Opinion
No. 1 CA-CR 15-0423 No. 1 CA-CR 15-0434 (Consolidated)
07-28-2016
STATE OF ARIZONA, Appellee, v. MICHAEL GENE GOODWIN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. CR2012-134504-001, CR2014-125490-001 (Consolidated)
The Honorable Daniel J. Kiley, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 Michael Gene Goodwin ("Goodwin") appeals his convictions and sentences for two counts of sale or transportation of narcotic drugs, a class 2 felony with three prior felony convictions. Ariz. Rev. Stat. ("A.R.S.") §§ 13-3401 (Supp. 2015), -3408 (2010), -3418 (2010), -701 (Supp. 2015), -702 (2010), -703 (Supp. 2013), -704 (Supp. 2015), -801 (2010). Subsequent to these convictions, the court revoked Goodwin's probation relating back to his prior convictions in a 2012 case, CR2012-134504.
This matter began as two separate cases. In CR2014-000394, Goodwin was charged with sale or transportation of narcotic drugs, a class 2 felony, for conduct that occurred on September 24, 2013. Goodwin was previously charged with possession of narcotics for sale, a class 2 felony, for conduct that occurred on September 9, 2013. The two cases were consolidated under case number CR2014-125490-001DT. The indictment was amended so that the charges were consistently worded, with both counts charging Goodwin with the sale or transportation of narcotic drugs, a class 2 felony with three prior felony convictions.
We cite to the current version of the relevant statutes unless revisions material to this decision have occurred.
¶2 Finding no arguable issues to raise, Goodwin's counsel filed an opening brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), requesting that this Court search the record for fundamental error. Goodwin was given the opportunity to, but did not, file a supplemental brief in propria persona.
¶3 After reviewing the entire record, we conclude the evidence is sufficient to support the verdict and sentences and find no reversible error. Therefore, we affirm Goodwin's convictions, sentences for the two counts in this case, and probation revocation. We affirm, but modify pursuant to A.R.S. § 13-4036 (2010), the sentence associated with the probation revocation.
FACTUAL AND PROCEDUAL HISTORY
On review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998); see State v. Guerra, 161 Ariz. 289, 293 (1989) (stating that this Court views the facts in the light most favorable to sustaining the conviction).
¶4 The offenses at issue both arise from encounters between Goodwin and detectives R.E., S.A., and D.E. of the Phoenix Police Department ("PPD") on September 9 and 24, 2013.
¶5 On the afternoon of September 3, 2013, undercover detective partners, R.E. and S.A., went to a small apartment complex in search of a subject in an unrelated matter. R.E. met a male individual, among others, with whom he spoke for approximately five to ten minutes. R.E. testified that the male individual introduced himself as "Mike." During the conversation, Mike indicated he could sell R.E. heroin or methamphetamine. Mike and R.E. exchanged phone numbers. A few days later, on September 8, 2013, Mike and R.E. began texting each other pertaining to the detective purchasing two grams of heroin. On September 9, for approximately ten minutes, R.E. and S.A. met with Mike who sold R.E. a "brown [] rock-like substance" for $120, which was later confirmed to be heroin.
¶6 On the following day, using the police database and the PPD's normal suspect identification procedure, R.E. typed in what he knew about the man who sold him the heroin. R.E. testified that the database generated one photo of Michael Goodwin with a deformity in his right eye. R.E. stated that he immediately recognized Goodwin as the man who sold him the heroin the day before. This photograph was introduced and admitted into evidence. R.E. also printed out a copy of the same photo for S.A. to sign after S.A. affirmed that he recognized the photo as showing the man from whom the heroin was purchased.
¶7 R.E. again arranged to meet the man he had identified as Goodwin to make another heroin purchase. On September 24, he was accompanied by S.A. and a new undercover detective, D.E., to meet "Mike." They drove to the same small apartment complex as before; D.E. gave Mike $100 in exchange for a substance which was confirmed to be heroin. D.E. identified Goodwin as the individual from whom he purchased the heroin. Both R.E. and S.A. provided in-court identifications of Goodwin as the man who sold the heroin to R.E. on September 9 and to D.E. on September 24.
¶8 After the close of the State's case, Goodwin moved for a directed verdict under Arizona Rule of Criminal Procedure 20. He argued that there was no substantial evidence to warrant a conviction because there was no evidence other than the detectives' testimony to tie Goodwin to the crime and the methods used to identify Goodwin were "flawed." The trial court denied the motion finding that the credibility of the detectives was for the jury to decide.
¶9 Goodwin's expert witness testified as to the various problems with memory and facial recognition and the reasons there are standardized methods to avoid tainted or unreliable identification. In his closing argument, Goodwin's counsel argued that the State had not proved its case beyond a reasonable doubt because the only evidence presented to the jury was "tainted" identifications. After deliberations, the jury found Goodwin guilty on both charged counts.
¶10 As a compromise related to the State's initial intent to conduct an aggravation hearing, Goodwin stipulated that he was on probation in CR2012-134504 at the time of the subject offenses. The State accepted Goodwin's stipulation and in return agreed to dismiss the allegation that the offenses were committed for pecuniary gain.
