Opinion
1 CA-CR 11-0699 1 CA-CR 12-0137
01-10-2013
STATE OF ARIZONA, Appellee, v. DAVID KLOSS, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Jeffrey L. Sparks, Assistant Attorney General and Alice Jones, Assistant Attorney General Attorneys for Appellee Richard D. Coffinger and Kerrie Droban Attorneys for Appellant
N OTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
(CONSOLIDATED)
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-005500-001
The Honorable Susan Brnovich, Judge
The Honorable Bruce R. Cohen, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Jeffrey L. Sparks, Assistant Attorney General
and Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix Richard D. Coffinger
and
Kerrie Droban
Attorneys for Appellant
Phoenix
Anthem THUMMA, Judge ¶1 In these consolidated matters, David Kloss appeals his convictions and sentences for (1) two counts of driving under the influence of alcohol (DUI), both Class 1 misdemeanors, and (2) one count of unlawful flight, a Class 5 felony. Although involving the same set of operative facts, Kloss was convicted in two separate trials. ¶2 For the DUI convictions, Kloss argues the superior court erred in denying his motion to suppress evidence found during a warrantless search of his car. For the unlawful flight conviction, Kloss argues the superior court erred by refusing to include definitions of the words "flee" and "elude" in the final jury instructions. Kloss timely appealed and this court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1). For the following reasons, the convictions and sentences are affirmed.
Absent material revisions since the relevant dates, statutes cited refer to the current version unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
I. Denial of Kloss's Motion to Suppress and First Trial.
¶3 In reviewing the superior court's denial of a motion to suppress evidence for an abuse of discretion, this court "consider[s] only the evidence presented at the suppression hearing, and view[s] the facts in the light most favorable to sustaining the ruling." State v. Manuel, 229 Ariz. 1, 4, ¶ 11, 270 P.3d 828, 831 (2011) (citations omitted). This court must "defer to the trial court's factual findings unless clearly erroneous." State v. Garcia, 224 Ariz. 1, 7, ¶ 6, 226 P.3d 370, 376 (2010). ¶4 At the suppression hearing, the State's evidence consisted of testimony from Maricopa County Sheriff's Deputy Schrey and exhibits received by stipulation -- including the probable cause statement and vehicle inventory sections of Deputy Schrey's police report. Deputy Schrey testified that individuals at the scene of the accident, including an off-duty police officer, told him Kloss had caused the accident and was intoxicated. While Deputy Schrey spoke to the witnesses, Kloss drove away from the scene. Deputy Schrey followed Kloss in his marked patrol vehicle, activated the overhead lights and sirens and instructed Kloss to pull over several times. Kloss ignored Deputy Schrey and continued driving away, swerving in and out of his lane. Deputy Schrey testified Kloss appeared "heavily intoxicated." ¶5 Kloss arrived home and drove into his garage, nearly running over Deputy Schrey in the process. Deputy Schrey and his partner pulled Kloss from the car; Kloss fell to the floor and cut his head. Deputy Schrey and his partner called a paramedic to treat the cut and took Kloss into custody. Deputy Schrey testified that Kloss smelled of alcohol, appeared disoriented, had poor balance, was slurring his speech, was sweating profusely and had bloodshot eyes. Deputy Schrey overheard Kloss tell the paramedic he had drunk a "fifth of vodka" and taken Oxycontin earlier that day. ¶6 Given his observations, Deputy Schrey suspected Kloss could be charged with extreme DUI and, after consulting his supervisor, Deputy Schrey requested Kloss's car be towed away in accordance with Maricopa County Sheriff's Office policy. Deputy Schrey then conducted an inventory search of the car, noting that from outside of the car, he could see a small bottle or jar that contained trace amounts of white powder. In the car, Deputy Schrey found an opened bottle of vodka with one fifth of its contents missing, an unopened bottle of rum, additional bottles containing white powder and prescription drugs. ¶7 Based on Kloss's erratic driving when leaving the accident, Kloss's intoxicated appearance before arrest and Kloss's admission regarding drinking and taking Oxycontin, the superior court found Deputy Schrey "had probable cause to believe that the Defendant's automobile contained evidence of the crimes he is charged with" and "was valid under the automobile exception to the warrant requirement." Accordingly, the superior court denied Kloss's motion to suppress. The superior court also found the search was a lawful inventory search because Deputy Schrey had "probable cause to arrest the Defendant for extreme DUI." ¶8 Evidence of the alcohol and drugs found during the search was admitted at trial. The jury found Kloss guilty on both counts of DUI and leaving the scene of a damage accident. Kloss was found not guilty on the counts involving possession of drugs and felony endangerment, and the jury deadlocked on the count involving unlawful flight and a lesser included charge for misdemeanor endangerment of Deputy Schrey, resulting in a retrial on those counts.
