State v. Greenberg

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID LEVY GREENBERG, Appellant.

No. 1 CA-CR 13-0445
FILED 2-12-2015

Appeal from the Superior Court in Coconino County
No. S0300CR201100784
The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

By David G. Bednar, Flagstaff
Counsel for Appellant

OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

G E M M I L L, Judge:
 STATE v. GREENBERG
Opinion of the Court

¶1 David Levy Greenberg appeals his convictions and sentences
totaling 340 years of incarceration for 20 counts of sexual exploitation of a
minor, voyeurism, surreptitious photographing, videotaping, filming or
digitally recording, and first-degree criminal trespass. He contends the
confessions considered by the court in determining his guilt were
involuntary and the trial court erred in finding them admissible. Because
we find no reversible error, we affirm.

BACKGROUND

¶2 We view the evidence in the light most favorable to sustaining
the trial court’s convictions and resolve all reasonable inferences in support
thereof. See State v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).

¶3 Officer Z.R. of the Flagstaff Police Department responded to
a report of residential trespass on August 27, 2009. Upon arrival, he was
told that an adult male was seen peering through the window of the victim,
a juvenile female, and he was given a description of the suspect as well as
a license plate number. Officer Z.R. went to the suspect’s address, which
was “a short distance away” from the victim’s home, and saw a vehicle
bearing the license plate number observed at the victim’s house. As he
walked up to the door, he felt the hood of the car, which was still warm.
The officer knocked on the door, and Greenberg answered. Greenberg
matched the victim’s description of the suspect, and according to Officer
Z.R., Greenberg was “sweaty” and “nervous.” Greenberg denied having
been at the victim’s house and stated that he had been at work until 30
minutes before police arrived. His roommate, however, stated Greenberg
had arrived 10 minutes before the officers. Shortly thereafter, the victim
positively identified Greenberg’s vehicle but was unable to positively
identify the suspect. Based on the evidence linking his vehicle to the crime
scene and the fact that Greenberg had previously been contacted for
allegedly following and surreptitiously photographing women in the Cline
Library at Northern Arizona University (“NAU”), Officer Z.R. asked
Greenberg to accompany him to the police station to speak with a detective.
Officer Z.R. told Greenberg “this would all be over for him quickly.”
Greenberg hesitated initially, but then agreed to go to the station.

¶4 At the station, Detective D.H. interviewed Greenberg.
Acknowledging that Greenberg was transported to the station in a police
car and that this was “close enough” to being considered in custody,
Detective D.H. read Greenberg his Miranda rights, which Greenberg
waived. The detective questioned Greenberg with the stated belief that

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 STATE v. GREENBERG
Opinion of the Court

Greenberg faced misdemeanor trespass and voyeurism charges. Sometime
that night, Greenberg confessed to trespass (the “August 27 trespass
confession”).

¶5 On the next day, Detective D.H. researched the prior contact
Greenberg had with NAU police at Cline Library and discovered that the
campus police questioned Greenberg in 2006 after he was observed
“looking or videoing down women’s shirts and up their dresses and skirts.”
He also learned of a report, made 10-months earlier that occurred on
Hemlock Way, which was one block away from the location of Greenberg’s
residential trespass on August 27. This earlier incident involved the
videotaping of a 12 year old girl through her window as she undressed in
her bedroom. Greenberg had not been identified as the suspect.

¶6 Detective D.H. spoke to Detective M.S., a certified computer
forensic examiner, who mentioned that suspects who engage in sexually
motivated crimes often keep photographs, videos, and other evidence of
their activities. Based on the Cline Library incident, the age of the victim in
the August 27 trespass, and the actions of the suspect, who videotaped a 12
year old girl through her window on Hemlock Way, Detective M.S. advised
that there was probable cause to believe that Greenberg was attempting to
surreptitiously record or exploit a minor child. On this basis, the two
detectives obtained a warrant from a magistrate to search Greenberg’s
residence and his car.

