THE STATE OF ARIZONA, Appellee, DANNY BROWN JR., Appellant. No. 2 CA-CR Filed August 27, 2014

Transcription

1 IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. DANNY BROWN JR., Appellant. No. 2 CA-CR Filed August 27, 2014 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P Appeal from the Superior Court in Pima County No. CR The Honorable Scott Rash, Judge AFFIRMED COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant

2 MEMORANDUM DECISION Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Brammer 1 concurred. K E L L Y, Presiding Judge: 1 Danny Brown appeals from his conviction and sentence for aggravated driving under the influence of an intoxicant (DUI) with a suspended driver s license. Specifically, Brown challenges the trial court s rulings denying his motions to dismiss two charges against him and to suppress evidence obtained after police violated his right to consult with an attorney. For the following reasons, we affirm the conviction and sentence. Factual and Procedural Background 2 We consider only the evidence before the trial court at the time of its suppression rulings, and view that evidence in the light most favorable to upholding those rulings. State v. Hausner, 230 Ariz. 60, 23, 280 P.3d 604, 614 (2012). At around 3:15 on a December morning, a Tucson police officer initiated a stop after observing a vehicle driven by Brown exceed the posted speed limit by fifteen miles per hour. The officer activated his emergency lights and siren, but Brown did not stop the vehicle immediately. Eventually, he made a wide turn and pulled over, striking and running over the curb with one tire. 3 When the officer approached the driver s side of the vehicle, he noticed Brown had [a] strong odor of intoxicants; watery, bloodshot eyes; [and] slurred and thick-tongued speech. Despite repeated requests by the officer, Brown refused to provide his license, registration, or insurance, bec[ame] increasingly irate, 1The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court. 2

3 and used racial slurs toward the officer. During this rant, Brown said he wanted a lawyer and told the officer [y]ou might as well just take me to jail. When Brown got out of the car, he stagger[ed] and stumbl[ed] and the officer had to hold him up to keep him from falling over. Brown was arrested at 3:20 a.m. for failure to identify himself. 4 Police officers took Brown to the police substation and, at 4:10 a.m., read to him the admin per se/implied consent form. 2 After Brown refused to give consent for a blood draw, an officer obtained a telephonic search warrant for a blood sample. Because Brown remained uncooperative and violent despite having been informed that officers had a search warrant, officers placed him in leg restraints and, after Brown submitted at around 5 a.m., two vials of his blood were drawn. Officers provided him with a vial for an independent test. Officers did not follow-up with Brown about his request for an attorney, and did not provide him the opportunity or means to call one. 5 Brown was charged with one count each of aggravated driving with a blood alcohol concentration (BAC) of.08 or more while his license was suspended (the BAC charge), aggravated driving under the influence of an intoxicant with a suspended license (the DUI charge), fleeing from a law enforcement vehicle, and aggravated assault on a peace officer. 3 Before trial, he filed a motion to dismiss with prejudice the DUI and BAC counts and to suppress evidence obtained following the alleged violation of his right to counsel. After a hearing, the trial court denied both 2An admin per se/implied consent form informs detainees of the consequences under Arizona law of refusing to submit to and complete an officer s choice of scientific test for intoxication. See State v. Gaffney, 198 Ariz. 188, 3, 8 P.3d 376, 377 (App. 2000); see also A.R.S The aggravated assault charge was based on the allegation that Brown had attempted to bite the officer during the traffic stop. Brown was found not guilty of the aggravated assault and fleeing charges, and neither is relevant to this appeal. 3

4 motions. It concluded that even if Brown had been denied the opportunity to consult with an attorney, there was no nexus between the denial of the right to counsel and the drawing of the blood in this particular case. 6 Brown filed a motion for reconsideration, urging the trial court to revisit its ruling. The court, finding good cause for further argument and reflection on [its] prior ruling, agreed to hear additional arguments and subsequently granted the motion to suppress evidence of Brown s refusal to submit to the blood test and the blood alcohol evidence obtained after Brown was denied an opportunity to speak with an attorney. The court denied Brown s motion to dismiss the DUI and BAC charges, concluding the violation of Brown s right to counsel did not interfere with [his] ability to obtain exculpatory evidence because [he] had access to a separate test tube of his blood that [he] could have chosen to have independently tested. The state moved to dismiss the BAC charge and the court granted the motion. 4 7 Following a jury trial, Brown was convicted of the DUI charge and sentenced to a 4.5-year term of imprisonment. 5 He 4The BAC charge was dismissed without prejudice. Because the charge potentially could be refiled, see Ariz. R. Crim. P. 16.6, we address Brown s challenge to the trial court s denial of his motion to dismiss the charge with prejudice. See also A.R.S ; Short v. Dewald, 226 Ariz. 88, 20, 244 P.3d 92, 96 (App. 2010), citing State v. Boehringer, 16 Ariz. 48, 51, 141 P. 126, 127 (1914) ( An order of dismissal without prejudice... is no bar to the prosecution of another suit timely commenced, founded upon the same cause of action. ). 5Although the minute entry pronouncing Brown s sentence states he was found guilty of the BAC charge, the transcript from the sentencing hearing states he was found guilty of the DUI charge only. The trial court s oral pronouncement controls the sentencing minute entry, and is consistent both with its ruling dismissing the BAC charge and the jury s verdict. See State v. Lopez, 230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012). 4

