Opinion
2 CA-CR 2012-0181
01-28-2013
THE STATE OF ARIZONA, Appellee, v. DWAYNE CEDRIC LEWIS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Alan L. Amann Attorneys for Appellee Altfeld & Battaile P.C. By Robert A. Kerry Attorneys for Appellant
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
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20090759016
Honorable Michael O. Miller, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Alan L. Amann
Tucson
Attorneys for Appellee
Altfeld & Battaile P.C.
By Robert A. Kerry
Tucson
Attorneys for Appellant
KELLY, Judge. ¶1 Dwayne Lewis appeals from his convictions for conspiracy to commit possession and/or transportation of marijuana for sale, possession of marijuana for sale, possession of drug paraphernalia, and possession of a deadly weapon during the commission of a felony drug offense. On appeal, he argues the trial court erred in denying his motions to suppress evidence and preclude expert testimony, and his motion for a new trial. We affirm.
Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). As part of an investigation of a marijuana distribution organization, law enforcement officials obtained and executed a search warrant for two residences located on Angel Spirit Drive and Isaiah Drive. Prior to the search of the Angel Spirit residence, police officers made a loudspeaker announcement and four individuals, including Lewis, came out of the house. The officers then secured the residence and escorted the occupants back inside to obtain clothing. Lewis retrieved his clothing from a bedroom in the house. ¶3 Bales of marijuana, with a combined weight of approximately 673 pounds, were discovered in the bed of a truck parked in the garage. Drug ledgers, money counters, bills of lading, several firearms, and over $270,000 in currency were found in the residence. Lewis's wallet was found in the same room from which he had retrieved his clothing, together with a handgun found on the bed and a rifle in the closet. ¶4 At the Isaiah residence, police discovered bills of lading, a money counter, a bag containing marijuana, and a document indicating an occupant of the house was leasing space at a warehouse. Police obtained a search warrant for the warehouse and discovered several thousand pounds of marijuana stored there. ¶5 Lewis was convicted following a jury trial. He then filed a motion for a new trial, which the trial court denied. This appeal followed.
Discussion
Motion to Suppress Evidence
¶6 Lewis argues the trial court erred in denying his motion to suppress evidence obtained during the search of the Angel Spirit residence because the affidavit in support of the application for the search warrant "did not demonstrate sufficient [probable] cause." "In reviewing a denial of a motion to suppress, we review only the evidence submitted at the suppression hearing, and we view the facts in the light most favorable to upholding the trial court's ruling." State v. Box, 205 Ariz. 492, ¶ 2, 73 P.3d 623, 624 (App. 2003) (citation omitted). We defer to the court's factual determinations, but we review de novo its ultimate legal conclusion. Id. ¶ 7. ¶7 At the suppression hearing, Lewis argued, as he does on appeal, that the evidence should be suppressed because the search warrant affidavit did not present facts supporting that evidence of a crime would be found at the Angel Spirit residence. The trial court found the affidavit contained sufficient facts to establish probable cause and denied the motion. ¶8 "The Fourth Amendment to the United States Constitution requires that search warrants be issued only upon a showing of probable cause supported by oath." State v. Collins, 21 Ariz. App. 575, 576, 522 P.2d 40, 41 (1974); see also A.R.S. §§ 13-3913, 13-3914(B), 13-3915(A). Probable cause exists if, "given all the circumstances set forth in the affidavit before [the issuing magistrate], . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). As the reviewing court, the trial court's duty "is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39 (alteration in Gates), quoting Jones v. United States, 362 U.S. 257, 271 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85 (1980); see also State v. Buccini, 167 Ariz. 550, 555, 810 P.2d 178, 183 (1991) (magistrate's finding of probable cause to issue search warrant will not be overturned unless clearly erroneous). ¶9 Tucson Police Department detective Max Ridgeway requested a telephonic warrant to search the Isaiah and Angel Spirit residences for marijuana, materials used to ship marijuana, financial documents and currency related to the sale or purchase of marijuana, and weapons used to protect illegal drugs. In the supporting affidavit, Ridgeway avowed that law enforcement officials conducting a wiretap investigation had heard the subject of their investigation discuss with a buyer the sale of 380 pounds of marijuana. After the two agreed to meet at a specific location, police observed the subject meeting with someone at that location. After the meeting, the subject telephoned his supplier and stated that the buyer "was going to a house to count the money" that would be used to purchase the marijuana. Police officers followed the suspected buyer and observed him entering the Angel Spirit residence, then leaving at a later time and driving to the