State v.Vaughn
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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. ROBERT TY VAUGHN, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 05/19/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0124 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-007659-001DT The Honorable Lisa M. Roberts, Judge Pro Tempore 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 Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Paul J. Prato, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ O R O Z C O, Judge ¶1 Defendant, convictions dangerous and the drugs, Robert Ty sentences possession possession of marijuana. Vaughn, appeals imposed of for drug from his possession paraphernalia, of and He argues that the trial court erred when it denied his motions for mistrial and for a new trial. For reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶2 On April 21, 2008, Glendale Police Officers J.M. (Officer M.) and R.P. (Officer P.) contacted Defendant at his apartment about a matter unrelated to the present case. Immediately upon entering the apartment, Officer M. smelled an odor . safety . . of sweep burning of the marijuana. apartment Officer during which M. he conducted a observed a burning, hand-rolled cigarette sitting on top of a soda can on a dresser in the master bedroom. The emitting the odor of burned marijuana. burning cigarette was Sitting next to the burning cigarette was a small clear plastic baggie containing a green leafy substance that was marijuana. ¶3 Officer M. returned to the living room where Defendant and his wife (Wife) were sitting and informed them that he had smelled burning marijuana and then seen marijuana on the dresser 1 We view the evidence in the light most favorable to sustaining the jury s convictions and resolve all reasonable inferences against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 in the bedroom. He asked them if there were any other drugs inside the house. Defendant replied that there was not and that Officer M. could look inside the apartment. Officer M. read Defendant and Wife their Miranda2 rights in order to insure that they understood those rights before he conducted an investigation into the drugs; both Defendant and Wife indicated that they understood Defendant who s their [sic] rights. marijuana was Officer in the M. then asked bedroom, and Defendant replied that his marijuana was on top of the dresser and that he believed he had a roach . . . in the bedroom as well, which was the one burning on top of the soda can. ¶4 Initiating a search in the master bedroom, Officer M. located another hand-rolled marijuana cigarette inside a small purple box located on a shelf above the dresser. Alongside the baggie of marijuana on top of the dresser, Officer M. found a package of rolling papers consistent with the type of papers used to roll both the burning hand-rolled cigarette and the hand-rolled cigarette inside the purple box. Under some clothing in a dresser drawer, Officer M. found a small pocket digital scale of the type often employed by drug users to weigh the drugs they buy. In the bottom drawer of the dresser, under a few pairs of men s jeans, Officer M. found a small plastic baggie containing a white crystalline substance, he believed to 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 be methamphetamine and a small glass pipe of the type commonly used to smoke methamphetamine. The pipe felt warm to the touch, as though it had been recently used. men s khaki shorts, lying between In the pocket of a pair of the dresser and the bed, Officer M. also found another package of rolling papers. ¶5 While Officer M. was searching the master bedroom, Defendant came into the room and stated that he had a really bad meth problem and that any meth that [police] found in the house would be his. Defendant admitted the drawers that contained the scales, methamphetamine, and warm pipe were his drawers, but denied any knowledge of the drug related items in them. used Instead, Defendant directed Officer M. to the pipe he to smoke methamphetamine, which, Defendant indicated he kept underneath the dresser so his children would not find it. Officer M. located the pipe under the dresser and observed that it was similar to the pipe previously found in the dresser drawer. Defendant also admitted that the jeans in the dresser drawer and the khaki shorts were his. ¶6 Officer dining room. M. found M. next searched the apartment kitchen and Inside a drawer next to the kitchen sink, Officer another glass pipe of the type used to smoke methamphetamine that contained a white crystalline residue. An armoire in the dining room was scattered across with marijuana shake, which consists of the small bits and . . . pieces of 4 marijuana that are . . . left over after the user breaks apart the stems and the seeds. Officer