total, the court sentenced Foster to
sixteen years’ imprisonment on Counts 1 and 2, 2.5 years for Count 3; and
a year on Counts 4 and 5. It also ordered Foster to pay $5155 in restitution
to the victims’ daughter and $6,850.23 in restitution to the Arizona
Department of Transportation (“ADOT”) based on damage caused to state
property in the accident.

¶7            Foster timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21 (2017) and 13-4033(A)(1) (2017).

                              DISCUSSION

¶8           Foster raises three issues on appeal. He asserts the superior
court erred by: (1) admitting his statements to the police; (2) admitting
photographs of the victims when neither their identity nor cause of death
was at issue; and (3) ordering Foster to pay too much in restitution to
ADOT.



                                     3
                             STATE v. FOSTER
                             Decision of the Court

¶9            The State concedes we should reduce the restitution award to
$4,394.23 because ADOT received partial compensation from Foster’s
insurance carrier in the amount of $2456. We therefore reduce the superior
court’s restitution award to the State to $4,394.23 and address Foster’s
remaining arguments.

I.     Admission of Thornton’s Statements

¶10            We review the superior court’s denial of a motion to suppress
evidence for an abuse of discretion. State v. Waller, 235 Ariz. 479, 483, ¶ 5
(App. 2014) (citation omitted). We look only to the evidence presented at
the suppression hearing and view it in the light most favorable to sustaining
the court’s ruling. State v. Maciel, 240 Ariz. 46, 49, ¶ 9 (2016) (citations
omitted). We defer to the court’s determination of facts and witness
credibility but review its legal conclusions de novo. Waller, 235 Ariz. at 483,
¶ 5 (citation omitted).

¶11          Foster argues the superior court erred by admitting his
statements to the police in Yuma about running a red light, street racing,
and use of Ambien and marijuana.2 He argues the court erred in admitting
the statements because he was in custody but not read his Miranda



2       Foster also challenges statements he made to the police in an
interview at a Phoenix hospital. However, we only address the statements
from the Yuma interview because Foster and not the State elicited
testimony and introduced evidence regarding the Phoenix interview.
Foster’s introduction of the Phoenix interview either amounts to invited
error or moots the issue of whether its admission was erroneous. See State
v. Pandeli, 215 Ariz. 514, 528, ¶ 50 (2007) (citation and quotation omitted)
(stating “a defendant who invited error at trial may not then assign the
same as error on appeal”); State v. Hoskins, 199 Ariz. 127, 136-37, ¶ 24 (2000)
(citation omitted) (“Even assuming a Miranda violation, non-reference to
the statements at trial renders defendant’s Miranda objections moot.”). In
any event, even if the State had introduced the statements Foster made in
Phoenix and such admission was error, the statements were merely
cumulative of the statements he made in the Yuma hospital. Because we
hold the Yuma hospital statements were admissible, any error in admitting
the Phoenix statements would be harmless error. State v. Granados, 235 Ariz.
321, 329, ¶ 35 (App. 2014) (citing State v. Williams, 133 Ariz. 220, 226 (1982))
(stating introduction of cumulative evidence is “at most harmless error”).




                                       4
                             STATE v. FOSTER
                             Decision of the Court

warnings before he made the statements. He also argues the statements
were involuntary.

       A.     Custody

¶12           Foster argues he was in custody for Miranda purposes because
he was not free to leave and was incapable of avoiding the officers or
escaping their interrogation.3 We disagree.

¶13            To protect the Fifth Amendment privilege against
compulsory       self-incrimination,    police     officers must      provide
Miranda warnings before interrogating a person in custody. Maciel, 240
Ariz. at 49, ¶ 10 (citing Miranda, 384 U.S. at 478-79). Whether a person is in
“custody” for Miranda purposes depends on whether there is a “formal
arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” Id. at ¶ 11 (citations and quotations omitted). “Custody”
requires “not only curtailment of an individual’s freedom of action, but also
an environment that presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.” Id. at ¶ 12 (citations
and quotations omitted).

