NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
HENRY SCOTT VANDER,
)
)
Appellant. )
)
__________________________________)
DIVISION ONE
FILED: 06/07/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0178
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2006-140355-001DT
The Honorable Connie Contes, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Sharmila Roy
Attorney for Appellant
Phoenix
Laveen
T H O M P S O N, Judge
¶1
denial
Henry Scott Vander (appellant) appeals the trial court’s
of
his
motion
to
suppress
evidence
and
argues
the
prosecutor’s comment made in closing argument was improper and so
prejudicial as to warrant a new trial.
For the following reasons,
we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
¶2
In July 2006, Phoenix Police Officers Hillman and Mendez
were on duty in plain clothes and an unmarked police car.
On the
way to a QT convenience store, they drove through the parking lot
of an AM/PM gas station.
Officer Hillman observed a woman standing
near the AM/PM looking around as if she was waiting for someone,
and observed a man in the driver’s seat of a blue Toyota pickup
truck, parked near the payphones, who appeared suspicious.
Officer
Mendez went inside the QT while Officer Hillman stayed in the car
to keep a visual sight of the AM/PM.
¶3
Shortly
thereafter,
appellant
pulled
into
the
AM/PM
parking lot in a white Mitsubishi 3000 GT, about twenty feet from
where the woman was standing.
The woman walked directly up to the
driver’s window, which was rolled down, and leaned into the window
with her hands inside the car.
After approximately 20 or 30
seconds, the woman stepped back from the Mitsubishi with one of her
hands “cupped” as if she was holding something.
She drove away in
a white Chevy truck.
¶4
Immediately after the white Chevy left, the blue Toyota
pickup Officer Hillman had noticed earlier pulled into the parking
space next to appellant’s Mitsubishi.
2
Appellant exited his car
holding a blue object in his hand and got into the passenger side
of the Toyota pickup.
After about 30 seconds to a minute,
appellant returned to his Mitsubishi, still holding the blue
object.
The Toyota pickup drove away.
After the Toyota left,
appellant stepped out of his vehicle and placed the blue object
underneath the driver’s side of his vehicle.
Based on his training
and experience, Officer Hillman believed he had observed illegal
drug sales, and that appellant was the dealer.
¶5
Officer Hillman radioed for a marked patrol unit to
assist in initiating a traffic stop of appellant’s vehicle based on
his belief that appellant had engaged in illegal drug sales and on
appellant’s traffic violations when pulling out from the gas
station.
Officer
Ramsey
responded
to
Hillman’s
request
obtained appellant’s identification and other information.
and
When
Officer Mendez approached appellant at the traffic stop, who was
sitting in the front seat of his vehicle, he immediately noticed a
slight odor of marijuana coming from appellant’s vehicle.
Officer
Hillman also smelled marijuana as appellant stepped out of the car.
¶6
the AM/PM.
Officer Hillman asked appellant what he had been doing at
Appellant answered that he had been “getting gas.”
The
officers also asked appellant about the marijuana smell, to which
appellant stated that the smell might be the “perfume” he was
wearing.
3
¶7
Officers Hillman and Mendez placed appellant under arrest
and Officer Hillman searched appellant’s vehicle.
Officer Hillman
reached under the car where appellant had placed the blue object
and retrieved a blue, plastic M&Ms candy container with magnets
taped to it.
It appeared to be the same blue item the officers
observed appellant holding earlier.
Inside the container were
plastic baggies containing methamphetamine with a value of $210 to
$280 and cocaine, valued between $325 and $425.
A search of
appellant’s person yielded $60 in $20 bills in his pocket and
another $73 in his wallet.
¶8
Appellant was charged with one count of possession of
dangerous drugs for sale (methamphetamine), a class 2 felony, and
one count of possession of narcotic drugs for sale (cocaine), a
class 2 felony.
Appellant filed a motion to suppress evidence,
arguing that the search of his vehicle was the result of an illegal
pre-textual
stop
Constitutions.
in
violation
of
the
Arizona
and
U.S.
