Opinion
No. 1 CA-CR 15-0474
11-22-2016
STATE OF ARIZONA, Appellee, v. ANDRE OMAR POAG, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-149701-001
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
MEMORANDUM DECISION
Judge Christopher T. Whitten delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. WHITTEN, Judge:
The Honorable Christopher T. Whitten, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Andre Omar Poag appeals his conviction and sentence for possession or use of dangerous drugs. For the reasons that follow, we affirm.
BACKGROUND
We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013).
¶2 At approximately 12:00 p.m. on October 14, 2014, Mesa Police Officer Brandon Lavin responded to a dispatch call regarding a suspicious person at the Mesa Madrid Townhouse complex ("Mesa Madrid"). The subject was described as a "Hispanic male or black male, wearing a gray hoody," who reportedly was seen peering through car windows.
¶3 When Officer Lavin arrived at the scene, he found Poag, whose appearance matched the reported description, rummaging inside a dumpster. Officer Lavin asked Poag to exit the dumpster and identify himself. Poag complied, and Officer Lavin then asked him what he was doing. Poag explained that he was at Mesa Madrid to visit his cousin, and he was searching the dumpster for scrap metal to sell. When questioned further, Poag was unable to provide his cousin's full name (only initials "Y.D.") or unit number (stating that it was "around the corner" from unit 26, while pointing in the direction opposite from where unit 26 was located).
¶4 Officer Lavin arrested Poag for third-degree trespass. While conducting a search incident to arrest, Officer Lavin found a crystal-like substance later determined to be methamphetamine inside a small container in Poag's sweatshirt pocket.
¶5 The State charged Poag with one count of possession or use of dangerous drugs. The State also alleged several historical prior felony convictions.
¶6 A jury found Poag guilty as charged. After finding Poag had two prior felony convictions, the trial court sentenced him to a mitigated term of six years' imprisonment. Poag timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010).
Poag's first trial resulted in a hung jury.
DISCUSSION
I. Motion to Suppress.
¶7 Approximately one month before his first trial, Poag moved to suppress the methamphetamine evidence seized from the search incident to his arrest. Poag argued Officer Lavin lacked probable cause to arrest him for trespass because there was no evidence he had notice his entry was prohibited, and therefore the attendant search was unconstitutional.
¶8 At the evidentiary hearing on the motion, Officer Lavin testified that the City of Mesa has a "no trespass program" in which private property owners may file a letter with the City stating they will prosecute trespassers. The party identified in the letter is the designated trespass victim, allowing police officers to make trespass arrests without contacting a victim. To participate in the program, a private property owner is required to display "no trespassing signs at the entrances."
¶9 At some point on October 14, Officer Lavin ascertained that Mesa Madrid was participating in the "no trespass" program. Although Officer Lavin did not ask Poag to leave the complex and did not observe any "no trespassing" signs the day of the arrest, he testified that he had probable cause to arrest Poag for trespass based on: (1) Poag's presence in the dumpster, (2) Poag's attempt to remove an item from the dumpster, (3) Poag's inability to provide a full name or unit number for his cousin, and (4) Mesa Madrid's participation in the "no trespass" enforcement program. Officer Lavin further testified that he checked the placement of Mesa Madrid's "no trespassing" signs the morning of the evidentiary hearing and determined that Poag "would have had to" pass one of the "no trespassing" signs when he entered the Mesa Madrid complex.
It is unclear from the record precisely when Officer Lavin determined Mesa Madrid was a participant in the "no trespass" program. On direct examination, Officer Lavin testified that he learned Mesa Madrid was a participant when he "looked it up on a link within our intranet on the computer in my car." Referring to this testimony during cross-examination, defense counsel asked whether Officer Lavin "actually reviewed" Mesa Madrid's letter before arresting Poag. Officer Lavin testified that he did not recall, and clarified his earlier testimony, explaining he was not sure whether he could access the letter from his car or "just [] at the station." In an attempt to clarify the chronology, the prosecutor asked Officer Lavin on redirect whether he verified that Mesa Madrid participated in the program before he "made contact" with Poag. Officer Lavin answered that he verified Mesa Madrid's participation "after [he] made contact." Accordingly, it is unclear when Officer Lavin verified Mesa Madrid's participation, but the officer's police report from the afternoon noted that Mesa Madrid was a program participant.
¶10 Defense witness Kathleen Tomaiko also testified regarding Mesa Madrid's sign placement. She explained that Mesa Madrid is surrounded by a tall wall on all but the west side, and each of the four west-facing vehicular entrances have a "no trespassing" sign posted in both English and Spanish. No signs are posted along the walkways, however, and Tomaiko testified (contrary to Officer Lavin's testimony) that a pedestrian could traverse the walkways without seeing a "no trespassing" sign.
