STATE v. SOTELO

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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. ENRIQUE MURILLO SOTELO, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 7/25/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0462 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. 1400CR201200163 The Honorable Lawrence C. Kenworthy, Judge AFFIRMED Thomas C. Horne, Attorney General by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Andrew Reilly, Assistant Attorney General Attorneys for Appellee Yuma County Public Defender s Office by Edward F. McGee, Deputy Public Defender Attorneys for Appellant Phoenix Yuma P O R T L E Y, Judge ¶1 Defendant Enrique Sotelo appeals his conviction and sentence for transportation of marijuana, a class two felony. He contends compel. the trial court erred by denying his motion to For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Sotelo was observed driving a commercial utility truck in an unusual manner near Interstate 8. He was stopped by a U.S. Border Patrol Agent after learning from dispatch that there was a Treasury Enforcement Communications Systems ( TECS ) alert associated with the truck. The agent became suspicious about Sotelo s story and requested assistance from a canine agent. The dog alerted on the truck indicating the presence of illegal drugs, and the truck was taken to a Border Patrol checkpoint for x-raying. The x-rays revealed some compartment in the auxiliary gas tank. bundles and a hidden After the search, more than 700 pounds of hidden marijuana were discovered. ¶3 Sotelo was charged, tried, transportation of marijuana for sale. and convicted of This appeal followed. DISCUSSION ¶4 to Sotelo contends the court erred by denying his motion compel agent s disclosure training of the records. unredacted TECS Specifically, message he and contends the that because the TECS message contained material tending to exonerate 2 him, disclosure was required under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona Rule of Criminal Procedure ( Rule ) 15.1. We review a ruling on discovery matters for an abuse of discretion, Cervantes v. Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003); see also State v. Robles, 182 Ariz. 268, 272, 895 P.2d 1031, 1035 (App. 1995) (applying abuse of discretion to challenges under Brady), keeping in mind that the trial court requests. is in the best position to rule on discovery State v. Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App. 1999). ¶5 There is no general federal constitutional right to discovery in a criminal case. State v. Tucker, 157 Ariz. 433, 438, 759 P.2d 579, 584 (1988). However, the Constitution does impose on the prosecution a due process obligation to disclose exculpatory evidence that is material on the issue of guilt or punishment. Id. (citing Brady, 373 U.S. at 87-88, and United States v. Bagley, 473 U.S. 667, 676-84 (1985)). Under this doctrine, the defendant is denied a fair trial only if there is a reasonable probability that, had the exculpatory evidence been disclosed, different. the result of the proceeding would have been Tucker, 157 Ariz. at 438, 759 P.2d at 584 (citing Bagley, 473 U.S. at 682). violated every evidence that time might the Because the Constitution is not government prove helpful 3 fails to the . . . to defense, disclose Kyles v. Whitley, 514 U.S. 419, 436-37 (1995), a defendant alleging a Brady violation must demonstrate that the exculpatory evidence has been suppressed by the State, and that prejudice has ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Mere speculation that a government file may contain Brady material is not sufficient to require . . . reversal for a new trial. State v. Acinelli, 191 Ariz. 66, 71, 952 P.2d 304, 309 (App. 1997) (quoting United States v. Navarro, 737 F.2d 625, 631 (7th Cir. 1984), cert. denied, 469 U.S. 1020 (1984)). And, the prosecutor s duty to disclose extends to any favorable evidence known to the others acting on the government s behalf, Kyles, 514 U.S. at 437, or evidence within its possession. State v. O Dell, 202 Ariz. 453, 457, ¶ 11, 46 P.3d 1074, 1078 (App. 2002) (holding that the state did not violate Brady by failing to disclose evidence it no longer had . . . [and] never possessed . . . in any useable form ); see also State v. Rivera, 152 Ariz. 507, 511, 733 P.2d 1090, 1094 (1987) (holding that defendant s due process rights were not violated because the State chose not to gather [potentially exculpatory] evidence to prove its case). ¶6 Here, government s Sotelo TECS alert sought to disclosure demonstrate that of he the had federal been an innocent driver with no knowledge of the hidden compartment. The State received the redacted TECS alert from Border Patrol 4 and provided an identical copy of the document to Sotelo. The State never saw or possessed the unredacted version, despite its numerous attempts to procure it. that the unredacted version Sotelo has not demonstrated of the TECS alert contained exculpatory evidence or that any prejudice ensued by the State s failure to disclose that version of the TECS alert. Moreover, because the State cannot disclose evidence it never possessed, see supra ¶ 6, we find no Brady violation here. ¶7 Rule Additionally, 15. Although we Rule find no discovery 15.1(b) requires violation a under prosecutor to disclose all reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged, enforcement the requirement agencies under is specifically the limited prosecutor s to direction law or control. Rule 15.1(f)(2). Because Border Patrol and the U.S. Department of are the Treasury not under the direction and control of the State and because the State did not have any better access to the unredacted version, we find no abuse of discretion in the court s order. See State v. Rienhardt, 190 Ariz. 579, 585, 951 P.2d 454, 460 (1997). 5 CONCLUSION ¶8 Finding no error, we affirm Sotelo s conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ SAMUEL A. THUMMA, Judge /s/ ______________________________ DONN KESSLER, Judge 6

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