The trial court conducted an evidentiary hearing
and denied appellant’s motion to suppress.
¶9
In the beginning of the state’s closing argument, the
prosecutor made the following statement to the jury: “In July of
2006, ladies and gentlemen, the defendant, Henry Vander, was
involved in the sale of illegal drugs.
It wasn’t till July 12th of
2006 when he was caught in the act at an AM/PM gas station . . .“
Appellant objected, arguing the comment was improper.
4
The trial
court overruled the objection and reminded the jury that what is
said in closing argument is not evidence.
¶10
The jury convicted appellant on both counts.
At the
sentencing hearing, appellant admitted the existence of two prior
felony
convictions.
concurrent
terms
The
12.5
of
trial
years
Appellant timely appealed.
court
sentenced
imprisonment
on
appellant
each
to
count.
We have jurisdiction pursuant to
Article VI, Section 9 of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2003), 13-4031, and 4033(A)(2011).
II.
¶11
DISCUSSION
Appellant raises two issues on appeal, which we consider
in turn.
A.
¶12
Denial of Motion to Suppress
We
review
a
trial
court’s
decision
suppress evidence for an abuse of discretion.
Ariz. 158, 161, ¶ 9, 76 P.3d 429, 432 (2003).
on
a
motion
to
State v. Dean, 206
We consider only the
evidence presented at the suppression hearing, viewed in the light
most favorable to sustaining the trial court’s ruling.
State v.
Gay, 214 Ariz. 214, 217, ¶ 4, 150 P.3d 787, 790 (App. 2007).
¶13
Appellant argues that under State v. Gant, 216 Ariz. 1,
162 P.3d 640 (2007), affirmed by the United States Supreme Court in
Arizona v. Gant, 129 S.Ct. 1710 (2009), the warrantless search of
his vehicle was unreasonable because appellant was placed in
5
handcuffs under the control of an officer, and no exigencies
existed to justify the search.
drugs
should
have
been
Accordingly, appellant argues the
suppressed
under
the
poisonous
fruit
doctrine.
¶14
We hold the search of appellant’s car was a valid search
incident to arrest, as it was reasonable for the officers to
believe that evidence “relevant to the crime of arrest might be
found” in appellant’s car.
Gant, 129 S.Ct. at 1719 (quoting
Thornton v. U.S., 541 U.S. 615, 632 (2004)).
Appellant was
arrested
Thus,
for
engaging
in
drug
transactions.
it
was
reasonable for the officers to believe illegal drugs might be found
in the vehicle.
See id. (suggesting that arrest for drug offense
supplies “basis for searching the passenger compartment of an
arrestee’s vehicle and any containers therein.”).
Officer Hillman
observed appellant enter and exit the Toyota pickup with a blue
container and place the container underneath his car.
Officer
Hillman testified that during the search, he went directly to the
location where he watched appellant place the blue container.
¶15
Alternatively, the search was supported by the automobile
exception to the warrant requirement, which allows police officers
to “search an automobile and the containers within it where they
have
probable
contained.”
cause
to
believe
contraband
or
evidence
is
California v. Acevedo, 500 U.S. 565, 580 (1991).
In
this case, the officers smelled the odor of marijuana emanating
6
from the interior of appellant’s car and from appellant himself.
The odor of marijuana provided the officers with probable cause to
search appellant’s vehicle.
State v. Reuben, 126 Ariz. 108, 108-
09, 612 P.2d 1071, 1071-72 (App. 1980) (odor of burnt marijuana
gave officer probable cause to search vehicle).
¶16
In addition, Officer Hillman’s observations of appellant,
in conjunction with his training and experience, which led him to
conclude that the events were drug-related, all support a finding
that
the
officers
appellant’s vehicle.
had
sufficient
probable
cause
to
search
See State v. Sumter, 24 Ariz. App. 131, 134-
35, 536 P.2d 252, 255-56 (1975)(probable cause supported search of
co-defendant’s
vehicle
where
officers
observed
co-defendant’s
meeting with defendant who was involved in drug transactions and
observed co-defendant’s suspicious and evasive actions).
