State v. Blanco ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALFREDO GERARDO BLANCO, Appellant.
No. 1 CA-CR 19-0122
FILED 9-10-2020
Appeal from the Superior Court in Mohave County
No. S8015CR201700078
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. BLANCO
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 Alfredo Gerardo Blanco (“Blanco”) was found guilty of first-
degree murder, concealment of a dead body, and tampering with physical
evidence. He appeals the trial court’s denial of his motion to suppress
statements made during a non-custodial interrogation after he invoked his
right to remain silent and requested counsel. Blanco also appeals his
conviction for premeditated first-degree murder, arguing there was
insufficient evidence of premeditation to support the verdict. In addition,
he contends the court committed reversible error by failing to allow certain
jury instructions. For the following reasons, we affirm.
FACTS1 AND PROCEDURAL HISTORY
¶2 In June 2015, the victim, S.C., was visiting Kingman and
staying with friends. Blanco worked as a handyman in Kingman and
helped manage multiple real estate properties owned by S.C. In exchange
for managing the properties and collecting rent for S.C., Blanco received ten
percent of the rent collected.
¶3 Blanco had been hired to help refurbish an old, uninhabited
home on Wilson Ranch Road (the “ranch house”), located around twenty
miles outside of Kingman. S.C. did not own the house or have any
connection to it.
¶4 Early in the day on June 16, 2015, Blanco and S.C. met up to
exchange rent money Blanco had collected. The pair met at a house on Club
Avenue (the “Club house”) that Blanco was in the process of remodeling,
before getting lunch at In-N-Out Burger and dropping off food to Blanco’s
family.
1 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” See State v. Fontes,
195 Ariz. 229, 230, ¶ 2 (App. 1998).
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¶5 The two eventually proceeded to the ranch house. There,
Blanco shot S.C. with a 12-gauge shotgun, loaded with bird shot or snake
shot. Blanco did not call 911.
¶6 Later in the afternoon, Blanco met up with William Sanders
at the Club house. Blanco and Sanders were friends and work associates,
and had planned to go to the ranch house that day to tow a trailer using
Sanders’ truck. The two drove separately to the ranch house and upon
Sanders arriving, Blanco told Sanders that he wanted to show Sanders
something inside the ranch house. Blanco led Sanders into the house and
to the body of S.C., which was seated on the ground against a door frame.
Blanco told Sanders that he had shot S.C. by accident when trying to shoot
a rattlesnake in the wall.
¶7 Sanders moved toward the body to check for a pulse and
Blanco said, “Don’t bother, he’s gone.” Sanders saw that the side of S.C.’s
body had been completely blown away by the gunshot and told Blanco that
they needed to call the police. Blanco refused and said he had already dug
a hole in the backyard for the body. Sanders again asked to call the police,
but Blanco again refused and asked Sanders if he had ever lost anyone close
to him.2
¶8 Blanco then abruptly left the room and came back a few
minutes later with a tarp. The two wrapped S.C.’s body in the tarp, carried
it to the back door, and loaded it into the front bucket of a backhoe. Blanco
drove the backhoe to a hole near a shed in the backyard and rolled the body
out of the tarp and into the hole. Blanco used the backhoe to fill the hole
with dirt and level off the ground. After the body had been buried, Blanco
and Sanders drove separately back to Kingman.
¶9 Early the following morning, Blanco sold two rings to a
jewelry store owned by his ex-son-in-law, Myron Storing. Blanco told
Storing that he had found the rings in a house he was remodeling.
¶10 Later that day, Blanco called the friend who S.C. had been
staying with and asked about S.C.’s whereabouts. The friend reported that
S.C. had not come home for dinner on the 16th nor contacted him the next
morning. Blanco and the friend drove around together to look for S.C.
They found S.C.’s motorcycle at the Club house and then searched for S.C.
2 Sanders testified that he interpreted this question as a threat and
thought he or his family would be in danger if he told anyone what had
happened.
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Decision of the Court
at a property S.C. had been trying to sell. In the evening, the friend reported
S.C. as missing to the Kingman police.
