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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       RAUL A CARRILLO, Appellant.

                             No. 1 CA-CR 14-0381
                               FILED 2-4-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-135181-003
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee

Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix
By Ray Ybarra Maldonado
Counsel for Appellant
                          STATE v. CARRILLO
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T R O P, Judge:

¶1            Raul A. Carrillo (“Appellant”) appeals his convictions and
sentences for attempted armed robbery, aggravated assault, and conspiracy
to commit armed robbery. He argues the trial court erred in denying his
motion to suppress and motion for mistrial. Appellant also contends the
State violated its obligation to disclose evidence. Finding no error, we
affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           On July 2, 2012, Appellant, Ivan Barragan, Ana Cadena, and
Omar Reyes observed the victim delivering “spice” to a smoke shop before
following him by car to his next stop where Cadena parked. Appellant and
Barragan, both armed, exited the vehicle. Barragan pointed his handgun at
the victim and demanded money. According to Cadena, “the plan” had
been to scare the victim; instead, after the victim grabbed the gun from
Barragan, Appellant fired his gun twice, wounding both Barragan and the
victim.

¶3           Police investigated the incident and arrested Appellant the
following day.    During his interview with Detective Roestenberg,
Appellant, who was sixteen years old at the time, was given his juvenile
Miranda2 warnings and initially denied any involvement in the incident.
Appellant eventually admitted that he and the others followed the victim,
and although he continued to deny being the shooter, Appellant confessed



1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).

2     See Miranda v. Arizona, 384 U.S. 436, 471–72 (1966).




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                           STATE v. CARRILLO
                           Decision of the Court

to being armed when he and Barragan got out of the car and when Barragan
demanded money from the victim.

¶4            The grand jury indicted Barragan, Cadena, and Appellant on
one count of attempted armed robbery, a dangerous3 class 3 felony (“Count
1”); one count of aggravated assault, also a dangerous class 3 felony
(“Count 2”); and one count of conspiracy to commit armed robbery, a class
2 felony (“Count 3”). Barragan entered a plea agreement with the State, and
Appellant and Cadena were tried together. Before trial, Appellant moved
to suppress the statements he made during his interview with Detective
Roestenberg, arguing the statements were made involuntarily and in
violation of Miranda because his request for his mother to be present during
the interview went unheeded. The trial court held an evidentiary hearing
on the motion and subsequently denied it.

¶5           The jury found Appellant guilty as charged,4 and the court
imposed concurrent prison terms of 14 years each for Counts 1 and 2, and
12.5 years for Count 3. Appellant appealed,5 and we have jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona
Revised Statutes A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).6




3      The indictment alleged the three defendants committed the assault
either as a principal or as accomplices by using a gun to place the victim in
reasonable apprehension of imminent physical injury. See Ariz. Rev. Stat.
(“A.R.S.”) §§ 13-1203(A)(2), -1204(A)(2).

4      Cadena was also found guilty of the charged offenses. We affirmed
her convictions and sentences in State v. Cadena, No. 1 CA-CR 14-0363, 2015
WL 4538525, at *3 (Ariz. App. July 28, 2015) (mem. decision).

5      Appellant’s initial notice of appeal was untimely. We suspended the
appeal to allow Appellant to file a petition for post-conviction relief seeking
authorization to file a delayed appeal. Appellant filed such a petition and
the trial court authorized Appellant to file a delayed notice of appeal;
jurisdiction was then revested in this court.

6     We cite the current version of the applicable statutes unless changes
material to our decision have occurred since the date of the offense.


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                            STATE v. CARRILLO
                            Decision of the Court



                                 ANALYSIS

       I.     Motion to Suppress

¶6            Appellant argues the court erred in denying his motion to
suppress because his confession to Detective Roestenberg was made in
violation of Miranda and was otherwise involuntary due to his mother’s
absence during the interview. Appellant specifically contends that
Roestenberg did not honor Appellant’s request that his mother be present
during the interview, thus rendering his Miranda waiver involuntary.
Similarly, Appellant argues his confession was involuntary because,
unknown to him, his mother was at the police station while he was
interrogated, but she was not permitted to attend the questioning.

