Opinion
No. 1 CA-CR 15-0024 No. 1 CA-CR 15-0029 No. 1 CA-CR 15-0030 No. 1 CA-CR 16-0031 (Consolidated)
12-06-2016
STATE OF ARIZONA, Appellee, v. ROLLINS R. JOHNSON, III, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Janelle A. McEachern Attorney at Law, Chandler By Janelle A. McEachern 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-117689-001 CR2011-109960-002 CR2009-145504-001
The Honorable Brian Kaiser, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Thomas C. Kleinschmidt joined. THOMPSON, Judge:
The Hon. Thomas C. Kleinschmidt, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Rollins R. Johnson, III (defendant) appeals his convictions and sentences in these consolidated cases. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2, 340 P.3d 1110, 1112 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499 (App. 1996)).
¶2 During a traffic stop of the vehicle defendant was driving, Phoenix Police Officer Barker noticed the smell of unburnt marijuana emanating from the vehicle and arrested defendant for driving with a suspended driver's license. Barker searched defendant incident to the arrest and discovered in his pants pockets $396.00 in cash and a small baggie containing 940 milligrams of marijuana. Barker then performed an inventory search of the vehicle and found directly behind the driver's seat a backpack, within which was a freezer baggie containing almost one pound of marijuana.
¶3 Officer Barker informed defendant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and defendant offered to provide Barker with information about the individual who gave him the marijuana in exchange for Barker releasing defendant. When Barker refused, defendant explained he was transporting the marijuana found in the backpack to sell for another person.
¶4 At trial on the sole charged offense of possession of marijuana for sale in CR 2012-117689-001, defendant unexpectedly testified that he told Officer Barker he had "a medical marijuana card [MMC] for the possession of the -- ." The state immediately objected and moved to strike the testimony on the basis that defendant had not provided notice of the statutory affirmative offense provided by the Arizona Medical Marijuana Act (AMMA). The court granted the state's request and struck defendant's statement.
¶5 The jury found defendant guilty as charged and determined that he was on probation in an unrelated criminal matter, CR 2011-109960-002, when he committed the drug offense in this case. At sentencing, the court also found defendant violated the conditions of his probation in CR 2009-145504-001. The court revoked defendant's probation in the 2009 and 2011 cases and ordered incarceration for the probation violations to run concurrently with each other and consecutively to a 10-year prison term for the conviction in this case. With the court's permission, defendant filed a delayed notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2016).
Absent material changes from the relevant date, we cite a statute's current version. --------
DISCUSSION
A. Failure to Conduct a Voluntariness Hearing
¶6 Defendant argues the court committed fundamental error by not sua sponte conducting an evidentiary hearing to determine whether he voluntarily made the post-arrest incriminating statements to Officer Barker. Defendant asserts the precluded evidence of his medical marijuana card indicated an "underlying medical condition." Without specifics, he suggests he may have been under the influence when he was arrested and seems to say that marijuana or his "underlying medical condition" "could have impaired his ability to understand his rights" when he spoke with Barker.
¶7 To obtain relief under fundamental error review, defendant has the burden to show that error occurred, the error was fundamental, and that he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005). "Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error." State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342, (1991).
¶8 In superior court, defendant did not seek suppression of his statements or otherwise object to their admission. Because defendant failed to do so, the court did not conduct an evidentiary hearing to determine whether his statements were admissible. A court is generally not required to engage sua sponte in such an inquiry. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977) ("The trial court is not required to sua sponte enter upon an examination to determine the voluntary nature of [a confession]."). Absent a record of such a hearing, we are unable to evaluate what, if any, evidence outside of that introduced at trial supports or precludes the statements' admission. See State v. Wilson, 95 Ariz. 372, 373, 390 P.2d 903, 904 (1964) ("We have repeatedly held that we will review only those matters which appear in the records of the trial court."); see also State v. Fornof, 218 Ariz. 74, 76, ¶ 8, 179 P.3d 954, 956 (App. 2008) (in reviewing a superior court's denial of a motion to suppress, "we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings.") (citing In re Ilono H., 210 Ariz. 473, 474, ¶ 2, 113 P.3d 696, 697 (App. 2005)).
