State v. Hughes
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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©; ARCAP 28©; Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JAMES HERBERT HUGHES, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 09/2/10 RUTH WILLINGHAM, ACTING CLERK BY: DN No. 1 CA-CR 09-0800 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR200801238 The Honorable Mark W. Reeves, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Michael Breeze, Yuma County Public Defender, By Edward F. McGee, Deputy Public Defender Attorney for Appellant Yuma D O W N I E, Judge ¶1 James Herbert convictions for marijuana. Pursuant Hughes importation to ( defendant ) and Anders v. possession California, appeals for 386 his sale of U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised that he has thoroughly searched the record and found no arguable question of law; he requests that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona, but he has not done so. On appeal, we view the to evidence conviction. in the light most favorable sustaining the State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). FACTS AND PROCEDURAL HISTORY ¶2 On October 3, 2008, defendant drove his vehicle across the San Luis port of entry at the United States border. and Border Protection ( CBP ) Officer Suarez asked Customs defendant where he was going and whether he was bringing any liquor, plants, fruit, medicine, weapons, drugs or $10,000 or more into the country. Defendant said he was going to San Luis and had nothing to declare. the vehicle. Upon request, defendant opened the rear of Officer Suarez noticed Bondo® beneath the carpet and saw that the color of the cargo area did not match the rest of the car. 1 Defendant was sent to a secondary inspection lane, where he told Officer Zacarias he was traveling from El Golfo to 1 Bondo® is a filler compound used for vehicle body repairs. It is also used in cargo areas to create hidden compartments. 2 Walmart but had nothing to declare. A drug-sniffing dog alerted on the vehicle, and an inspection ensued. Officers pulled away loose carpet and found Bondo® in the entire rear cargo area. A measuring device showed higher density in the cargo area than normal, indicating there was something extra there. Officers removed the floorboard and found fifty-two packages containing a green, leafy substance, which field and lab-tested as marijuana. Defendant was placed in a holding cell, and officers called Immigration and Customs Enforcement ( ICE ). ¶3 CBP ICE agent Zazueta arrived and took statements from the officers. When ICE agent Duarte arrived, defendant was taken to an interview room directly across from the evidenceprocessing room. The storage room was empty; the marijuana had not yet been removed from defendant s car. ¶4 Before any questions were asked, agents read defendant Miranda warnings, and he signed a form stating he understood those rights. Defendant did not request an attorney. Defendant told Agent Zazueta he did not know why he was being detained, but later thought about it and said . . . he knew, but he didn t . . . want to know. Defendant also said he did not know exactly what was in the vehicle, but admitted he knew it was something illegal. Defendant claimed he purchased the vehicle for $350 from a man known only as Gustavo. Gustavo hired defendant to cross the border, pick him up in Quartzsite, 3 and drive him to Fresno, California. There, Gustavo would leave him at a hotel and take the car, only to return later with a briefcase full of money. Defendant was paid five to $600 plus whatever expenses he accrued during the trips. Defendant said he did this five or six times. ¶5 Defendant was indicted for knowingly importing marijuana weighing two pounds or more and possession for sale of marijuana weighing four pounds or more, both class 2 felonies in violation of Arizona Revised Statutes ( A.R.S. ) sections 133405(A)(4), (B)(11) and -3405(A)(2), (B)(6) (2010). 2 trial ensued. found that considering ICE A jury After a voluntariness hearing, the trial court agents additional gave proper statutory Miranda factors warnings. under A.R.S. After § 13- 3988(B) (2010), the court ruled that defendant s statements to the officers were admissible. ¶6 At the conclusion of the State s case, the trial court denied defendant s motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ( Rule ) 20. Defendant took the stand and admitted that he was paid to drive across the border, pick up Gustavo in Quartzsite, and take him to Fresno. He claimed, however, that he only bought the car at the end of August and had made the Fresno trip with Gustavo only twice. 2 We cite to the current version of applicable statutes as no revisions relevant to this appeal have occurred. 