5 timely appealed, challenging the trial court s rulings on his motions to dismiss the DUI and BAC charges and suppress any evidence including non-physical evidence obtained after the violation of his right to counsel pursuant to Rule 6.1, Ariz. R. Crim. P. We have jurisdiction over Brown s appeal pursuant to A.R.S (A)(1) and (A)(1). Discussion 8 Rule 6.1 provides that a suspect is entitled to the advice of counsel as soon as feasible after [he] is taken into custody. This rule recognizes the federal and state constitutional right to counsel. Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). But police may interfere with a suspect s access to an attorney if allowing such access would unduly delay the DUI investigation. Id. (when suspect s exercise of right to counsel will hinder ongoing investigation, right must give way in time and place to the investigation by the police ). If police deny a DUI suspect the opportunity to exercise his right to counsel, the state must prove the police investigation would have been impeded had the suspect been allowed to consult with counsel at the time of his request. State v. Penney, 229 Ariz. 32, 13, 270 P.3d 859, 862 (App. 2012). 9 After an evidentiary hearing, the trial court found that Brown requested an attorney during the traffic stop. Although Brown did not renew[] his request to speak with an attorney, police never sought to clarify his request or provide Brown with the opportunity to contact an attorney. The court found the state did not show that allowing Brown to confer with counsel after he had been detained at the substation would have interfered with the police investigation. Because neither Brown nor the state have challenged these findings on appeal, the only question we must address is whether the court s choice of remedy for the violation suppression of the admin per se and blood-alcohol evidence was error. 10 We review for an abuse of discretion the trial court s choice of remedy for the violation of a defendant s right to confer with counsel. State v. Rosengren, 199 Ariz. 112, 9, 14 P.3d 303, 307 5

6 (App. 2000). We defer to the court with respect to its determination of facts but review de novo its legal conclusions. State v. Brown, 233 Ariz. 153, 4, 310 P.3d 29, 32 (App. 2013). Whether evidence should have been excluded as a result of the deprivation of counsel is a mixed question of fact and law that we review de novo. State v. Rumsey, 225 Ariz. 374, , 238 P.3d 642, (App. 2010), quoting State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868 (App. 1997). We will affirm the court s ruling if it is correct for any reason. State v. Cañez, 202 Ariz. 133, 51, 42 P.3d 564, 582 (2002). 11 Brown argues the trial court erred by denying his motion to dismiss the DUI and BAC charges. In the alternative, he claims the court abused its discretion by failing to suppress the non-blood test evidence collected after the violation of [Brown] s right to counsel. In support of his arguments, Brown cites State v. Rosengren, 199 Ariz. 112, 14 P.3d 303 (App. 2000), which upheld the trial court s ruling suppressing all evidence obtained following a right-to-counsel violation. Rosengren was arrested for DUI following a single-vehicle accident that resulted in the death of his passenger. Id. 2, 5. Although paramedics at the scene did not detect signs of impairment, Rosengren admitted he had been drinking alcohol and was taken to the hospital so police could obtain a blood sample. Id. 2, 4. Rosengren asked to contact his father, an out-of-state attorney, but police refused, allowing him instead to contact a local attorney. Id. 4. Rosengren declined, and refused to give a blood sample. Id. After he performed a horizontal gaze nystagmus (HGN) test, officers arrested Rosengren for DUI. Id An hour after his arrest, police obtained a telephonic search warrant and took two samples of Rosengren s blood. Id. 6. Rosengren subsequently was charged with manslaughter. Id. 6, 7. Claiming that his rights to due process and to consult with counsel had been violated, Rosengren filed a motion to dismiss the charge with prejudice. Id. 7. The trial court found police had violated his right to consult with counsel of his choice in a situation where such would not interfere with the investigation and suppressed the results of the blood and HGN tests, Rosengren s refusal to submit to the blood test, and all observations of and statements by Rosengren that occurred after he arrived at the hospital. Id. 7. 6