¶7             We review a trial court’s ruling on a motion to suppress a
defendant’s confession for an abuse of discretion. State v. Newell, 212 Ariz.
389, 396, 396 n. 6, ¶ 22, 132 P.3d 833, 840, 840 n. 6 (2006). In conducting such
a review, we consider only the evidence presented at the suppression
hearing, and we view that evidence in a light most favorable to upholding
the court’s ruling. Id.; State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668
(1996). We defer to the trial court’s determinations of an interrogator’s
credibility and the reasonableness of the interrogator’s inferences. State v.
Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). But we
review the trial court’s ultimate legal conclusion de novo. Id.

¶8             Miranda requires the police to warn suspects who are in
custody of their rights before initiating questioning. State v. Spears, 184
Ariz. 277, 286, 908 P.2d 1062, 1071 (1996) (citing Miranda, 384 U.S. at 444).
Specifically, a person who is in custody and subjected to interrogation must
be advised that he has the right to remain silent; that anything he says can
be held against him; that he has the right to the presence of an attorney; and
that, if he cannot afford an attorney, one will be appointed for him prior to
any questioning. Miranda, 384 U.S. at 479. After these warnings have been
given, the individual may waive these rights, and answer questions or
agree to make a statement, “provided the waiver is made voluntarily,
knowingly, and intelligently.” Id. at 444; accord State v. Jimenez, 165 Ariz.
444, 449, 799 P.2d 785, 790 (1990).

¶9            A confession must be voluntary to be admissible. In re Andre
M., 207 Ariz. 482, 484, ¶ 6, 88 P.3d 552, 554 (2004). Because a defendant’s
confession is presumptively involuntary, the State has the burden of
proving by a preponderance of the evidence that the confession was


                                       4
                           STATE v. CARRILLO
                           Decision of the Court

voluntary and not the product of coercion. State v. Ross, 180 Ariz. 598, 603,
886 P.2d 1354, 1359 (1994); State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d
1260, 1272 (1990). “In making this determination, the totality of the
circumstances surrounding the confession must be considered.” Amaya-
Ruiz, 166 Ariz. at 164, 800 P.2d at 1272. “If the arrestee is a juvenile, the
youth’s age and a parent’s presence are relevant, though not necessarily
determinative, factors that courts should consider in assessing whether
consent was voluntary under the totality of the circumstances.” State v.
Butler, 232 Ariz. 84, 88, ¶ 18, 302 P.3d 609, 613 (2013).

¶10          Here, the record supports a conclusion that Appellant’s
confession was made in accordance with Miranda. After reading the
juvenile Miranda warnings to Appellant, Roestenberg asked Appellant
whether he understood each right, and Appellant unequivocally indicated
that he did.7 Appellant also indicated that he wanted to talk with
Roestenberg, and before questioning commenced, the following transpired:

      Roestenberg: Do you want [to] have your parents? You don’t
      want your mom here, do you? Do you want your parents or
      guardian . . .

      Appellant: I want her to be here, but . . .

      Roestenberg: Oh, you do?

      Appellant: . . . we can talk, you know, I want to talk about this
      ‘cuz I don’t know what . . . is going on.

      Roestenberg: I know. But do you want your mom here right
      now or do you want to talk to me?

      Appellant: We can talk, you know.

      Roestenberg: OK.

¶11           Roestenberg testified at the suppression hearing that he asked
the second time whether Appellant wanted his mother at the interview in
order to clarify Appellant’s initial response because he (Roestenberg) was


7     Appellant also told Roestenberg that he thought the warnings were
the same he had heard when he was arrested previously for an unrelated
criminal offense.