¶11 A search and rescue operation was undertaken, with a focus
on the areas where S.C. owned real estate. Blanco told the search and rescue
supervisor that he had last seen S.C. at In-N-Out Burger around 11:30 A.M.
on June 16. S.C.’s brother traveled to Kingman to assist in the search and
stayed with Blanco while in Kingman. At one point, Blanco told S.C.’s
brother that he believed the family of S.C.’s fiancée, who was from Mexico,
may have targeted S.C. because he was white. Blanco also told the brother
that S.C. had represented that if anything ever happened to him, he wanted
Blanco to have the “property on the hill,” a desirable piece of real estate.
¶12 Blanco was interviewed as a witness by police. Blanco told
police that he had last seen S.C. at the Club house before leaving to finish a
painting job at a nearby subdivision. Blanco stated he later began driving
toward Wikieup, but turned back when he remembered he was supposed
to meet up with S.C. again in the evening. Blanco claimed he called S.C.
multiple times that evening but was never able to get ahold of him.
¶13 A few days after learning that S.C. was missing, Storing, the
jewelry store owner, looked at pictures of S.C. on Facebook and noticed that
S.C. was wearing the rings that Blanco had sold Storing on June 17. Storing
placed the rings in a plastic bag, told a member of the search and rescue
team about the rings, and eventually handed over the rings to Kingman
police.
¶14 Around the same time, Police obtained possession of a rental
car that Blanco had been using on June 16. Police conducted forensic testing
on the vehicle, including testing a buildup of red soil on the undercarriage
of the car. The soil type did not match any road or location Blanco professed
to have traveled on June 16, but did match several other locations around
Kingman, including the area around the ranch house.
¶15 A few weeks later, law enforcement mapped location data for
S.C.’s and Blanco’s cell phones. The data showed both phones leaving the
area around In-N-Out Burger in Kingman, arriving at the ranch house, and
coming back to Kingman around the same time.
¶16 Near the end of 2016, the FBI joined forces with Kingman
police in investigating S.C.’s disappearance. In the months following S.C.’s
disappearance, Sanders had been interviewed on several occasions, but had
never disclosed any information related to S.C.’s disappearance. But in
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Decision of the Court
January 2017, several officers interviewed Sanders again and Sanders
finally admitted that he knew where S.C.’s body was buried.
¶17 Sanders led agents to the ranch house and explained how the
events of June 16, 2015, had transpired. There, law enforcement recovered
a body, which was confirmed to be S.C. through dental records. A medical
examiner established that S.C. had died after bleeding out from a close-
range shotgun shot of bird pellet. Soon after, officers found records that
Blanco had sold a 12-gauge shotgun to a local pawn shop in October 2015
and an officer recovered the weapon.
¶18 On January 10, 2017, law enforcement interviewed Blanco at
a convalescent center in Surprise, Arizona, where Blanco was living at the
time. Blanco was coherent and using a motorized wheelchair. During the
interview, Blanco confirmed he had been working on the ranch house, but
denied that he was there on June 16, 2015, and denied ever being there with
S.C. Even after being confronted with the phone records placing him and
S.C. at the ranch house and after being offered the opportunity to explain
any accident, Blanco still denied having been at the ranch house with S.C.
Blanco terminated the interview and left the room when an officer showed
him a picture of S.C.’s remains.
¶19 A grand jury indicted Blanco for one count of first-degree
murder (Count 1), one count of concealment of a dead body (Count 2), and
one count of tampering with physical evidence (Count 3). Blanco was
found guilty of all counts. The court sentenced him to natural life in prison
for Count 1, the presumptive term of one and a half years for Count 2, and
the presumptive term of one year for Count 3, with Counts 2 and 3 running
concurrent to each other, but consecutively to Count 1.
¶20 Blanco filed a timely notice of appeal and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).
ANALYSIS
I. Motion to Suppress
¶21 Blanco argues the trial court abused its discretion when it
denied his motion to suppress statements made to law enforcement on
January 10, 2017, during the non-custodial interview.3 Blanco contends the
3 On appeal, Blanco concedes he was not “in custody” during this
interview.
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Decision of the Court
statements should have been excluded because he expressly invoked his
right to remain silent and right to have counsel present during the
interview.
¶22 “We review the denial of a motion to suppress evidence for
abuse of discretion, considering the facts in the light most favorable to
sustaining the ruling.” State v. Weakland, 246 Ariz. 67, 69, ¶ 5 (2019). In our
review, we consider “only the facts presented to the superior court at the
suppression hearing.” State v. Mendoza-Ruiz, 225 Ariz. 473, 474, ¶ 2 n.1
(App. 2010).
