State v. Holmes

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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. EDWARD CHARLES HOLMES, Appellant. DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1053 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-147651-001 DT The Honorable Maria del Mar Verdin, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General Attorneys for Appellee Janelle A. McEachern Attorney for Appellant Chandler H A L L, Judge ¶1 Edward convictions contraband. and Charles sentences Holmes on two (Defendant) counts of appeals promoting his prison Defendant argues the trial court erred in denying his motion to suppress. Defendant also contends the court should have dismissed this case based on a violation of his right to a speedy trial. Finally, Defendant challenges the sufficiency of evidence supporting his convictions. For the reasons that follow, we affirm. BACKGROUND1 ¶2 In July 2007, Sergeant B.A. with the Maricopa County Sherriff s Office drugs other and Avenue Jail gathered began contraband (the from investigating Jail) recordings into the instances Maricopa of smuggling County in Phoenix. Based on of inmates telephone Fourth information conversations with persons outside of the Jail, B.A. determined Defendant, a nurse who worked at the Jail, would be smuggling contraband on July 23, 2007. After Defendant entered the Jail that day, B.A. confronted him and interviewed him in a conference room. B.A. audio-taped the interview. ¶3 During the interview, Defendant made incriminating statements and eventually produced from his pants pocket a tube of what determined appeared to to contain be cortisone tobacco, ointment matches, and but later was methamphetamine. Defendant explained he did not know what was in the tube because he had been given the re-packaged tube by a woman to deliver to 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against Defendant. See State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 a Jail inmate, although Defendant suspected the tube contained illegal drugs. was detained At the conclusion of the interview, Defendant and subsequently charged with two counts of promoting prison contraband.2 ¶4 At trial, Defendant admitted to knowing the tube probably contained drugs, and he admitted to smuggling the tube into the Jail. However, Defendant claimed he did so because of telephone threats he had received from people associated with Jail inmates. The jury rejected Defendant s affirmative defense of duress, and found Defendant guilty as charged. The trial court terms sentenced imprisonment. Defendant to Defendant mitigated timely concurrent appealed, and we of have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION I. ¶5 Motion to Suppress: Before statements he trial, made Voluntariness Defendant during the moved recorded to suppress interview with the B.A. As the bases for his motion, Defendant argued his statements were made involuntarily and in violation of Miranda v. Arizona, 2 Count 1, a class 2 felony, was based on the methamphetamine; and Count 2, a class 5 felony, was based on the tobacco and matches. See Ariz. Rev. Stat. (A.R.S.) § 13-2505(C) (2010). Subsequent amendments to this statute do not affect our analysis. 3 384 U.S. 436 (1966), because Defendant did not verbally respond that he understood his rights. The trial court held a hearing and denied Defendant s motion, concluding Defendant s statements were voluntarily made and in accordance with Miranda. contends the denial of his suppression motion Defendant constituted reversible error because there was no evidence that he was read or even understood his Miranda warnings. 3 ¶6 In reviewing the denial of a motion to suppress, we review only the evidence submitted at the suppression hearing, and we view those facts in the upholding the trial court s ruling. manner most favorable to State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996); State v. Box, 205 Ariz. 492, 493, ¶ 2, 73 P.3d 623, 624 (App. 2003). court determines the credibility of witnesses. 199 Ariz. 459, 461, ¶ 7, 18 P.3d 1258, The trial State v. Ossana, 1260 (App. 2001). Although we defer to the trial court s factual determinations, we review de novo its ultimate legal conclusion. 3 Box, 205 Ariz. Defendant also makes a passing reference to an exchange with B.A. during the interview in which Defendant asked whether he should obtain an attorney, and B.A. responded that he (B.A.) could not give legal advice. This reference is not developed into a sufficient argument that we can address on appeal. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (appellate court will not consider issue on appeal when opening brief merely mentions issue and does not provide argument on it). We note, however, that Defendant s reference does not indicate an unambiguous and unequivocal request for counsel such that B.A. was required to terminate the interview. See Davis v. U.S., 512 U.S. 452, 46162 (1994); State v. Newell, 212 Ariz. 389, 397, ¶¶ 24-25, 132 P.3d 833, 841 (2006). 