Opinion
2 CA-CR 2022-0132
08-21-2023
The State of Arizona, Appellee, v. Gaylord Patrick Garrett, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kevin M. Morrow, Assistant Attorney General, Phoenix Counsel for Appellee James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20185363001 The Honorable Howard Fell, Judge Pro Tempore
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kevin M. Morrow, Assistant Attorney General, Phoenix Counsel for Appellee
James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Gaylord Garrett appeals his convictions and sentences for second-degree murder, criminal damage, possession of drug paraphernalia, and possession of a narcotic drug. Specifically, he challenges the trial court's denial of his motions to suppress certain statements and sever certain charges. He also argues that the court coerced the jury's verdicts. For the reasons that follow, we reject these arguments and affirm Garrett's convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against the defendant. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015).
¶3 This case arises from a single-car collision in August 2018 that resulted in the death of A.B. The Crash Data Retrieval report indicated that the car had been traveling over 140 miles per hour with the throttle at 100 percent five seconds before the collision. A collision reconstruction suggested that the driver likely lost control, veered onto the sidewalk, scraped against a retaining wall, glanced off several trees, spun, then struck the wall and a fire hydrant. The car finally flipped before stopping. When law enforcement arrived, nobody was in the vehicle and both Garrett and A.B. were found in the roadway. A.B. was dead.
¶4 Garrett, who was accused of being the driver, was indicted for second-degree murder, two counts of criminal damage, possession of a narcotic drug, possession of drug paraphernalia, and driving under the influence of an intoxicant (DUI). He was also charged with driving with an illegal drug or its metabolite in his system, but that charge was dismissed before trial on agreement of the parties.
¶5 After a six-day jury trial, Garrett was convicted on all the remaining counts except for DUI. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
MOTIONS TO SUPPRESS
¶6 Garrett first challenges the trial court's denial of his motions to suppress certain statements. At trial, his defense was that A.B. had been driving the car. However, at the collision scene and while being treated at the hospital, he had told police he was the driver. He sought to suppress these statements on the ground that they were involuntary confessions.
Applicable facts
¶7 In reviewing a trial court's ruling on a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's rulings. Devlin v. Browning, 249 Ariz. 143, ¶ 8 (App. 2020).
¶8 When an officer arrived at the collision scene, Garrett's car was heavily damaged, upside down, and on fire. Garrett was lying visibly injured on the road, and A.B.'s body was also outside the vehicle.
¶9 Although Garrett was injured, when he was questioned at the scene by an officer and paramedics, he was able to correctly recall the city he was in, the year, his date of birth, and his name. He also said more than once that he had been driving the car. These are the first statements he sought to suppress.
¶10 Garrett was taken to the hospital, where medical staff treated his injuries and administered medical-grade fentanyl as a painkiller. He had broken his pelvis, femur, hip, and eight ribs. He had also lacerated his kidney and spleen and sustained a brain injury from head trauma.
¶11 Officers continued questioning Garrett while medical staff attended to him. He again provided his name. He also denied having used drugs or alcohol, and he expressed concern over his car. He said he did not remember the events leading up to the collision.
¶12 Roughly an hour later, the officers returned to Garrett's hospital room and read him his Miranda rights. He again denied having used drugs or alcohol. He also denied owning a small bag of cocaine that the officers had recovered from his pants pocket. Garrett said that a female had been with him in the vehicle, and-in another statement he sought to suppress-he again said he had been driving.
¶13 Shortly thereafter, Garrett received a second dose of fentanyl. Around the same time, a doctor informed Garrett that A.B. had died. Shortly after learning A.B. had died, Garrett exclaimed that he remembered A.B. had been driving at the time of the collision.
¶14 In denying the motion to suppress, the trial court reasoned that the officers had not promised Garrett anything to induce him to make the statements, nor had they made coercive threats. The court further reasoned that although Garrett was seriously injured, he had been responsive and understood the questions. It therefore concluded that Garrett had not made the statements involuntarily.