M., found shake pretty much scattered throughout the house. He also found another baggie of marijuana in an armoire drawer. ¶7 After completing his search of the apartment, Officer M. asked Defendant to whom the drugs belonged. Defendant told Officer M. that he was the only drug user in the house and that he was also the only methamphetamine user and that his wife did not use methamphetamine. Defendant also told Officer M. that they had just finished smoking marijuana when police knocked on the apartment door. ¶8 Because one of Defendant s children was seriously injured and in the hospital at that time, Officer M. did not arrest Defendant. The State later charged Defendant with possession or use of dangerous drugs (methamphetamine), a Class 4 felony; possession of drug paraphernalia (methamphetamine pipe), a Class 6 felony; and possession or use of marijuana in an amount weighing less than two pounds, a Class 6 felony. ¶9 Wife From testimony at trial, Defendant established that was never questioned by either officer about her involvement with the drugs or the paraphernalia found in the apartment and also, that Defendant told officers about recent break-ins into the apartment that Defendant contends officers 5 chose not to investigate.3 faulty investigation Defendant argued officers conducted a regarding Wife s or the alleged intruders involvement, which faulty investigation should have given rise to reasonable doubt concerning Defendant s guilt. Defendant further suggested he falsely confessed to the crimes in order to protect At the Wife as they dealt with a hospitalized child. ¶10 Defendant guilty conclusion as of charged. the The trial, trial the jury court found sentenced Defendant to slightly mitigated terms of imprisonment of 3.5 years on Count 1 and of 1.25 years each on Counts 2 and 3, and ordered that all the sentences be served concurrently. ¶11 Defendant timely appealed. This Court has jurisdiction pursuant to Aritcle 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12120.21.A.1 (2003), 13-4031 and -4033 (2010). DISCUSSION Denial of Motions for Mistrial ¶12 In December 2008, the State noticed Wife potential witness in its Rule 15.1 disclosure statement. R. Crim. P. 15.1. as a Ariz. Almost one year later, on the first day of 3 Both officers testified that they inspected the back arcadia doors through which Defendant indicated the alleged intruders had made entry but neither saw any signs of forced entry into Defendant s apartment. 6 voir dire, Defendant advised the trial court that she had also recently noticed Wife [s]o she could be a witness. The State asked Defendant whether the notice indicated he intended to call Wife as a witness. Defendant was unsure if Wife would be called; but advised that in any event, neither she nor the State was required to say whom they intended witness so long as they had noticed them. to call as a The trial court asked Defendant whether, given the circumstances, Defendant desired Wife s name read to the jury during voir dire, as a possible witness. Defense counsel replied, Yes. ¶13 Jury selection did not conclude on the first day, and the entire panel was germane to this case. subsequently included for reasons not A new panel of prospective jurors was called the following day. accordingly excused During jury selection the trial court Wife s name in the list of possible witnesses, stating, [a]ll of these persons may not be called to testify, but any of them might be. A jury was empanelled on the second day, shortly before the court recessed for the day. ¶14 The following day, the trial proceeded with opening statements and testimony from Officers M. and P. The State intended to call the criminalist as its next witness; however Wife was called to the stand. Defendant asked for a bench conference and objected to Wife being called to testify, arguing that the State had never noticed Wife as a witness. The State 7 correctly informed the trial court that both parties had noticed Wife as a possible witness. The trial court called Wife to the witness stand and swore her in. ¶15 Before the State began questioning again asked to approach the bench. he thought Wife might need a lawyer. that the matter of Wife s Wife, Defendant This time Defendant stated The trial court commented representation should have been discussed before this moment, and because it was at the end of the day, adjourned trial and dismissed the jury. Once the jury was dismissed the trial court stated [t]his was something that should have been resolved before springing it on everybody in front of the jury. The following exchange occurred: [Defense Counsel]: I agree, Your Honor. [The prosecutor] never advised me that she was intending to call [Wife]. I said I may call her. I was not intending to call her. If I was intending to call her I would have addressed this issue long ago and I do not think it should have been sprung at the last minute in front of the Jury. [Prosecutor]: Well, I apologize. It wasn t my intention to spring it I mean it wasn t my intention to call her. I wasn t trying to taint the Jury in any way by calling her. So, in the future, I ll obviously address the Court when I plan on calling a witness that I hadn t initially planned on calling. It s just that testimony came out in crossexamination that I wanted to rebut because I do have an interview with her where she states contrary she makes contrary statements. That s why I wanted to call her. It wasn t my intention to taint this case . . . 