Opinion
No. 2 CA-CR 2016-0396
04-09-2018
THE STATE OF ARIZONA, Appellee, v. MACARIO MARRUFFO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201502989
The Honorable Richard T. Platt, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Macario Marruffo appeals from his convictions for possession of a narcotic drug for sale, possession of a dangerous drug, possession of drug paraphernalia, and use of electronic communication in a drug-related transaction. He argues that the trial court erred by admitting evidence obtained during the search of his residence, admitting evidence obtained during the warrantless search after the seizure of his person and personal property, and failing to ascertain sua sponte the intent behind the jury's inconsistent verdicts as to count one. We affirm.
Factual and Procedural Background
¶2 In September 2015, Casa Grande Police Detective Brian McCloskey contacted Probation Officer Nancy Rivera, informing her that Marruffo, who was under probation supervision, was selling illegal drugs and was in possession of a shotgun for sale. If true, either one of those acts would have been a violation of the terms and conditions of Marruffo's probation. Without McCloskey asking her to do so, Rivera consulted with her supervisor and decided to search Marruffo's residence the following morning. Rivera then asked McCloskey to help with the search. Rivera wrote a memorandum in support of the search that her supervisor approved, developed a search plan, and held an operational meeting before the search of Marruffo's home.
As part of his conditions of probation, Marruffo had agreed to submit to warrantless searches and seizure of his person and property, including unrestricted access to his residence.
¶3 The morning after Rivera received the police tip, Marruffo met with Rivera at the probation office, where another probation officer handcuffed Marruffo, patted him down, and seized his cell phone. Rivera and another probation officer then drove Marruffo to his home. Rivera, accompanied by police officers, knocked at the door of Marruffo's house and made initial contact with those inside. After police officers did a protective sweep of the home, Rivera directed the search, which included the use of a K-9 unit police dog. The police dog alerted to a large wooden bar, behind which police officers found prescription bottles bearing Marruffo's name, baggies, and foil-wraps. Officers also found a digital scale, a glass pipe, and a sawed-off shotgun. It was later determined that "usable quantities" of methamphetamine and heroin were on the baggies and foil found behind the bar.
¶4 After a jury trial, Marruffo was found guilty on the above charges. Count one was addressed on two separate verdict forms: one form for a verdict on the greater offense of "possession of a narcotic drug for sale" and a separate form for a verdict on the lesser-included offense of "possession of a narcotic drug." Marruffo requested an instruction and verdict form for the lesser-included offense, and both counsel approved the verdict forms. The trial court instructed the jury that any consideration of count one's greater offense included the option of reaching a verdict on the lesser-included offense if, after deliberation, it either could not reach a verdict or acquitted Marruffo of the greater offense. The verdict form for count one's lesser-included offense gave the jury a substantially similar instruction.
¶5 Notwithstanding the instructions, the jury found Marruffo guilty of both the greater offense of possession of a narcotic drug for sale and the lesser-included offense of possession of a narcotic drug. After polling each juror, during which the jurors reconfirmed their verdicts on the greater offense in count one, and hearing arguments from counsel, the trial court vacated the lesser-included verdict on count one. Marruffo had argued that the greater offense should be vacated, but otherwise did not ask the court to clarify the jury's verdict before the jury was excused. Marruffo was sentenced to enhanced, aggravated, concurrent prison terms, the longest of which was twenty-five years. This appeal followed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031 and 4033(A).
Search of Marruffo's Home
¶6 Marruffo argues that the trial court erred by admitting evidence found during the search of his home. "We review a trial court's ruling on a motion to suppress for abuse of discretion, considering only the evidence presented at the suppression hearing and viewing the facts in a light most favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, ¶ 9 (2016).
¶7 The Fourth Amendment protects persons' homes "against unreasonable searches and seizures." U.S. Const. amend. IV. Generally, law enforcement officers may not enter or search a person's home without a warrant. Adair, 241 Ariz. 58, ¶ 13, citing Payton v. New York, 445 U.S. 573, 590 (1980). However, because a probationer has a "significantly diminished privacy interest," id. ¶ 23, quoting U.S. v. Knights, 534 U.S. 112, 121 (2001), a warrantless search of a probationer's home is allowed when the search is reasonable under the totality of the circumstances, id. ¶ 18, and serves a "probationary purpose," State v. Webb, 149 Ariz. 158, 163-64 (App. 1985).
¶8 Here, however, Marruffo does not challenge the reasonableness of the search itself, but rather alleges that the probation office was used as pretext, or a "stalking horse," for a warrantless police search. Although "it is impermissible for police to use probation officers as a pretext for conducting a criminal investigation, . . . it is . . . well settled that police may accompany a probation officer . . . to provide protection and to expedite the search." State v. Hill, 136 Ariz. 347, 349 (App. 1983). Moreover, in certain circumstances, "the probation officer can authorize a police search." Id. Searches by probation officers are "not rendered invalid by the presence of police nor by the fact that the probation officer [is] aided by police" officers in doing the search, nor is it invalid "merely because the information which prompted it originated with the police." State v. Turner, 142 Ariz. 138, 143 (App. 1984).