7 13 On appeal, we determined that violation of the right to counsel and the concomitant due process right to gather independent evidence of sobriety requires outright dismissal only when the violation of right to counsel has foreclosed a fair trial by preventing [the defendant] from collecting exculpatory evidence no longer available. Id. 17, 19, quoting McNutt v. Superior Court, 133 Ariz. 7, 10, 648 P.2d 122, 125 (1982) (alteration in Rosengren). We recognized the importance of gather[ing] evidence relevant to intoxication close in time to when the defendant allegedly committed the crime. Otherwise, any alcohol that may have been in the blood will have decomposed before the blood can be tested. Id. 12, quoting McNutt, 133 Ariz. 7, n.2, 648 P.2d at 125 n We stated that such evidence may include not only chemical or other scientific evidence, such as a blood or breath test,... but also other forms of potentially exculpatory evidence, such as observations by non-police witnesses of a suspect s physical appearance and function. Id., quoting State ex rel. Webb v. City Ct. of City of Tucson, 25 Ariz. App. 214, 216, 542 P.2d 407, 409 (1975). We concluded that although Rosengren might have lost the opportunity to gather additional exculpatory evidence in the form of examinations by medical personnel or lay witnesses or investigators and close-up videography of [his] person and face, he was not forever left without exculpatory evidence in the form of testable blood and favorable observations by non-police witnesses. Id. 15, 16. We thus held the trial court did not err by determining that the manslaughter charge against Rosengren need not be dismissed but suppressing the evidence obtained after the violation of Rosengren s right to counsel. Id. 7, 16, Brown maintains that Rosengren stands for the proposition that it is the interference with the ability to amass all kinds of potentially exculpatory evidence of which an independent blood sample is only one example that compels the dismissal of the charge when the police interfere with a DUI suspect contacting his attorney. Had he been able to contact an attorney, he claims, the attorney could have arranged for one or more non-police witnesses to rebut the officer s assertions regarding Brown s behavior, and could have simply advised [Brown] to cease being 7

8 combative and noncooperative. We do not agree that Rosengren requires dismissal of the BAC and DUI counts. 16 As we stated in Rosengren, dismissal is required only when the interference with a defendant s right to counsel prevented him from gathering exculpatory evidence such that a fair trial was not possible. 199 Ariz. 112, 17-19, 14 P.3d at 309; see also McNutt, 133 Ariz. at 10, 648 P.2d at 125; Rumsey, 225 Ariz. 374, 15, 238 P.3d at 647. When the interference does not impinge on a defendant s ability to collect exculpatory evidence, the proper remedy is suppression. Rumsey, 225 Ariz. 374, 15, 238 P.3d at 647; see also State v. Juarez, 161 Ariz. 76, 81, 775 P.2d 1140, 1145 (1989); Kunzler, 154 Ariz. at 570, 744 P.2d at 671; but see State v. Holland, 147 Ariz. 453, 456, 711 P.2d 592, 595 (1985) (dismissal required when conviction direct result of violation of right to counsel). 17 Here, the violation of Brown s right to counsel did not deny him the opportunity to gather exculpatory evidence. As in Rosengren, Brown was provided with a vial of his blood for independent testing. 199 Ariz. 112, 16, 14 P.3d at 309. Brown also had two non-police witnesses at the scene his brother and a female passenger who potentially could have provided exculpatory evidence. 6 Brown did not call either passenger as a witness at trial, nor did he have the blood evidence tested. 7 His failure to do so undermines his argument that police violated his right to assistance of counsel in gathering exculpatory evidence. See State v. Transon, 186 Ariz. 482, 485, 924 P.2d 486, 489 (App. 1996) (questioning sincerity of defendant s argument police interfered with his right to 6The record does not indicate that officers prevented Brown s passengers from witnessing the stop and arrest, and Brown does not so allege. 7It is the defendant s responsibility to arrange an independent test; any difficulties he encounters in attempting to obtain a blood test must have been created by the state in order to find unreasonable interference. Van Herreweghe v. Burke, 201 Ariz. 387, 10, 36 P.3d 65, 68 (App. 2001). 8

