State v. Deng ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TONY DENG, Appellant.
No. 1 CA-CR 15-0638
FILED 2-9-2017
Appeal from the Superior Court in Maricopa County
No. CR2011-153034-001
The Honorable Hugh Hegyi, Judge
The Honorable Stephen A. Gerst, Judge, Retired
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Robert J. Campos & Associates, PLC, Phoenix
By Robert J. Campos
Counsel for Appellant
STATE v. DENG
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.1
B R O W N, Chief Judge:
¶1 Tony Deng appeals from his convictions and sentences for ten
counts of sexual conduct with a minor under the age of fifteen and one
count of sexual abuse against a minor under the age of fifteen. He argues
the trial court erred in denying his motion to suppress and excusing
potential jurors who did not understand English. Finding no reversible
error, we affirm.
BACKGROUND2
¶2 Deng’s step-daughter (“the victim”), then 16 years old,
initiated several recorded confrontation telephone calls with Deng. He
answered the calls while at work. The victim asked to speak to him about
“some things” and he indicated that was “alright,” but then asked her to
call him back in twenty minutes. The victim promptly called Deng again
and Deng answered the phone. The victim indicated she needed to talk and
proceeded to ask Deng questions about their past sexual encounters. Deng
asked if he could call her back. She insisted, however, on speaking right
away and Deng told her to “call back in about five minutes,” and he hung
1 The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2 Because no evidentiary hearing was held on Deng’s motion to
suppress, the factual recitation pertaining to that motion is based on the
factual assertions made in the motion and the State’s response that appear
to be incontrovertible, as well as the transcript of the confrontation call.
Although the parties refer to trial testimony in arguing the point on appeal,
we do not consider that evidence because it was not before the court when
it ruled on the suppression motion. See State v. Spears, 184 Ariz. 277, 284
(1996) (“In reviewing the denial of a motion to suppress, this court looks
only at the evidence presented to the trial court during the suppression
hearing.”).
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STATE v. DENG
Decision of the Court
up the phone. The third time the victim initiated a call, Deng asked,
“Nobody around you, right . . . cuz I had, there’s somebody else around me,
that’s why I [couldn’t] talk.” The victim indicated she was alone and then
continued to question Deng about their past sexual encounters. Deng
admitted to penetrating her vagina with his penis, performing and
receiving acts of oral sexual contact, and using a sex toy with her. Deng
was subsequently arrested and charged with ten counts of sexual conduct
with a minor and one count of sexual abuse.
¶3 Deng moved to suppress the confrontation call, asserting it
was involuntary and unconstitutional. At the conclusion of oral argument,
the trial court denied the motion, noting it had listened to the recording of
the call and did not find the “victim’s statements to the defendant or
requests of the defendant overbore [Deng’s] will.” The court noted that
Deng “could [have,] and in fact did on one occasion[,] hang the phone up.”
The court further found that Deng spoke with the victim willingly and her
“trickery at the behest of the State” did not amount to coercion. Deng filed
a motion to reconsider, alleging “new identified violations of law.” The
court denied the motion.
¶4 At the subsequent jury trial, before bringing the jury venire
into the courtroom, the bailiff informed the court that some potential jurors
asked to be excused, including two “who don’t speak English and we don’t
have interpreter services for jurors.” The court confirmed that each of the
jurors had asked to be excused and then asked counsel if there were any
objections to excusing the potential jurors. Counsel for both parties
answered “no objection” and the court excused the jurors. During the
second day of jury selection, two more jurors indicated they had difficulty
speaking and understanding English. The court asked if there was any
objection by counsel to excusing the potential jurors. Counsel for both
parties answered “no” and both jurors were excused.
¶5 The jury found Deng guilty as charged and the court
sentenced him to consecutive prison terms of life with the possibility of
release for thirty-five years on the first two counts of sexual conduct with a
minor, twenty years on each of the remaining eight counts of sexual
conduct with a minor, and five years on the sexual abuse count. This timely
appeal followed.