4 at 495, ¶ 7, 73 P.3d at 626. A trial court s ruling on a motion to suppress should not be reversed on appeal absent clear and manifest error. State v. Gulbrandson, 184 Ariz. 46, 57, 906 P.2d 579, 590 (1995). ¶7 At the suppression hearing, B.A. testified that before the interview commenced he informed Defendant of his Miranda rights, and Defendant nodded that he understood them. B.A. further testified that Defendant continued to make statements and never asserted his right to remain silent. Defendant, on the other hand, testified that he did not hear B.A. read him his rights. However, because the trial court determines witness credibility testimony and is resolves sufficient conflicts evidence that in testimony, Defendant B.A. s voluntarily spoke with B.A. after being advised of his Miranda rights. See State v. Keener, 110 Ariz. 462, 464, 520 P.2d 510, 512 (1974) (trial court determines weight and effect to give conflicting testimony at suppression hearing); see also State v. Trostle, 191 Ariz. 4, 14, 951 P.2d 869, 879 (1997) ( Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct. ) (quoting State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988)). at the suppression Moreover, no evidence was presented hearing participate in the interview. that B.A. coerced Defendant to Accordingly, the trial court did 5 not err in denying Defendant s motion to suppress.4 Smith, 193 Ariz. 452, 457, ¶ 14, 974 P.2d State v. 431, 436 (1999) (coerciveness on the part of the interrogator is a necessary predicate to finding a defendant s confession is involuntary). II. ¶8 Right to a Speedy Trial Defendant next contends that the State s dilatory tactics in satisfying its discovery obligations under Arizona Rule of Criminal Procedure (Rule) 15 resulted in a violation of his right to a speedy trial pursuant to Rule 8. ¶9 Rule 8.6 provides: considering the exclusions If the court determines after of Rule 8.4, that a time limit established by Rule[] 8.2(a) . . . has been violated, it shall on motion of the defendant, or on its own initiative, dismiss the prosecution requires a with person or named without in a prejudice. charging Rule document to 8.2(a)(2) be tried within 180 days of arraignment if that person is released from custody. Cases designated as complex extend the time period to 270 days after arraignment.5 Ariz. R. Crim. P. 8.2(a)(3). As 4 The court found that Defendant was not in custody at the time of the interview. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (consensual encounters with police do not implicate a Fourth Amendment interest). Defendant does not challenge this finding, and based on our disposition of the issue presented, we need not address it. 5 If the charging document was filed between December 1, 2002 and December 1, 2005, the time limit for complex cases is one year. 6 relevant in this case, delays occasioned by defendant, or resulting from extension of time for disclosure, or based upon a showing of extraordinary circumstances, are excluded from the computation of the time limits set forth in Rule 8.2. Ariz. R. Crim. P. 8.4, 8.5. ¶10 Here, Defendant was arraigned on August 22, 2007, and released on bond the same day. last day to try Defendant. Thus, February 18, 2008 was the See Ariz. R. Crim. P. 8.2(a)(2). On January 22, 2008, the trial court granted Defendant s Motion to Designate as Complex Case pursuant to 8.2(a)(3)(ii),6 Rule resulting in a last day of May 18, 2008. Over Defendant s objection, on May 15, 2008, the court granted the State s Motion to Extend Last Day and reset the last day and trial to May 27, 2008. The court found that defendant had failed to comply with Rule 8 and notify the court of the pending last day. On May 27, 2008, and again over Defendant s objection, the court granted the State s Motion to Continue, finding extraordinary circumstances existed and that a delay was indispensable to the interests of justice. Consequently, the court extended the last day to June 27, 2008, and continued the trial to June 24, 2008. ¶11 The State s Motion to Extend Last Day is listed in the record index but is not actually 6 included in the Defendant s request pursuant to Rule appears to be a typographical or clerical error. 7 record on 8.2(b)(ii) appeal. According to Defendant, the State requested extra time so that Defendant could have further opportunity to investigate defense witnesses. Defendant contends this delay was necessitated by the State s failure to timely comply with the discovery rules. Defendant also notes that, on August 4, 2008, the court entered a nunc pro tunc order correcting its May 15, 2008 minute entry and finding that Defendant complied with Rule 8 in notifying the court of the pending last day. ¶12 The State s Motion to Continue is also not in the record on appeal. Similarly, transcripts from the May 15, 2008 and May 27, 2008 hearings are not included in the record. Thus, to the extent Defendant argues the trial court erred in granting the State s motions, we assume the record supports the court s orders. See State v. Zuck, 134 Ariz. 509, 512-13, 658 P.2d 162, 165-66 (1982); see also State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990) ( In the absence of a record to the contrary, we properly. ). must presume that the trial court acted In any event, Defendant does not explain how the five-week delay from May 18, 2008 to June 24, 2008 prejudiced him. Absent a showing that his defense was harmed by the delay, we will not find reversible error on the basis of a Rule 8 violation. State v. Wassenaar, 215 Ariz. 565, 571, ¶ 16, 161 P.3d 608, 614 (App. 2007). 