                                     5
                            STATE v. CARRILLO
                            Decision of the Court

surprised that Appellant wanted his mother present.8 Indeed, the colloquy
between Roestenberg and Appellant indicates that, although Appellant
initially indicated that he “wanted” his mother to be present, his overriding,
stated desire was to speak with Roestenberg. And Appellant clearly
expressed and reaffirmed his desire to talk after Roestenberg requested
clarification. Based on this record, we conclude Appellant voluntarily
waived his Miranda rights and proceeded with the interview despite his
mother’s absence.

¶12             The record also establishes the State met its burden of proof
to rebut the presumption that Appellant’s confession was involuntary.
Appellant presented no evidence that Roestenberg or any other police
officer coerced him into making inculpatory statements; indeed,
Roestenberg testified he “[a]bsolutely [did] not” threaten Appellant in any
way. See State v. Jerousek, 121 Ariz. 420, 424, 590 P.2d 1366, 1370 (1979)
(stating “[a] prima facie case for admission of a confession is made when
the officer testifies that the confession was obtained without threat, coercion
or promises of immunity or a lesser penalty”). Appellant also did not claim
that Roestenberg made any promises to extract a confession.

¶13            Finally, we reject Appellant’s assertion that his mother’s
unsuccessful requests at the police station to see Appellant when he was
being questioned rendered his confession involuntary. In support of his
argument, Appellant relies on Andre M., 207 Ariz. 482, 88 P.3d 552. In that
case, Andre, a high school student involved in a fight, was interviewed by
police in the principal’s office. Id. at 483, ¶ 2, 88 P.3d at 553. Andre’s mother
arrived at the school after the initial interview ended, and she and Andre
waited together to resume the questioning. Id. Meanwhile, police
discovered on school grounds a sawed-off shotgun that was connected to
Andre. Id. The mother, without knowing about the discovery of the gun,
left the school before questioning resumed, but she informed the assistant
principal that, when she returned, she wished she or an administrator be
present when police interviewed Andre. Id. at 483–84, ¶¶ 2–3, 88 P.3d at
553–54. Andre’s mother returned to the school after the police interview
resumed, and she attempted to enter the room where the interview was
occurring. Id. at 484, ¶ 4, 88 P.3d at 554. However, a police officer denied
her access. Id. Andre thereafter admitted to possessing the shotgun, and
he later moved to suppress his confession. Id. at ¶ 5. The juvenile court
denied the motion and ultimately adjudicated Andre delinquent. Id.


8      Thereafter, Appellant never requested that his mother be present for
the interview.


                                       6
                            STATE v. CARRILLO
                            Decision of the Court

¶14            Our Supreme Court reversed and held the State failed to rebut
the presumption of involuntariness. Id. at 486–87, ¶¶ 19, 21, 88 P.3d at 556–
57. In support of its holding, the court noted that “the record reveals no
justification for excluding Andre’s mother” and the juvenile court should
have placed significant weight to such exclusion without justification. Id.
at 485–86, ¶¶ 12, 15, 88 P.3d at 555–56. The court also referred to the absence
of the juvenile’s recorded interview in the record and the lack of any
indication that the juvenile was informed of his age-appropriate Miranda
rights, evidence the court noted is “typically offered by the state to bolster
its showing of voluntariness.” Id. at ¶ 18.

¶15            Here, in contrast to Andre M., the record establishes that
Appellant voluntarily waived his right to have his mother present during
his interview, and the recorded interview otherwise establishes that his
confession was not coerced. Because Appellant waived his mother’s
presence, her subsequent preclusion from the interview was justified. As
Detective Roestenberg testified at the suppression hearing—although he
did not remember Appellant’s mother being at the police station—he
typically does not stop questioning to allow a parent’s presence at an
interview “unless it’s initiated . . . by the suspect.” Based on this
justification regarding Appellant’s mother’s absence from the interview,
Andre M. does not require reversal here.9

¶16           For these reasons, we conclude that no Miranda violation
occurred and that the State satisfied its burden to establish the
voluntariness of Appellant’s confession. Consequently, the trial court did
not err in denying Appellant’s motion to suppress.