¶11 Prior to sentencing, the court found that Goodwin had three historical prior felony convictions related to CR2012-134504 for three separate offenses. In this case, the court sentenced Goodwin to concurrent presumptive terms of 15.75 years for each of the two counts, with 380 days of pre-sentence credit. The court also revoked the probation term imposed in CR2012-134504 and as to that matter sentenced Goodwin to the presumptive term of one year of imprisonment in the Arizona Department of Corrections to be served concurrently to Goodwin's sentences in the trial case, crediting him with 476 days for pre-sentence incarceration. The written minute entry, on the other hand, ordered this sentence be served consecutively to the trial case sentences.
¶12 Goodwin timely appealed. See Ariz. R. Crim. P. 31.3. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).
DISCUSSION
¶13 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90 (1984)). To obtain reversal, the defendant must demonstrate that the error caused prejudice. Id. at ¶ 20. By not filing a supplemental brief, Goodwin failed to raise any issues for the Court to examine on appeal of his convictions, sentences, and probation revocation. However, searching the record, we find five issues to address. I. Chain of custody as to the heroin purchased on September 9, 2013
¶14 At trial, Goodwin's counsel drew attention to the fact that R.E. and S.A. were uncertain as to when or by whom the heroin purchased on September 9 had been impounded. The package of heroin was eventually impounded with S.A.'s handwriting, signature, and serial number. Because defense counsel did not expressly raise an issue of tampering at trial, Goodwin waived the issue absent a showing of fundamental error. See State v. Spears, 184 Ariz. 277, 287 (1996). "To establish chain of custody, the state must show continuity of possession, but it need not disprove 'every remote possibility of tampering.'" Id. (quoting State v. Hardy, 112 Ariz. 205, 207 (1975)).
¶15 Aside from the fact that the detectives did not clearly indicate when the heroin from the September 9 purchase was impounded, no evidence in the record suggests that the substance, as purchased by R.E., was tampered with between that day and the testing, which confirmed the substance to be heroin. For these reasons, we find no fundamental error.
II. Sufficiency of the evidence
¶16 In viewing the facts in the light most favorable to sustaining the jury's verdict and in drawing all reasonable inferences against Goodwin, we conclude there is no reversible or fundamental error as to evidence sufficiency. See Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998); Henderson, 210 Ariz. at 567, ¶ 19.
¶17 "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)) (emphasis added). We recognize that "[t]he weight of all the testimony was for the jury." State v. Anthony, 104 Ariz. 133, 135 (1969). In deciding whether to acquit a defendant based on an insufficient evidence argument, "the trial judge must determine whether upon the evidence, giving full credence to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inference[s] therefrom, a reasonable person could fairly conclude the defendant is guilty beyond a reasonable doubt." State v. Clifton, 134 Ariz. 345, 348 (App. 1982). "The sufficiency of the evidence must be tested against the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, 505, ¶ 8 (2004).
¶18 To convict a defendant of sale or transportation of narcotic drugs, the State must prove the defendant knowingly possessed a narcotic drug for sale, or that the defendant knowingly "transport[ed] for sale, import[ed] into this state, offer[ed] to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug." A.R.S. § 13-3408(A)(2), (7); see also A.R.S. § 13-3408(B)(2) (classification). "Knowingly" means that a defendant acted with awareness of or belief that his conduct was of that nature or the circumstances of his conduct constituted the offense. See A.R.S. § 13-105(10)(b) (Supp. 2015).
¶19 The State proved that Goodwin committed both offenses, with three prior felony convictions, by showing that he knowingly possessed heroin, a narcotic drug, and that he did so for sale. See A.R.S. § 13-3408(A)(1), (2), (7), (B)(2). The court applied the warranted sentences. See A.R.S. § 13-703(A), (C), (J).
It is undisputed that Goodwin was convicted of three felonies that pre-existed this case.
¶20 The record shows that after meeting with and/or observing Goodwin on three separate occasions, both R.E. and S.A. identified him in court as the individual who sold them heroin on September 9 and 24 of 2013. The heroin sales occurred only after Goodwin indicated to D.E. he could sell the detective heroin or methamphetamine. On each of the occasions, Goodwin was paid $100 or more in exchange for the drugs.
¶21 R.E. repeatedly affirmed there was no question as to Goodwin's identity. Moreover, R.E. and S.A. were able to identify Goodwin largely due to a unique identifier—his eye deformity. And, even having had less interaction with Goodwin than the other two detectives and not having noticed Goodwin's eye deformity, D.E. identified Goodwin as the man who sold him heroin on September 24. Furthermore, the circumstances which provided defense counsel's basis for challenging detectives R.E. and S.A.'s veracity are irrelevant to this case, and thus similarly do nothing to confound the truthfulness of the detectives' testimony in identifying Goodwin.
