Opinion
No. 2 CA-CR 2014-0040
11-19-2014
THE STATE OF ARIZONA, Appellee, v. CARL WAYNE OSBORN, Appellant.
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 Lori J. Lefferts, Pima County Public Defender By Katherine A. Estavillo, Assistant Public Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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. 31.24.
Appeal from the Superior Court in Pima County
No. CR20131068001
The Honorable Teresa Godoy, Judge Pro Tempore
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
Lori J. Lefferts, Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 After a jury trial, Carl Osborn was convicted of possession of a deadly weapon by a prohibited possessor, possession of a dangerous drug (methamphetamine), and possession of a narcotic drug (heroin). The trial court sentenced him to partially mitigated, concurrent terms of imprisonment of seven years on each count. Osborn argues the court abused its discretion by denying his motion to suppress evidence obtained as a result of a traffic stop. He also asserts the court erred by failing to give a duress instruction. For the following reasons, we affirm Osborn's convictions and sentences.
Factual and Procedural Background
¶2 We review the facts in the light most favorable to sustaining the verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). At 8:20 on an evening in February 2013, Tucson Police Department officer Eric Hatch saw Osborn riding his bicycle on the sidewalk on the wrong side of the street. Hatch stopped Osborn and asked him for identification, which Osborn produced. Hatch performed a "standard records check" to find out whether Osborn had any outstanding warrants.
¶3 The records check took five to ten minutes and indicated that Osborn had no outstanding warrants but was a registered gang member. Hatch then asked Osborn "if he had any weapons or narcotics on his person or in his belongings and if [Hatch] could search him," and Osborn refused. Hatch instructed Osborn to sit on the front bumper of his patrol car while Hatch issued a citation for the moving violations.
¶4 While Hatch was in his patrol car completing the citation, Osborn "kept looking back over at [Hatch] over his shoulder" and "kept putting his hands in his pockets," which Hatch described as "nervous behavior." Hatch told Osborn several times to take his hands out of his pockets. Eventually, Hatch stepped out of his vehicle and told Osborn, "Hey, you need to stop fidgeting and take your hands out of your pockets." At that point, Osborn told Hatch "he had something to tell [Hatch]" and said, "When I tell you this, I know you're going to take me to jail." Osborn then told Hatch he had a gun in his right front pocket.
¶5 Hatch removed the gun from Osborn's pocket, handcuffed him, and placed him in the back seat of a patrol car. Because Osborn had told Hatch he had just been released from prison, Hatch ran a second records check and confirmed Osborn was a prohibited possessor—a person who is not permitted to possess a firearm because he has a previous felony conviction and has not had his civil rights restored. After Hatch read Osborn his Miranda warnings, Osborn admitted "he had heroin, meth, and syringes inside a black zipper pouch located in the main compartment of the backpack." Hatch searched Osborn's backpack and found the drugs and syringes.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶6 Osborn was charged, convicted, and sentenced as set forth above. He timely appealed.
He also was charged with possession of drug paraphernalia but was acquitted of that count.
Discussion
Denial of Motion to Suppress
¶7 Osborn argues the trial court abused its discretion by denying his motion to suppress the evidence obtained as a result of the traffic stop. "We review the denial of a motion to suppress for an abuse of discretion, considering only the evidence presented at the suppression hearing." State v. Spencer, 235 Ariz. 496, ¶ 8, 333 P.3d 823, 825 (App. 2014). "[W]e view the facts in the light most favorable to upholding the trial court's ruling." State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App. 2007).
¶8 In his motion to suppress, Osborn argued the evidence found during the traffic stop was obtained illegally because "[t]he prolonged detention of [Osborn] exceeded the scope of the initial traffic stop." The trial court denied the motion, finding that "the length of the detention in this case was not unreasonable under all the circumstances and that the additional delay was caused by the defendant presenting information to the officer that caused a second investigation."
¶9 Osborn argues the detention was unreasonable because Hatch "prolonged the traffic stop beyond the time necessary to conduct inquiries related to the stop and issue a warning or ticket." An officer "may make a limited investigatory stop in the absence of probable cause if the officer has an articulable, reasonable suspicion, based on the totality of the circumstances, that the suspect is involved in criminal activity." Id. ¶ 20. An "'investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] . . . the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.'" Id. ¶ 21, quoting Florida v. Royer, 460 U.S. 491, 500 (1983) (alterations in Teagle).
¶10 "We undertake a two-step inquiry to determine the constitutionality of an investigative detention. First, we must decide whether the police officer's action was justified at its inception. Second, we consider whether the action was reasonably related in scope to the circumstances that justified the interference in the first place." Id. ¶ 27 (citations omitted). A lengthy investigative detention "merits scrutiny," but "'[t]he permitted duration of a Terry-stop cannot be measured by the clock alone.'" Id. ¶ 30, quoting Carter v. State, 795 A.2d 790, 803 (Md. Ct. Spec. App. 2002) (alteration in Teagle). The length of the stop is "'an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,'" but we must also "'consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.'" Id. ¶ 31, quoting United States v. Sharpe, 470 U.S. 675, 685 (1985).