8 THE COURT: You have the right to call her. The bigger concern is that she has the right to be told outside the presence of the Jury that she has a right to have an attorney. The trial court then agreed that it would get an attorney for [Wife] if she wants an attorney. ¶16 At that point, Defendant moved for a mistrial, arguing that the jury had already been tainted because it knew that something was wrong when Wife took the stand and then we had to approach and decide. The trial court denied the motion, and asked the State if they intended to call Wife as a witness after all. When the State indicated that they did, the court ordered the State4 to make arrangements for an attorney to be appointed for Wife and for both counsel to consult with Wife and her attorney before trial resumed. Before adjourning for the day, the trial court also addressed Wife directly and advised her of her right to consult with an attorney and confirmed that Wife did want to have an attorney represent her. ¶17 Trial resumed on the following Monday. Before jurors were brought into the courtroom, Defendant for the first time invoked the Anti-Marital Fact Privilege. privilege, Wife was prevented from testifying. Based on that A.R.S. § 13- 4062.A.1. Defendant again moved for a mistrial, arguing that 4 Before so doing, the court confirmed the State had not made any promises to Wife in exchange for her testimony and that Wife at that point had not been charged with any crimes. 9 what happened the other extremely prejudicial. day was completely improper and Counsel postulated that the jury would infer that Defendant was guilty from the fact that he had twice objected and prevented Wife from testifying after she was called to the stand. ¶18 The trial court again denied the motion for mistrial, and asked the parties to advise the court concerning how they wanted to deal with the obvious fact that Wife would not be testifying. The trial judge offered the parties two options: I can say nothing or I can give them some kind of instruction or statement. After discussing some proposed language, the parties ultimately agreed to the trial court instructing the jury as follows: Pursuant to a ruling by this Court, [Wife] will not be testifying. You are not to infer that the Defendant is guilty because she did not testify. You are not to draw any conclusions or inferences from the fact that she did not testify, and are not to consider that factor in your deliberations. ¶19 was On appeal, Defendant argues that the fact that Wife called to the stand, followed by the hurried bench conference in the jury s presence, followed by her failure to testify after the weekend recess, effectively constituted a comment by the State on his failure to call Wife as a witness and, consequently, a violation of his right to exercise the marital privilege. 10 statutorily protected Defendant contends the trial court therefore abused its discretion when it denied his motions for mistrial. ¶20 A error mistrial is the most that should be granted dramatic only when remedy justice for trial will be thwarted if the current jury is allowed to consider the case. State v. Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (citation omitted). This court will only reverse a trial court s decision to deny a mistrial if a clear abuse of discretion is demonstrated. State v. McCutcheon, 162 Ariz. 54, 59, 781 P.2d 31, 36 (1989) (citation omitted). Furthermore, we give great deference to a trial court s decision to grant or deny a mistrial because the trial court is in the best position to determine whether the error affect the outcome of the trial. 