Opinion
No. 1 CA-CR 15-0748
07-27-2017
STATE OF ARIZONA, Appellee, v. GERALD MICHAEL MOORE, Appellant.
COUNSEL Arizona Attorney General's Office, Tucson By Diane L. Hunt Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2009-117520-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Tucson
By Diane L. Hunt
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined. THOMPSON, Judge:
¶1 Gerald Michael Moore (appellant) appeals his convictions for two counts of misdemeanor DUI and the accompanying sentences. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In December 2008 Gilbert Police Officer Steven Gilbert stopped appellant's vehicle. Appellant had made an "improper right hand turn" by turning into the median lane, instead of the closer "curb" lane. See Arizona Revised Statutes (A.R.S.) section 28-751(1) (2012) (stating that "[b]oth the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway"). A wide right turn is regarded as a "potential driving clue of impairment."
Absent changes material to this decision, we cite a statute's most recent version.
¶3 Gilbert approached appellant and informed him of the reason for the stop. The officer noted that appellant smelled of alcohol, his eyes were bloodshot and watery, and his speech was slurred. Further, when asked if he had been drinking, appellant stated that he had consumed a "few beers." Officer Gilbert then decided to conduct a DUI investigation, by performing a non-physical sobriety test and "the horizontal gaze nystagmus test." Appellant exhibited six out of six cues of impairment on the latter test. Ultimately, Officer Gilbert arrested appellant for DUI based on his observations and the information provided. The officer did not issue a citation for the initial traffic violation, or highlight the statutory basis for that violation.
Appellant had stumbled while exiting his vehicle and had difficulty walking, but stated that his walking difficulties were attributable to being hurt after stepping on a punji stick. Due to appellant's claimed medical condition, Officer Gilbert did not conduct the "walk and turn" or "one leg stand."
This test "measures involuntary eye movements." U.S. v. Stanton, 501 F.3d 1093, 1095 (9th Cir. 2007).
¶4 Appellant was transported to a nearby station for processing. After reading appellant his Miranda rights, Officer Gilbert questioned him, including as to when he had begun drinking. Appellant stated that he began drinking at 6:30 p.m. and had his last drink at approximately 10:26 p.m. He also reported that he had not paid attention to the number of drinks he had in the last hour before the stop. When asked how he would rate himself on a 1-10 scale of intoxication (0 completely sober; 10 completely intoxicated), appellant reported feeling like he was at "8.752." Appellant also agreed to provide a blood sample, and Officer Gilbert, who is a qualified phlebotomist, drew appellant's blood at 11:10 p.m. The blood was then impounded into a refrigerator for subsequent testing.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶5 The test results revealed that appellant had a blood alcohol concentration (BAC) of .142 percent. Appellant was initially charged with two counts of felony aggravated DUI, but before trial the state reduced the charges to misdemeanor DUI offenses for driving under the influence of intoxicating liquor (count one) and driving with a BAC of .08 or higher (count two).
The felony charge was based on incorrect information that appellant's license had been suspended at the time of the subject incident. The state corrected the charging information after appellant's attorney provided the correct information. Because the state corrected the charges, we do not discuss the issue regarding license suspension further as we do not agree with appellant that the initial felony charges "infected the amended indictment" charging the DUIs as misdemeanors.
¶6 A jury found appellant guilty on the two misdemeanor counts. The trial court sentenced him to 1 day in jail. The court also suspended the imposition of 9 additional days of jail time, pending the completion of alcohol treatment, and ordered appellant to complete six months of unsupervised probation. Appellant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S §§ 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).
DISCUSSION
¶7 Appellant argues that police, prosecutors, and the trial court violated his constitutional rights in this matter and therefore his convictions and sentences should be vacated and a new trial ordered. We affirm his convictions and sentences.
I. Traffic Stop and DUI Charges
¶8 Regarding the traffic stop and DUI charges, appellant argues that Officer Gilbert and prosecutors violated his "right to due process, procedural due process and equal protection." Appellant first contends that at the scene of the traffic stop, Officer Gilbert should have verbally recited to him the specific statutory provision he had violated. He next challenges the state's use of his BAC score to support the probable cause determination to obtain a felony complaint and indictment and subsequent amended misdemeanor indictment against him for the DUI charges, because the BAC score and other information, were "not known to Officer Gilbert at the night of the arrest." Specifically, appellant asserts that facts that were not known to Officer Gilbert at the time of the officer's "probable cause determination," like the BAC result which was later hand-written on the officer's initial statement, should not have been supplied to the magistrate for the magistrate's probable cause determination.
¶9 On appeal, "criminal cases may be subject to one of three standards of review: structural error, harmless error, or fundamental error. Each type of error places a different burden of proof on the parties." State v. Valverde, 220 Ariz. 582, 584, ¶ 9, 208 P.3d 233, 235 (2009). Appellant avers that the violations he alleges amount to "structural error requiring reversal." The state does not specifically address the standard of review, but appears to suggest that harmless error is the applicable standard.