¶23 In Miranda v. Arizona, the U.S. Supreme Court held that the
prohibitions against self-incrimination contained in the Fifth and
Fourteenth Amendments require a suspect be advised of his right to remain
silent and right to have counsel present before a custodial interrogation.
384 U.S. 436, 479 (1966); see U.S. Const. amends. V, XIV; Ariz. Const. art. 2,
§§ 4, 10. If an individual invokes his right to remain silent or right to
counsel, the interrogation must cease. Miranda, 384 U.S. at 474.
¶24 Since the decision in Miranda, continuing precedent has made
clear that Miranda and its progeny apply “only in the context of custodial
interrogation. If the defendant is not in custody then those decisions do not
apply; nor do they govern other, noninterrogative types of interactions
between the defendant and the State.” Montejo v. Louisiana, 556 U.S. 778,
795 (2009); accord State v. Yonkman, 231 Ariz. 496, 498, ¶ 8 (2013). The court
further emphasized, “When a defendant is not in custody, he is in control,
and need only shut his door or walk away to avoid police badgering.” Id.
¶25 Certainly, the privileges and protections of the Fifth and
Fourteenth Amendments do not disappear simply because a suspect is in a
non-custodial setting. However, as Montejo and Yonkman make clear, to
assert those privileges in a non-custodial setting, a suspect need only leave
and end contact with law enforcement.
¶26 Here, Blanco did just that. Although Blanco made statements
midway through the interview asking for an attorney and asserting he
would stop talking, officers were not required to cease questioning. See
State v. Lang, 176 Ariz. 475, 484 (App. 1993) (“Police may continue to
question suspects who are not in custody, even though they invoke their
right to remain silent, as long as the responses are voluntary and the
person’s will has not been overborne.”). When Blanco again stated that he
did not want to talk without an attorney, he ended the interview and left
the room. When Blanco left, officers did not try to get him to come back nor
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Decision of the Court
did they have any further contact with him that day. On this record, the
trial court did not abuse its discretion in denying Blanco’s motion to
suppress.
II. Prosecutor’s Comments
¶27 Blanco also contends that, as part of its case in chief, the State
impermissibly commented on his invocations of his right to remain silent
and right to counsel made during the January 10, 2017, interview.
¶28 The State contends this argument is raised for the first time on
appeal. We agree. Although Blanco points to a portion of the evidentiary
hearing transcript as where he claims the argument was raised, the
transcript portion referenced does not support his contention.
¶29 We will review a constitutional claim raised for the first time
on appeal, but our review is limited to determining whether fundamental,
prejudicial error occurred. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005);
State v. Coleman, 241 Ariz. 190, 192, ¶ 6 (App. 2016).
¶30 However, our review of the record shows that, even assuming
any error, evidence of Blanco’s invocations of his right to remain silent and
right to counsel were first introduced at trial by Blanco himself. Although
the State introduced a recorded version of the January 10 interview, the
recording was redacted and did not contain Blanco’s invocations. In
contrast, Blanco introduced as an exhibit a partial transcript of the
interview, which did contain his statements that he did not want to speak
to officers without an attorney. Because Blanco himself first introduced
evidence of his invocations of the right to remain silent and right to counsel,
the invited error doctrine bars any alleged error arising from improper
statements made in response to that exhibit. See State v. Logan, 200 Ariz.
564, 565-66, ¶ 9 (2001) (“If an error is invited, we do not consider whether
the alleged error is fundamental, for doing so would run counter to the
purposes of the invited error doctrine. . . . [W]e will not find reversible error
when the party complaining of it invited the error.”); State v. Escalante, 245
Ariz. 135, 145, ¶ 38 (2018) (“[I]f defense counsel invited trial error,
strategically or carelessly, the defendant cannot obtain appellate relief even
if the error was fundamental and prejudicial.”).
¶31 Moreover, even regarding those statements not made in
direct response to the exhibit entered by Blanco, we see no error. See id. at
142, ¶ 21 (“[T]he first step in fundamental error review is determining
whether trial error exists. . . . The defendant bears the burden of
persuasion.”). First, as to Blanco’s invocation of his right to counsel, the
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Decision of the Court
record shows that aside from the interview transcript that Blanco himself
entered into the record, there was no other discussion at trial of Blanco’s
request for an attorney. Accordingly, there was no error.
