Opinion
No. 2 CA-CR 2013-0079
05-22-2014
THE STATE OF ARIZONA, Appellee, v. JASON MICHAEL KEITH, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Vanessa C. Moss, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20120153001
The Honorable Howard Hantman, Judge
The Honorable Jose H. Robles, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Vanessa C. Moss, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After a jury trial, Jason Keith was found guilty of transportation of a dangerous drug for sale and possession of a dangerous drug for sale. On appeal, Keith argues the trial court erred in denying his motion to suppress evidence or dismiss the charges, challenging the basis for the traffic stop leading to his arrest. He also contends the court erred in admitting into evidence his jail telephone calls describing drug activity unrelated to the charges. For the following reasons, we affirm in part and vacate in part.
Factual and Procedural Background
¶2 We view the facts in a light most favorable to sustaining the verdicts. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Early one morning in January 2012, Tucson Police Department (TPD) Officer S. Acevedo stopped a vehicle in which Keith was a passenger. After learning that the driver of the car had a suspended license, Acevedo impounded the vehicle. When the car's contents were inventoried, he found "several quantities of methamphetamine throughout the car," including a "baggie" containing 10.8 grams on the front floorboard where Keith had been sitting. Packaging materials and a small digital scale also were discovered.
The parties stipulated that police recovered 12.1 grams of suspected methamphetamine from where Keith was sitting and that the TPD crime laboratory confirmed the substance was methamphetamine weighing 10.8 grams.
¶3 A grand jury charged the car's driver, one back-seat passenger, and Keith with transportation and possession of methamphetamine for sale and possession of drug paraphernalia, i.e., the scale. The trial court severed the trials of the three codefendants. Keith stood trial only for the methamphetamine found on the front floorboard where he had been sitting, and at trial, the court dismissed with prejudice the charge of possession of drug paraphernalia pursuant to Rule 20(a), Ariz. R. Crim. P.
¶4 The jury found Keith guilty of transportation and possession of methamphetamine, as noted above. Based on Keith's admission, the trial court found he had two prior convictions, sentenced him to concurrent fourteen-year prison terms, and imposed a Criminal Restitution Order (CRO). We have jurisdiction over Keith's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Traffic Stop
¶5 Keith first asserts a lack of reasonable suspicion to justify the traffic stop that resulted in his arrest. He argues "the officer who executed the traffic stop was mistaken about the applicable legal standard, using his own '3-second' rule rather than enforcing the mandates of an applicable statute," and thus violated the Fourth Amendment prohibition against illegal searches and seizures. In reviewing the denial of a motion to suppress, we generally defer to the trial court's factual determinations, including its evaluation of the credibility of witness testimony. State v. Sweeney, 224 Ariz. 107, ¶ 12, 227 P.3d 868, 872 (App. 2010); see also State v. Moran, 232 Ariz. 528, ¶ 5, 307 P.3d 95, 98 (App. 2013) ("When reviewing a decision on a suppression motion, 'we defer to the trial court's factual findings, including findings on credibility and the reasonableness of the inferences drawn by the officer.'"), quoting State v. Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d 266, 271 (App. 2007). "But we review de novo mixed questions of fact and law, including whether the totality of the circumstances gave rise to reasonable suspicion to support an investigative detention . . . ." Sweeney, 224 Ariz. 107, ¶ 12, 227 P.3d at 872.
¶6 At the suppression hearing, Officer Acevedo testified he first noticed the vehicle in which Keith was riding, a gold Saturn, when its driver made a lane change, causing the driver of a nearby Mercedes sedan to brake because "[t]here was not a car length" between vehicles. Acevedo followed the Saturn and observed it enter "a double left hand turn lane" in the lane closest to the concrete median and, in the course of the turn, shift to the center lane. He noted that the turn lanes were marked throughout the intersection by white dotted lines, "serv[ing] as a lane through the intersection and [indicating] that the vehicle is to maintain that space." The officer then initiated the stop.
¶7 A police officer may make an investigative traffic stop if he or she has a reasonable suspicion of a traffic violation. State v. Starr, 222 Ariz. 65, ¶ 12, 213 P.3d 214, 218 (App. 2009); see also Arizona v. Johnson, 555 U.S. 323, 326 (2009). The Fourth Amendment requires the officer to "articulate some minimal, objective justification for an investigatory detention." Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d at 272. In evaluating the sufficiency of the basis for a traffic stop, we consider the totality of the circumstances from the perspective of "an objectively reasonable police officer." Ornelas v. United States, 517 U.S. 690, 696 (1996).
