0666.. State v. Taylor

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) ) Appellee, v. DEQUINTON MARQUS TAYLOR, Appellant. DIVISION ONE FILED: 09/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR09-0626 1 CA-CR09-0666 (Consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2008-154025-001 SE and CR2005-119113-002 SE The Honorable J. Kenneth Mangum, Judge AFFIRMED Terry Goddard, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee The Law Office of Eleanor L. Miller Phoenix by Eleanor L. Miller Attorney for Appellant ________________________________________________________________ W E I S B E R G, Judge ¶1 DeQuinton convictions and Marqus sentences Taylor on ( Defendant ) promoting prison appeals his contraband, a class two felony, and possession or use of marijuana, a class 6 felony. He argues that because he was arrested and taken to jail by police, he could not have committed a voluntary act of promoting prison contraband. conviction violates the Additionally, he asserts that his privilege against self-incrimination. For reasons that follow, we find no error and affirm. BACKGROUND ¶2 a In February 2008, a Scottsdale police officer stopped vehicle at illuminated. night because only the parking lights were As he approached the car, he immediately noticed the smell of marijuana coming from inside the car. Detective Daniel Garcia arrived to assist, and he, too, detected the odor and asked the driver and his passenger, Defendant, to step out. ¶3 While found in the searching console methamphetamine. He a the car s glass arrested pipe interior, the commonly used Defendant, warnings, and searched Defendant s person. not find anything evidentiary value. and asked if he had Defendant said, No. read the detective to smoke Miranda The detective did missed anything of The detective cuffed Defendant s hands behind his back and informed him that if he took anything else into the jail, it [could] be an additional felony. ¶4 When they arrived at the jail, the detective removed Defendant from the vehicle and spotted a bag of cocaine on the 2 floor. 1 He asked Defendant why he had dropped it, and Defendant said that he could not move his hands. The detective again advised Defendant that if he brought anything illegal into the jail, he could face another charge. Once inside, Defendant was strip-searched and a ball of marijuana fell onto the floor. The State accordingly charged him with promoting prison contraband, possession or use of narcotic drugs (cocaine), possession or use of marijuana, and possession of drug paraphernalia (pipe). ¶5 The day before trial, the State moved to preclude Defendant from arguing that he had not voluntarily entered the jail with marijuana or that police questions about whether he possessed contraband violated the Fifth Amendment. The State relied on State v. Alvarado, 219 Ariz. 540, 200 P.3d 1037 (App. 2008), which held that an arrestee s possession of drugs when booked into jail was a voluntary act and that no Fifth Amendment violation detained occurs at the when police ask jail whether he a suspect possesses prior to contraband. being In opposing the motion, Defendant objected only to preclusion of argument on whether he had committed a voluntary act. The superior court granted the State s motion. 1 The detective testified that he had searched the vehicle before his shift began and that there was nothing in it when he arrested Defendant. 3 ¶6 Defendant testified at trial and denied possessing the glass pipe or the marijuana found on his person. He admitted that he had two prior felony convictions in 2005 for kidnapping. ¶7 At the end of trial and over a defense objection, the court gave the following instruction: Before you may convict the defendant . . ., you must find that the State proved beyond a reasonable doubt that [he] committed a voluntary act. A voluntary act means a bodily movement performed consciously and as a result of effort and determination. You must consider all the evidence in deciding whether the defendant committed the act voluntarily. Whether a person s presence on a jail or correctional facility premises was voluntary or against his will is irrelevant for the purpose of determining whether he committed the offense of promoting prison contraband. ¶8 The jury found Defendant guilty of promoting prison contraband and of possession of marijuana but acquitted him of the other counts. years for the The court imposed concurrent terms of 9.25 prison marijuana possession. contraband offense and 1.75 years for It also revoked probation and imposed a consecutive four-year term for the prior kidnapping convictions. 