¶32 As to Blanco’s invocation of his right to remain silent, Blanco
alleges the State improperly commented on his invocation multiple times
during its closing argument. First, Blanco takes issue with the prosecutor’s
argument that Sanders would not have willingly spoken to police if he were
the shooter. Blanco claims that by making this argument, the prosecutor
implied Blanco was guilty for declining to talk to police. Second, Blanco
complains that the prosecutor inappropriately emphasized Blanco’s
statements that he “[didn’t] know nothing about nothing” and “[didn’t]
know anything” when given the opportunity to say the shooting was an
accident. Blanco contends that the prosecutor’s emphasis on his failure to
state that the shooting was accidental improperly implied guilt.
¶33 It is well-settled law that the State may not comment on a
defendant’s failure to testify at trial, either directly or indirectly. See U.S.
Const. amend. V; Ariz. Const. art. 2, § 10; A.R.S. § 13-117(B); see also Griffin
v. California, 380 U.S. 609, 613-14 (1965); State v. Rutledge, 205 Ariz. 7, 12, ¶ 26
(2003). “To determine whether a particular argument is improper, the
statements must be examined in context to determine whether the jury
would naturally and necessarily perceive them to be a comment on the
failure of the defendant to testify.” State v. Schrock, 149 Ariz. 433, 438 (1986);
see also State v. Hughes, 193 Ariz. 72, 86, ¶ 62 (1998) (considering the
“cumulative effect” of prosecutor’s statements).
¶34 In Rutledge, a prosecutor made comments during closing
argument of a murder trial asking the jury to note that the defendant failed
to mention an alibi witness during a videotaped interview with police. 205
Ariz. at 14, ¶ 37. On appeal, the court held the prosecutor’s statements were
not an improper comment on defendant’s failure to testify because the
prosecutor clearly referred to defendant’s failure to name alibi witnesses,
specifically referred to the videotaped interview, and did not refer to
defendant’s decision to not testify. Id. at ¶ 38.
¶35 Here, the situation is highly analogous to Rutledge. In the face
of Blanco’s accident theory presented at trial, the prosecution referred to the
fact that Blanco denied knowing anything about an accident in a recorded
interview with law enforcement. The prosecutor mentioned that denial, but
did not ever refer to Blanco’s decision not to testify. See also Schrock, 149
Ariz. at 438-39 (holding a prosecutor’s comment was permissible when it
related only to the fact that the defendant’s statements to the officers did
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Decision of the Court
not support the alibi defense that defendant had pled). Additionally, the
prosecutor’s comments about Sanders talking to police were used to
emphasize Sanders’ credibility and state of mind, not as substantive
evidence of Blanco’s guilt based on failure to testify. Thus, taken in context,
the jury would not “naturally and necessarily perceive” the prosecutor’s
remarks as a comment on Blanco’s failure to testify. See Schrock, 149 Ariz.
at 438.
III. Sufficiency of Evidence of Premeditation
¶36 Blanco argues there was insufficient evidence of
premeditation to support his conviction for first-degree murder.
¶37 We review de novo the sufficiency of the evidence supporting
a conviction, as well as the denial of a motion for judgment of acquittal on
that basis. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). In our review, “the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at ¶ 16
(quoting State v. Mathers, 165 Ariz. 64, 66 (1990) (emphasis in original)).
¶38 We recognize “[t]he fact that a jury convicts a defendant does
not in itself negate the validity of the earlier motion for acquittal.” Id. at
¶ 17. Still, we “view the evidence in the light most favorable to sustaining
the conviction, and, because the jury has returned its verdict and
presumptively followed instructions, all reasonable inferences will be
resolved against a defendant.” State v. Lee, 189 Ariz. 608, 615 (1997).
¶39 Premeditation requires proof that, after forming an intent to
kill, the defendant “reflected on the decision before killing.” State v.
Thompson, 204 Ariz. 471, 479, ¶ 32 (2003). The time needed for actual
reflection may be very short, and evidence of reflection may be direct or
circumstantial. Id. at ¶¶ 31-32.