¶8 Here, a reasonable police officer could have viewed the driver's conduct as a clear violation of the traffic laws, supplying the requisite articulable suspicion to stop the vehicle. Officer Acevedo testified he observed two separate traffic violations before initiating the stop of the Saturn. Specifically, as noted above, he observed the driver making both an insufficiently spaced lane change and a wide left turn through an intersection.
¶9 Section 28-729(1), A.R.S., provides that a driver must not change lanes "until the driver has first ascertained that the movement can be made with safety." Officer Acevedo further testified, "[b]ased on [his] training, there's only a three second rule that's applied to the spacing of vehicles, and the manner in which the gold-colored Saturn executed the lane change did not afford the Mercedes, . . . the three second degree of spacing, . . . when the Mercedes applied its brakes." He explained the Saturn's lane change had allowed for only ten feet of space between the two vehicles, which he found to be inadequate given the speed of the vehicles. We agree with the state that the officer's training and seven years' experience could reasonably allow him to "determine, using his '3-second rule,' that [the driver's] leaving only 10 feet between vehicles traveling at 35 miles per hour was an unsafe lane change." Cf. Teagle, 217 Ariz. 17, ¶ 29, 170 P.3d at 274 (according deference to officer's training and experience in distinguishing between innocent and suspicious activities); see also Moran, 232 Ariz. 528, ¶ 5, 307 P.3d at 98 (deferring to trial court's findings on reasonableness of inferences drawn by officer).
Officer Acevedo acknowledged the three-second rule was not in the statute governing traffic violations for changing lanes and he was unable to provide specific information about the statute or its citation. Keith emphasizes in his opening brief that the officer admitted "he could not cite any statutory basis for the traffic stop," and asserts the officer made a mistake of law by applying his own three-second rule. Although the decision to stop and detain a person must be based on a correct understanding of the law,
[t]hat does not mean that the officer must have a precise appreciation of the niceties of the law. If the facts are sufficient to lead an officer to reasonably believe that there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation.
¶10 Further, A.R.S. § 28-751(2) provides that a driver turning left "shall make the left turn from the left of the center of the intersection and shall make the turn to the left lane immediately available for the driver's direction of traffic." Officer Acevedo testified the Saturn made a wide left turn, moving from the median left turn lane to enter the center lane of traffic. In contrast, Keith testified the vehicle was in the outside left turn lane and thus properly entered the center lane. It was for the trial court to decide questions of witness credibility, and it could properly credit the officer's testimony here. See Moran, 232 Ariz. 528, ¶¶ 5-6, 307 P.3d at 98. Accordingly, we cannot say the court erred in both finding the officer credible and that he had the requisite particularized and objective basis for conducting the investigatory stop.
Jail Telephone Calls
¶11 Keith next argues the trial court erred by allowing the jury to hear portions of telephone calls, recorded while Keith was in jail, in which he made references to buying and selling methamphetamine. We review for abuse of discretion a trial court's decision to admit other-acts evidence. State v. Hausner, 230 Ariz. 60, ¶ 68, 280 P.3d 604, 622 (2012).
¶12 Before trial, the state moved to introduce portions of the recorded jail calls to show Keith's "familiarity with and involvement in illegal drug sales pursuant to Rule 404(b)" in the event Keith sought to "present evidence or argue that he had no knowledge that the substances involved in this case were methamphetamine, or should he present a 'mere presence' defense." At the hearing on the motion, the state argued that the calls could "go for . . . absence of mistake. . . . [Keith] wasn't merely riding along on that day, he was there for a specific purpose," which was "to transport those drugs that are part of his on-going drug sales operation." The trial court then requested to hear portions of the recorded calls, none of which were transcribed into the record. The court ultimately allowed evidence of the calls, noting their context of "on-going drug sales or prior drug dealing" would be inadmissible as character evidence, but offered "to show motive and awareness of the on-going sales" it was admissible with a limiting instruction.
The limiting instruction to the jury was as follows:
Evidence of alleged other acts has been presented. You may consider these alleged acts only if you find that the State has proved by clear and convincing evidence that the defendant committed these acts. You may only consider these acts to establish the defendant's motive, opportunity, preparation, plan, knowledge or absence of mistake. You must not consider these acts to determine the defendant's character or character trait, or to determine that the defendant acted in conformity with the defendant's character or character trait and therefore committed the charged offense.