4 Defendant testified that he admitted knowing about the marijuana only because agents showed it to him before the interview and told him it came from his car. He admitted saying, I knew there was something wrong, but denied using the word illegal. Defendant told the jury he refused to answer any more questions after the agents read him Miranda rights. ¶7 Defendant re-called Agent Zazueta to the stand to ask about the agent s prior inconsistent testimony that defendant might have seen the marijuana since it had been removed from the car before the interview. Agent Zazueta mistaken when he made that statement. admitted he was He testified that, after reviewing his notes, he realized defendant could not have seen the marijuana because it had not been removed from the car until after the interview. At the close of trial, defendant renewed his Rule 20 motion, which was again denied. ¶8 The both counts. jury deliberated and found defendant guilty on Defendant was sentenced to concurrent five-year presumptive prison terms and a fine. DISCUSSION ¶9 We have considered the brief counsel and reviewed the entire record. error. the submitted by defense We find no fundamental All of the proceedings were conducted in compliance with Arizona Rules of Criminal 5 Procedure, and the sentence imposed was within the statutory range. There were no irregularities in the deliberation process. ¶10 The trial court properly denied defendant s Rule 20 motion. A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Crim. P. 20(a). Substantial evidence is such Ariz. R. proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. (1990) State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (citations insufficiency of omitted). the Reversible evidence occurs error only where based there on is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). ¶11 The State presented substantial evidence of guilt, including testimony by officers who inspected defendant s car, the chemist who analyzed the seized evidence, and the agents who interviewed defendant, in addition to incriminating statements by defendant himself. We next briefly address several issues that counsel indicates defendant wishes to raise. 1. ¶12 in Shackles Defendant argues he was accidentally led into court chains and shackles in the presence of the jury. Defendant does not state when this occurred, and we cannot find 6 any such incident in the record. With two minor exceptions, the transcripts reflect that defendant was present when the jury entered and remained until the jury exited. 3 ¶13 Even assuming that defendant was brought into the courtroom shackled when the jury was present, [a]n appellate court will not find error on the ground that the defendant was shackled unless it is shown that the jury saw the shackles. State v. McMurtrey, 136 Ariz. 93, 98, 664 P.2d 637, 642 (1983). Defendant has neither established actually saw him in shackles. nor argued that the jury See State v. Miller, 186 Ariz. 314, 323-24, 921 P.2d 1151, 1160-61 (1996) (holding claim was without merit where defendant does not claim that the jury ever saw him shackled, and thus fails to show prejudice ). 2. ¶14 False testimony Defendant contends the arresting officer falsely testified that he described the seized drugs without having seen them in interviewed, police he was custody, when, led a to room in fact, and prior shown the to being drugs. Defendant also claims ICE officers fabricated the incriminating statements attributed to him. 3 There were two recesses where it is unclear the order in which the jury and defendant exited and returned: once during jury selection and another on the third day of trial. Nothing in the record reflects that there were problems on either occasion with the jury seeing defendant shackled. 7 ¶15 The credibility of a witness and the weight and value to be given a witness' testimony are questions exclusively for the jury. State v. Pieck, 111 Ariz. 318, 320, 529 P.2d 217, 219 (1974); accord State v. Lee, 217 Ariz. 514, 516, ¶ 10, 176 P.3d 712, 714 (App. 2008) ( [I]t is the trier of fact's role, and not this court's, to resolve conflicting testimony and to weigh omitted)). testimony the credibility of witnesses. (citation It was for the jury to decide whether defendant s undermined the officers reweigh that evidence on appeal. credibility. We do not Tison, 129 Ariz. at 552, 633 P.2d at 361. 3. Prosecutor s Comments ¶16 been Defendant contends that when he testified that he had shown the drugs, the prosecutor falsely stated that [defendant] had seen a photograph of them, though he had been shown a poor quality Xerox copy of an image of the drugs. Defendant also claims the prosecutor falsely stated that defendant owned the car for two or three months, though he had only owned it for thirty-three days before his arrest. ¶17 Defendant s record. The only reference the prosecutor made to photographs during defendant s defendant, in first claim testimony preparation for was is when trial, 8 not had supported she asked discussed by the whether with his attorney the photographs that were taken during the investigation. ¶18 As to the second claim, the prosecutor stated during closing argument that defendant owned the car for two or three months. evidence This statement presented. was Officer a reasonable Suarez inference testified that from the defendant stated he had [the car] for about three months. 