¶11 After taking the matter under advisement, the trial court denied the motion to suppress, finding Officer Lavin's initial detention of Poag for questioning was reasonable because Poag matched the reported description and was found rummaging through a dumpster, which is "suspicious or at least unusual behavior." The court further found that Officer Lavin's limited questioning of Poag developed sufficient facts for the officer to reasonably conclude Poag "did not have a lawful basis to be at the property and had committed the offense of trespassing." In determining Poag had reasonable notice he was not permitted to enter Mesa Madrid, the court acknowledged it is "unknown what signage existed at the time of this incident," but concluded "the best evidence is that at locations that open the property grounds to the public, there was clear signage about trespassing."
¶12 Poag challenges the trial court's suppression ruling, arguing his arrest for trespass was unlawful and therefore the subsequent search was unconstitutional. Specifically, Poag contends there was no evidence that "no trespassing" signs were posted on the date of his arrest, and therefore he was not placed on reasonable notice that his entry into Mesa Madrid was prohibited and Officer Lavin lacked probable cause to arrest him for trespass in the third degree.
¶13 "We review a trial court's denial of a motion to suppress for an abuse of discretion, considering only the evidence presented at the suppression hearing" and viewing those facts in the light most favorable to sustaining the trial court's decision. State v. Spencer, 235 Ariz. 496, 498, ¶ 8, 333 P.3d 823, 825 (App. 2014); State v. Mendoza-Ruiz, 225 Ariz. 473, 474 n.1, ¶ 2, 240 P.2d 1235, 1236 n.1 (App. 2010). We defer to a trial court's determination of an officer's credibility and the reasonableness of any inferences he drew, but review de novo the court's legal conclusions. Mendoza-Ruiz, 225 Ariz. at 475, ¶ 6, 240 P.3d at 1237.
¶14 "Probable cause is something less than the proof needed to convict and something more than suspicions." State v. Aleman, 210 Ariz. 232, 237, ¶ 15, 109 P.3d 571, 576 (App. 2005) (internal quotation omitted). "In reviewing the legality of a suspect's arrest, we first determine what facts and circumstances the police were aware of at the time of [the] arrest." State v. Boles, 183 Ariz. 563, 569, 905 P.2d 572, 578 (App. 1995). "If those facts and circumstances gave the police reasonable cause to believe the suspect was committing or had committed an offense, the arrest was lawful." Id.
¶15 Pursuant to A.R.S. § 13-1502(A)(1), a person commits criminal trespass in the third degree by "[k]nowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry."
¶16 In this case, Officer Lavin came upon Poag in a dumpster on private property, where he was searching for scrap metal to sell. From limited questioning, the officer quickly learned that Poag did not live at Mesa Madrid and was unable to provide either the full name or unit number for the person he was ostensibly visiting. Although Officer Lavin did not observe any "no trespassing" signs that afternoon, at some point that day, he verified that Mesa Madrid participated in the "no trespass" program, which requires participants to post "no trespassing" signs at areas otherwise open to the public. On this record, there is sufficient evidence from which the trial court could have found that Mesa Madrid had posted "no trespassing" signs on the date of the arrest, providing Poag reasonable notice his entry was prohibited, and Officer Lavin therefore had probable cause to arrest him for trespass.
¶17 Poag alternatively argues he lacked reasonable notice his entry was prohibited because Mesa Madrid's "no trespassing" signs were insufficient and not placed at pedestrian entrances. As Poag notes, Tomaiko testified it would be possible for a pedestrian to traverse Mesa Madrid's walkways without passing a "no trespassing" sign. This testimony conflicted with Officer Lavin's testimony, however, that Poag "would have had to" pass one of the "no trespassing" signs when he entered the Mesa Madrid complex. We defer to the trial court's assessment of witness credibility and its resolution of evidentiary conflicts. See State v. Keener, 110 Ariz. 462, 464, 520 P.2d 510, 512 (1974). Poag also argues that a "no trespassing" sign, absent any accompanying physical barrier, does not provide reasonable notice that a person may not enter restricted property for a legitimate purpose, namely, to visit a resident. In this case, the evidence reflects Poag was scavenging a dumpster, not attempting to visit a Mesa Madrid resident, at the time of his arrest. He was also unable to identify, either by full name or unit number, the person he was purportedly there to visit. Given these facts, the trial court did not abuse its discretion by denying Poag's motion to suppress based on its finding that Poag: (1) had reasonable notice his entry was prohibited and (2) lacked a "lawful basis" for entering the property.
II. Prosecutorial Misconduct.
¶18 Poag asserts the prosecutor engaged in misconduct by improperly vouching for Officer Lavin's testimony. Poag did not object on this basis in the trial court, and we therefore review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). Under this standard of review, the defendant must first prove that misconduct actually occurred. State v. Edmisten, 220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App. 2009). After establishing error, the defendant must then demonstrate "that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. at ¶ 22 (quoting State v. Harrod, 218 Ariz. 268, 278, ¶ 35, 183 P.3d 519, 529 (2008)).