2 2 Defendant included this prison sentence in his notice of appeal but has waived any error by failing to address it in his opening brief. Best v. Edwards, 217 Ariz. 497, 504 n. 7, ¶ 28, 176 P.3d 695, 702 n. 7 (App. 2008) 4 ¶9 Defendant timely appealed. We have jurisdiction under Article VI, section 9 of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 13-4033 (2010). DISCUSSION ¶10 Defendant asserts that he could not have promoted prison contraband because he was involuntarily taken to the jail and thus committed no voluntary act. He also argues that he was constitutionally protected [by the Fifth Amendment] from having disclose his possession of marijuana, that he chose to remain silent rather than disclose the drug, and was prosecuted for his silence. ¶11 We first consider the contraband statute. Section 13-2505(A)(1)(2010) provides that one commits the offense of promoting prison contraband by knowingly taking contraband into a correctional facility or [its] grounds . Defendant contends that he could not violate the statute because he did not voluntarily enter the jail. He cites A.R.S. § 13-201 (2010), which provides that to be criminally liable, a person must perform conduct, which includes a voluntary act and A.R.S § 13-105(6) (2010), which defines conduct as an act or omission and its accompanying culpable mental state. defines a consciously voluntary and as a act as result a of 3 bodily effort Section 13-105(41) movement and performed determination. 3 We cite the current version. Although the definitions have been renumbered, they are not otherwise altered. 5 Defendant asserts that bringing marijuana into the jail was not a voluntary act because he did not act but was brought into the jail, against his free will, in the custody of a police officer. 4 ¶12 We review interpretation. de novo the superior court s statutory State v. Ross, 214 Ariz. 280, 283, ¶ 21, 151 P. 3d 1261, 1264 (App. 2007). When construing statutes, our aim is to determine and advance the legislature s intent. Id. at ¶ 22. Generally, we apply the statutory language as written if it is clear and unambiguous. Id. (quoting Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821, 823 (2002)). If it is unclear, we consider the statute s context, subject matter, historical background, effects and consequences, and spirit and purpose. Id. We also seek to avoid absurd results. State v. Medrano- Barraza, 190 Ariz. 472, 474, 949 P.2d 561, 563 (App. 1997). ¶13 In Alvarado, with very similar facts, this court considered the meaning of the voluntary act requirement in the prison contraband statute. We acknowledged differing analyses 4 To the extent Defendant suggests that he did not knowingly bring marijuana into the jail, the jury reasonably could find from evidence that it was in a ball in his underwear that Defendant knowingly committed the offense. This mental state only requires that Defendant was aware . . . that the circumstance [i.e. his possession] exist[ed]. A.R.S. § 13105(10)(b). 6 by other state courts of similar statutes banning introduction of contraband, 219 Ariz. at 543-44, ¶¶ 12-13, 200 P.3d at 104041, but concluded that to promote prison contraband under § 132505(A)(1) does not require that a person voluntarily enter the jail. Id. at 545, ¶ 17, 200 P.3d at 1042. We noted that the defendant confuse[d] the concept of a voluntary act with the requisite culpable mental state for the offense. Id. at ¶ 16. Evidence that he remarked, Oh man, I worked hard for that when the marijuana was discovered in a search at the jail showed that he had the requisite mens rea of knowingly taking the drug into the jail. ¶14 Our Id. supreme court has not construed the contraband statute, but it did consider the meaning of a voluntary act in State v. Lara, 183 Ariz. 233, 234-35, 902 P.2d 1337, 1338-39 (1995). The defendant, charged with aggravated assault and attempted murder, offered expert testimony that he suffered a brain impairment that could reduce his use of good judgment and increase a tendency to fly off into a tantrum or rage as if by reflex. Id. at 234, 902 P.2d at 1338. The court of appeals concluded that a jury might find his conduct reflexive rather than voluntary and should have been instructed that the State had to prove that he did a voluntary act forbidden by law. Voluntary act means a bodily movement performed consciously and as a result of effort and determination. 7 Id. ¶15 The supreme court clarified that a voluntary act required a determined conscious bodily movement, in contrast to a knee-jerk reflex driven by the autonomic nervous system. at 234-235, 902 P.2 at 1338-1339. requested beating instruction heart or conscious effort. because inflating Id. It affirmed rejection of the reflexive lungs, occur movements, Id. at 234, 902 P.2d at 1338. a thought without like or The defendant, however, had not pursued the victim while unconscious, id., and without evidence that he had performed some movement unconsciously, he was not entitled to an instruction that the State had to prove that [he] did a voluntary act. Id. at 235, 902 P.2d at 1339. ¶16 In defendant's Alvarado, we interpretation, also the reasoned statute that would under only apply the to non-inmates, such as employees or visitors, who voluntarily enter the jail while carrying drugs. 200 P.3d at 1042. 