Applicable law
¶15 On appeal, Garrett argues that this conclusion was an abuse of discretion, which is the proper standard of review. See State v. Newell, 212 Ariz. 389, ¶ 22 &n.6 (2006). We will uphold a trial court's ruling on a confession's admissibility absent clear and manifest error. Id.
¶16 "A confession is 'prima facie involuntary and the state must show by a preponderance of the evidence that the confession was freely and voluntarily made.'" Newell, 212 Ariz. 389, ¶ 39 (quoting State v. Montes, 136 Ariz. 491, 496 (1983)). The state meets its burden when the evidence shows that the "confession was obtained without threat, coercion or promises of immunity or a lesser penalty." State v. Boggs, 218 Ariz. 325, ¶ 44 (2008) (quoting State v. Jerousek, 121 Ariz. 420, 424 (1979)). Additionally, the court must consider "whether the defendant's will was overcome under the totality of the circumstances." Id. For a confession to be involuntary, the court must find "both coercive police behavior and a causal relation between the coercive behavior and the defendant's overborne will." Id.
Analysis
¶17 Garrett does not argue that the officers threatened or intimidated him or that they made promises of immunity or a lesser penalty. Instead, Garrett argues that continuing to question him at the collision scene and the hospital was inherently coercive, given his physical condition, the influence of pain medication, and the trauma room environment. We disagree. Garrett has pointed to no case law suggesting that continued questioning itself can render an admission involuntary, even when the defendant is impaired or injured. Rather, our case law addresses whether police conduct during an interrogation is coercive. See, e.g., State v. Carrillo, 156 Ariz. 125, 135-37 (1988) (addressing extent to which deception relates to voluntariness in interrogating suspect with limited mental capacity); State v. Anderson, 197 Ariz. 314, ¶ 35 (2000) (concluding police had not coerced confession of sleep-deprived defendant where no evidence suggested police had prevented him from sleeping).
¶18 Garrett, however, suggests that because our case law requires courts to consider the "totality of the circumstances," a defendant's condition "may still render his admissions sufficiently unreliable . . . that they must be excluded from evidence." Under the totality-of-the-circumstances test, a defendant's physical and mental condition can be relevant to whether particular conduct was coercive. State v. Smith, 193 Ariz. 452, ¶ 14 (1999). But the ultimate issue remains whether the police conduct "constituted overreaching." Id. (quoting State v. Stanley, 167 Ariz. 519, 524 (1991)). And absent coercive police conduct, "the defendant's physical and mental states . . . alone are not enough to render a statement involuntary." Id.; see also State v. Tucker, 157 Ariz. 433, 446 (1988) ("[T]he question of voluntariness must focus on police conduct, and not solely on the mental state of the defendant."). As Garrett has pointed to no such conduct, the totality of the circumstances does not support his assertion that his statements were involuntary.
¶19 Nor is it sufficient to warrant suppression that while Garrett was questioned at the hospital, he may have been impaired by the medical-grade fentanyl. An admission made while impaired can be voluntary if the defendant was capable of "understand[ing] the meaning of his statements" and, under the totality of the circumstances, the defendant "was able to reason, comprehend, or resist." State v. Cota, 229 Ariz. 136, ¶ 24 (2012) (quoting Tucker, 157 Ariz. at 446). Intoxication renders an admission involuntary only when a defendant is so intoxicated as to be unable to understand the statement's meaning. Id.
¶20 Here, the fentanyl's intoxicating effect did not preclude Garrett from understanding his statements. Although his answers after receiving the medication were slower, they were still clear. He continued responding to both police and medical providers, expressed repeated concern over the car's condition, and denied having used drugs and alcohol. His answers were largely consistent with those he had given before being administered fentanyl. This consistency reinforces the conclusion that the fentanyl did not prevent Garrett from understanding what he was saying.