¶7 Upon executing the search warrant at Greenberg’s residence,
the police found numerous CDs and DVDs containing child pornography,
sexually explicit videos of unknowing victims filmed by Greenberg, and a
hand-held camera. The seizure included a video showing a young girl
undressing in her bedroom, who looks out her window and screams; the
video shuts off at that point. Images on this video indicate that it was made
at the residence on Hemlock Way. There were also hundreds of videos of
women filmed without their knowledge in Cline Library. The police also
found other videos, taken from outside windows, showing women in
various stages of undress or in the shower who appear to be unaware they
are being filmed.

¶8 On August 31, 2009, Detective D.H. again interviewed
Greenberg. At the beginning of this second interview, Detective D.H. read
Greenberg his Miranda rights, which Greenberg again waived. During the
interview, Greenberg confessed that he owned the CDs, DVDs, and other
data storage devices containing the sexually explicit images and videos

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 STATE v. GREENBERG
Opinion of the Court

found at his home (the “August 31 confession”). As a result of the two
confessions and the seized evidence, the State charged Greenberg with one
count of criminal trespass alleged to have been committed on or about
August 27, 2009 and ten counts of sexual exploitation of a minor.

¶9 Greenberg filed a motion to suppress the August 27 trespass
confession and the evidence seized from his home. He argued that

(1) he did not voluntarily submit to the police interview, (2)
the officers did not have probable cause to arrest him, (3) he
was subjected to custodial interrogation but given defective
Miranda warnings, (4) he was denied his constitutional right
to counsel, (5) his confession was coerced, (6) the affidavit
supporting the search warrant was fatally defective because
it contained false statements and did not provide probable
cause to search for child or adult pornography, and (7) the
good faith exception to the exclusionary rule does not apply
in this case.

State v. Greenb[e]rg, 1 CA-CR 10-0683, 2001 WL 1998401, at *2 ¶ 10 (Ariz.
App. May 17, 2011) (mem. decision).

¶10 After an evidentiary hearing, the court suppressed the
August 27 trespass confession and evidence seized pursuant to the search
warrant. The August 27 trespass confession was suppressed on the ground
that it was the result of an implied promise, but the court found no evidence
to support the defendant’s other contentions regarding the confession. The
evidence seized pursuant to the search warrant was suppressed because the
court decided the affidavit did not provide the magistrate with substantial
evidence of probable cause. The court also found that the good faith
exception to the exclusionary rule did not apply.

¶11 The State then moved to dismiss without prejudice all the
pending charges except for the August 27, 2009 criminal trespass charge.
The trial court granted the motion. The State appealed the trial court’s grant
of Greenberg’s motion to suppress the seized evidence. State v. Greenb[e]rg,
1 CA-CR 10-0683 at *1, ¶ 1. The State did not, however, appeal the ruling
suppressing the August 27 trespass confession. During the pendency of the
appeal, Greenberg pled guilty to the charge of criminal trespass committed
on August 27, 2009, and was placed on probation for two years.

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 STATE v. GREENBERG
Opinion of the Court

¶12 The State’s appeal of the suppression of the evidence seized
under the search warrant was resolved in a May 2011 memorandum
decision from this court. Id. This court concluded the trial court erred when
it decided the magistrate’s probable cause determination was erroneous
and held that the warrant was valid. Id at *4, ¶ 18. The court listed the facts
that supported the search warrant: (1) Greenberg was seen looking inside
the window of a juvenile female and surreptitiously recording women at
NAU; (2) Greenberg’s residence was close to the 12 year old victim’s home;
and (3) Detective M.S.’s assertion that, in his training and experience,
individuals who surreptitiously record people retain those recordings for
later use or distribution. Id. Alternatively, this court found that the good
faith exception applied to preclude suppression of the evidence obtained.
Id at *5, ¶ 22. Accordingly, this court vacated the suppression order
regarding the evidence seized as a result of the search warrant and
remanded for further proceedings. Id at ¶ 22.