Although timely appealing from the DUI convictions and sentences, Kloss does not appeal his conviction and sentence for leaving the scene of a damage accident, a Class 2 misdemeanor.
II. Retrial and Denial of Kloss's Request to Include Definitions of "Flee" and "Elude" in Jury Instructions.
¶9 Prior to Kloss's retrial, the state moved in limine to preclude argument "that the unlawful flight statute requires proof that the defendant sped, used evasive maneuvers, or otherwise engaged in reckless driving," arguing that such "argument misstates the law [as explained in State v. Fogarty, 178 Ariz. 170, 871 P.2d 717 (App. 1993)] and cannot be presented to the jury." After briefing and argument, the superior court granted the State's motion, stating that "[speed] is not an element [of unlawful flight]." The superior court also denied Kloss's "request to use a dictionary definition of the words flee or flight," stating that reading the jury a "definition that suggests rapidity or speed or anything of the nature does have the impact of giving the jury the impression that it is an element of the crime [of unlawful flight]." ¶10 At trial, Deputy Schrey testified that Kloss was involved in a three car accident while intoxicated and then drove away from the scene when Deputy Schrey arrived. Deputy Schrey testified that he activated his patrol vehicle's lights and siren and followed Kloss, but Kloss refused to pull over. Deputy Schrey further testified that Kloss drove home, obeying the speed limit and stop signs, but when Deputy Schrey pulled alongside Kloss several times to tell Kloss to pull over, Kloss swerved his car and attempted to strike the patrol vehicle. When Kloss arrived at his gated community, Kloss attempted to block Deputy Schrey from following him by slowing his car so that the gate would shut before Deputy Schrey could pull through. Deputy Schrey used his patrol vehicle's transponder to reopen the gate. Deputy Schrey testified that he followed Kloss to his home, and when Deputy Schrey stood in front of Kloss's car in an attempt to make Kloss stop, Kloss drove forward, forcing Deputy Schrey to jump out of the way or risk being pinned against a wall. Kloss was then arrested. ¶11 Prior to closing arguments, Kloss proposed jury instructions that included dictionary definitions of "flee" and "elude," based on dictionary definitions discussed in Fogarty. Kloss's requested instruction defining "flee" read as follows:
The term "flee" usually, but not always, connotes speed. Flee is defined as follows:
1. To run away from or as from danger; to take flight; to try to escape or seek safety by flight. Also, to flee away, out, and to flee for it....
2. To hasten for safety or protection....
3. To withdraw hastily, take oneself off, go away. Also with away. Const. from out of....
4. To make one's escape, get safely away....
5. To pass away quicky [sic] and suddenly; to disappear, vanish. Also with away....
....
7. To run away from, hasten away from; to quit abruptly, forsake (a person or place, etc.)....
Kloss's requested instruction defining "elude" read as follows:
"Elude" defined:¶12 The superior court denied Kloss's request, again noting that the requested definition of flee focused on speed and would create "the suggestion to the jury that an ordinary meaning of flee would include speed, [and] it [would] suggest[] then the lack of speed means he must have a defense; because he didn't speed, he can't be guilty of this, when, in fact, that's not what the law says." At Kloss's request, the superior court instructed the jury that words not defined by statute "are to be given their ordinary common meaning." Kloss was convicted on both the unlawful flight and the endangerment counts.
An "attempt to elude" connotes adroit maneuvers. The definition of "elude" is "to slip away from, escape adroitly from (a person's grasp or pursuit, lit. and fig.); to evade (curiosity, vigilance, etc.)." In the context of the operation of a motor vehicle, such might include quick turns, driving with the lights off, driving where the pursuing vehicle could not follow, or attempting to hide.
In Fogarty, this sentence does not state "Flee is defined as follows," but rather reads: "The Oxford English Dictionary, vol. 5 (2d ed. 1989), lists the following meanings of the word which might be apropos in this context." Fogarty, 178 Ariz. at 172, 871 P.2d at 719.
In Fogarty, this sentence does not state "Flee is defined as follows," but rather reads: "The Oxford English Dictionary, vol. 5 (2d ed. 1989), lists the following meanings of the word which might be apropos in this context." Fogarty, 178 Ariz. at 172, 871 P.2d at 719.