Isaiah residence. The vehicle he was driving was registered at the Isaiah address. ¶10 Ridgeway also stated that United States Postal Service inspectors had investigated suspicious packages, containing blank bills of lading, shipped to the Isaiah address. On one occasion, the suspected buyer had driven to the post office to collect a package. When asked, he denied knowing to whom the package belonged and left the post office; shortly thereafter he returned to pick up the package. Additionally, Ridgeway stated a record check showed that the Angel Spirit residence was associated with an individual who had been convicted of felony marijuana possession. He then explained that "[b]ased on [his] training and experience the . . . activities [we]re consistent with a person who is involved in the shipment of marijuana." He also explained it was "common for these individuals to maintain two residences and use one as a place of business and one as a place to live." ¶11 Lewis contends the facts set forth in the affidavit were insufficient to justify issuance of the warrant because they did not support that "illegal drugs" would be found at the Angel Spirit residence, but rather showed only that "money to be used in a drug deal" had been counted there. But, contrary to Lewis's contention, probable cause does not require proof that illegal drugs will be found, rather, it requires only a showing that there is a "fair probability" that "evidence of a crime" is at the location. Gates, 462 U.S. at 238. ¶12 In addition to illegal drugs, Ridgeway listed as objects of the search financial documents and currency related to the sale and purchase of marijuana. And, as Lewis concedes, the affidavit contained facts suggesting that currency intended for the purchase of several hundred pounds of marijuana had been counted at the Angel Spirit residence. We conclude that this and other information in the affidavit sufficiently established a fair probability that evidence of a crime would be located at the Angel Spirit residence. Id.; see also State v. deBoucher, 135 Ariz. 220, 227, 660 P.2d 471, 478 (App. 1982) (giving great deference to magistrate's determination of probable cause). Accordingly, the trial court did not err in denying the motion to suppress. Box, 205 Ariz. 492, ¶ 7, 73 P.3d at 626.
Lewis also argues the warrant was "so lacking in indic[i]a of probable cause on its face that the good-faith exception to the warrant requirement does not apply." See A.R.S. § 13-3925 (containing good-faith exception). Because we conclude the warrant was supported by probable cause, we do not address the merits of this argument.
Motion to Preclude Expert Testimony
¶13 Lewis claims the trial court erred in denying his motion to preclude detectives Ridgeway and Lonnie Bynum from testifying as expert witnesses. "We review the trial court's admission of expert testimony for an abuse of discretion." State v. Davolt, 207 Ariz. 191, ¶ 69, 84 P.3d 456, 475 (2004). ¶14 Lewis moved to exclude the detectives' proposed expert testimony, claiming it would suggest he was involved in the marijuana trafficking conspiracy based on his mere presence at the Angel Spirit residence. The state responded that the detectives would not testify Lewis was guilty based on his mere presence, but instead would explain the modus operandi of marijuana trafficking organizations. Following a hearing, the trial court ruled the detectives would be permitted to testify about the "structure of drug organizations and the unlikelihood that an unaffiliated individual would be permitted to be on the premises of a drug operation." However, the court precluded the detectives from "directly opining that because [Lewis] was at the house, he necessarily must have been part of the conspiracy." Consistent with the court's ruling, Bynum testified about the modus operandi of drug trafficking organizations. ¶15 On appeal, Lewis argues the trial court erred in allowing Bynum's expert testimony because it "simply t[old] the jury how to decide the case" and suggested that his "mere presen[ce]" supported a finding of guilt. Lewis is correct that such testimony would not be admissible. See State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986) (expert witness may not testify regarding ultimate disposition of case); State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996) (guilt may not be established based on defendant's mere presence at crime scene). However, Bynum did not testify regarding the ultimate disposition of the case and did not state that Lewis was guilty because he was present at the residence. Instead, Bynum explained the methods by which drug trafficking organizations generally operate, including that, because of the risk involved, usually only individuals who are "highly trusted" are allowed at the location at which the drugs are stored. As we have held, such testimony is admissible "to assist the jury in understanding the modus operandi of a drug trafficking organization." State v. Gonzalez, 229 Ariz. 550, ¶¶ 13, 14, 278 P.3d 328, 331-32 (App. 2012); see also Lindsey, 149 Ariz. at 475, 720 P.2d at 76 (expert may provide testimony on matters outside common knowledge of jury). Accordingly, the court did not err in permitting the testimony.
Lewis challenges the ruling only in regard to Bynum's testimony.