¶13 Following remand, the State indicted Greenberg on the
following charges: Counts 1 and 6—first-degree criminal trespass, one
count a class one misdemeanor and the other a class six felony 1; Counts 2
and 4—voyeurism, class five felonies; Counts 3 and 5—surreptitious
photographing, videotaping, filming, or digitally recording, class five
felonies; and Counts 7 through 27—sexual exploitation of a minor, a
dangerous crime against children, class two felonies. The indictment
initiated a new prosecution under a new superior court cause number,
presided over by a different superior court judge.

¶14 The trial court in this second prosecution conducted a
voluntariness hearing, which included a reconsideration of the
voluntariness of the August 27 trespass confession and the admissibility of
the August 31 confession. At the hearing, the State re-asserted that the
August 27 confession was admissible because it was not based on an
implied promise.

¶15 From the record on appeal, it appears the State initially
believed that the admissibility of the August 31 confession hinged upon the
admissibility of both the August 27 trespass confession and the evidence
seized pursuant to the search warrant. The State indicated to the court that

1 These two trespass counts alleged offenses occurring in 2008 against
different victims in different locations, separate from the August 27 trespass
confession and the August 27, 2009, criminal trespass charge to which
Greenberg had pled guilty.

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 STATE v. GREENBERG
Opinion of the Court

“if the August 27th confession was voluntarily, appropriately obtained, if
there was no problem with the August 27th, then there’s no basis for
suppression of the August 31st confession.” In a subsequent motion, the
State asserted alternatively that the “[d]efendant’s [August 31] confession
was the direct result of a lawful search warrant, not the result of the trespass
confession.” Furthermore, the State argued that “any taint from [the]
supposedly lawless conduct by police in the first interview is completely
dissipated by the legality (as found by the Arizona Court of Appeals), of
the search warrant.”

¶16 Greenberg contended the court was barred from considering
the August 27 trespass confession’s admissibility because the State did not
appeal the ruling to the court of appeals. Greenberg also argued that absent
an intervening change in law, the State could not relitigate an already
suppressed confession.

¶17 The trial court found both confessions were admissible.
Greenberg then waived his right to a jury trial and agreed to submit the
matter to the court for a determination of guilt on a stipulated record. In
February 2013, the court found Greenberg guilty of: Counts 7 through 26—
sexual exploitation of a minor, dangerous crimes against children; Count
2— voyeurism; Count 3— surreptitious photographing, videotaping,
filming or digitally recording; and Count 1— first-degree criminal trespass.
He was acquitted on Counts 4, 5, and 6 (one count of voyeurism, one count
of surreptitious videotaping, and one count of criminal trespass), and
Count 27 was dismissed with prejudice at the State’s request. The court
sentenced Greenberg to consecutive prison terms totaling 340 years,2 with
901 days’ credit for pre-sentence incarceration.

¶18 Greenberg timely appeals. We have jurisdiction under 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)(1).

2 Under A.R.S. § 13-705(D), the 20 counts (7 through 26) of sexual
exploitation of a minor, as dangerous crimes against children, carry
presumptive sentences of 17 years each. Because the crimes were classified
as dangerous crimes against children, class 2 felony offenses, A.R.S. § 13-
705(M) mandates that each sentence must be served consecutively. Thus,
Greenberg’s sentence totaled 340 years.

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 STATE v. GREENBERG
Opinion of the Court

I. VOLUNTARINESS OF THE CONFESSIONS

¶19 Greenberg contends both the August 27 trespass confession
and the August 31 confession were involuntary and, therefore,
inadmissible. We review the trial court’s denial of a suppression order for
clear error and “consider the evidence presented at the suppression hearing
in the light most favorable to upholding the ruling.” State v. Walker, 215
Ariz. 91, 94, ¶ 16, 158 P.3d 220, 223 (App. 2007) (internal quotation omitted).

A. August 27 Confession

¶20 Greenberg contends the August 27 trespass confession was
involuntary because he was illegally arrested at his home. The record,
however, supports the court’s finding that Greenberg was never “under
arrest” because he freely chose to accompany police to the station for
questioning, despite his initial hesitation.