¶11 Osborn does not argue the initial traffic stop was not justified. Instead, he argues that Hatch's "seizure" of Osborn was "unnecessarily prolonged when Hatch detained [Osborn] beyond the time necessary to issue him a traffic citation." Hatch testified that while he was writing up the citation for the moving violations, Osborn exhibited "nervous behavior." It was this behavior that prompted Hatch to tell Osborn to stop fidgeting. Hatch never completed the initial traffic stop because he had not yet issued the citation when Osborn announced he had a gun; thus, Hatch never "effectuate[d] the purpose of the stop." Id. ¶ 21.
¶12 Osborn argues that his "fidgety behavior did not rise to the level of reasonable suspicion and was not enough, in and of itself, to justify further detention." But Hatch did not further detain Osborn because of his "fidgety behavior"; he detained him because Osborn had admitted he had a gun and had been in prison. Moreover, Hatch did not question Osborn, ask to conduct a search, or engage in any additional investigation as a result of Osborn's fidgety behavior. Instead, he instructed Osborn to keep his hands out of his pockets, which was reasonable, because Osborn "mov[ed] his hands toward an area of the body where weapons are often concealed or worn." See State v. Watkins, 207 Ariz. 562, ¶ 22, 88 P.3d 1174, 1180 (App. 2004).
Although Osborn argues that "it is obvious that [he] was fidgety because Hatch made him sit on a cold bumper on a cold February night for an extended period of time," he fails to cite any evidence in the record to support that assertion. Even if we take judicial notice that the temperature range in Tucson on the date of the traffic stop was between 36° and 61°, and that "normal human behavior consists of moving around and putting hands in pockets when it is cold outside," as Osborn urges us to do, those facts do not warrant the inference that Osborn was fidgety because he was cold, especially given that we must view the facts in the light most favorable to upholding the trial court's ruling. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d at 269.
¶13 Osborn argues that "Hatch repeatedly asked [Osborn] questions about whether he would consent to a search and ordered him to stay still, all the time neglecting to complete the minimal task of issuing a traffic citation." But the record belies Osborn's assertion that Hatch repeatedly asked him to consent to a search: Hatch asked Osborn once before he began writing the citation whether Osborn would consent to a search, and when Osborn did not give a direct answer, Hatch asked for a yes or no response. When Hatch directed Osborn to stop fidgeting and keep his hands out of his pockets, he did not ask Osborn any questions; instead, Osborn volunteered that he had a gun. In addition, Osborn cites no evidence for the assertion that Hatch was "neglecting" the task of issuing the citation. Osborn testified that there were "several different pages on the citation that [he had] to fill out" and that ten to fifteen minutes was a "normal" amount of time for writing a citation.
¶14 The entire encounter lasted twenty-nine minutes. In the time before Osborn volunteered that he had a gun, Hatch stopped Osborn, asked for his identification, performed a standard records check, asked Osborn for consent to search, and began filling out a multi-page citation. Hatch had not completed the citation by the time Osborn stated he had a gun, and there is no evidence that his not having done so was due to "a lack of diligence." Id. ¶ 35. The trial court did not abuse its discretion in concluding that the "length of the detention in this case was not unreasonable" and in denying Osborn's motion to suppress.
Duress Instruction
¶15 Osborn argues the trial court erred by refusing to give a duress instruction. We review the court's refusal to give a requested jury instruction for an abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006). A defendant is entitled to an instruction "on any theory reasonably supported by evidence." State v. LaGrand, 152 Ariz. 483, 487, 733 P.2d 1066, 1070 (1987).
¶16 At trial, Hatch testified that Osborn had told him he had a gun because he was "in fear of his life" after a drug dealer "had tried to shoot him a few days prior." Based on this testimony, Osborn asked that the jury be given a duress instruction. After the close of the evidence, the trial court found a duress instruction "would not be supported by evidence." Osborn argues there was "sufficient evidence to support a duress defense," and the court erred by failing to give the requested standard duress instruction.
The state argued below, as it does on appeal, that Osborn was not entitled to a duress instruction because he had not disclosed a duress defense. We need not address this argument, because we conclude the trial court did not abuse its discretion in ruling the instruction was not supported by the evidence.
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¶17 Section 13-412(A), A.R.S. provides,
Conduct which would otherwise constitute an offense is justified if a reasonable person would believe that he was compelled to engage in the proscribed conduct by the threat or use of immediate physical force against his person or the person of another which resulted or could result in serious physical injury which a reasonable person in the situation would not have resisted.Duress must be "present, imminent and impending," State v. Jones, 119 Ariz. 555, 558, 582 P.2d 645, 648 (App. 1978), and "envisions a third person compelling a person by the threat of immediate physical violence to commit a crime against another person or the property of another person," State v. Lamar, 144 Ariz. 490, 497, 698 P.2d 735, 742 (App. 1984). Here, Hatch testified that Osborn told him that a drug dealer had tried to shoot him a few days earlier. There was no other evidence about Osborn's interactions with the drug dealer. A shooting attempt a few days earlier is not a "present, imminent and impending" threat of physical force. See Jones, 119 Ariz. at 558, 582 P.2d at 648. We conclude the trial court did not abuse its discretion in refusing to give the duress instruction.
Disposition
¶18 For the foregoing reasons, we affirm Osborn's convictions and sentences.