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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TRAVIS LAVOY ORNER, Appellant.

                             No. 1 CA-CR 15-0580
                              FILED 9-15-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-144647-001
                The Honorable Peter C. Reinstein, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                             STATE v. ORNER
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Jon W. Thompson joined.


K E S S L E R, Judge:

¶1           Travis Lavoy Orner appeals his convictions and sentences for
two counts of aggravated assault. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY1

¶2            One afternoon, SR stepped outside of CK’s garage to inspect
a sudden disruption in electrical service. Orner ambushed SR and then
kicked him in the head as he lay on the ground. CK attempted to intervene,
but Orner beat him with a jack handle. As Orner was assaulting CK, SR hit
Orner in the head with a golf club.

¶3           Police officer JW responded to a call regarding the altercation.
As Officer JW approached the scene, he observed Orner walking away.
Orner, CK, and SR were visibly injured. Officer JW briefly handcuffed
Orner and searched him for weapons, then emergency medical personnel
transported Orner to a nearby hospital.

¶4             Officer JW arrived at the hospital and, when permitted to do
so by Orner’s treatment providers, asked Orner questions on three distinct
occasions pertaining to the events at CK’s home. Before starting the third
interview, Officer JW informed Orner of his rights under Miranda v. Arizona,
384 U.S. 436 (1966). During the interviews, Orner made conflicting
statements about the positions of the victims relative to his position during
the fight and whether he had “anything to swing with.”

¶5             The State charged Orner with two counts of aggravated
assault, one a class 3 dangerous felony (“Count 1”), the other a class 6 felony
(“Count 2”). Orner moved to suppress the statements he made to Officer


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404-05 n.2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


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                             STATE v. ORNER
                            Decision of the Court

JW while in the hospital, but the court denied the motion after an
evidentiary hearing.         During jury selection, Orner unsuccessfully
challenged the State’s peremptory strike of potential juror #42 (“#42”),
arguing the strike was improper under Batson v. Kentucky, 476 U.S. 79
(1986). At trial, the State played recordings of Officer JW’s three interviews
with Orner for the jury.

¶6            The jury found Orner guilty as charged. As an aggravating
factor regarding Count 1—the assault on CK—the jury found the State
proved beyond a reasonable doubt that the offense involved the use,
threatened use, or possession of a dangerous instrument during the
commission of the offense. The court imposed presumptive concurrent
terms of imprisonment. Orner timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                               DISCUSSION

I.     Batson Challenge

¶7           Orner argues the court erred in denying his Batson challenge.
We disagree.

¶8             “A Batson challenge proceeds in three steps: (1) the party
challenging the strikes must make a prima facie showing of discrimination;
(2) the striking party must provide a race-neutral reason for the strike; and
(3) if a race-neutral explanation is provided, the trial court must determine
whether the challenger has carried its burden of proving purposeful racial
discrimination.” State v. Roque, 213 Ariz. 193, 203, ¶ 13 (2006) (internal
quotation marks and citations omitted). The third step is fact-intensive; the
trial court evaluates the credibility of the State’s proffered explanation,
considering factors such as “the prosecutor’s demeanor . . . how reasonable,
or how improbable, the explanations are[,] and . . . whether the proffered
rationale has some basis in accepted trial strategy.” Miller-El v. Cockrell, 537
U.S. 322, 339 (2003); State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006).
“Implausible or fantastic justifications may (and probably will) be found to
be pretext[ual].” Newell, 212 Ariz. at 401, ¶ 54 (quoting Purkett v. Elem, 514
U.S. 765, 768 (1995)).

¶9            “We review a trial court’s decision regarding the State’s
motives for a peremptory strike for clear error.” Roque, 213 Ariz. at 203, ¶
12. Absent extraordinary circumstances, “[w]e give great deference to the
trial court’s ruling, based, as it is, largely upon an assessment of the



                                       3
                             STATE v. ORNER
                            Decision of the Court

prosecutor’s credibility.” Id. at ¶ 13. We review the trial court’s application
of the law de novo. State v. Lucas, 199 Ariz. 366, 368, ¶ 6 (App. 2001).

¶10           During voir dire, #42, along with the other potential jurors,
informed the court and the parties of his employment, whether he was
married and had children, and whether he served on a jury before. He also
raised his hand, as did five others, to the court’s question posed to the panel:
“[W]ho would vote not guilty right now[?]”