439, ¶ 40, 72 P.3d at 839. not abuse its discretion being alleged would actually State v. Lamar, 205 Ariz. at We conclude that the trial court did in denying Defendant s motions for mistrial in this case. ¶21 Defendant complains that, in denying his motions for mistrial, the trial court improperly relied on its mistaken belief that Defendant had waived the marital privilege merely because he disclosure. listed Wife as a potential witness in his 15.2 However, Defendant did not base his initial motion for mistrial on a violation of the marital privilege claim. In fact, Defendant did not invoke marital privilege when the State 11 first called Wife to the stand. request for a bench Instead, Defendant s first conference occurred because Defendant contended that the State had failed to notice Wife as a witness. The trial court correctly recalled that both the State and Defendant had noticed her and that both counsel had asked that Wife s name be read to the jury as a potential witness. ¶22 Defendant s second request for a bench conference occurred because he was concerned that, given the facts of the case, Wife was entitled to be informed of her right to an attorney and to have counsel before she made any statements under oath. ¶23 Defendant s Defendant s first contention that motion for the jury mistrial was was based tainted on simply because the jury might think that something was wrong given the two bench conferences and the fact that Wife s testimony was temporarily postponed while she consulted an attorney. As the State notes, these interruptions had nothing to do with marital privilege or with the fact that Wife was married to Defendant, but could have occurred during the testimony of any witness. We cannot say that the trial court abused its discretion in denying Defendant s motion for mistrial at that point due to a violation of the marital privilege. McCutcheon, 162 Ariz. at 59, 781 P.2d at 36. 12 ¶24 Furthermore, the fact that Defendant decided to invoke the marital privilege three days after the State called Wife as a witness does not spontaneously convert the State s earlier actions into an improper comment on Defendant s invocation of that privilege. Defendant s second motion for mistrial, made at that time, simply reiterated his concerns that the jury would impute guilt to him because he had twice interrupted the proceedings after the State had called Wife as a witness. ¶25 The Anti-Marital Fact Privilege generally provides that a defendant s spouse cannot testify against him or her, without his or her consent, as to events that occurred during the marriage. A.R.S. § 13-4062.A.1. We have previously held that a State violates the privilege when the State comments on the defense s failure to call the defendant s spouse as a witness. State v. Womack, 131 Ariz. 158, 159, 639 P.2d 348, 349 1981). (App. That is because the inference that the excluded testimony would be unfavorable to the defendant/spouse who suppressed it is inconsistent with the full exercise of the (marital) privilege. State v. Holsinger, 124 Ariz. 18, 24, 601 P.2d 1054, 1060 (1979) (citation omitted). ¶26 In Holsinger, on which Defendant relies, the State specifically confronted the defendant, during cross-examination, with the fact that her husband had not come in to testify on her behalf even though the defendant knew that he was available to 13 do so. that 124 Ariz. at 23, 601 P.2d 1059. that was an impermissible Our supreme court held comment failure to call her spouse as a witness. on the defendant s Id. at 24, 601 P.2d at 1060. ¶27 The State s actions in this case in no way resemble those of the prosecutor in Holsinger. Simply calling Wife to the stand when Defendant himself had not only not invoked the marital privilege but had also indicated that he considered Wife a potential witness, cannot be seen as the State s improper attempts to draw the jury s attention to Defendant s failure to call Wife as a witness. ¶28 Defendant occasions he made no interrupted specific the State objections from on initiating the two Wife s testimony but merely asked the court if counsel could approach the bench. Defendant also invoked the marital privilege out of the presence of the jury, prior to the seating of the jury on the third day of trial. seated, the trial Furthermore, when the jury was finally court instructed, as Defendant previously agreed it should, that Wife would not be testifying pursuant to a ruling by the Court. Under these circumstances, there is simply no indication that the jury would even have perceived Wife s failure to marital privilege. testify as based on an invocation of the Given the testimony presented up to that point, it is arguably more likely the jury might have suspected 14 that Wife was not going to testify in order to keep from incriminating herself, which might have weighed in Defendant s favor. Nor would the jury have perceived the State s actions as a comment on Defendant s failure to call his wife as a witness. ¶29 Furthermore, the trial court also instructed the jury that it was not to draw any inferences concerning Defendant s guilt based on the court s ruling that Wife would not testify, or even to consider it at all in its deliberations. Our supreme court has held that jurors are presumed to follow the trial court s instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Furthermore, we are not aware of anything in the record to indicate the instructions, in this case. jurors did not follow