219 Ariz. At 545, ¶ 16, Nothing in the statute suggested that the legislature intended such a narrow scope, and we decline[d] . . . to modify [it] in a manner contrary to its plain wording. Id. Accordingly, because the defendant twice had been informed of the consequence of bringing contraband into the jail and had an opportunity movement to surrender consciously and it, as 8 he a perform[ed] result of a bodily effort and determination when he carried the contraband into the jail. Id. at ¶ 18. ¶17 We need not depart from Alvarado here. Defendant, like Alvarado, ignored notice that he would be charged if found with contraband, chose not to disclose the marijuana, and entered the jail while possessing Defendant was not unconscious when brought to jail. carried contraband determination. into the jail with it. Id. Instead, he effort and Our interpretation not only accords with the statutory language but advances the legislature s obvious intent to keep prisons weapons and safe other and secure illegal visitors, or arrestees. items by banning whether introduction brought by of staff, We cannot imagine that the legislature wished to punish a jail visitor for bringing contraband but not a person arrested, booked, and about to be detained in the facility. ¶18 We acknowledge that a minority of courts have held that a defendant does not voluntarily bring contraband into a correctional facility if he is brought there against his will. See State v. Eaton, 229 P.3d 704, 708-09, ¶ 13 (Wash. 2010) (to enhance sentence for bringing contraband into jail, state must prove volition; enhancement improper if inmate had no choice over his location or movement); State v. Tippetts, 43 P.3d 455, 459-60 (Or. drugs before App. his 2002) arrest (defendant s is not 9 voluntary enough to possession convict him of for bringing them into jail); State v. Cole, 164 P.3d 1024, 1027, ¶ 11 (N.M. App. 2007) (accord); State v. Gotchall, 43 P.3d 1121 (Or. App. 2002)(per curiam) (defendant did not willingly bring contraband to jail and could not have voluntarily possessed it once there). ¶19 Other courts, however, have adopted reasoning similar to ours. In People v. Gastello, 232 P.3d 650, 655 (Cal. 2010), the California supreme court found it immaterial defendant was . . . not present by choice in jail. that the The critical fact is that an arrestee has the opportunity to decide whether to purge himself of hidden drugs before entering jail, whether to bring them inside and commit a new crime. or See also People v. Cargile, 916 N.E.2d 775, 778, ¶ 20 (Ohio 2009) (one taken enters to jail meets Commonwealth, after arrest and the actus reus 688 S.E.2d 901 who possesses drugs requirement ); (Va. App. 2010) when he Herron v. (focus on voluntariness of defendant s entry into jail leads to absurd results; criminal act was failing to reveal presence of drugs before taking them inside); State v. Winsor, 110 S.W.3d 882, 888 (Mo. App. 2003) (accused s decision to enter jail premises with a controlled substance on his person was a voluntary act ). ¶20 Given the statutory language and our decision in Alvarado, we find no error in the superior court s granting of the motion in limine. As in Alvarado, 219 Ariz. at 545-46, ¶ 10 18, 100 P.3d at 1042-43, Defendant may not have gone to the jail voluntarily, marijuana, but and once there, although given he knew notice that and an he possessed opportunity to disclose it, he determined to remain silent and by his conduct, took the drug with him into the jail. Accordingly, he perform[ed] a bodily movement consciously and as a result of effort and determination when he carried the contraband into the jail. Id. See also Winsor, 110 S.W.3d at 887 (statute prohibits voluntary act of possession of controlled substances, not act of being involuntarily present on the jail premises). ¶21 In addition to his statutory challenge, for the first time on forbids that, appeal the if he Defendant police from complied, contends requesting would that that incriminate the he Fifth produce him. In Amendment 5 evidence his oral response to the motion in limine, defense counsel only asked for permission to argue that Defendant s involuntary presence at the jail barred his conviction for bringing in contraband. The prosecutor then mentioned that Alvarado not only had rejected that contention but also had found no Fifth Amendment violation when police asked Defendant whether he possessed any contraband. One who fails to object at trial forfeits the right to obtain appellate relief except in those rare cases that involve error 5 No person shall be . . . compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. 11 going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). In order to prevail, Defendant must show that fundamental error occurred and prejudiced him. Id. at ¶ 20. ¶22 We find no fundamental error. To warrant Fifth Amendment protection, a defendant's evidence must be compelled and testimonial or communicative. 384 U.S. 757, 764 (1966). Schmerber v. California, But, the Amendment does not confer a privilege to lie ; thus, it allows one to remain silent, but not to swear falsely. Brogan v. United States, 522 U.S 398, 404-05 (1998) (citation omitted); see also Gastello, 232 P.3d at 655 (Fifth Amendment does not apply to the nontestimonial act of knowingly bring[ing] prohibited drugs into a jail or prison. ); People v. Ross, 76 Cal.Rptr.3d 477, 482 (Cal. App. 2008) (Fifth Amendment does not protect one from consequences of falsely denying possession of contraband). ¶23 reveal Thus, Alvarado held that an arrestee s decision not to contraband concealed on his person does not somehow absolve him of responsibility for his actions on the theory that providing him an opportunity to choose between admitting to possession of the [drug] and being charged with introducing that 12 substance into the jail violates the . . . Fifth Amendment. 