¶13 At trial, the prosecutor sought to introduce selected excerpts from the recordings, which were copied to compact discs and marked as state's Exhibits 10 through 16. Keith presented a mere presence defense and on the third day of trial, objected to certain portions of the excerpted recordings. After hearing argument, the trial court excluded a portion of Exhibit 11 where Keith referred to his defense counsel. The state ultimately played redacted excerpts from Exhibits 10 through 16, which were not transcribed by the court reporter. Those exhibits subsequently were provided to the jury for its deliberations. Keith seems to object to the rulings made regarding the calls both at the pre-trial hearing and at trial.
Judge Robles conducted the pre-trial hearing regarding admissibility of the calls and Judge Hantman presided at trial.
¶14 In the conversations on Exhibits 10 through 16, Keith appears to be directing several other drug dealers and their sales. He also discusses erasing contact information from his cell phone prior to providing it to police; whether $800 was the proper amount for "22.4"; his business, which began with "half a gram and twenty bucks"; how he had been doing "between three or four zips a day, everyday"; "fronting [Little T] quarters . . . for 260," which he delivered daily ("Little T . . . was doing them once a day. Every day. . . . I'll drop it and then I'll come back and then I'll drop it and I'll come back. He'd call me and I'd go over there. I had to deliver, but that's the way it was working, okay. The 260. But yes, every day."); and that he "snatched up a large portion of this town . . . not even knowing anybody going into it."
A TPD detective translated drug-related terms, explaining that "zips" likely meant ounces and interpreted "quarters" as quarter ounces.
¶15 Evidence of "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ariz. R. Evid. 404(b). Such evidence may, however, be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. When seeking to admit evidence of other acts of the defendant, the state must prove by clear and convincing evidence the defendant committed the other acts; "they must be offered for a proper purpose; they must be relevant; and . . . their probative value must not be substantially outweighed by the danger of unfair prejudice." Hausner, 230 Ariz. 60, ¶ 69, 280 P.3d at 622.
¶16 Keith does not dispute that the voice on the recorded conversations was his. Nor does he dispute that the recordings at issue relate to drug dealing. He argues instead that the conversations did not pertain to the drugs found by police in the vehicle and therefore the recordings were impermissible character evidence. The state responds that its burden at trial was to demonstrate that Keith had possessed and transported methamphetamine for sale pursuant to A.R.S. § 13-3407(A)(2) and (A)(7) and asserts the recordings were introduced for proper purposes—to establish Keith's intent to sell and to rebut his mere presence defense.
Under A.R.S. § 13-3407(A): "A person shall not knowingly: . . . (2) Possess a dangerous drug for sale. . . . (7) Transport for sale . . . , sell, . . . or transfer a dangerous drug."
¶17 Keith asserts the "jail calls . . . had no legal relevance to the incident underlying the charges at trial." Under Rule 401, Ariz. R. Evid., "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." The state maintains, however, "[t]hat [Keith] had a regular on-going business dealing in methamphetamine made it more likely than not that he possessed for sale the methamphetamine found on the floorboard." The trial court implicitly agreed with that premise, as do we.
¶18 Keith next argues that the jail calls "were highly prejudicial," "painting him as a drug-dealer," containing objectionable statements, and presenting him as having "a permissive lifestyle that included several girlfriends." The trial court considers the probative value of the evidence and determines whether it is substantially outweighed by the danger of unfair prejudice. State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983), superseded by statute on other grounds, as noted in State v. Benson, 232 Ariz. 452, ¶ 66, 307 Ariz. 34 (2013); see also Ariz. R. Evid. 403. "[N]ot all harmful evidence is unfairly prejudicial," State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993); rather, evidence may be so characterized if it "has an undue tendency to suggest [a] decision on an improper basis, such as emotion, sympathy, or horror," State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997).
Keith identifies a comment referring to his girlfriend as "my little slut," and his description of an associate's girlfriend as being under the age of consent. We have been unable, however, to find the first comment in the recordings, and cannot agree with Keith that the second comment was "incredibly prejudicial" to him.
Our review of the recordings provided the jury does not support Keith's characterization that the calls portray him as leading "a permissive lifestyle" with "several girlfriends." The recordings primarily were excerpts of conversations relating to drug dealing, with, at most, one female speaker repeatedly calling Keith "my love."