their We conclude that the trial court did not abuse its discretion in denying Defendant s motions for mistrial. Denial of Motion for New Trial ¶30 After the jury returned its guilty verdicts, Defendant filed a motion for new trial. trial court Defendant had also erred argued in In it, he again argued that the denying that his juror motions number for four mistrial. or five (undersigned counsel cannot remember the exact number), looked directly at undersigned counsel and asked her Why didn t you have/let his wife testify? According to Defendant, this question alone merited granting Defendant a new trial because it 15 formed the basis for believing that substantial prejudice to [Defendant] resulted from [Wife s] being sworn in front of the jury and not testifying]. Prior to sentencing Defendant, the trial court denied the motion for new trial. ¶31 On appeal, Defendant argues that the juror s question essentially proves cautionary instruction testify their question in that jury to not deliberations. establishes extraneous the that information in ignored the consider Wife s According the jury reaching trial to failure Defendant improperly its guilty court s to the considered verdicts and that the trial court therefore erred in not granting his motion for new trial on that basis. ¶32 We review a trial court s decision to grant or deny a motion for new trial for an abuse of discretion. State v. Valdez, 167 Ariz. 328, 332, 806 P.2d 1376, 1380 (1991). Like motions for mistrial, motions for new trial should be granted only with great caution. State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988). position to determine whether The trial court is in the best or not to grant Valdez, 167 Ariz. at 332, 806 P.2d at 1380. a new trial. We will therefore reverse a trial court s denial of a motion for new trial only when there is an affirmative showing that the trial court abused its discretion and acted arbitrarily. 16 State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984) (citation omitted). Defendant has made no such showing. ¶33 The State question concerning did not Wife, dispute but it that did a juror dispute asked a Defendant s representation that the juror had looked directly at defense counsel when asking it or that the juror had specifically asked why the defense attorney had prevented Wife from taking the stand. Thus, even assuming that the State stipulated that a question was asked regarding Wife s ultimate failure to testify, as Defendant argues on appeal, the record does not establish that this question suggests. was necessarily accusatory, as Defendant Nor does it unequivocally establish that the juror necessarily violated the trial court s instructions. ¶34 As the State points out, it is well settled that even affidavits of third parties as to unsworn statements of jurors are not competent evidence of juror misconduct. State McMurtrey, 136 Ariz. 93, 98, 664 P.2d 637, 642 (1983). includes juror the affidavits statements, which of are defense counsel hearsay competent evidence of misconduct. and, regarding v. This unsworn consequently, not State v. Marvin, 124 Ariz. 555, 559, 606 P.2d 406, 410 (1980); see also State v. Williams, 169 Ariz. 376, 380, 819 P.2d 962, 966 (App. 1991) (allegations of juror misconduct in motion for new trial are unsubstantiated where no affidavits were attached to motion 17 and defense counsel failed to request individual voir dire of jurors at any time). ¶35 Defendant s motion for new trial was not supported by a sworn affidavit containing the actual juror s question. fact, in the motion, Defendant could not even certainty which juror had asked the question. state In with Furthermore, the motion contained only defense counsel s unverified perceptions, which were addressed disputed specifically by the to State, her. that All of the question this was constitutes insufficient evidence of any latent bias against Defendant. In light of Defendant s unsubstantiated allegations, we cannot say that the trial court abused its discretion in denying his motion for new trial. ¶36 Even had the juror s question been presented to the court via a sworn juror affidavit, we do not find an abuse of discretion by the trial court in denying the motion for a new trial. Rule 24.1.d specifically prohibits consideration of a juror question when determining if a new trial is warranted, if that consideration inquires into the subjective motives or mental processes of the juror. CONCLUSION ¶37 For the foregoing reasons, we find that the trial court did not abuse its discretion when it denied Defendant s 18 motions for mistrial and motion for new trial. We therefore affirm Defendant s convictions and sentences. /S/ __________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ________________________________ JOHN C. GEMMILL, Judge 19
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