R.E. was reprimanded in 2003 for leaving certain work seminars early, without informing his supervisor; he did submit the proper paperwork after he returned to work. S.A. was reprimanded in the first year of his career, between 1983 and 1984, because it was believed that he attempted to cover for an accident investigator with whom he was temporarily working when the investigator's supervisor asked S.A. where the investigator was. --------
¶22 Based on these facts, and in assessing the detectives' credibility, the jury could reasonably conclude that the detectives accurately and honestly identified Goodwin as the individual who sold them heroin on both occasions constituting the two respective counts. See, e.g., State v. Corrales, 119 Ariz. 381, 381-82 (App. 1978) (holding that albeit there being no in-court identification of the defendant who was tried in absentia, since there was no question as to the identity of the person who had been taken into custody, a record consisting of testimony of four police witnesses was sufficient to support determination beyond a reasonable doubt that the defendant was the same person). Accordingly, we hold that the evidence was sufficient to support a finding beyond a reasonable doubt that Goodwin was guilty of the offenses. We affirm the related convictions and sentences.
III. Colloquy pertaining to Goodwin's stipulation to being on probation at the time of the subject offenses
¶23 We find no fundamental error as to the court's failure to more exhaustively inform Goodwin of the rights, particularly the constitutional rights, he was waiving by stipulating to being on probation at the time he committed the subject offenses.
¶24 Arizona Rule of Criminal Procedure 17 ("Rule 17") requires a judge to advise a defendant in open court of the consequences of pleading guilty or no contest, and to ensure that the defendant wishes to forgo the constitutional rights involved. Ariz. R. Crim. P. 17.1-17.4. During the aggravation phase of this case, Goodwin stipulated that he was on probation at the time he committed the two felonies for which he was convicted. The consequence of this stipulation under A.R.S. § 13-708 is that Goodwin could be "sentenced to a term of not less than the presumptive sentence authorized for the offense." A.R.S. § 13-708(C) (Supp. 2015). Since Goodwin was deemed a category three offender, the applicable presumptive sentence for this offense is 15.75 years. See A.R.S. § 13-703(A), (C), (J). The trial judge engaged in a colloquy with Goodwin confirming that Goodwin wished to maintain his stipulation given that the presumptive had become the minimum possible sentence. However, the judge did not additionally explain that Goodwin's stipulation would also operate as a waiver of certain constitutional rights.
¶25 The judge did not err in not ensuring that Goodwin wished to forgo the constitutional rights implicated. Although Rule 17.6 requires a plea-type colloquy for stipulations to prior convictions, see State v. Morales, 215 Ariz. 59, 61-62, ¶¶ 9-10 (2007), there is no similar requirement when a defendant stipulates that the offense for which he is on trial or for which he was convicted was committed while he was on probation, see generally Rule 17.
¶26 Even if there was error as to Goodwin's stipulation, we find the error was invited and thus not fundamental. See State v. Logan, 200 Ariz. 564, 565, ¶ 9 (2001) (concluding that a party is not entitled to a finding of reversible error where that party invited the error). Here, after the trial judge engaged in the colloquy with Goodwin, the judge asked both parties if they were "satisfied with the colloquy" or needed to explore the matter further. Goodwin's attorney was the first to respond that the judge did not need to go further, indicating the colloquy was sufficient. We affirm the court's acceptance of Goodwin's stipulation.
IV. Revocation of probation
¶27 We find no reversible error as to the court's decision to revoke Goodwin's probation associated with his prior 2012 convictions subsequent to his convictions in the instant case. See State v. Barnett, 112 Ariz. 212, 214 (1975) ("[A subsequent] criminal conviction constitutes a sufficient basis for revocation of probation.") (internal citation and quotation omitted). The terms of Goodwin's probation included provisions barring him from possessing illegal drugs or controlled substances and ordering that he maintain a "crime-free lifestyle." There is evidence he violated these terms. We affirm the court's decision to revoke probation.
V. Discrepancy between the minute entry and the oral pronouncement of the sentence associated with the probation revocation
¶28 As noted above, the trial court orally pronounced that Goodwin's sentence to the presumptive term of one year of imprisonment relating to the revocation of his probation would run concurrently to the sentences in the trial case, but entered a minute entry ordering that it run consecutively. We correct the minute entry to reflect the court's orally-pronounced concurrent sentence. See State v. Ovante, 231 Ariz. 180, 188, ¶ 38 (2013) ("When a discrepancy between the trial court's oral pronouncement of a sentence and the written minute entry can be clearly resolved by looking at the record, the '[o]ral pronouncement in open court controls over the minute entry.'") (citation omitted). We affirm the court's oral pronouncement of the sentence pursuant to A.R.S. § 13-4036.
CONCLUSION
¶29 We have reviewed the entire record in this case for fundamental error and have found no such error. The record reflects that the proceedings complied with the Arizona Rules of Criminal Procedure. Goodwin had a fair trial, he was present and represented by counsel at all critical stages prior to and during trial, as well as during the verdict and at the sentencing. The evidence is sufficient to support the verdict and the trial court imposed lawful sentences for Goodwin's offenses. We thus affirm Goodwin's convictions and sentences in the trial case and the subsequent revocation of his probation. We affirm Goodwin's sentence associated with the probation revocation with the modification that it be concurrent to the sentences in the trial case.
¶30 Upon the filing of this decision, counsel shall inform Goodwin of the status of the appeal and his options. Defense counsel has no further obligations, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Goodwin shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.