¶19 Prosecutorial misconduct is not "merely the result of legal error, negligence, mistake or insignificant impropriety." Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). Rather, viewed in its entirety, it is "intentional conduct" that the prosecutor "knows to be improper and prejudicial and which he pursues for any improper purpose." Id. at 108-09, 677 P.2d at 271-72.
¶20 "There are two types of prosecutorial vouching: (1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Duzan, 176 Ariz. 463, 467, 862 P.2d 223, 227 (App. 1993) (internal quotation omitted).
¶21 During opening statements, defense counsel told the jury that the State would be unable to meet its burden of proving Poag intentionally possessed methamphetamine because the police failed to record both the seizure and Poag's post-Miranda statements to Officer Lavin. When the prosecutor subsequently questioned Officer Lavin about Poag's post-Miranda statements, the officer testified that Poag admitted the substance seized from his pocket was his methamphetamine. Following this testimony, and without objection, the prosecutor asked Officer Lavin whether he "record[ed]" Poag's admissions in his police report. Officer Lavin testified that he did, which allowed him to have a clear recollection of the events that transpired. On cross-examination, defense counsel questioned Officer Lavin about his "recording" of the events, and the officer acknowledged that no audio or video recordings were made of Poag's arrest, search, or questioning. During redirect, the prosecutor referred to defense counsel's question regarding the lack of a recording and asked, without objection, whether Officer Lavin's conversation with Poag was "recorded in [the] report." Officer Lavin responded that he recorded his conversation with Poag in the report shortly after it occurred. The prosecutor then asked, again, whether the conversation was "recorded in [the] report" and Officer Lavin responded in the affirmative.
Miranda v. Arizona, 384 U.S. 436 (1966). --------
¶22 During closing arguments, the prosecutor outlined the evidence that she had presented and then stated, without objection:
So while there aren't any audio recordings or video recordings of what happened on October 14th of 2014, it is recorded, ladies and gentlemen, it's recorded in Officer Lavin's written report. Officer Lavin wrote a report. He
testified to what he saw that day in court in front of you. He testified on the stand that he had a memory of that day and that he reviewed his report to help his memory, and that because of his report it helps him recall what happened.
Those reports are what have been used for decades to help police record their recollections. Audio recorders, video cameras, relatively new technology. For decades police have written police reports to record their recollections and come to court and testify.
Direct testimony is evidence, and it's evidence of what happened.
¶23 Relying primarily on State v. Leon, 190 Ariz. 159, 945 P.2d 1290 (1997), Poag contends the prosecutor improperly referred to evidence that was not presented to the jury, i.e., the police report, to assert that Poag's inculpating statements to Officer Lavin were "recorded" and Officer Lavin's testimony, refreshed by the police report, was therefore credible. He also argues the prosecutor improperly bolstered Officer Lavin's testimony "by invoking the history of police reports."
¶24 In Leon, the defendant was charged with offering to sell marijuana after he attempted to sell one-hundred-fifty pounds of marijuana to undercover police officers. 190 Ariz. at 160, 945 P.2d at 1291. During closing arguments, the prosecutor referenced unadmitted police reports and informed the jurors that they were "not going to have the inside information as to what occurred in prior transactions." Id. at 161, 945 P.2d at 1292. Although the trial court struck that portion of the State's argument, the supreme court concluded the prosecutor's implicit argument that the "police reports contained other 'bad acts'" improperly informed the jury that the defendant had been involved in prior criminal activity, and the trial court's instruction to the jury was therefore insufficient to ameliorate the resulting prejudice. Id. at 162-63, 945 P.2d at 1293-94.
¶25 Unlike the circumstances in Leon, here, the prosecutor did not suggest that evidence outside the record and unknown to the jury inculpates Poag. To the contrary, she argued that Officer Lavin's police report was consistent with the officer's in-court testimony and an accurate record upon which he could reasonably rely to refresh his recollection. Neither the prosecutor's questions directed to Officer Lavin nor her closing argument to the jury suggested that the police report contained other, unknown evidence of Poag's guilt. Instead, viewed in context, the questions and argument simply explained how Officer Lavin, who testified he makes drug-related arrests every week, could recall the details of this particular arrest that had occurred many months earlier.
¶26 Likewise, the prosecutor's comments regarding the general reliability of police reports were not improper. Attorneys are given wide latitude in closing arguments. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). Here, the prosecutor's statements referring to the historic use of police reports were a reasonable, measured response to defense counsel's claim that only police testimony corroborated by audio or video recordings is reliable. See State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997) ("Comments that are invited and prompted by opposing counsel's arguments are not improper if they are reasonable and pertinent to the issues raised."). Therefore, the argument was not improper.
CONCLUSION
¶27 For the foregoing reasons, Poag's conviction and sentence are affirmed.