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STATE v. DENG
Decision of the Court
DISCUSSION
A. Confrontation Call
¶6 Deng argues the trial court abused its discretion in denying
his motion to suppress the confrontation call because: (1) the victim was
acting as a state agent when she made the call; (2) Deng had a heightened
expectation of privacy in the phone call based on his “unique relationship”
with the victim, thus implicating a violation of the Fourth Amendment; (3)
Deng’s statements were not voluntary and are protected by Arizona
Revised Statutes (“A.R.S.”) section 13-3988; and (4) the call violated the
Fifth Amendment and Sixth Amendment.
¶7 We review a trial court’s ruling on a motion to suppress
evidence for an abuse of discretion, but review the court’s legal conclusions
de novo, including whether there were constitutional violations. State v.
Peterson, 228 Ariz. 405, 407-08, ¶ 6 (App. 2011) (citations omitted). If the
court’s ruling was legally correct for any reason, we are obliged to affirm
the ruling. State v. Perez, 141 Ariz. 459, 464 (1984).
1. Voluntariness
¶8 Deng argues the confrontation call was not voluntary because
the victim used psychological pressure at the behest of the police to
overcome his will and illicit incriminating statements relevant to her
allegations of sexual assault. He further maintains that because a police
officer suggested and arranged the confrontation call in an attempt to illicit
an incriminating response, the victim was acting as a state agent.
¶9 “Monitoring and recording of a telephone conversation with
the consent of one party . . . is authorized by statute in Arizona.” State v.
Allgood, 171 Ariz. 522, 523-24 (App. 1992); see A.R.S. § 13-3012(9).
Nevertheless, “[t]o be admissible, [Deng’s] statement must be voluntary,
not obtained by coercion or improper inducement.” State v. Ellison, 213
Ariz. 116, 127, ¶ 30 (2006); A.R.S. § 13-3988. The State has the burden of
proving, by a preponderance of the evidence, that a statement was
voluntary. State v. Amaya–Ruiz, 166 Ariz. 152, 164 (1990). A statement was
involuntarily made if there was (1) “coercive police behavior” and (2) “a
causal relation between the coercive behavior and defendant’s overborne
will.” State v. Boggs, 218 Ariz. 325, 335-36, ¶ 44 (2008). In evaluating
voluntariness, “the trial court must look to the totality of the circumstances
surrounding the confession and decide whether the will of the defendant
[was] overborne.” State v. Lopez, 174 Ariz. 131, 137 (1992).
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STATE v. DENG
Decision of the Court
¶10 The trial court did not err in determining that Deng’s
admissions to the victim were voluntary. The court listened to the recorded
phone call and was able to evaluate the tone and nuances of the
conversation. The court properly considered the totality of the
circumstances and found Deng’s statements to the victim during the
recorded phone call were voluntary, pointing to the instances during the
call when he could have, and twice did, end the conversation. The court
also concluded that the victim “engaged in trickery at the behest of the State
apparently, but that does not amount to coercion.”3 Likewise, the court
properly could conclude the demands of the victim, including her
expressed urgency to speak to Deng about past sexual abuse, did not exert
upon him such pressure as to render his statements to her involuntary. See
State v. Keller, 114 Ariz. 572, 573 (1977) (finding that the victim’s demands
for the return of her property, including a threat to call police, did not exert
such pressure to render defendant’s statements involuntary). Nor are we
persuaded by Deng’s argument that his “unique relationship” to the victim,
standing in loco parentis to the victim, rendered his statements involuntary.
See State v. Wright, 161 Ariz. 394, 398 (App. 1989) (holding that the mere fact
that the police officer who questioned the defendant was his father was not
enough to render the confession involuntary).
2. Constitutional and Statutory Violations
¶11 Deng asserts that the confrontation call violated the Fourth
Amendment, asserting he had a “strong[] and legitimate expectation of
privacy” in the confrontation phone call with the victim because he stood
in loco parentis and because he took steps to protect his privacy. It is well
established that obtaining statements through a confrontation call does not
violate the Fourth Amendment. See Allgood, 171 Ariz. at 524 (holding that
a confrontation call arranged by police between minor victim and
stepfather designed to elicit admissions corroborating accusations of sexual
assault comported with state statute and state constitution); see also State v.