DISCUSSION
I. DUI Convictions: Warrantless Search Was Valid Under the Automobile Exception.
¶13 The automobile exception to the warrant requirement applies where "a car is readily mobile and probable cause exists to believe it contains contraband." Maryland v. Dyson, 527 U.S. 465, 467 (1999) (citation omitted). Probable cause exists when, under the totality of the circumstances, a reasonable person could believe that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Espinosa-Gamez, 139 Ariz. 415, 420, 678 P.2d 1379, 1384 (1984) (applying Gates totality of the circumstances test to warrantless search of a car). ¶14 Here, Kloss caused an accident and witnesses, including an off-duty police officer, informed Deputy Schrey that Kloss was both at fault and intoxicated. After Kloss drove away, he swerved in and out of his lane, ignored repeated instructions to pull over as well as the lights and sirens on Deputy Schrey's patrol vehicle. When removed from his car, Kloss smelled of alcohol, was disoriented, was slurring his speech, was unable to maintain his balance, was sweating profusely and had bloodshot eyes. Deputy Schrey overheard Kloss tell the paramedic he had drunk a "fifth of vodka" and taken Oxycontin before driving. Moreover, from outside the car, Deputy Schrey could see what appeared to be drug paraphernalia (a small glass bottle or jar with traces of white powder) sitting in the center console. Given these facts, Deputy Schrey had probable cause to believe evidence regarding Kloss's drinking or misuse of prescription drugs would be found inside the car. Therefore, the warrantless search was valid under the automobile exception.
In light of this holding, this court need not and expressly does not address the other grounds relied upon by the superior court or argued by the parties.
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II. Unlawful Flight Conviction: "Flee" and "Elude" Are Not Defined by Statute and Properly Are to Be Given Their Ordinary Common Meanings.
¶15 The superior court's denial of a requested jury instruction is reviewed for an abuse of discretion. State v. Johnson, 212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006). Whether the instructions properly state the law is reviewed de novo. Id. Jury instructions must "adequately set forth the law applicable to the case." State v. Rosas-Hernandez, 202 Ariz. 212, 220, ¶ 31, 42 P.3d 1177, 1185 (App. 2002). "Courts do not err by refusing to give instructions that misstate the law." State v. Cox, 217 Ariz. 353, 356, ¶ 17, 174 P.3d 265, 268 (2007). Where the instructions are free from error, the convictions should be affirmed. See id. at ¶ 15. ¶16 The unlawful flight statute states that "[a] driver of a motor vehicle who wilfully flees or attempts to elude a pursuing official law enforcement vehicle that is being operated in the manner described in § 28-624, subsection C is guilty of a class 5 felony. The law enforcement vehicle shall be appropriately marked to show that it is an official law enforcement vehicle." A.R.S. § 28-622.01; see also State v. Martinez, 230 Ariz. 382, 384, ¶ 8, 284 P.3d 893, 895 (App. 2012). As correctly stated by the superior court, speed is not an element of the unlawful flight offense. Fogarty, 178 Ariz. at 171-72, 871 P.2d at 718-19. Although Fogarty acknowledged that "normal driving" at or near the speed limit is not the usual context involved in "eluding or fleeing a follower," even normal driving can constitute unlawful flight because "any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving." Id. (emphasis omitted). ¶17 The words "flee" and "elude," as used in the unlawful flight statute, are not defined by statute. See id. at 172, 871 P.2d at 719. Moreover, Kloss's requested jury instructions focus on the concepts of speed and evasive action, which are not elements of unlawful flight. Accordingly, the superior court did not err in finding the requested instructions misstated the law and could confuse the jury. A superior court does not err by refusing to give potentially misleading instructions. Cox, 217 Ariz. at 356, ¶ 17, 174 P.3d at 268. Here, the superior court correctly set forth the elements of unlawful flight and properly instructed the jury to use their understanding of the ordinary common meaning of "flee" and "elude" when determining whether Kloss's actions violated the statute. See A.R.S. § 1-213 (absent a statutory or technical definition, "[w]ords and phrases shall be construed according to the common and approved use of the language"). The superior court did not err. ¶18 Finally, Kloss argues that he was improperly precluded from arguing in closing that "flee" or "elude" normally involve speed or evasion. The superior court properly instructed the jury on the law and Kloss properly was allowed to argue the evidence in the context of that law. Kloss has made no showing that he was prevented from arguing that he left the accident scene and failed to pull over as instructed for reasons other than flight or evasion. Nor was Kloss prevented from arguing that his pace in driving from the scene was evidence that he lacked the intent to flee or elude the police. Again, the superior court did not err.
CONCLUSION
¶19 Kloss's convictions and sentences are affirmed.
________
SAMUEL A. THUMMA, Judge
CONCURRING: ________
PHILIP HALL, Presiding Judge
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PETER B. SWANN, Judge