¶21 Additionally, Garrett was not administered fentanyl until after arriving at the hospital. It could not have affected the statements he had made at the collision scene, which included repeated statements that he had been driving. He was alert and responsive at the collision scene, which demonstrated that he understood those statements. Accordingly, the trial court properly concluded that Garrett's statements were voluntary. It did not err in denying his motions to suppress.
MOTION TO SEVER
¶22 Garrett next challenges the trial court's denial of his motion to sever the drug-possession and paraphernalia counts from the other counts of the indictment. Garrett did not renew his motion during trial, so we review only for fundamental error. See State v. Allen, 253 Ariz. 306, ¶ 50 (2022); Ariz. R. Crim. P. 13.4(c).
¶23 "Generally, 'in the interest of judicial economy, joint trials are the rule rather than the exception.'" Allen, 253 Ariz. 306, ¶ 56 (quoting State v. Murray, 184 Ariz. 9, 25 (1995)). Charges may be properly joined in an indictment if, among other things, they are "based on the same conduct or are otherwise connected together in their commission." Ariz. R. Crim. P. 13.3(a)(2). Garrett does not appear to argue on appeal that the drug charges were improperly joined under Rule 13.3.
¶24 Instead, Garrett relies on Rule 13.4, which requires charges to be severed when "necessary to promote a fair determination of any defendant's guilt or innocence of any offense." Ariz. R. Crim. P. 13.4(a). Trial courts have broad discretion in deciding whether charges should be severed. Allen, 253 Ariz. 306, ¶ 55.
¶25 Garrett argues that in denying the motion to sever, the trial court fundamentally erred by allowing him to be "tar[red] and feather[ed]" as a "bad guy" simply because he had used cocaine. The state never advanced such a theory, and Garrett's claim of error is speculative. On fundamental-error review, we will not reverse on the basis of speculation. See State v. Dickinson, 233 Ariz. 527, ¶ 13 (App. 2013).
¶26 Relatedly, Garrett argues that denying severance allowed the state to intimate that he had given cocaine to A.B. before the collision. He reasons that this was "functionally improper bad act evidence that could have influenced the jury . . . on its determination of recklessness for . . . particularly second-degree murder." We disagree. Although the prosecutor cross-examined Garrett about whether he had given cocaine to A.B., he testified that he had not. And while the prosecutor alluded in closing argument to the possibility that Garrett and A.B. had used drugs together, he did not argue that Garrett had given her cocaine. Because Garrett's argument is not supported by the record, no fundamental error occurred.
¶27 Garrett also points to the results of a blood test taken roughly three hours after the collision. Those results showed that Garrett's blood was negative for cocaine. It also showed a blood-alcohol content of .0193, as well as the presence of THC and non-active metabolites of THC and cocaine. The state's expert acknowledged that the cocaine metabolite, benzoylecgonine, can remain in the bloodstream for as long as three days after cocaine is used. Garrett correctly notes that because benzoylecgonine is non-impairing, it cannot constitute the basis of a conviction for DUI or driving with an illegal drug or its metabolite in his system. See Leon v. Marner, 244 Ariz. 465, ¶ 18 (App. 2018); see also State ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 24 (2014). He therefore argues that evidence of benzoylecgonine was insufficiently probative of whether he was actually impaired. But other than his speculative tar-and-feather argument, Garrett fails to explain how this fact required the drug charges to be severed.
¶28 Moreover, reversal for improper failure to sever is not required unless Garrett can "demonstrate compelling prejudice against which the trial court was unable to protect." State v. Goudeau, 239 Ariz. 421, ¶ 67 (2016) (quoting Murray, 184 Ariz. at 25). Prejudice cannot generally be established when "the trial court instructed the jurors to consider each charged offense separately and advised them that the State had to prove each beyond a reasonable doubt." Id. (quoting State v. Hausner, 230 Ariz. 60, ¶ 48 (2012)). Here, the jury was so instructed.