¶11           After Orner raised his Batson challenge, the court asked the
State to give a race-neutral explanation for the strike, and the prosecutor
responded, “[W]e had very little information on [#42].” The State indicated
it had also struck two other potential jurors based on the limited
information they revealed during voir dire.

¶12            By asking for a “race-neutral” explanation, the court
implicitly found that Orner met his initial burden to make a prima facie case
of intentional discrimination based on race.2 State v. Bustamante, 229 Ariz.
256, 261, ¶ 16 (App. 2012). As for the second step of the Batson analysis, the
State’s proffered explanation for the strike—having little information about
#42—is facially race-neutral. State v. Harris, 184 Ariz. 617, 620 (App. 1995).
And, by denying Orner’s Batson challenge and impaneling the jury, the
court implicitly found Orner failed to establish that the State’s explanation
was a pretext for purposeful discrimination.              Id.   This implicit
determination “properly rested on an assessment of the prosecutor’s
credibility.” Id.

¶13           Nonetheless, Orner contends the State engaged in racial
discrimination because the State did not strike some (apparently white) jury
members who similarly divulged little information during voir dire. We
cannot address this contention, however, because the record does not reveal
the racial composition of the venire panel or the jury, let alone the race of
other panel members stricken by the State. See State v. Decker, 239 Ariz. 29,
32, ¶ 10 (App. 2016) (recognizing that although “‘lack of general
information’ is generally an unpersuasive rationale for striking a
prospective juror,” the rationale alone does not show purposeful racial
discrimination). Orner also argues the prosecutor “misled” the court by
stating the only information known about #42 was his biographical
information, when, in fact, #42 had responded to the court’s question
regarding Orner’s guilt before evidence had been presented. We do not
discern any intention to mislead the court; indeed, the court was

2    In his opening brief, Orner refers to #42 as “nonwhite.” We note,
however, that nothing in the record indicates #42’s race.

                                       4
                             STATE v. ORNER
                            Decision of the Court

presumably aware of #42’s response because it noted #42’s answer to the
question regarding guilt. Finally, we reject Orner’s assertions that, to
survive his Batson challenge, the prosecutor was required to (1) question
#42 more thoroughly, and (2) establish “some relationship” between this
case and the reason for striking #42. See Purkett, 514 U.S. at 769 (explaining
“legitimate reason” behind a peremptory strike need not be “a reason that
makes sense, but a reason that does not deny equal protection.”).

¶14            On this record, and based on the deference properly afforded
the trial court in its evaluation of the prosecutor’s credibility, Orner has not
shown the clear error required to reverse the trial court’s denial of his Batson
challenge.

II.    Motion to Suppress

¶15           Orner argues the trial court erred in denying his motion to
suppress. We review a trial court’s ruling on a motion to suppress a
defendant’s inculpatory statements for an abuse of discretion. Newell, 212
Ariz. at 396 n.6, ¶ 22. 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. at ¶ 22; State v.
Hyde, 186 Ariz. 252, 265 (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 (1996). But we
review the trial court’s ultimate legal conclusion de novo. Id.

¶16            Orner first contends the statements made before Officer JW
read him his Miranda rights occurred while he was in custody and were
therefore inadmissible. Miranda requires the police to warn suspects who
are in custody of their rights before initiating questioning. State v. Spears,
184 Ariz. 277, 286 (1996) (citing Miranda, 384 U.S. at 444). Consequently, as
Orner properly observes, the threshold issue is whether he was in custody
when questioned the first two times by Officer JW at the hospital.

¶17            Miranda warnings are required “only where there has been
such a restriction on a person’s freedom as to render him ‘in custody.’”
Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Oregon v. Mathiason,
429 U.S. 492, 495 (1977)). “Custody” as used in Miranda “is a term of art that
specifies circumstances that are thought generally to present a serious
danger of coercion.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012). As relevant
here, “custody” means either a “‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.” Maryland v.
Shatzer, 559 U.S. 98, 112 (2010) (quoting New York v. Quarles, 467 U.S. 649,
655 (1984)).

                                       5
                            STATE v. ORNER
                           Decision of the Court

¶18           In determining whether a person is in custody for purposes
of Miranda, the court considers all the circumstances of the interrogation to
determine whether a reasonable person would have felt deprived of his or
her freedom “in a significant way.” State v. Morse, 127 Ariz. 25, 28 (1980).
Relevant factors include the location and duration of the questioning,
statements made during the questioning, the presence or absence of
physical restraints and whether the person was released at the end of
questioning. Howes, 132 S. Ct. at 1189.

