Opinion
No. 1 CA-CR 14-0220
08-11-2015
STATE OF ARIZONA, Appellee, v. TYRONE TYRIS JORDAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Adriana M. Zick Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Reid Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-000310-001
The Honorable Richard L. Nothwehr, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Adriana M. Zick
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Terry J. Reid
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined. SWANN, Judge:
¶1 Defendant Tyrone Tyris Jordan appeals his convictions and sentences for multiple drug-related felonies. Defendant contends that the superior court erred by declining to declare a mistrial after the state's witness testified about precluded evidence. We conclude that the court acted within its discretion. The improper testimony was brief and indefinite, and, in view of the totality of the evidence, likely had no effect on the jury's verdicts. We therefore affirm Defendant's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 On the afternoon of August 9, 2012, Phoenix police officers made contact with Defendant and his roommate, Anthony Bellamy, in the driveway of their residence. The officers detained Defendant and searched both his person and the residence.
The parties stipulated that Defendant's detention "was at all times lawful" and that the officers "were at all times legally present at the residence."
¶3 The search of Defendant's person revealed a black Samsung cell phone and several items in the pockets of his shorts, including multiple stacks of marijuana-scented cash and a small electronic scale with cocaine residue. An officer also observed numerous air fresheners in the vehicle that Defendant and Bellamy had occupied when the police first arrived.
¶4 In the backyard of the residence, officers encountered two aggressive dogs and relocated them. An officer then searched the backyard and examined a clothes dryer that sat on the patio. Inside the dryer, the officer found a bucket and a backpack. Inside the bucket, the officer found cash, a large quantity of marijuana, several quantities of crack cocaine, and a baked dessert packaged in a black plastic bag. Inside the backpack, the officer found more cash, more marijuana and crack cocaine, several common household items that could be used to ingest marijuana and cocaine, sandwich bags, an iPhone box, and a single round of .45-caliber ammunition.
¶5 Inside the residence, officers noticed the smell of marijuana. In a hall closet, they found a drawstring bag that contained marijuana and crack cocaine. In the kitchen area, they found a sword. In Bellamy's bedroom, they found a .45-caliber handgun, a shotgun, a spent shotgun shell, a machete, a stack of cash, and a plate with crack cocaine on it. In Defendant's bedroom, they found a tinfoil bag, labeled "Blue Widow," that contained marijuana. They also found an iPhone, several stacks of cash, and multiple black plastic bags, including one that contained a cookie. Defendant, after being informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), admitted that there was marijuana in the residence. He claimed that he had a medical marijuana card, but the police never found such a card.
¶6 Defendant was indicted for possession of drug paraphernalia, possession of marijuana for sale, possession of narcotic drugs for sale, and using a building for the sale or manufacture of narcotic drugs. He pled not guilty and the matter proceeded to a jury trial.
Defendant was also indicted for misconduct involving weapons, but those counts were later severed.
¶7 Before trial, the state informed the court that it intended to present evidence that the baked goods found in the dryer and in Defendant's bedroom had tested positive for cannabis. Though the drugs in the baked goods were not part of the charged offenses, defense counsel stated that she had "no objection to the cookies." Counsel later successfully moved to preclude evidence of other uncharged drugs found in the residence, but the motion did not include the drugs in the baked goods.
¶8 Soon after the court granted the motion to preclude, it declared a mistrial on unrelated grounds. At the beginning of the second trial, the state asked the court to clarify whether the order precluding evidence of uncharged drugs applied to the cannabis in the baked goods. The state argued that the evidence was relevant to link Defendant to the drugs found in the clothes dryer, and to rebut his anticipated defenses. The court ruled that "[the evidence] may become relevant, depending on defenses raised, but at this point it's prejudicial and not otherwise specifically relevant."
¶9 The state renewed its argument the next day, contending that even if the contents of the baked goods were not admissible, the baked goods' existence was relevant to show Defendant's possession of the items found in the dryer. The state argued that the presence of uniquely packaged baked goods in both Defendant's bedroom and the dryer created a reasonable inference that Defendant knew about the other items in the dryer. The court agreed and ruled that evidence of the baked goods was admissible. The court warned, however, that "until further evidence is submitted and it becomes relevant[, t]he State is directed not to talk about [the baked goods] as being marijuana cookies or marijuana brownies."