¶14           We consider three factors when determining whether a
person is in custody for Miranda purposes: “the site of the questioning, the
presence of objective indicia of arrest, and the length and form of the
interrogation.” Id. at ¶ 11 (citations omitted). An individual is not typically
found to be in custody when held for medical treatment at a hospital. See
United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985); see also State v.
Tucker, 557 A.2d 270, 272 (N.H. 1989) (collecting cases holding that


3        Foster also asserts Miranda warnings were necessary because it was
“plain from the circumstances that investigative attention has focused on
[him] as the perpetrator of the offense.” However, the United States
Supreme Court has rejected this “focus”-based approach, emphasizing that
it is “the compulsive aspect of custodial interrogation, and not the strength
or content of the government’s suspicions at the time the questioning was
conducted, which led the court to impose the Miranda requirements with
regard to custodial questioning.” Beckwith v. United States, 425 U.S. 341, 346-
47 (1976) (citation and quotation omitted); see State v. Barnes, 124 Ariz. 586,
589 (1980) (citation and quotation omitted) (stating Miranda warnings are
not required simply “because the questioned person is one whom the police
suspect”). Additionally, Foster’s cited cases, State v. Pettit, 194 Ariz. 192
(App. 1998) and State v. Tellez, 6 Ariz. App. 251 (1971), are inapplicable to
this case because they address Miranda in the context of a traffic stop.


                                      5
                              STATE v. FOSTER
                              Decision of the Court

questioning of a suspect who is confined in hospital but not under arrest is
not custodial interrogation). However, law enforcement restraint
amounting to custody can result if “the police took a criminal suspect to the
hospital from the scene of a crime, monitored the patient’s stay, stationed
themselves outside the door, arranged an extended treatment schedule
with the doctors, or some combination of these.” Martin, 781 F.2d at 673.

¶15            We conclude Foster was not in custody when he gave the
statements in the Yuma hospital. Although “the unfamiliar surroundings
and emotionally charged atmosphere [of a hospital emergency room] might
have been capable of exerting some coercive influence,” none of the other
coercive elements were present when the police questioned Foster. See State
v. Riffle, 131 Ariz. 65, 68 (App. 1981) (citation omitted) (stating hospital
setting, taken alone, does not require the giving of Miranda warnings).
Police did not take Foster to the hospital from the scene of the crime,
monitor Foster’s stay, station themselves outside his door, or arrange an
extended treatment schedule with his doctors. See Martin, 781 F.2d at 673.
None of the usual indicia of arrest, such as handcuffs, locked doors, drawn
guns, or a search of Foster or Foster’s person were present. See Riffle, 131
Ariz. at 68 (listing typical indicia of arrest). The record is unclear as to
whether Foster was restrained, but the police denied restraining or
handcuffing Foster. Construing the evidence in the light most favorable to
affirming, Foster was not even restrained by hospital staff but simply had
difficulty getting up because of the nature and extent of his injuries.
Additionally, the circumstances were clearly not so restrictive as to cause
“a reasonable person [to feel] he or she was not at liberty to terminate the
interrogation and leave” because Foster “tried several times” to get up and
leave during the interview but was prevented from doing so because of his
injuries. Howes v. Fields, 565 U.S. 499, 509 (2012) (discussing the freedom-
of-movement inquiry used to determine whether a defendant is in custody).
Finally, the questioning lasted for less than an hour. See State v. Cruz-Mata,
138 Ariz. 370, 373 (1983) (finding defendant was not in custody during
ninety-minute interview). Based on these circumstances, we conclude the
court did not err in finding Foster was not in custody when he made the
statements.

       B.     Voluntariness

¶16           Foster argues his statements to police were involuntary
because he made them two hours after the collision while receiving
treatment in intensive care, experiencing tremendous pain, under the
influence of a narcotic for pain, and incoherent. We disagree.



                                       6
                             STATE v. FOSTER
                             Decision of the Court

¶17            Use of a defendant’s involuntary statements against him in a
criminal trial is a denial of due process of law, “even though there is ample
evidence aside from the confession to support the conviction.” Mincey v.
Arizona, 437 U.S. 385, 398 (1978) (citations and quotation omitted). A
statement is involuntary if it is not “the product of a rational intellect and a
free will.” Id. (emphasis omitted) (citation and quotation omitted). A
“defendant can voluntarily waive his Miranda rights even when he is in the
hospital, on medication, and in pain.” United States v. George, 987 F.2d 1428,
1431 (9th Cir. 1993) (holding statements voluntary when defendant was in
critical condition but not unconscious or comatose and gave coherent
responsive answers); see also Martin, 781 F.2d at 673-74 (holding statements
voluntary even though defendant was under the influence of Demerol, a
painkiller, and still in pain).