¶19          The evidence from the suppression hearing shows Officer JW
did not accompany Orner to the hospital, and when they both arrived at the
emergency room “roughly around the same time,” Officer JW stood off to
the side so hospital staff could commence treating Orner’s head wound.
Officer JW did not know whether Orner was a suspect, victim, or witness.

¶20            When staff informed Officer JW he could speak to Orner, he
did so, saying, “Look, I need to know the basics of what happened, what
transpired, and how did we get to this point.” Orner replied that he was at
CK’s to check on personal property he had stored there, and when he
arrived, a fight ensued involving people swinging weapons at each other.

¶21           A nurse returned to continue treatment, and Officer JW
contacted officers who were interviewing the others involved in the
altercation. Officer JW learned that, according to the other subjects, Orner
was not “welcome at [CK’s residence,]” and Orner instigated the fight.

¶22           Still not certain who the initial aggressor was, Officer JW
returned to Orner’s bedside to clarify what happened. Orner gave a more
detailed description of the altercation, which, according to him, ended
when he was hit in the head with an object before retreating and calling 9-
1-1.3 Orner claimed he “may have hit one of them,” but he was not certain
because he “was just swinging.” The first two interviews lasted between
eight and fifteen minutes, and Officer JW did not know “who was telling
the truth” as between Orner on the one hand, and CK and SR on the other.

¶23            Medical staff returned to Orner to begin scanning and taking
X-rays of his head, and Officer JW again contacted the officers interviewing
the other subjects. During this conversation, the officers discussed evidence
collected at the scene and the inconsistencies between Orner’s and the other




3      According to the record, Orner called 9-1-1 two minutes after one of
the victims did so.

                                     6
                            STATE v. ORNER
                           Decision of the Court

subjects’ description of the altercation. Based on this information, Officer
JW and the other officers suspected Orner was the initial aggressor.

¶24          Orner completed his scans and X-rays and returned to his
room where Officer JW read him his Miranda rights. Orner agreed to
answer questions, and he repeated “essentially the same story.” Officer JW
waited for Orner to be discharged from the hospital before arresting him.

¶25           The foregoing demonstrates that Orner was not in custody
while he was in the hospital and being interviewed by Officer JW. Officer
JW was the only officer present, and no evidence was presented showing
JW restrained Orner at the hospital (or that Orner was restrained at all). No
evidence revealed that Officer JW exhibited undue force, made threatening
comments or promises, or engaged in any activity that could have
overborne Orner’s will. Officer JW had not indicated that Orner was
suspected of assaulting CK and SR, had not told Orner he was under arrest,
and the questioning was not prolonged. Rather, Officer JW’s questioning
amounted to nothing more than a short investigation. Merely responding,
while hospitalized and unrestrained, to a police officer’s questions
regarding a possible crime does not alone rise to the level of custodial
interrogation for purposes of Miranda. See State v. Tucker, 557 A.2d 270, 272
(N.H. 1989) (noting majority of courts have determined police must impose
a restraint on defendant’s freedom of movement in hospital to implicate
Miranda). Under these circumstances, no reasonable person would believe
she was deprived of her freedom in a significant way. Orner, therefore, was
not in custody, and no Miranda violation occurred.

¶26           Orner also argues that the three separate interviews
amounted to a “three-stage ploy to obtain inculpatory statements,” thereby
rendering the statements made after Officer JW informed him of his
Miranda rights inadmissible under Missouri v. Seibert, 542 U.S. 600 (2004).

¶27          We have previously described the two-stage interrogation
technique prohibited by Seibert as follows:

      In the first stage, police interrogate a person in custody
      without having given the person his Miranda warnings and
      the person has made statements in response to that
      questioning. Then, in the second stage, the police give the
      person his Miranda warnings, the person waives his right to
      remain silent and the person repeats his prior statements in
      response to the police repeating the questions or lines of
      questions asked prior to the Miranda warnings being given.



                                     7
                             STATE v. ORNER
                            Decision of the Court

State v. Zamora, 220 Ariz. 63, 66 n.2, ¶ 1 (App. 2009) (citing Seibert, 542 U.S.
at 604). As we noted in Zamora, the two-stage interrogation technique
prohibited by Seibert exists only when Miranda is violated initially. Id. at ¶
1. Because Miranda was not violated during Orner’s first two interviews,
Seibert does not apply.

¶28          For the foregoing reasons, the trial court properly denied
Orner’s motion to suppress.

                               CONCLUSION

¶29           For the foregoing reasons, we affirm Orner’s convictions and
sentences.




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




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