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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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. 
STATE v. FOSTER

Decision of the Court

3

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. 
STATE v. FOSTER

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¶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”). 
STATE v. FOSTER

Decision of the Court

5

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.
STATE v. FOSTER

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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 freedomof-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.
STATE v. FOSTER

Decision of the Court

7

¶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 
STATE v. FOSTER

Decision of the Court

8

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 
STATE v. FOSTER

Decision of the Court

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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.