9      Further distinguishing Andre M., Appellant’s confession was not the
only evidence demonstrating his criminal culpability. See Andre M., 207
Ariz. at 487, ¶ 20, 88 P.3d at 557. Also admitted into evidence at trial was a
letter Appellant wrote to the victim apologizing for what Appellant and
Barragan “ma[d]e [the victim] go through.” Additionally, the trial evidence
establishes that, when he was alone in the interview room, Appellant
telephoned acquaintances and, in addition to making other inculpatory
comments, said he was “f---ed. . . . They knew it was me.” The jury also
heard Cadena’s statements to police implicating Appellant. Thus, any error
in admitting Appellant’s statements made to Detective Roestenberg would
be harmless. See id.; see also State v. Shearer, 164 Ariz. 329, 339–40, 793 P.2d
86, 96–97 (App. 1989) (holding that the introduction of inadmissible
evidence was harmless error when the evidence was cumulative to and
consistent with other trial testimony).


                                       7
                            STATE v. CARRILLO
                            Decision of the Court

       II.    State’s Disclosure

¶17            Before trial, the State did not intend to call Reyes to testify
because neither Appellant nor Cadena noticed a third-party defense.
Consequently, the State did not disclose any information about Reyes. The
State changed its position in the middle of trial, however, after Cadena’s
counsel elicited witness testimony that implicated Reyes. Appellant,
relying on Brady v. Maryland, 373 U.S. 83 (1963), moved to dismiss, or
alternatively for mistrial, based on the State’s failure to disclose Reyes’s
criminal history and issues related to his competency to testify. Appellant’s
trial counsel argued that, without this evidence before trial, she was unable
to effectively prepare a defense. The court, finding Reyes would be unable
to understand issues regarding use immunity that the State offered him in
exchange for his testimony, precluded Reyes from testifying and denied
Appellant’s motions.

¶18           Appellant argues the court erred in denying the motions to
dismiss or for mistrial. He specifically contends the undisclosed evidence
regarding Reyes’s history “could have” been necessary to prepare a third-
party defense. We disagree.

¶19            A trial court has broad discretion in whether to grant a
mistrial or a motion to dismiss. State v. Walton, 159 Ariz. 571, 581, 769 P.2d
1017, 1027 (1989); State v. Huffman, 222 Ariz. 416, 419, ¶ 5, 215 P.3d 390, 393
(App. 2009). We similarly review the determination of whether the State
must disclose evidence for abuse of discretion. See State v. Cordova, 198 Ariz.
242, 244, ¶ 6, 8 P.3d 1156, 1158 (App. 1999).

¶20            The State must disclose all material information in its
possession or control that “tends to mitigate or negate the defendant’s guilt
as to the offense charged, or which would tend to reduce the defendant’s
punishment therefor.” Ariz. R. Crim. P. 15.1(b)(8); see also Brady, 373 U.S. at
87 (holding failure to disclose favorable evidence material to guilt or
punishment of the defendant violates due process). Exculpatory evidence
is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)). “There is never a real ‘Brady violation’
unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a different
verdict.” Strickler, 527 U.S. at 281. “The mere possibility that an item of
undisclosed information might have helped the defense, or might have




                                       8
                             STATE v. CARRILLO
                             Decision of the Court

affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–10 (1976).

¶21             Here, the trial court did not abuse its discretion. With respect
to Counts 1 and 2, the indictment alleged both principal and accomplice
liability. An “accomplice” is a person “who with the intent to promote or
facilitate the commission of an offense . . . [a]ids, . . . attempts to aid another
person in planning or committing an offense[, or p]rovides means or
opportunity to another person to commit the offense.” A.R.S. § 13-301(2)–
(3). Appellant admitted to being in the vehicle that followed the victim,
exiting the vehicle with Barragan, and being armed while Barragan,
demanding money, pointed a gun at the victim. Neither Reyes’s criminal
history nor his mental health issues that affected his competency were
material to determining Appellant’s culpability as an accomplice to the
aggravated assault and attempted armed robbery committed by Barragan.10
Consequently, the court did not err in denying Appellant’s alternative
motions to dismiss or for mistrial.

