Opinion
No. 2 CA-CR 2014-0086
02-09-2015
THE STATE OF ARIZONA, Appellee, v. RUSTY JAMES DRISCOLL, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20124099002
The Honorable Richard D. Nichols, Judge The Honorable Paul E. Tang, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, appellant Rusty Driscoll was convicted of possession of a dangerous drug and possession of drug paraphernalia. On appeal, he argues the trial court erred in failing to suppress evidence obtained in violation of the Fourth Amendment during a traffic stop, and violated his Fifth and Fourteenth Amendment rights and procedural rules by allowing a jury other than the one that found him guilty to decide aggravating factors. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In reviewing a trial court's ruling on a motion to suppress, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the . . . ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). In October 2012, an Arizona Department of Public Safety officer observed Driscoll driving a pickup truck with a malfunctioning license plate light at approximately 2:40 a.m. and initiated a traffic stop. While writing a repair ticket for the malfunctioning light, the officer began to suspect that Driscoll was engaged in criminal activity after casually conversing with him about where he was going and what he was doing. The officer then conducted a dog sniff of the truck, and the dog alerted to the presence of narcotics. The officer searched the truck and found, among other things, a stolen handgun. After placing Driscoll under arrest, the officer searched him and discovered a bag of methamphetamine in the waistband of his pants.
The facts necessary to resolve the issue concerning aggravating circumstances are not in dispute, and thus we limit our discussion of the facts to those established during the trial court's hearing on Driscoll's motion to suppress.
¶3 The state charged Driscoll with the two drug counts described above and a third count of possession of a deadly weapon by a prohibited possessor. Before trial, Driscoll moved to suppress the evidence obtained during the traffic stop, which the trial court denied after an evidentiary hearing. On the first day of trial, the parties and the court agreed that the weapons misconduct count would be severed and tried separately. A jury subsequently found Driscoll guilty of the two drug offenses.
¶4 More than seven months later, a second jury acquitted Driscoll of weapons misconduct. Following this verdict, the trial court held a hearing before the second jury to determine aggravating circumstances for sentencing purposes. The jury found Driscoll had committed the drug offenses while on release. The court then sentenced Driscoll to concurrent, presumptive prison terms of ten years for possession of a dangerous drug and 3.75 years for possession of drug paraphernalia. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Suppression of Evidence
¶5 On appeal, Driscoll argues the trial court erred in failing to suppress the evidence obtained during the traffic stop because the length of Driscoll's detention, the search of the truck, Driscoll's arrest, and the search incident to the arrest all violated his Fourth Amendment rights. "In reviewing a trial court's ruling on a motion to suppress evidence, we evaluate discretionary issues for an abuse of discretion but review legal and constitutional issues de novo." State v. Huerta, 223 Ariz. 424, ¶ 4, 224 P.3d 240, 242 (App. 2010).
In his reply brief, Driscoll also argues that the initial traffic stop violated the Fourth Amendment because the stop was, in essence, a drug interdiction and not "merely for the purpose of investigating a traffic violation." This argument contradicts Driscoll's concession in his opening brief that the stop "even if pretextual, might have been legal." Because he raises the constitutionality of the initial stop for the first time in his reply brief, we decline to address it. See State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d 29, 39 (App. 2013).
After the jury found him guilty of the two drug counts, but before his trial on the weapons misconduct count, Driscoll filed another motion asking the trial court to suppress evidence on Fourth Amendment grounds, which the court summarily denied. Because he filed this motion nearly five months after the jury returned its verdicts on the drug counts, any arguments made in the second motion were untimely as to the two convictions. See Ariz. R. Crim. P. 16.1(b)-(d) (all motions must be made "no later than 20 days prior to trial," any objection not timely raised is precluded, and "an issue previously determined by the court shall not be reconsidered" except upon good cause). Consequently, we do not consider these arguments in our review of the court's ruling on Driscoll's initial motion to suppress.
Length of Detention
¶6 Driscoll first appears to argue the "additional detainment" was illegal because "[t]he reasons that [the officer] used to establish some purported reasonable expectation that criminal activity was afoot[] do not meet the necessary standard to support the intrusion." And, Driscoll contends, his statements to the officer during their conversation that evening "fail[ed] to amount to a reasonable suspicion that . . . Driscoll was involved in any illegal activity."
¶7 Driscoll does not cite any facts in the record or relevant legal authority to support these assertions. Nor does he attempt in his opening brief to distinguish the facts of this case from the facts in the authority relied on by the trial court. An appellant must support his contentions "with citations to the authorities, statutes and parts of the record relied upon." Ariz. R. Crim. P. 31.13(c)(1)(vi). The failure to sufficiently argue a claim with supporting citations constitutes waiver of that claim. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1996); see also State v. Ruiz, ___ Ariz. ___, ¶ 9, 340 P.3d 396, 400 (App. 2014) (noting failure to distinguish controlling case). Consequently, we do not address contentions "state[d] in conclusory fashion without any legal support." State v. Dominguez, 236 Ariz. 226, n.5, 338 P.3d 966, 971 n.5 (App. 2014).
Search of the Vehicle
¶8 Although Driscoll concedes that the dog alert "gave the officer probable cause," he argues the search of the truck was illegal because the alert did "not warrant a search of the vehicle." He appears to reason that a warrantless search of the vehicle required "corroborating [or] substantiating factors" beyond the alert from the dog sniff. He did not make this argument below; he argued only that the dog alert was not sufficiently reliable to create probable cause. Thus, he has waived review of the issue for all but fundamental error. See State v. Moody, 208 Ariz. 424, ¶ 120, 94 P.3d 1119, 1150 (2004). And because he does not argue the denial of his motion constituted fundamental error, he has waived review of the issue entirely. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 125, 140 (App. 2008). Further, we see no fundamental error. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it sees it).