219 Ariz. at 545, ¶ 18, 200 P.3d at 1042. The Kentucky supreme court similarly reasoned that an arrestee may waive his Fifth Amendment right and not face the promoting contraband charge, or . . . not waive his Fifth Amendment right and face a separate (and in this case, a more serious) charge if caught. His conscious choice was a gamble . . . [but] [a]sserting his right to not incriminate himself does not prevent the further investigation, nor the use of the fruits of that investigation. Taylor v. Commonwealth, 313 S.W.3d 563, 566 (2010). CONCLUSION ¶24 Sufficient evidence supports the jury s findings that Defendant committed the offenses of promoting prison contraband and possession of marijuana, and we find no superior court s ruling on the motion in limine. no Fifth Amendment violation. error in the We also find We affirm the convictions and sentences imposed. /s/ SHELDON H. WEISBERG, Judge CONCURRING: /s/___________________________ DANIEL A. BARKER, Judge K E S S L E R, Judge, dissenting in part and concurring in part: 13 ¶25 I concur with the majority on the Fifth Amendment issue, but respectively dissent from the majority on the issue of whether Taylor voluntarily brought drugs into the jail. Accordingly, I would affirm his conviction for possession of marijuana but reverse his conviction for promoting prison contraband and remand for a new trial to permit Taylor to argue that issue to the jury. ¶26 A.R.S. § 13-2505(A)(1) (2010) provides that a person is guilty of promoting prison contraband by knowingly taking contraband into a correctional facility or the grounds of such facility . . . . Pursuant to A.R.S. § 13-201 (2010), [t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing. A voluntary act is defined as a bodily movement performed consciously and as a result of effort and determination. ¶27 A.R.S. § 13-105(41) (2010). I cannot conclude that Taylor brought the marijuana into the jail of his own free will or by his own effort and determination. I disagree with the decision in Alvarado, 219 Ariz. at 544-45, ¶¶ 15-16, 200 P.3d at 1041-42, applying State v. Lara, 183 Ariz. 233, 234-35, 902 P.2d 1337, 1338-39 (1995), to facts similar to those here. 14 ¶28 In Lara, Lara threatened and attacked the victim with a knife. Lara, 183 Ariz. at 234, 902 P.2d at 1338. The issue there was whether the defendant suffered from a brain impairment or personality disorder that increased his tendency to fly into a rage as conviction if by and reflex. addressed The his supreme argument court that he affirmed had not his acted voluntarily. The court held that involuntarily bodily functions, like a knee-jerk, are controlled by the nervous system and are not the sorts of bodily movements that would not be performed consciously and as a result of effort and determination within the meaning of our statute. Id. Therefore, the evidence would have to show that Lara s act was a bodily movement performed unconsciously and without effort and determination. 235, 902 P.2d at 1339. Id. at Consequently, the court held that Lara was not unconscious and that he was relentless in his effort and determination . . . [thus] not entitled to a voluntary act instruction. Id. at 234, 902 P.2d at 1338. ¶29 facts The in Lara, do not apply to Alvarado, and therefore, do not apply to this case. In Lara, the defendant claimed of that his act unconscious reflex . defined reflex and was the result an involuntary and To address that issue, the Supreme Court distinguished it from a voluntary act. However, the court did not conclude that all involuntary acts must be the result of a reflex as the Alvarado court would have 15 us conclude. Furthermore, Lara does not conclude that in order to find that a person acted without effort and determination, he must be unconscious. In sum, we look to the common usage of the term voluntary to mean that done by a person s free will. ¶30 we In attempting to give meaning to statutory language, often look to respected dictionary definitions. Voluntariness is a form of free will which has been defined as the power of directing our own actions without constraint by necessity or fate. Dictionary 1076 The Compact Edition of the Oxford English (1971). I cannot say that Taylor acted voluntarily or of his own free will because he was not entering the jail of his own accord without constraint by necessity or fate, or, in the statutory language construed in Lara, of his own effort and determination. ¶31 held Rather, I concur with those other courts which have that a defendant does not voluntarily act in bringing contraband into a correctional facility when he is brought to the facility against his will. 455, 458 (Or. Ct. App. See State v. Tippetts, 43 P.3d 2002) ( It [the statute] does not suggest, as the state reasons, that a defendant who has been moved against his or her will and is conscious of that fact has acted voluntarily. ); State v. Cole, 164 P.3d 1024, 1027, ¶ 11 (N.M. Ct. App. 2007) (holding that defendant could not be held liable for bringing contraband into a jail when he did not do so 16 voluntarily ); State v. Gotchall, 43 P.3d 1121, 1122 (Or. Ct. App. 2002) (holding that if defendant did not voluntarily introduce contraband into the correctional facility, defendant could not voluntarily