¶40 Here, there was sufficient evidence for a rational trier of fact
to find Blanco actually reflected on his decision to kill S.C. First, the wife of
the friend S.C. was staying with testified that a few days before the murder,
she ran into Blanco and he was “reeling,” “flopping” his hands in the air,
and yelled, “What the hell is wrong with [S.C.]? What’s going on with
[S.C.]? . . . I don’t understand him anymore.” See State v. Wood, 180 Ariz. 53,
62 (1994) (“[W]here the existence of premeditation is in issue, evidence of
previous quarrels or difficulties between the accused and the victim is
admissible.” (internal quotation marks omitted)). Second, Blanco brought
S.C. to the ranch house—a location around twenty miles outside of the city
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that S.C. would have no obvious reason to visit. See State v. Grell, 205 Ariz.
57, 60, ¶ 21 (2003) (holding that “driving to a remote area,” among other
facts, supported a finding of premeditation). In addition, there was
evidence presented that Blanco was in need of money, that he was behind
on his mortgage, and that despite Blanco’s representation that he gave S.C.
the collected rent money on June 16, 2015, there was no money found with
S.C.’s remains nor deposited into S.C.’s bank account. Finally, evidence
showed that S.C. died after bleeding out from a shotgun shot, yet Blanco
took no action to aid S.C. after the shot or to call 911, and instead buried the
body. See State v. Nelson, 229 Ariz. 180, 185, ¶ 18 (2012) (finding a
defendant’s actions after a murder, including concealing evidence, can
support a finding of premeditation); State v. Sellers, 106 Ariz. 315, 316 (1970)
(noting defendant disposed of the victim’s body when finding sufficient
evidence of premeditation). In the face of this and other direct and
circumstantial evidence presented at trial, we conclude the trial court
properly found that the record contained substantial evidence to support a
conviction for premediated first-degree murder.
IV. Jury Instructions
¶41 Blanco argues the trial court committed reversible error by
denying his motion to include reckless manslaughter and negligent
homicide in the jury instructions.
¶42 We review a trial court’s denial of a requested jury instruction
for an abuse of discretion and “defer to the trial judge’s assessment of the
evidence.” State v. Wall, 212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006). To warrant a
separate instruction for a lesser-included offense, “the evidence must be
such that a rational juror could conclude that the defendant committed only
the lesser offense.” Id. at 4, ¶ 18. “A party is entitled to an instruction on
any theory reasonably supported by the evidence,” but we “will not reverse
a conviction if we can conclude, beyond a reasonable doubt, that the error
had no influence on the verdict.” State v. Rodriguez, 192 Ariz. 58, 61, 63,
¶¶ 16, 27 (1998).
¶43 Here, the record shows the trial judge properly considered the
evidence in determining whether to include instructions for manslaughter
or negligent homicide. The trial court denied the lesser-included offense
instructions because it found no evidence supporting the defense’s theory
that the killing was an accident, aside from Blanco’s own representation to
Sanders. Although defense counsel pointed to testimony by the medical
examiner that the trajectory of the shot may have been consistent with the
accident theory, the court reasoned that because the medical examiner also
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testified that S.C. did not die immediately from the shot but from bleeding
out freely for several minutes without any aid, there was no evidence to
reasonably support the defense’s accident theory. Accordingly, we see no
abuse of discretion in the trial court’s declining to include instructions for
reckless manslaughter and negligent homicide.
¶44 Moreover, because the jury found Blanco guilty of first-
degree murder rather than the lesser-included second-degree murder, any
error as to instructions on other lesser-included offenses would necessarily
be harmless. See Nelson, 229 Ariz. at 186, ¶ 24 (“When a jury is given a
choice between first-degree murder and second-degree murder and
convicts on first-degree murder, it has necessarily rejected manslaughter.”);
State v. White, 144 Ariz. 245, 247 (1985) (“[B]y finding defendant guilty of
the highest offense, to the exclusion of the immediately lesser-included
offense, second degree murder, the jury necessarily rejected all other lesser-
included offenses. The error, if indeed it was error, of not instructing as to
such offenses was harmless.”).4
CONCLUSION
¶45 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 Blanco asserts that White and the resulting line of cases applying
White are distinguishable from the case at hand because neither White nor
its progeny consider the scenario where a lesser-included offense is not
adequately covered by the other instructions, such as an accident scenario.
We disagree with this distinction and conclude the precedent in White is
applicable here. In finding Blanco guilty of first-degree murder in the face
of the lesser-included second-degree murder, the jury necessarily rejected
other lesser-included offenses. See White, 144 Ariz. at 247.
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