¶21 Greenberg further contends the August 27 trespass
confession was involuntary because the police questioning included an
“implied promise” that he would be charged with only a misdemeanor if
he confessed. A confession is presumptively involuntary, but a prima facie
case for admission is established when an officer testifies that the confession
was obtained without coercion or promises. State v. Ellison, 213 Ariz. 116,
127–28, ¶¶ 30–31, 140 P.3d 899, 910–11 (2006). If an alleged promise is
couched in terms of mere possibility or opinion it is not deemed sufficient
to render a confession involuntary. State v. McVay, 127 Ariz. 18, 20, 617 P.2d
1134, 1136 (1980) (citing State v. Steelman, 120 Ariz. 301, 310, 585 P.2d 1213,
1222 (1978)); State v. Jordan, 114 Ariz. 452, 455, 561 P.2d 1224, 1227 (1976),
vacated on other grounds, Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57
L.Ed.2d 1157 (1978)). Moreover, encouragement from police to tell the truth
is a proper interrogation tactic. State v. Blakley, 204 Ariz. 429, 436, ¶29, 65
P.3d 77, 84 (2003).

¶22 Detective D.H. testified at the evidentiary hearing that
Greenberg’s confession was not obtained by coercion or promises.
Greenberg himself initiated a discussion with Detective D.H. by asking
about the consequences if he admitted culpability during the August 27
interview:

Mr. Greenberg: And I’m going to go sit in a jail cell then right
now. Is that what you’re saying?

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 STATE v. GREENBERG
Opinion of the Court

Det. D.H.: I didn’t say that.

Mr. Greenberg: I mean, if I did say that – if I was to admit
that, then I would go to be in [sic] jail. And I didn’t do
anything. Is that what you’re saying?

Det. D.H.: I just want you to tell me the truth about tonight.
That’s all I want. I just want you to man up and be a man and
tell me what happened tonight.

....

Mr. Greenberg: And if I did say anything, then who -- I mean,
what -- so -- can you tell me what would happen? I’d go sit
in a jail cell till tomorrow morning?

Det. D.H.: That’s possible.

Mr. Greenberg: Would it be any longer than that?

Det. D.H.: It’s possible. It’s possible that -- it’s possible that
you could be charged with a crime, a misdemeanor, and have
to see a judge in the morning. That’s possible.

¶23 Greenberg contends that Detective D.H. told him he was
going to be charged with a misdemeanor to coax Greenberg into a
confession, but the record supports the second judge’s determination that
the detective made no express or implied promise. Moreover, a defendant’s
ignorance of the full consequences of his decisions does not vitiate the
voluntariness of his statements. Oregon v. Elstad, 470 U.S. 298, 316, 105 S.
Ct. 1285, 1297, 84 L. Ed. 2d 222 (1985). Even if Detective D.H.’s tactics were
“close to the line,” we cannot say on this record that the trial court was
“clearly and manifestly wrong” in determining that Greenberg’s statements
were voluntary. See Blakley, 204 Ariz. at 437, ¶ 32, 65 P.3d at 85.

B. August 31 Confession

¶24 Greenberg also asserts that the August 31 confession should
have been excluded from evidence, but he does not develop this argument.
Because Greenberg does not “present significant arguments, supported by
authority,” setting forth his position, we will not consider it further on
appeal. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989); see

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 STATE v. GREENBERG
Opinion of the Court

also State v. Moody, 208 Ariz. 424, 452, ¶ 101 n.9, 94 P.3d 1119, 1147 n.9 (2004)
(explaining that “[m]erely mentioning an argument is not enough”).

II. RELITIGATION OF ADMISSIBILITY OF THE AUGUST 27
CONFESSION

¶25 Relying on the law of the case doctrine, Arizona Rule of
Criminal Procedure 16.1(d),3 and collateral estoppel, Greenberg claims the
trial court erred in allowing the State to “horizontally appeal” the
voluntariness of the August 27 trespass confession.