¶19 While we acknowledge Keith's argument that a jury might be unfavorably disposed to a drug dealer even if the drugs in the vehicle did not belong to him, we see little likelihood the evidence of his dealing would have aroused the emotion of the jury in this case. The jurors were instructed to consider the evidence only for its proper purpose, "to establish the defendant's motive, opportunity, preparation, plan, knowledge or absence of mistake." See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) ("We presume that the jurors followed the court's instructions."). And during voir dire, the jurors had been questioned specifically concerning their attitudes toward the charges against Keith, and indicated they could be fair to him. Given that the evidence was highly probative to the state's case that Keith was not simply an innocent passenger, we cannot say the court abused its broad discretion in concluding that its probative value was not "substantially outweighed by a danger of . . . unfair prejudice." See Ariz. R. Evid. 403; see also State v. Connor, 215 Ariz. 553, ¶ 39, 161 P.3d 596, 607 (App. 2007) (trial court in "best position to balance the probative value of challenged evidence against its potential for unfair prejudice," thus permitting broad discretion), quoting State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App. 1998).
¶20 Keith also points out the record does not document which recordings were played for the trial court at the pretrial hearing and which portions were played at trial. As he notes, there is no clear indication of which portions of the jail calls were played for the court prior to its ruling on their admissibility, but the state's summary of the excerpts played at the hearing indicates they were apparently the same ones included on Exhibits 10 through 16. Further, at trial, the prosecutor introduced those exhibits collectively, and thereafter played portions of the recordings for the jury without identifying which individual disc was being played, and without the court reporter transcribing the excerpts played into the trial record. We agree with the state, however, that the "apparent lack of specificity about the recordings played at the hearing, is of no moment because the recordings actually played at trial were correctly admitted," and are clearly identified in the record.
In his opening brief, Keith indicates he intends to file a "Motion for Trial De Novo due to Insufficient Record for Appeal." We do not see this motion in the record. To the extent Keith is asserting the trial record is insufficient to decide the issues appealed, we disagree. The record before us contains Exhibits 10 through 16, which were provided to the jury, and the argument by counsel regarding admitting the jail call recordings, both at the pre-trial hearing and at trial.
We note that Keith has briefly alluded to some other arguments without developing them or citing any authority, as required by Ariz. R. Civ. App. P. 13. We therefore decline to address them.
Double Jeopardy
¶21 The state sua sponte points out that Keith's "convictions for both possession of methamphetamine for sale and transportation of methamphetamine for sale may violate double jeopardy principles." A double jeopardy violation constitutes fundamental error, State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006), which we will not ignore if brought to our attention. For double jeopardy purposes, an offense and its lesser-included offense are considered the "same offense," thus a defendant may not be convicted for both. State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 773 (App. 2008). Possession of a dangerous drug under § 13-3407(A)(1) is a lesser-included offense of transportation for sale of a dangerous drug under § 13-3407(A)(7). State v. Cheramie, 218 Ariz. 447, ¶ 22 189 P.3d 374, 378 (2008). We therefore vacate Keith's conviction and sentence for possession of a dangerous drug for sale. See State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 21, 965 P.2d 94, 99 (App. 1998) (vacating the conviction of a lesser-included offense); State v. Jones, 185 Ariz. 403, 407, 916 P.2d 1119, 1123 (App. 1995) (when two convictions improperly are based on one act, the lesser conviction must be vacated).
Criminal Restitution Order
¶22 We lastly address an issue that was neither raised below nor on appeal. Specifically, at the time of sentencing, the trial court entered an order that reduced "all fines, fees, and assessments" to a CRO. The imposition of such an order prior to the expiration of Keith's sentence "'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Accordingly, the CRO cannot stand.
Section 13-805, A.R.S., has since been amended to permit the entry of CROs for the unpaid balance of any court-ordered restitution. See 2012 Ariz. Sess. Laws, ch. 269, § 1; State v. Cota, 234 Ariz. 180, ¶ 1, 319 P.3d 242, 243 (App. 2014).
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Disposition
¶23 For the foregoing reasons, Keith's conviction and sentence for transportation of a dangerous drug for sale are affirmed, but we vacate his conviction and sentence for possession of a dangerous drug for sale and that portion of the sentencing order containing the CRO.
United States v. Mariscal, 285 F.3d 1127, 1130-31 (9th Cir. 2002). Here, the officer was not confused as to the law; he knew the three-second rule was not in the statute, but was a tool from his training to gauge safe spacing of vehicles during a lane change.