       III.    Motion for Mistrial: Prosecutorial Misconduct

¶22          During the State’s questioning of Detective Roestenberg
regarding Appellant’s initial disavowal of any involvement in the crimes,
the following colloquy transpired:

       Q. Okay. D[id] you offer him the ability to take a lie detector
       test?

       A. I did.

       Q. And did he not give you a – that’s a horrible question. In
       response to you saying, hey, man, okay, you didn't do it, why
       don't you take a lie detector test, did he not give you a straight
       answer?

¶23           Appellant promptly objected, and on the next day of trial,
moved for a mistrial. The court denied the motion and instead immediately
instructed the jury as follows: “Mention of a lie detector test is
inappropriate and is not admissible. Any reference to a lie detector test will
be stricken and is not to be considered by you.”


10    Under these circumstances, and even had Appellant’s trial counsel
known about this evidence pertaining to Reyes before trial, it is difficult to
fathom how a third-party defense could have been available to Appellant.


                                        9
                           STATE v. CARRILLO
                           Decision of the Court

¶24           Appellant contends the court erred in denying his motion for
mistrial. He argues the court’s curative instruction was insufficient to cure
what Appellant implies was prosecutorial misconduct.

¶25            This court will reverse a conviction based on prosecutorial
misconduct when there is misconduct by the prosecutor and “a reasonable
likelihood . . . that the misconduct could have affected the jury’s verdict,
thereby denying [the] defendant a fair trial.” State v. Anderson, 210 Ariz.
327, 340, ¶ 45, 111 P.3d 369, 382 (2005). “Prosecutorial misconduct ‘is not
merely the result of legal error, negligence, mistake, or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which
the prosecutor knows to be improper and prejudicial, and which he pursues
for any improper purpose with indifference to a significant resulting
danger of mistrial.’” State v. Aguilar, 217 Ariz. 235, 238–39, ¶ 11, 172 P.3d
423, 426–27 (App. 2007) (quoting Pool v. Super. Ct., 139 Ariz. 98, 108–09, 677
P.2d 261, 271–72 (1984)). “To prevail on a claim of prosecutorial
misconduct, a defendant must demonstrate that the prosecutor’s
misconduct ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26,
969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). Because the trial court is in the best position to determine
whether an attorney’s remarks require a mistrial, we will not disturb its
judgment absent an abuse of discretion. State v. Tucker, 215 Ariz. 298, 319,
¶ 88, 160 P.3d 177, 198 (2007).

¶26            We agree with Appellant that the prosecutor’s questioning
regarding the polygraph was improper. See State v. Hoskins, 199 Ariz. 127,
144, ¶ 69, 14 P.3d 997, 1014 (2000), supplemented, 204 Ariz. 572, 65 P.3d 953
(2003) (noting “all references to polygraph tests, absent stipulation, are
inadmissible for any purpose in Arizona”); State v. Bowen, 104 Ariz. 138,
141, 449 P.2d 603, 606 (1969) (stating the evidence of, or reference to, a
polygraph test is inadmissible for any reason). The questioning, however,
did not amount to misconduct requiring reversal. As the prosecutor
explained, she knew that questions pertaining to polygraph results are
improper, but she mistakenly believed that questions regarding offers to
take a polygraph were permissible. Thus, the questioning is more properly
characterized as a legal error or negligence, not intentional misconduct.
Moreover, the comments regarding the polygraph did not permeate the
trial to such an extent that Appellant was denied a fair trial. Finally, the
court’s curative instruction to the jury adequately alleviated any resulting
prejudice. See Bowen, 104 Ariz. at 141, 449 P.2d at 606 (holding that the trial
court’s instruction to jury to disregard comment regarding a polygraph and
its action of striking it from the record “fully protected the defendant”).


                                      10
                         STATE v. CARRILLO
                         Decision of the Court

Accordingly, the court did not abuse its discretion in denying the motion
for mistrial.

                            CONCLUSION

¶27          Appellant’s convictions and sentences are affirmed.




                                :ama




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