A. Law of the Case and Rule 16.1(d)

¶26 The law of the case doctrine addresses whether a trial court
may revisit questions previously decided in the same case by the same court
or a higher appellate court. State v. Whelan, 208 Ariz. 168, 171, ¶ 8, 91 P.3d
1011, 1014 (App. 2004). And “Rule 16.1(d), like the law of the case doctrine,
is procedural and applies in the setting of the same case.” Id. at 171 ¶ 9, 91
P.3d at 1014 (emphasis in original); see Ariz. R. Crim. P. 16.1(a) (noting Rule
16 “shall govern the procedure to be followed in cases between arraignment
and trial”).

¶27 Here, similar to Whelan, there were two separate cases
because the court granted the State’s motion for dismissal without prejudice
following the initial suppression ruling, and Greenberg was thereafter re-
indicted and prosecuted under a new cause number. Although the charges
in the second case (from which this appeal arises) were similar to those in
the first, the second case includes additional charges and is not the same as
the first. The “law of the case” doctrine and Rule 16.1(d) are not applicable,
and the trial court in the second prosecution was not precluded on these
grounds from making a fresh determination regarding the admissibility of
the August 27 trespass confession. See Whelan, 208 Ariz. at 171, ¶10, 91 P.3d
at 1014.

B. Collateral Estoppel

¶28 Greenberg also relies on the doctrine of collateral estoppel to
argue that the court in the second case was precluded from revisiting the
ruling in the first case. This court in Whelan reserved the specific question
“whether an interlocutory suppression order, subject to appeal, is final for

3Rule 16.1(d) provides that “an issue previously determined by the court
shall not be reconsidered.”

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 STATE v. GREENBERG
Opinion of the Court

purposes of collateral estoppel.” Id. at 172, ¶ 14, 91 P.3d at 1015. We must
now reach that issue.

¶29 Collateral estoppel generally means that the parties are
barred from relitigating an issue in a future proceeding when the “issue of
ultimate fact has once been determined by a valid and final judgment.”
State v. Jimenez, 130 Ariz. 138, 140, 634 P.2d 950, 952 (1981) (internal
quotation omitted). The doctrine protects against relitigation of issues, but
it is disfavored and should be applied sparingly in criminal contexts.
Whelan, 208 Ariz. at 172, ¶¶ 12–14, 91 P.3d at 1015. Nonetheless, our
supreme court in Jimenez adopted the “traditional elements of collateral
estoppel” as applying in the criminal context:

the issue sought to be relitigated must be precisely the same
as the issue in the previous litigation; a final decision on the
issue must have been necessary for the judgment in the prior
litigation; there must be mutuality of parties.

130 Ariz. at 140, 634 P.2d at 952 (emphasis added).

¶30 As applied here, the parties in both proceedings were the
same—the State and Greenberg; and the issue to be litigated was the
same—the admissibility of the August 27 trespass confession. But we
conclude that collateral estoppel does not apply because the suppression
ruling was interlocutory, not final, and the dismissal without prejudice was
not a final resolution of the issues between the parties. Such non-final
rulings do not form the foundation required for the application of collateral
estoppel. Additionally, under Arizona law pertaining to criminal
prosecutions, collateral estoppel requires a prior “judgment” and the
dismissal without prejudice does not constitute a judgment for this
purpose. See Whelan, 208 Ariz. at 172, ¶ 13, 91 P.3d at 1015 (citing Jimenez,
130 Ariz. at 140, 634 P.2d at 952).

1. No Final Decision

¶31 The ruling suppressing the August 27 trespass confession was
interlocutory. Id. (“the suppression order, though appealable . . . was an
interlocutory order”). This court has “construed the ‘final decision’
requirement to mean that ‘[f]or collateral estoppel to apply . . . a valid and
final decision on the merits must have been entered.’” Id. at 172, ¶ 13, 91 P.3d
at 1015 (citing Garcia v. Gen. Motors Corp., 195 Ariz. 510, 514, ¶ 9, 990 P.2d

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 STATE v. GREENBERG
Opinion of the Court

1069, 1073 (App. 1999) (emphasis added)). An interlocutory suppression
order is not final for purposes of collateral estoppel.

