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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

MARKLEY ALLEN FOSTER

, Appellant

.

N o . 1 CA

- C R 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
C ounsel for AppellantSTATE 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 sentence s 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 p eople in the other car did n ot 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. D uring 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 s ix felony; and one count of possession of drug paraphernalia , a class six felony

. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13

- 1104(A)(3) ( 20 09 ) (second degree murder) ; 13

- 1602(A)(1) ( 201 5 ) (criminal damage); 13

- 340 5(A)(1) ( 201 0 ) (possession of marijuana); 13

- 3415(A) ( 201 7 ) (possession of drug paraphernalia). 1

¶4 Before trial, Foster moved to suppress statements he made to police in the eme rgency 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 t o the United States Constitution and Article II, S ections 4, 8, 10, and 32 of the Arizona Constitution, a s well as Miranda v. Arizona , 384 U.S. 436 (1966). After a suppression hearing, the court declined to suppress
Foster’s statements

, finding that Foste r 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 offere d to stipulate to the victims’ cause of death

, but t he State asserted the photographs were necessary to show the impact injuries, establish the victim s ’ 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 whe ther 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 objection s, t he court allowed admission of six of the seven offered photographs, finding th ey 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 presum ptive, 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 Fost er to pay $5155 in re stitution

to the victims’ daughter and $6,850.23 in restitution to the Arizona Department of Transportation (“ADOT”) based on damage caused to s tate property in the accident

.
¶7 Foster timely appealed. We have jurisdiction pursuant to
A .R.S. §§ 12

- 120.21 ( 201 7 ) and 13

- 4033(A)(1) ( 201 7 ).

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 identi t y nor cause of death

w as at issue; and (3) ordering Foster to pay too much in restitution to
ADOT

.STATE v. FOSTER
Decision of the Court

4 ¶9 The State concedes we should reduce the restitution award to $4,394.23 because ADOT received partial compensation from Foster’s
insura nce carrier in the amou nt 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 abu se 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 Ar iz. 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 admitt ing 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 b ecause 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 omitt ed) ( “ Even assuming a Miranda violation, non

- reference to
the statem ents 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 stateme nts 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 (Ap p. 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 becau se he was not free to leave and was incapable of avoiding the officers or escaping their interrogation. 3 We disagr ee.

¶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 the re 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). A n in dividual 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 investigati ve 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, a nd not the streng th

or content of the government’ s suspicions at the time the questioning was conducted, whi ch led the court to impose the Miranda requirements with

r egard 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. Petti t , 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
Decision of the Court

6 questioni ng 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

st atements in the Yuma hosp ital. 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 we re present when the police q uestioned Foster

. S ee S tate 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.
N one of the usual indicia of arrest, such as handcuffs, locked doors, drawn

guns, or a sea rch 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 restrain ing or handcuff ing Foster. Construing the evidence in the light most favorabl e to affirm ing , 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, 50 9 (2012) (discussing the f reedom

of

- 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

treat ment 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 statement s 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) (citatio n s 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 voluntar il y waive his Miranda rights even when he is in the hospita l, on medication, and in pain. ” United States v. G eorge , 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 af ternoon 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 spe ak 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 rat ional
intellect and f ree 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 wa s 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. Additional ly, the questioning was of a much shorter duration and lesser intensity than Mincey’s; Mincey’s questioning was a four

- ho ur ordeal
dur in g 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

. I d. at 400

- 01. Finally, although Captain GA opined Fost er “was confused as to where he was going andSTATE 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 evi dence 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). O nce the court determines a challenged photograph is releva nt, 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 find s the photograph has this effect, it
must balance t he 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 a n abuse of di scretion

. Bocharski , 200 Ariz. at 55

- 56, ¶¶ 21, 27 (citation s 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 col lision 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 victim s , [and] to establish the
death of the victims and that they were in thei r vehicle.” The court

co nducted a Rule 403 weighing test and found that the photographs were not gruesome and were relevant to show the position of the decedent s in the vehicle, the extensive damage to the vehicle, and the force of the
collision. The record demonstrates the phot ographs 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, we re no moreSTATE v. FOSTER
Decision of the Court

9 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 remove d , wit h 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 discre ti on.

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.