¶18            Foster cites Mincey v. Arizona, 437 U.S. 385 (1978), in which the
defendant “had been seriously wounded just a few hours earlier, and had
arrived at the hospital depressed almost to the point of coma,” for support.
437 U.S. at 398. In that case, the defendant was in the intensive care unit;
complaining that his pain was “unbearable”; “evidently confused and
unable to think clearly about either the events of that afternoon or the
circumstances of his interrogation”; and “lying on his back on a hospital
bed, encumbered by tubes, needles, and breathing apparatus” while being
interrogated. Id. at 399. He received various drugs before being
interviewed, was unable to speak because he was intubated and
accordingly only able to communicate with police in writing, and “clearly
expressed his wish not to be interrogated.” Id. at 396, 399. The Court found
it “hard to imagine a situation less conducive of the exercise of ‘a rational
intellect and free will’” than the defendant’s and determined the statements
were involuntary. Id.

¶19            The record here is distinguishable from Mincey. We recognize
that police questioned Foster while he was in the emergency room,
“writhing in pain,” hooked up to a vitals monitor, and medicated with a
pain narcotic like Mincey. However, Foster was not intubated and was able
to speak freely, and he did not ask the officers to stop questioning him or to
speak with an attorney. Captain GA testified Foster was “very open” and
“willing to discuss things” with the officers regarding his recollection of
events. Additionally, the questioning was of a much shorter duration and
lesser intensity than Mincey’s; Mincey’s questioning was a four-hour ordeal
during which the officer “ceased the interrogation only during intervals
when Mincey lost consciousness or received medical treatment,” whereas
Foster’s interview finished in under an hour. Id. at 400-01. Finally, although
Captain GA opined Foster “was confused as to where he was going and


                                       7
                             STATE v. FOSTER
                             Decision of the Court

some of the statements he was making” during the interview, he stated that
it was not uncommon for a person to be confused after a traffic collision and
that Foster’s responses were otherwise “solid” and “very, very detailed.” In
light of these facts, we conclude the court did not err in finding Foster’s
statements voluntary.

II.    Admission of the Victims’ Photographs

¶20           Foster challenges the admission of only two of the six
admitted photographs. He argues the court erred in admitting the
photographs of the victims when neither the victims’ identity nor cause of
death was at issue, violating the due process guarantees of the Fifth and
Fourteenth Amendments to the United States Constitution and Article 2,
Section 4, of the Arizona Constitution. Foster concedes the photographs
were relevant, but he asserts they were unnecessarily gruesome and did not
contribute to proof of the crimes he allegedly committed.

¶21            “Relevant photographs may be received in evidence even
though they also have a tendency to prejudice the jury against the person
who committed the offense.” State v. Bocharski, 200 Ariz. 50, 55, ¶ 21 (2001)
(citation and quotation omitted). Once the court determines a challenged
photograph is relevant, it must determine whether it has “a tendency to
inflame or incite passion in the jurors.” State v. Doerr, 193 Ariz. 56, 64, ¶ 29
(1998) (citation omitted). If the court finds the photograph has this effect, it
must balance the probative value of the image with its prejudicial effect. Id.
(citation omitted); Ariz. R. Evid. (“Rule”) 403. Trial courts have broad
discretion in admitting photographs, and we will not disturb a trial court’s
decision to admit photographs into evidence absent an abuse of discretion.
Bocharski, 200 Ariz. at 55-56, ¶¶ 21, 27 (citations omitted).

¶22            We conclude the superior court did not err in admitting the
photographs. The State asserted the photographs were necessary, in part,
to “demonstrate the context and nature of the collision scene, the resting
place of the vehicles to demonstrate that [Foster]’s vehicle was the cause of
the collision, the nature of the injuries to the victims, [and] to establish the
death of the victims and that they were in their vehicle.” The court
conducted a Rule 403 weighing test and found that the photographs were
not gruesome and were relevant to show the position of the decedents in
the vehicle, the extensive damage to the vehicle, and the force of the
collision. The record demonstrates the photographs were used for these
purposes during direct examination of one of the officers who arrived on
the scene of the collision. Objectively, the photographs, which showed no
gaping wounds, fractures, or any significant injuries, were no more


                                       8
                             STATE v. FOSTER
                             Decision of the Court

gruesome than other photographs that our Supreme Court has found
admissible. See, e.g., id. at 55-57, ¶¶ 20-29 (finding no abuse of discretion in
admitting photographs showing “views of the victim’s skull, the top and
its contents having been removed, with a metal rod going through an
opening to the inside”). “There is nothing sanitary about murder, and there
is nothing in Rule 403 . . . that requires a trial judge to make it so.” State v.
Rienhardt, 190 Ariz. 579, 584 (1997). We find no abuse of discretion.

                                CONCLUSION

¶23          For the reasons stated, we affirm Foster’s convictions and
sentences but reduce the restitution award to the State to $4,394.23.




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




                                         9