¶10 The next day, the state examined a police officer about his role in searching Defendant's residence. When the state asked the officer whether he had "any memory [of] finding any items you thought were significant in the [Defendant's] bedroom," the officer testified, "Off the top of my head I remember finding what appeared to be, like, a marijuana brownie or cookie." Defendant objected and, in a bench conference, moved for a mistrial. The court postponed argument on the motion and the officer continued to testify. At the next jury break, Defendant argued to the court that the officer's testimony caused prejudice that could not be cured by a jury instruction. The prosecutor responded that he had forgotten to remind the officer that the cannabis in the baked goods was precluded, and he suggested that the court cure the error by striking the testimony as improper opinion evidence. The court ruled that the officer's "inarticulate statement does not rise to the level, at this point, of a mistrial"; the court also acted in conformance with Defendant's statement that a curative instruction might draw undue attention to the statement, and reminded the state that it was not to refer to cannabis or marijuana in the baked goods. The state then continued with its presentation of evidence.
¶11 The jury found Defendant guilty on all counts, and the court sentenced him to concurrent presumptive prison terms. Defendant appeals.
DISCUSSION
¶12 Defendant raises a single issue on appeal: whether the court erred by denying his motion for mistrial. A mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983). When a motion for mistrial is based on a witness's testimony, the court must consider "(1) whether the testimony called to the jurors' attention matters that they would not be justified in considering in reaching their verdict and (2) the probability under the circumstances of the case that the testimony influenced the jurors." State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003). The trial court is in the best position to determine whether a declaration of mistrial is required. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). Accordingly, "[t]he decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court and the failure to grant a motion for mistrial is error only if such failure was a clear abuse of discretion." State v. Koch, 138 Ariz. 99, 101 (1983).
¶13 The court did not abuse its discretion by denying Defendant's motion for mistrial. The state offered improper testimony. But in the circumstances of the case, it was not likely that the improper testimony influenced the jurors. First, the improper statement was brief, and the court specifically sought to avoid drawing the jurors' attention to it by deferring argument on the motion for mistrial until a scheduled jury break. The court also reasonably acted in conformance with Defendant's determination that, in the circumstances of the case, a curative instruction could draw undue attention to the statement. Second, the statement was indefinite -- the officer did not testify that the cookie he found in Defendant's bedroom had actually tested positive for drugs, but that the cookie "appeared to be, like, a marijuana brownie or cookie." (Emphasis added.) Finally, in view of the totality of the evidence, the statement was not unduly prejudicial. The state presented sufficient evidence, unrelated to the baked goods, to support Defendant's convictions. The state presented evidence that drug paraphernalia was found on Defendant's person and at his residence, and that marijuana was found in his bedroom. The state also presented evidence that several separate quantities of marijuana and crack cocaine were found throughout the residence, and offered expert testimony that the amounts and packaging of the drugs meant that they were likely possessed for sale. The state's expert also testified that the paraphernalia, weapons, dogs, sandwich bags, cash, and multiple cell phones were typical of drug-dealers.
Defendant does not contend that the prosecutor intentionally solicited the improper testimony, and our review of the record reveals no indicia of prosecutorial misconduct. --------
¶14 Defendant suggests that the prosecutor intentionally exploited the improper testimony, arguing that "the State was able to benefit from its own mistake by its repeated references to the cookies and brownies in closing argument, bringing the jury's attention repeatedly back to [the officer]'s testimony." Defendant's argument is meritless. To tie Defendant to the items found in the clothes dryer, the prosecutor argued, without objection, that "black plastic wrappers" were found both in Defendant's room and in the dryer. But he made no mention of the fact that the baked goods in the wrappers contained drugs. The closing argument complied with the court's evidentiary rulings and in no way damaged Defendant's right to a fair trial. To the extent Defendant contends that the closing argument required a sua sponte declaration of mistrial on prosecutorial misconduct grounds, we reject that contention. There is no indication that the prosecutor engaged in misconduct, much less misconduct warranting a mistrial. See Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984) (holding that prosecutorial misconduct is "intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial"); State v. Trani, 200 Ariz. 383, 384, ¶ 6 (App. 2001) (holding that prosecutorial misconduct will warrant a mistrial if it "permeates the entire trial and deprives the defendant of a fair trial").
CONCLUSION
¶15 For the reasons set forth above, we affirm Defendant's convictions and sentences.