Driscoll also appears to argue that the officer could not conduct a warrantless search of the truck because he lacked probable cause and "the vehicle was not in any imminent chance of being removed from the site." He did not, however, raise this argument below and does not argue fundamental error on appeal. Consequently, he has waived this argument. See Moody, 208 Ariz. 424, ¶ 120, 94 P.3d at 1150; see also Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
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Arrest
¶9 Driscoll also appears to argue his arrest following the discovery of the stolen handgun was illegal. But he did not challenge the constitutionality of the arrest below and does not argue fundamental error occurred on appeal. Thus he has waived review of the issue entirely. See Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17, 185 P.3d at 140. And we have found no fundamental error. See Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650.
Search Incident to Arrest
¶10 Finally, Driscoll appears to argue the search of his person while he was in handcuffs and under arrest was illegal because the officer lacked either reasonable suspicion or probable cause to search him, and he suggests the search was a pretext to discover drugs. It is well established that "in the case of a lawful custodial arrest a full search of the person is . . . a 'reasonable' search under [the Fourth] Amendment." United States v. Robinson, 414 U.S. 218, 235 (1973). "[A] search incident to arrest requires no additional justification," beyond the need to disarm the arrestee and to prevent the destruction of evidence. Id. Consequently, because the officer needed no additional justification to search Driscoll's person and Driscoll does not challenge the scope of the search, we conclude that the trial court did not err in denying his motion on this ground. See id.
¶11 For the foregoing reasons, we conclude the trial court did not abuse its discretion or commit legal error in failing to suppress the evidence obtained during the traffic stop. See Huerta, 223 Ariz. 424, ¶ 4, 224 P.3d at 242.
Hearing on Aggravating Factors
¶12 Driscoll argues the trial court violated his rights under the Double Jeopardy Clause and the Due Process Clause of the United States Constitution and violated Rule 19.1(b)(2), Ariz. R. Crim. P., by allowing a jury other than the one that rendered the guilty verdicts on the drug charges to decide his release status as an aggravating factor for both of those convictions.
¶13 During the first trial, the trial court discussed with the parties whether it was necessary to submit any aggravating circumstances to the jury. The state told the court that it did not believe Driscoll's release status had to be determined by a jury because it concerned his release on parole. Driscoll then told the court that, although the parties had some dispute about aggravators, aggravators were "not something [the parties were] prepared to take up" that day. The state stated it believed "there would [not] be any aggravators on the forms for the jury," to which the court responded, "[S]o I don't have to worry about an aggravati[ng] . . . circumstances hearing, then, right?" Driscoll replied, "That's correct." The trial proceeded without a hearing to determine aggravating circumstances, and Driscoll did not object when the court discharged the jury.
¶14 During a later bench trial on prior convictions, the trial court stated that "the allegation of committing a felony while on parole is to be held in abeyance to be tried by the jury upon its consideration of the [weapons misconduct charge]." More than seven months after the first trial, a second jury found Driscoll not guilty of that offense. Only then did Driscoll object to the hearing on aggravating circumstances as "highly improper."
¶15 "The invited error doctrine . . . bars a defendant from raising an issue on appeal if he 'affirmatively and independently initiated the error' below." State v. Villa, 236 Ariz. 63, ¶ 25, 335 P.3d 1142, 1148 (App. 2014), quoting State v. Lucero, 223 Ariz. 129, ¶ 31, 220 P.3d 249, 258 (App. 2009). "Mild acquiescence" is not enough. Lucero, 223 Ariz. 129, ¶ 24, 220 P.3d at 257. The defendant must actively invite the error by, for example, arguing in support of the error before the court. Id. (noting difference between acquiescence and arguing justifications for error). If the defendant actively invites the error, "[w]e will not reverse [the trial court], even for an allegedly fundamental error." State v. Musgrove, 223 Ariz. 164, ¶ 8, 221 P.3d 43, 46 (App. 2009).
¶16 Here, Driscoll "'affirmatively and independently'" initiated the decision to not submit the determination of aggravating circumstances to the first jury. See Villa, 236 Ariz. 63, ¶ 25, 335 P.3d at 1148, quoting Lucero, 223 Ariz. 129, ¶ 31, 220 P.3d at 258. In response to the state's claim in the first trial that it was not necessary for a jury to determine Driscoll's release status, Driscoll stated the parties would not submit the issue of aggravating circumstances to the first jury because the parties were "not . . . prepared to take [them] up." The trial court then dismissed the jury. Driscoll did not merely acquiesce to the state's argument; rather, he actively provided the court with further justification for releasing the jury without first asking it to determine his release status. See Lucero, 223 Ariz. 129, ¶ 24, 220 P.3d at 257. And his untimely objection during the second trial more than seven months later did not provide the court with an opportunity to remedy the error he invited. See State v. Harris, 157 Ariz. 35, 36, 754 P.2d 1139, 1140 (1998) (objection must be contemporaneous, otherwise "possibility for an immediate remedy for unconstitutional action has been lost"). Consequently, we conclude that Driscoll invited any alleged error resulting from the failure to submit aggravators to the first jury, and we will not disturb the sentences imposed on his two convictions. See Musgrove, 223 Ariz. 164, ¶ 9, 221 P.3d at 46.
Disposition
¶17 Based on the foregoing, we affirm Driscoll's convictions and sentences.