¶32 Because the State did not appeal the August 27 suppression
ruling, Greenberg contends the decision became final for purposes of the
collateral estoppel doctrine. But the fact the ruling could have been
appealed, but was not, does not alter its non-final nature. We hold that an
order granting a motion to suppress evidence in a criminal prosecution,
which could have been appealed but was not appealed, does not constitute
a final determination of the issue between the parties and cannot form the
foundation for application of collateral estoppel in a subsequent case.

¶33 Our conclusion is supported by a number of decisions of
courts in other jurisdictions. For example, the intermediate appellate courts
of Kansas, Texas, and Missouri have determined that unappealed
suppression orders are not final for purposes of collateral estoppel. See State
v. Heigele, 789 P.2d 218, 219–20 (Kan. Ct. App. 1990) (holding that dismissal
without prejudice of prior case in which evidence was suppressed was not
a final judgment even though the state did not appeal the ruling); State v.
Beezley, 752 S.W.2d 915, 917 (Mo. Ct. App. 1988) (determining that
suppression ruling was not binding on future proceedings even though the
state had an opportunity to appeal the ruling but did not); State v. Henry, 25
S.W.3d 260, 261–62 (Tx. App. 2000) (concluding that an interlocutory ruling
in a case that was dismissed without prejudice and not appealed does not
have collateral estoppel effect). But see People v. Williams, 322 N.E.2d 461
(Ill. 1975) (ruling that collateral estoppel prevented relitigation of a “final”
suppression order when the state had a right to appeal but did not).

2. Absence of a “Judgment”

¶34 The suppression ruling and dismissal of the prosecution
without prejudice do not support application of collateral estoppel for
another reason: collateral estoppel attaches only to judgments. State v.
Nunez, 167 Ariz. 272, 277, 806 P.2d 861, 866 (1991). As applied, a judgment
is “the adjudication of the court based upon the verdict of the jury, upon
the plea of the defendant, or upon its own finding following a non-jury trial,
that the defendant is guilty or not guilty.” Ariz. R. Crim. P. 26.1(a).

¶35 In Nunez, the Arizona Supreme Court rejected the defendant’s
claim that collateral estoppel barred a third trial for negligent homicide
when he was tried in two previous trials for the same charge and with the
same facts. 167 Ariz. at 278, 806 P.2d at 867. The court determined that no
judgment was entered after the two prior trials because the trial court

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Opinion of the Court

granted the defendant’s requests for new trials based on juror misconduct.
Nunez reached its decision by applying the definition of judgment from
Arizona Rule of Criminal Procedure 26.1. Id.; see State v. Williams, 131 Ariz.
211, 213, 639 P. 2d 1036, 1038 (1982). The supreme court took a similar
approach in Williams, in which the prior litigation was a probation
revocation hearing. 131 Ariz. at 212, 639 P.2d at 1037. The superior court
denied revocation because the state did not prove a violation. Id. The
defendant was subsequently convicted of sexual assault “which was the
basis of the petition to revoke [the defendant’s] probation.” Id. at 213, 639
P.2d at 1038. The defendant contended that collateral estoppel barred the
sexual assault conviction. Id. The supreme court disagreed, stating that the
result of the revocation hearing did not “rise to the respectability of a
judgment.” Id.

¶36 Although the trial court’s rulings in this case are procedurally
distinguishable from those in Williams and Nunez, the collateral estoppel
analysis is similar. For collateral estoppel purposes, a dismissal without
prejudice does not constitute a judgment under Arizona Rule of Criminal
Procedure 26.1(a).

¶37 To summarize, the grant of the motion to suppress and the
dismissal without prejudice of the first prosecution against Greenberg do
not provide a foundation for application of collateral estoppel. The
suppression ruling was interlocutory, not final, and there was no
“judgment” as required for collateral estoppel.

CONCLUSION

¶38 For these reasons, we affirm Greenberg’s convictions and
sentences.

:ama

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