¶9 The trial evidence does not support defendant's speculative assertion regarding a physical ailment or cognitive impairment based on his possession of the MMC and purported use of marijuana before his arrest. Barker testified that he smelled unburnt marijuana in defendant's vehicle, and he testified that he found no paraphernalia on defendant or in the vehicle indicating defendant had recently smoked marijuana. Further, defendant was not arrested for, or charged with, driving under the influence of marijuana in this case. And, during defendant's interaction with Officer Barker, nothing in the record indicates defendant complained of any illness, pain, or diminished physical or mental capacity that might have caused him to misunderstand his Miranda rights or otherwise render his statements involuntary. Finally, Barker testified that he did not use force, make promises, or threaten defendant before defendant admitted he possessed the marijuana.
¶10 On this record, we cannot fault the trial court for not inquiring sua sponte into the voluntariness of defendant's post-arrest statements. Cf. State v. Fassler, 103 Ariz. 511, 513, 446 P.2d 454, 456 (1968) (noting, "[i]t is the duty of a trial court to hold a hearing as to voluntariness of a statement or confession, if a question as to its voluntariness is raised—either by the attorneys, or one is presented by the evidence") (internal quotation marks and citation omitted). No error occurred, let alone fundamental error that prejudiced defendant.
B. Preclusion of MMC Testimony and Purported Failure to Instruct Jury on Lesser-Included Offense
¶11 Defendant argues the trial court erred in precluding him "from raising the affirmative defense of a valid [MMC], without allowing the requested instruction on simple possession of marijuana." We review the decision to exclude evidence due to untimely disclosure for abuse of discretion. State v. Rienhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997).
¶12 Qualifying medical patients generally have an affirmative defense under the AMMA to certain allegations of marijuana possession. See A.R.S. §§ 36-2801(1)(a)(i), (b)(i), -2811(B)(1) (providing immunity from arrest and prosecution to "registered qualifying patient[s] or registered designated caregiver[s]" who possess not more than "[t]wo-and-one-half ounces of usable marijuana . . . [f]or the registered qualifying patient's medical use . . .."); cf. Dobson v. McClennen, 238 Ariz. 389, 393, ¶ 20, 361 P.3d 374, 378 (2015) (recognizing the AMMA provides an affirmative defense for qualifying patients charged with driving under the influence of marijuana).
¶13 However, defendant did not notify the state before trial that he intended to defend the charged offense with evidence of his MMC, much less provide the requisite notice within the time mandated by Arizona Rule of Criminal Procedure 15.2. See Ariz. R. Crim. P. 15.2(b), (d) (within "40 days after arraignment or within 10 days after the prosecutor's disclosure pursuant to Rule 15.1(b), whichever occurs first," "the defendant shall provide a written notice to the prosecutor specifying all defenses as to which the defendant intends to introduce evidence at trial.").
¶14 Further, even if defendant had properly disclosed an affirmative defense under the AMMA, his possession of a MMC would not have been helpful because it did not immunize his possession of almost one pound of marijuana for sale. See State v. Fields ex rel. County of Pima, 232 Ariz. 265, 269, ¶ 15, 304 P.3d 1088, 1092 (App. 2013) ("In claiming protection under [the AMMA's] immunity, it is a defendant's burden to 'plead and prove,' by a preponderance of the evidence, that his or her actions fall within the range of immune action."). The court did not abuse its discretion in striking defendant's testimony.
¶15 Regarding defendant's contention that the court failed to instruct the jury on the lesser-included offense of possession of marijuana, defendant apparently misapprehends the record. The court, over defendant's objection, did instruct the jury on the lesser-included offense. If defendant's argument is that the court erred in doing so, the argument fails; defendant was not prejudiced by the instruction because the jurors never considered it. The court instructed the jury to consider the lesser-included offense only if the jury either found defendant not guilty of possession for sale, or if the jury could not unanimously agree on guilt. We presume the jury followed this instruction. See State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006). By finding defendant guilty of the charged offense, the jury never considered the lesser-included offense.
CONCLUSION
¶16 Defendant's convictions and sentences are affirmed.