Thus, we
hold that the officers conducted a legitimate warrantless search of
appellant’s vehicle, and no abuse of discretion occurred in the
trial court’s denial of appellant’s motion to suppress evidence.
B.
Prosecutor’s Comment During Closing Argument
¶17
because
Appellant argues that his conviction should be reversed
the
prosecutor
improperly
remarked
about
appellant’s
involvement in the sale of drugs in July 2006 and getting “caught
in the act” on July 12.
Appellant further contends that while the
trial court did give an instruction stating that closing arguments
are not evidence, the instruction was insufficient to overcome the
7
prejudice to appellant.
Because the trial court is in the best
position to determine the effect of a prosecutor’s comments on the
jury, we will not disturb the trial court’s ruling absent a clear
abuse of discretion.
State v. Lee, 189 Ariz. 608, 616, 944 P.2d
1222, 1230 (1997); State v. Blackman, 201 Ariz. 527, 545, ¶ 76, 38
P.3d 1192, 1210 (App. 2002).
¶18
Although appellant objected to the prosecutor’s closing
argument, appellant did not ask the trial court to declare a
mistrial and has raised this issue for the first time on appeal.
Because “[a] defendant generally waives his objection to testimony
if he fails either to ask that it be stricken, with limiting
instructions given, or to request a mistrial,” we only review for
fundamental error.
State v. Ellison, 213 Ariz. 116, 133, ¶ 61, 140
P.3d 899, 916 (2006).
¶19
A prosecutor’s comments constitute reversible error only
when (1) they call the jury’s attention to matters it is not
entitled to consider in determining the verdict; and (2) it is
probable that they affected the verdict.
State v. Hansen. 156
Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988).
In arguing a case
to the jury, counsel are afforded “wide latitude” and “may comment
on evidence and argue all reasonable inferences therefrom.”
State
v. Zinsmeyer, 222 Ariz. 612, 620 ¶ 16, 218 P.3d 1069, 1077 (App.
2009)(quotation omitted).
8
¶20
The prosecutor’s remark that in July of 2006, appellant
was “involved in the sale of illegal drugs” but not “caught in the
act” until July 12 was a reasonable inference arising from the
evidence presented at trial.
See State v. Morris, 215 Ariz. 324,
336, ¶ 51, 160 P.3d 203, 215 (2007) (proper argument includes
“reasonable inferences from the evidence”).
The state presented
evidence that appellant possessed methamphetamine worth between
$210 and $280 and cocaine worth between $325 and $425.
It is
reasonable to infer that appellant procured the drugs, baggies, and
container, and packaged the drugs sometime before July 12, 2006.
All of these activities constitute involvement with the sale of
drugs.
Unlike State v. Leon, 190 Ariz. 159, 945 P.2d 1290 (1997),
the case on which appellant relies, the prosecutor did not comment
that he lacked inside information as to whether there were prior
drug transactions.
Moreover, in Leon, the prosecutor’s statements
regarding knowledge of “prior transactions” were improper as the
trial court had excluded evidence of a prior transaction due to the
state’s late disclosure.
¶21
190 Ariz. at 162, 945 P.2d at 1293.
Accordingly, we reject appellant’s argument that the
prosecutor’s comment was improper, and hold the trial court did not
abuse
its
discretion
in
overruling
appellant’s
objection
immediately providing the jury with a curative instruction.
9
and
III.
¶22
For
the
foregoing
CONCLUSION
reasons,
we
affirm
appellant’s
convictions.
/s/
______________________________
JON W. THOMPSON, Judge
CONCURRING:
/s/
___________________________________
PHILIP HALL, Presiding Judge
/s/
___________________________________
LAWRENCE F. WINTHROP, Judge
10