4. ¶19 his Confession Defendant argues that the prosecutor mischaracterized statement: I know, willingly but I don t want the border crossing to know, with as drugs. a confession to We disagree. The prosecutor s argument was a reasonable inference from the evidence presented. 5. ¶20 Miranda violation Defendant extensively prior contends to that officers administering Miranda questioned him warnings and continued questioning him even after he asked for an attorney. At the voluntariness hearing, however, the agents testified that defendant was advised of his Miranda rights and that he signed a form stating that he understood those rights before substantive questioning began. Prior to the Miranda warnings, defendant was only asked for biographical information, name, [and] date of birth. Such [n]eutral, nonaccusatory questioning in furtherance of a proper preliminary investigation, is permitted 9 under Miranda. P.2d 5, 8 responded State v. Pettit, 194 Ariz. 192, 195, ¶ 16, 979 (App. to 1998). the According questions freely to the and agents, never defendant asked for an attorney. Because the trial court specifically found that the agents testimony was credible, we discern no error. 6. Tape-Recording of the Interview ¶21 Defendant contends that his interview was not recorded, notwithstanding the presence of a tape recorder in the room. Both agents testified that the interview was not recorded based on ICE policy. Agent Zazueta took handwritten notes, a copy of which was provided to defendant, and made a written report of the interview. Defendant cites no authority for the proposition that interviews must be recorded, and we are aware of none. 7. ¶22 Speedy Trial Rights Defendant argues his speedy trial rights were violated because it took eleven months to get to trial, though he only waived time twice to allow witnesses to be interviewed. Neither the United States nor the Arizona Constitution requires that a trial be held within a specified time period. State v. Spreitz, 190 Ariz. 129, 139, 945 P.2d 1260, 1270 (1997) (citing U.S. Const. amend. VI; Ariz. Const. art. II, § 24). In determining whether there has been a violation of speedy trial rights, we consider four factors: (1) the length of the delay; 10 (2) the reason for the delay; (3) whether the defendant has demanded a speedy trial; Id. (citation defendant. and (4) the omitted). prejudice In to weighing the these factors, the length of the delay is the least important, while the prejudice to defendant is the most significant. Id. at 139- 40, 945 P.2d at 1270-71. ¶23 Defendant from any delay. has not articulated any prejudice arising Moreover, the record reflects that the delays were mostly attributable to the defense or were expressly waived by defendant. On this record, we find no violation of provided the defendant s speedy trial rights. 8. Hearsay Evidence at Sentencing ¶24 Defendant contends that the prosecutor trial court with slanderous email statements from his family without allowing him a chance to respond. admissible opportunity reliability. at to sentencing, refute it Hearsay evidence is provided defendant and bears it some is given an indicia of State v. McGill, 213 Ariz. 147, 160, ¶¶ 55-56, 140 P.3d 930, 943 (2006). ¶25 The sentencing transcript reflects that the prosecutor provided emails from defendant s brothers that were addressed to the court on the date she received them. The court took a recess to review the messages and gave defense counsel copies. The messages make unflattering claims about defendant s past in 11 Bolivia, including criminal allegations. Although defendant was present and had an opportunity to refute them, he did not do so. The messages defendant apparently received the did not affect presumptive the term sentence recommended because in the presentence report, which was prepared before the emails were received. In pronouncing sentence, the trial court noted that defendant had no criminal history, and it did not mention the email messages as something it had considered. 9. Ineffective Assistance of Counsel ¶26 Ineffective assistance of brought in Rule 32 proceedings. raised in a direct appeal . counsel claims must be Any such claims improvidently . . will appellate courts regardless of merit. not be addressed by State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). CONCLUSION ¶27 We affirm defendant s conviction and sentence. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if he so 12 desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 13
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