Lewis also asserts the Ninth Circuit has "cautioned against using police experts . . . where the case is not complex and there is no evidence that the defendant is a member of a large criminal organization." See, e.g., United States v. McGowan, 274 F.3d 1251, 1254 (9th Cir. 2001). But, "modus operandi evidence is not limited to complex drug cases." State v. Gonzalez, 229 Ariz. 550, n.4, 278 P.3d 328, 333 n.4 (App. 2012). And Lewis has not established an absence of evidence suggesting he was a member of the organization.
Lewis claims United States v. Valencia-Amezcua, 278 F.3d 901 (9th Cir. 2002), which the trial court cited in its ruling, is distinguishable from the facts of his case. Because we conclude the court correctly allowed the expert testimony, we do not address this argument further. See State v. Mohajerin, 226 Ariz. 103, ¶ 23, 244 P.3d 107, 114 (App. 2010) (we will affirm court's ruling if result is legally correct for any reason).
Motion for New Trial
¶16 Lewis asserts the trial court erred in denying his motion for a new trial. We review that ruling for an abuse of discretion. State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988). ¶17 At trial, Lewis sought to introduce a statement he claimed he had made during an interview with a detective to the effect that he did not own the handgun found on the bed in his room. The trial court concluded the statement was hearsay and denied Lewis's request that it be read. During closing argument, the prosecutor stated Lewis was not only "staying at th[e] house, but he also feels the need to have a handgun in his bed with him." Based on the prosecutor's statement, Lewis made a motion for mistrial, which the court denied. Following the jury's verdicts, Lewis filed a motion for a new trial asserting, in relevant part, that the court erred in precluding his statement and the prosecutor committed misconduct by "arguing to preclude [his] denial that the gun was his and then telling the jury that the gun was his" during closing argument. The motion was denied. ¶18 On appeal, Lewis maintains the trial court erred in refusing to grant the motion for new trial because his statement denying ownership of the gun should have been admitted under the "rule of completeness." The rule of completeness requires admission of portions of a written or recorded statement that are "'necessary to qualify, explain or place into context the portion already introduced.'" State v. Prasertphong, 210 Ariz. 496, ¶¶ 14, 15, 114 P.3d 828, 831 (2005), quoting United States v. Branch, 91 F.3d 699, 728 (5th Cir. 1996); see also Ariz. R. Evid. 106. Lewis asserts the state introduced a portion of his interview statement, in which he admitted he was staying in the bedroom, and the court therefore was required to admit the remainder of the statement, in which he denied ownership of the handgun. But, contrary to Lewis's assertion, the state did not introduce a statement from his police interview. Therefore, the rule of completeness is not applicable, and the court was not required to admit Lewis's proffered statement. See Prasertphong, 210 Ariz. 496, ¶¶ 14, 15, 114 P.3d at 831. ¶19 Lewis next claims the trial court erred in denying his motion for a new trial because the prosecutor's statement in closing argument constituted misconduct. "Prosecutorial misconduct 'is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial . . . .'" State v. Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). "To prove prosecutorial misconduct, the appellant must show: (1) the state's actions were improper; and (2) 'a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" State v. Montano, 204 Ariz. 413, ¶ 70, 65 P.3d 61, 75 (2003), quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593, 623 (1992). The prosecutor's statement that Lewis "fe[lt] the need to have a handgun in his bed with him" was a reasonable inference, notwithstanding any after-the-fact denials by Lewis, based on the evidence that a handgun had been found on the bed in the room from which Lewis had collected his clothing and in which his wallet had been found. See State v. Gonzales, 105 Ariz. 434, 436-37, 466 P.2d 388, 390-91 (1970) (counsel permitted wide latitude to comment on evidence and may "argue reasonable inferences therefrom" during closing argument). Therefore, Lewis has not demonstrated the prosecutor's statement was improper, much less that it constituted intentional misconduct that she knew to be improper and prejudicial. See Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27. Accordingly, the court did not abuse its discretion in denying the motion for a new trial. Rankovich, 159 Ariz. at 121, 765 P.2d at 523.
Although the transcript of Lewis's police interview was marked and identified, it was not admitted into evidence at trial and is not part of the record on appeal.
Lewis also argues the prosecutor's statement during her closing argument was improper because "judicial estoppel" prohibited her from discussing his interview statement. Because Lewis's interview statement was not introduced, much less discussed by the prosecutor, we reject this argument.
--------
Disposition
¶20 Lewis's convictions are affirmed.
______________________
VIRGINIA C. KELLY, Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
PHILIP G. ESPINOSA, Judge