Stanley, 123 Ariz. 95, 102 (App. 1979) (“Under the Fourth Amendment, there
is no invasion of privacy in monitoring, recording and introducing into
evidence a telephone conversation where one party has given prior consent
to the interception.”).
¶12 Nor do Deng’s Fifth Amendment claims that his statements
“were the result of [a] compulsion to speak,” at the behest of victim—a state
3 Because there was no evidentiary hearing requested or held on the
motion to suppress, the source for the observation that any “trickery” in the
call was “at the behest of the State” is unclear on appeal.
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STATE v. DENG
Decision of the Court
agent—alter the result. Assuming, arguendo, that the victim was a state
agent, Deng was not entitled to Miranda warnings because during the
phone call he was not in custody or otherwise deprived of his freedom of
action. See Keller, 114 Ariz. at 573 (“The United States Supreme Court has
made it clear that [Miranda] applies only to questioning initiated by law
enforcement officers [a]fter a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.”)
(internal quotation and citation omitted). Here, the incriminating
statements were given during a phone call while Deng was at work.
Likewise, because Deng was not under arrest or detained at the time of the
phone call, his reliance on A.R.S. § 13-3988 is misplaced.4
¶13 Deng also contends his Sixth Amendment rights were
violated because as soon as he became “the accused,” he “had a right to
have counsel act as a buffer between [himself] and the State.” However,
and again assuming arguendo the victim was a state agent, Deng was not
arrested or charged with a crime until after the phone call, meaning his
Sixth Amendment right to counsel had not yet attached. See State v.
Fulminante, 161 Ariz. 237, 246 (1988) (“The sixth amendment does not attach
during pre-indictment questioning.”).5
4 Before a confession is received in evidence, “the trial judge shall . . .
determine any issue as to voluntariness.” A.R.S § 13-3988. Subsection (C)
clarifies that
[n]othing contained in this section shall bar the admission in
evidence of any confession made or given voluntarily by any
person to any other person without interrogation by anyone,
or at any time at which the person who made or gave such
confession was not under arrest or other detention.
Id.
5 Based on the narrow record before us, we find that the confrontation
call was intercepted and recorded pursuant to the victim’s prior consent,
comported with A.R.S. § 13-3012(9), and did not violate the state or federal
constitution. See Allgood, 171 Ariz. at 524; see also Stanley, 123 Ariz. at 102.
Thus, we reject Deng’s assertion that the confrontation call was
inadmissible for “deterrence” reasons.
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STATE v. DENG
Decision of the Court
B. Excusing Jurors
¶14 Deng argues the trial court erred when it excluded non-
English speaking jurors before determining whether the jurors could
actually understand English. Because Deng failed to raise this argument in
the trial court, we review only for fundamental error resulting in prejudice.
State v. Henderson, 210 Ariz. 561, 568, ¶¶ 23-24 (2005).
¶15 By statute, “on timely application” a judge or commissioner
shall “temporarily excuse from service as a juror” persons who are “not
currently capable of understanding the English language.” A.R.S. § 21-
202(B)(3); see also State v. Cota, 229 Ariz. 136, 142, ¶ 15 (2012) (rejecting
constitutional challenge to A.R.S. § 21-202(B)(3)). Here, the trial court was
informed that four non-English speaking potential jurors had asked to be
excused because they did not understand English. Neither party objected
to excusing the potential jurors; in fact, counsel for both parties acquiesced
in the court’s suggestion that they be excused. And Deng does not
challenge the factual basis for excusing the potential jurors. Accordingly,
given A.R.S. § 21-202(B)(3), Deng has shown no error in excusing the four
non-English speaking potential jurors.
CONCLUSION
¶16 For the foregoing reasons, we affirm Deng’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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