possess that contraband once she was confined in the facility ). Furthermore, to be concerned in the commission of crime . . . one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement . . . does not in law constitute such person a participant in the crime. Anderson v. State, 91 P.2d 794 (Okla. Crim. App. 1939). Simply stated, it is the fate of an arrestee to enter a correctional facility without the power to direct his own actions. ¶32 My conclusion is also supported by the reasoning in Martin v. State, 17 So.2d 427 (Ala. Ct. App. 1944). In Martin, the defendant appealed his conviction of being drunk on a public highway. drunk, Id. took manifesting Officers had arrested him at home while he was him a out to drunken the highway condition by and using charged loud language under 14 Ala. Code Section 120 (1940). him and with profane The statute provided that [a]ny person who, while intoxicated or drunk, appears present, in any and public manifests place a where drunken 17 one or more condition, persons boisterous are or indecent conduct, or loud conviction, be fined. and Id. profane discourse, shall, on The court reversed the conviction holding that [u]nder the plain terms of [the] statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Id. ¶33 As the voluntary act consciously and plain language requires as a of a result the statute bodily of states, movement effort and a performed determination. A.R.S. § 13-105(41). When a person is placed under arrest, that person ability has movements Taylor s lost he the can physical take or movements to he of choose can or direct entering determine what his own person. the correctional facility were not the result of effort and determination. He was involuntarily and forcibly carried into the facility by the arresting officer. Because he was under arrest, he did not have a choice, but to enter the facility. The mere fact that defendant voluntarily possessed the drugs before he was arrested is insufficient to hold him criminally liable for the later act of introducing the drugs into the jail. 459. 18 Tippetts, 43 P.3d at ¶34 Nor do I agree with the conclusion in Alvarado that requiring a suspect to voluntarily enter the jail to amount to promoting prison contraband would limit A.R.S. § 13-2505(A) to apply only to non-inmates. 1042. 219 Ariz. at 545, ¶ 16, 200 P.3d at A.R.S. § 13-2505(A) provides that [a] person, not otherwise authorized by law, commits promoting prison contraband: (1) by knowingly taking contraband into the correctional facility or the grounds of such facility; or (2) by knowingly conveying contraband to any person confined in a correctional facility; or (3) by knowingly making, obtaining or possessing contraband while being confined in a correctional facility or while being lawfully transported or moved incident to correctional facility confinement. ¶35 The statute states that not only does the person conveying the contraband into the correctional facility have to do so knowingly, but must also act to convey it. See 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.1 (2d. ed. 2009) ( [A] statute which is worded vaguely on the question of whether an act (or omission), in addition to a state of mind, is required for criminal liability will be construed to require some act (or omission). ). ¶36 This interpretation does not narrow the interpretation in such a way that it will only apply to persons entering the facility persons voluntarily. conveying Subsections contraband to 19 two a and three prisoner or apply to prisoners obtaining or possessing contraband while confined or while being transported or moved incident to such confinement. The real issue is whether the person voluntarily introduced the drugs into the facility. The language of the statute should and does apply to all persons, whether they enter the prison voluntarily or involuntarily, but not to those who are brought into the prison after initial arrest in possession of the illegal substance and whom, by virtue of being under custody and having lost control over their person, have involuntarily introduced the drugs into the prison. ¶37 This differs from: (1) a person who is already a prisoner and obtains contraband while confined to the prison facility; or (2) a prisoner who temporary leaves the confines of the facility; or (3) a prisoner who is transported to another location with facility. knowledge that he is to re-enter a prison In all these circumstances, the person at the time he obtains and possesses the contraband has prior knowledge and control that he is to enter a prison facility with the contraband; thus voluntarily introducing the contraband into the correctional facility. Conversely, a person who has been arrested for another crime, and at the time of the arrest was in voluntary possession of an illegal substance, having no power to direct his own actions, does not 20 voluntarily introduce the illegal substance into the prison. See Cole, 164 P.3d at 1027, ¶ 11. ¶38 For the reasons stated above, I would reverse Taylor s conviction for promoting prison contraband and remand for a new trial to allow Taylor to argue that he did not voluntarily bring the marijuana into the jail. /s/ DONN KESSLER, Presiding Judge 21

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