8 ¶13 Subsequently, pursuant either to stipulation or motion by Defendant, the trial court timely extended the last day and continued the trial three times, ultimately resulting in a last day of September 12, 2008, and a trial date of September 9, 2008.7 The record reflects Defendant twice expressly waived the applicable time periods. Trial commenced September 9, 2008. Accordingly, considering the exclusions of Rules 8.4 and 8.5, the record does not support Defendant s contention that trial began 90 days following the expiration of his speedy trial time frame. Thus, the trial court did not abuse its discretion in failing to Wassenaar, court s dismiss 215 this Ariz. ruling at case 571, regarding pursuant Rule Rule 16, ¶ to P.3d at 8 161 reviewed 8.6. 614 for See (trial abuse of discretion). III. Sufficiency of Evidence ¶14 Finally, supports his Defendant convictions defense of duress. ¶15 We determining finding, in light whether the ¶ 7 24, The 224 of sufficiency substantial the facts in sustaining the jury verdict. 382, insufficient [his] evidence justification The record, however, reveals otherwise. review viewing claims P.3d court made 192, the of evidence the light the evidence supports most the by jury s favorable to State v. Kuhs, 223 Ariz. 376, 198 (2010) appropriate 8.5(b). 9 (internal findings quotation under Rule omitted). Substantial evidence is proof that reasonable persons could accept as adequate . . . to support a conclusion of defendant s guilt beyond a reasonable doubt. quotation omitted). insufficient We evidence set when only aside it a is Id. (internal jury clear verdict that for upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). the evidence Guerra, 161 in favor Ariz. of We resolve any conflict in sustaining 289, 293, 778 the P.2d verdict. 1185, State 1189 v. (1989). Finally, credibility determinations are for the jury, not the trial judge or this court. State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996). ¶16 As he did at trial, Defendant acknowledges that he brought methamphetamine and tobacco into the Jail, which he knew was wrong to do. failed to prove Defendant contends, however, that the State beyond coerced into doing so. ¶17 a reasonable doubt that he was not We disagree. As noted, Defendant raised a duress defense at trial. Thus, to convict Defendant, the State had to prove beyond a reasonable compelled doubt by the that Defendant s threat or use of unlawful conduct immediate was physical not force against him or another that could result in serious physical 10 injury and that a reasonable person in Defendant s situation would not have resisted. ¶18 See A.R.S. § 13-412(A) (2010).8 Defendant testified that he received a voice mail on July 17, 2007 from a woman who demanded he return her call. A recording of the voice mail admitted into evidence reflects the woman made the following threatening statements: It s very important for you to call me back. . . . It s . . . concerning someone s life, and we can do this the easy way or the hard way. If I don t get a call from you . . . you re not gonna like what s gonna happen . . . . If I don t get a phone call, . . . it s gonna be a whole new world. . . . How I got your number? The person that had your number I . . . called and met up and . . . I told her . . . she s not gonna like what s gonna happen to her if I don t get the phone number. I have a lot of connections . . . I know . . . a lot . . . of jail people in there. ¶19 Defendant testified that he returned the call because he felt some harm would come to me. He subsequently met the woman, who then gave him the cortisone tube with instructions to give it to a particular inmate at the Jail. Defendant testified he felt compelled to smuggle the tube. ¶20 On the other hand, during the interview with B.A., Defendant stated, I m not intimidated by none of them assholes really. . . . They re not going to intimidate me. He further told B.A. that if he (Defendant) felt threatened to smuggle the 8 Absent material revisions after the date of an alleged offense, we cite a statute s current version. 11 contraband, he would have informed authorities and that I could handle this. . . . I m more protected than [the inmates] are. Defendant testified that he did not contact officers after receiving the July 17 voicemail. ¶21 Viewing the foregoing in the light most favorable to sustaining the concluded that physical force. verdicts, the Defendant was Rather, jury not the could threatened jury could have reasonably with have immediate reasonably determined that although Defendant felt compelled to smuggle the contraband, he could have reasonably resisted the threats by informing authorities of his predicament. Accordingly, sufficient evidence supports the jury s rejection of Defendant s duress defense. CONCLUSION ¶22 Defendant s convictions and sentences are affirmed. /s/ PHILIP HALL, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICK IRVINE, Judge 12

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