¶29 Garrett argues that we should nevertheless find prejudice because this case "required a determination of recklessness as well as defendant's credibility in terms of his defense testimony that he was not driving at the time of the crash." But he does not explain how the jury could have misapprehended the concept of recklessness simply because the drug charges were not severed. He offers only speculation about how the drug charges could have affected the jury's determination of his credibility. We therefore conclude that the trial court did not fundamentally err in denying to sever the drug charges.
COERCING JURY VERDICT
¶30 Lastly, Garrett argues that the trial court fundamentally erred by coercing a jury verdict on second-degree murder. Although Garrett did not object to the judge's actions at trial, coercing a jury verdict denies an essential right to a defendant's case and therefore always constitutes fundamental error. See State v. Lautzenheiser, 180 Ariz. 7, 10 (1994).
¶31 Garrett's argument arises out of an exchange between the jury and the bailiff. A few hours into its deliberations, the jury called the bailiff into the jury room. Without prompting, one of the jurors asked whether a holdout could be excused and replaced with an alternate because the jury could not reach a unanimous verdict on second-degree murder. The juror stated that eleven jurors thought Garrett was guilty of second-degree murder while the holdout thought he was guilty of manslaughter.
¶32 After the bailiff informed the judge of the situation, the judge instructed the bailiff to tell the jurors to write out their questions, go home for the day, and resume deliberations the next day, when the judge would address any questions. The judge directed the bailiff to ask the jury about a 2 p.m. start time and the jury agreed. But when the bailiff returned to the jury room to confirm that time, the jurors had resolved their impasse and had reached verdicts on all counts.
¶33 When the judge was first informed that some jurors wanted to excuse the holdout, he notified the attorneys. He spoke with them again after learning that the jury had reached its verdicts. Neither party objected to the judge's handling of the situation.
¶34 "[J]ury coercion exists when the trial court's actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors or when the trial judge encourages a deadlocked jury to reach a verdict." State v. Burns, 237 Ariz. 1, ¶ 160 (2015) (quoting State v. Davolt, 207 Ariz. 191, ¶ 94 (2004)). Determining whether jury coercion exists requires a fact intensive, case-by-case analysis. Id. Relevant considerations include whether the court knew the numerical split when it addressed the impasse, as well as the length of time the jury deliberated prior to reaching its impasse. State v. Smith, 250 Ariz. 69, ¶ 151 (2020). Polling of jurors and inquiring into the numerical division of a reportedly deadlocked jury is generally condemned. State v. McCrimmon, 187 Ariz. 169, 172 (1996). Likewise, singling out one juror as the person responsible for the delay heightens the risk of coercion. Lautzenheiser, 180 Ariz. at 9-10. Failure to give cautionary instructions can heighten this risk further. Id. at 10.
¶35 Here, although the judge was aware of the jury's numerical split, he did not ask about it. It was conveyed by the bailiff who learned about it, unprompted, from a juror. The judge did not single out the holdout, nor did he pressure the holdout to vote in a particular manner.
¶36 Rather, the judge acted reasonably to manage an unusual situation. Suggesting that the jury write down any questions and return the next day allowed all involved-judge, jury, and counsel-to consider an appropriate response. Nothing in the record suggests that the jury's decision to reach a verdict that afternoon was the result of the judge's management of the situation, let alone any judicial coercion. Neither the judge nor the bailiff suggested to the jury that it should reach verdicts that day.
¶37 Garrett notes that the judge did not provide the jurors with cautionary instructions. But such instructions were not necessarily appropriate given that it was near the end of the business day and any significant further deliberations would have needed to be continued the following day. Additionally, because prematurely giving an impasse instruction may be a form of coercion, the trial court was obligated to be cautious when determining whether a true impasse actually existed. See State v. Fernandez, 216 Ariz. 545, ¶ 13 (App. 2007). The court would have been within its discretion in concluding that after fewer than four hours of deliberation, no impasse existed. Accordingly, we reject Garrett's claim of jury coercion.
DISPOSITION
¶38 For the foregoing reasons, we affirm Garrett's convictions and sentences.