9 counsel for assistance in gathering exculpatory evidence in light of defendant s repeated refusal to submit to breathalyzer, and absence of any indication of desire for independent testing). 18 Additionally, Brown was entitled to an attorney only if the exercise of that right would not interfere with the police investigation. Kunzler, 154 Ariz. at 569, 744 P.2d at 670. The trial court concluded that his right to an attorney would not have interfered with the investigation once he was being held at the substation. As a remedy, the court excluded physical evidence obtained after he was held there. Brown has failed to demonstrate how obtaining counsel after that point would have yielded potentially exculpatory evidence beyond that already available to him. We conclude Brown was not denied the opportunity to gather exculpatory evidence such that the possibility of a fair trial was foreclosed, and the court did not err in refusing to dismiss the charges against him. See Rosengren, 199 Ariz. 112, 16, 35, 14 P.3d at 309, We next turn to Brown s second argument that the trial court abused its discretion by failing to suppress the nonblood test evidence collected after the violation of Brown s right to counsel. Although the court suppressed all blood evidence and evidence of the admin per se form, Brown again relying on Rosengren urges that other statements by and alleged observations of Brown following the violation of his right to counsel at the substation also should have been suppressed. He urges us to remand for a new trial on the DUI charge, to preclude the arresting officer from testifying that Brown continued to be combative, uncooperative, [and] aggressive at the substation, and to preclude the prosecutor from arguing that these behaviors were alcohol related. 20 In Rosengren, we stated that the state should not be permitted to present a one-sided story on the issue of impairment by utilizing incriminating evidence obtained after the violation of [Rosengren s] right to counsel. Id. 28. Assuming this principle applies to the evidence that Brown s combative, uncooperative, [and] aggressive behavior continued after the violation of his right 9

10 to counsel, 8 we conclude that any error in admitting the evidence was harmless. See State v. Henderson, 210 Ariz. 561, 18, 115 P.3d 601, 607 (2005) (we review issues preserved for appeal for harmless error, which requires state to prove beyond reasonable doubt error did not contribute to or affect verdict or sentence); State v. Beasley, 205 Ariz. 334, 27, 70 P.3d 463, 469 (App. 2003) (even if trial court abused discretion, we may affirm if error harmless beyond reasonable doubt). 21 To convict Brown of aggravated DUI, the state was required to demonstrate that Brown, while his driver s license was suspended, was in actual physical control of a vehicle... [w]hile under the influence of intoxicating liquor and impaired to the slightest degree. A.R.S (A)(1) and (A). The uncontested evidence presented at trial showed that prior to the right-to-counsel violation at the sub-station, Brown had been speeding and weaving in his lane of traffic; had failed to notice the officer s lights and siren; had made a wide turn before driving onto the curb while attempting to stop; had exhibited [w]atery, bloodshot eyes, [a] strong odor of intoxicants[,] and slurred speech ; had displayed verbally and physically aggressive behavior; and had staggered and stumbled while walking. The officer identified 8Rosengren is one of the few cases addressing the suppression of non-physical evidence as a remedy for the violation of a DUI defendant s right to counsel. Most cases are concerned instead with appropriate sanctions related to non-testimonial, physical evidence obtained following the violation of that right. See, e.g., State v. Moody, 208 Ariz. 424, 68-69, 94 P.3d 1119, (2004) (noting Arizona cases have mandated either dismissal of charges or suppression of non-testimonial, physical evidence [of intoxication] as a sanction for the state s violation of a defendant s rights under Rule 6.1); Rumsey, 225 Ariz. 374, 16, 238 P.3d at 647 (when right to counsel violated, even if fair trial possible, Arizona courts have suppressed breath- or blood-alcohol testing results as consequence of violation); State v. Keyonnie, 181 Ariz. 485, 487, 892 P.2d 205, 207 (App. 1995) ( suppression of the breath test results appropriate remedy for violation of right to counsel when state did not interfere with defendant s ability to gather exculpatory DUI evidence). 10

11 several of these acts and behaviors as known cues of alcohol impairment. This evidence was sufficient to support Brown s conviction for aggravated driving under the influence. See (A)(1) and (A). We conclude beyond a reasonable doubt that any error in admitting the evidence obtained following the violation of Brown s right to counsel did not contribute to or affect the verdict. See Henderson, 210 Ariz. 561, 18, 115 P.3d at 607. Disposition 22 For the foregoing reasons, we affirm Brown s conviction and sentence. 11