¶10 An error is structural where it "deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and therefore is limited to such circumstances as denial of counsel or a biased [trier or(sic) fact]." Id. at 584-85, ¶ 10, 208 P.3d at 235-36 (internal quotations and citations omitted). A finding of structural error will result in a reversal on appeal, despite the absence of an objection being made below or a showing of prejudice. Id. at 585, ¶ 10, 208 P.3d at 236. On the other hand, cases involving non-structural errors in which a defendant makes a proper objection are subjected to a harmless error review standard. State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Under this standard, we will affirm a conviction, even where the trial court erred, only if the error is harmless, i.e., the error did not impact the verdict. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).
¶11 None of the circumstances that merit structural error review are at issue in this case. Furthermore, as to appellant's first contention, he cites no authority—and this court finds none—to support his argument that Officer Gilbert was required to reference the specific statute that authorized him to stop appellant for making an improper right turn. The fact that the officer did not issue a citation for the traffic violation, in addition to the arrest for the DUI, is also irrelevant to the outcome in this matter. Officer Gilbert needed only to possess reasonable suspicion that appellant had violated the law to stop appellant and conduct an investigatory stop. See State v. Livingston, 206 Ariz. 145, 147, ¶ 9, 75 P.3d 1103, 1105 (App. 2003). Appellant's driving conduct constituted a violation of the law, see A.R.S. § 28-751(1), and thus provided a sufficient basis for the traffic stop.
¶12 Appellant asserts that his BAC score should not have been considered to establish probable cause for the DUI charges because the BAC testing was done after the arrest and hand-written on the officer's statement. Preliminarily, this argument only effects count two, because appellant's admission to driving after consuming alcohol made the charge constituting count one clearly viable. As to count two, we consider that appellant's blood alcohol level at the time of testing was .142%. The blood resulting in this score was drawn within "roughly 44 minutes" of the traffic stop. The record shows appellant's blood samples were tested without irregularities at the Chandler Crime Lab. Thus, the test result, which exceeded the prohibited level of BAC, may be considered as proof of the DUI offenses, in addition to its value in determining probable cause. See State v. Superior Court (Ryberg), 173 Ariz. 447, 450, 844 P.2d 614, 617 (App. 1992) (concluding a trial judge must admit into evidence, "without relation-back testimony [i.e., testimony that the BAC relates back to the time of arrest], a valid BAC reading of .10 or more taken within two hours of driving"); see also State v. Guerra, 191 Ariz. 511, 513, 958 P.2d 452, 454 (App. 1998) (same).
While appellant does not expressly challenge the validity of his arrest at the scene of the traffic stop, we note that the "horizontal gaze nystagmus test" Officer Gilbert performed on appellant at that time, taken together with his other observations and appellant's admission to drinking, was sufficient to establish probable cause to arrest appellant for driving under the influence of an intoxicating substance. See, e.g., State v. Superior Court (Blake), 149 Ariz. 269, 276, 718 P.2d 171, 178 (1986). --------
¶13 The fact that the BAC result was not known at the time of the DUI arrest or that the result was hand-written "onto Officer Gilbert's probable cause statement attached to the Complaint" is of no moment. Appellant was not deprived of any alleged "fair trial rights" by the magistrate or the grand jury considering the BAC score in determining the existence of probable cause for the DUI charge in count two. See Brailsford v. Foster, 242 Ariz. 77, 81, ¶ 11, 393 P.3d 138, 142 (App. 2017) (noting that generally, errors regarding the finding of probable cause must be remedied before trial); State v. Neese, 126 Ariz. 499, 503, 616 P.2d 959, 963 (App. 1980) (stating that once a jury determines guilt beyond a reasonable doubt in a full-scale trial, the question of probable cause is moot).
II. Trial in Absentia
¶14 Appellant next claims that the trial court violated his constitutional rights, by not granting him a trial continuance for an allegedly "serious" medical condition, and forcing him to choose between a right to medical care or bodily integrity and the right to be present at trial. Appellant's claim is unsupported by the facts in the record.
¶15 The record demonstrates the court received a faxed letter from appellant's doctor, on the day of trial, in support of appellant's request for the continuance. The letter stated:
Please be informed Mr. Moore has a serious medical condition instigated today, which obviated his ability to attend his court meeting. He should be able to attend all other court appointments, barring complications, but could not reasonably be expected to attend court today.(Emphasis added.) After considering the letter, the court granted the continuance.
¶16 Appellant did not attend the rescheduled trial, and the court subsequently found appellant voluntarily absent. Appellant did not provide information to the court suggesting that additional emergency medical complications rendered him incapable of attending trial. And appellant does not challenge the court's voluntarily absence finding, and is therefore deemed to have abandoned any argument in this regard. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (citations omitted).
CONCLUSION
¶17 For the reasons stated, we affirm appellant's convictions and sentences.