¶9 In Turner, a probation officer had been told by a police officer that the defendant, following a traffic accident, had asked a third party to "'stash' a canvas bag for him." 142 Ariz. at 143. The later search of the defendant's bag was determined not to be unreasonable, nor was it deemed invalid, due to the presence or aid of the police officer. Id. Likewise, in Webb, law enforcement officers shared information with a parole officer, indicating that the defendant had committed a crime, thus violating terms of his probation. 149 Ariz. at 162. Based on that information, the parole officer, with help from the police officers, searched the defendant's apartment. Id. The fact that a law enforcement officer initiated the search did not make the parole officer a "stalking horse," because the search was done with a "probationary purpose." Id. at 163-64.
¶10 Here, the allegations against Marruffo would have been, if true, violations of the terms of his probation. The probation officer independently sought and received her supervisor's authorization for the search, prepared documents to support the search, and organized and planned the search, then initiated contact at the residence, and directed law enforcement officers throughout the search. As in Turner and Webb, the search here is not invalid because a police officer supplied the information that led to the search and then joined in the search. The search was conducted by a probation officer for probationary purposes, and not as a mere pretext for a warrantless search by a law enforcement officer. Thus, we find no error in the trial court's admitting evidence obtained during the search of Marruffo's home.
Search at Probation Office
¶11 Marruffo argues that the trial court committed fundamental error by failing sua sponte to suppress evidence gained from his cell phone because the phone was taken from him while he was illegally detained at the probation office. Because Marruffo failed to raise this issue below, we only review for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). In order to prevail on a claim of fundamental error, the defendant must establish that fundamental error occurred and the error caused him prejudice. Id. ¶ 20. This burden is placed on the defendant to ensure that he does not reserve "the 'hole card' of a later appeal on [a] matter that was curable at trial." Id. ¶ 19, quoting State v. Valdez, 160 Ariz. 9, 13-14 (1989). Fundamental error is error that goes to the foundation of the case such that it takes from the defendant a right essential to his defense, and is of such magnitude that the defendant could not possibly have received a fair trial. Id.
¶12 Marruffo argues that his detention was unlawful as a de facto arrest unsupported by probable cause, and that the search thereafter was an illegal search incident to that unlawful arrest. Marruffo raises this argument for the first time on appeal. He did not raise any objection to the arrest and search in the motion to suppress in the trial court. Consequently, no evidence was taken on these questions, the state was not put to its burden of proving a lawful arrest and legal search, the trial judge made no fact-finding, and there is no developed record. What has been presented on appeal is "wholly inadequate" for this court to evaluate whether reversible, fundamental error occurred. State v. Estrella, 230 Ariz. 401, n.1 (App. 2012). For example, to the extent there was probable cause for such an arrest, it was based on the information originally provided by a confidential informant; however, the record is inadequate as to that information and that informant's reliability. Moreover, it is not clear when in the course of events Marruffo was patted down. As the state points out in its brief, had Marruffo raised these issues below, the state could have developed facts which would have enabled the trial court to determine whether the pat down was consensual, or if it was a valid probation search, Terry frisk, or search incident to a lawful arrest, or if the phone would have been inevitably discovered after Marruffo was arrested after the search of his home.
At the first suppression hearing, Rivera testified that Marruffo was handcuffed, but she did not mention searching him. At a second suppression hearing, Rivera testified that Marruffo was handcuffed and then patted down. However, at trial, Rivera testified that Marruffo was patted down prior to being detained.
Terry v. Ohio, 392 U.S. 1 (1968). --------
¶13 Where a "trial court has not had the opportunity to conduct an evidentiary hearing on the question and to develop a record on the issue for us to examine on appeal," it is "inappropriate" for us to engage in the fundamental error review. State v. Cook, 170 Ariz. 40, 58-59 (1991). Given the state of the record, as in Cook, we will not engage in fundamental error review here. The defendant has a remedy by a petition for post-conviction relief. State v. Anderson, 174 Ariz. 431, 433 (1993).
Verdict
¶14 Marruffo argues that the trial court erred when it failed to ascertain the actual intent behind the jury's verdict as to count one. We review whether the trial court properly vacated the verdict for a lesser-included offense upon conviction of the greater offense de novo. State v. Stuart, 168 Ariz. 83, 87 (App. 1990). However, because Marruffo did not argue below that the court should have further clarified the verdict, he has forfeited the right to relief for all but fundamental, prejudicial error. State v. Brown, 191 Ariz. 102, 103 (App. 1997); Henderson, 210 Ariz. 561, ¶ 19.
¶15 "A verdict must be unqualified and unambiguous, and a trial court may not accept a verdict if it is defective but must either direct the jury to retire for further deliberation or declare a mistrial." State v. Hansen, 237 Ariz. 61, ¶ 11 (App. 2015) quoting United States v. Lee, 532 F.2d 911, 913 (3d Cir. 1976) (internal quotation marks and alteration omitted). However, when a jury finds a defendant guilty of both a greater offense and its lesser-included offense, ambiguity and inconsistency are curable by polling the jurors. United States v. Howard, 507 F.2d 559, 563 (8th Cir. 1974), approved by State v. Engram, 171 Ariz. 363 (1991); Brown, 191 Ariz. at 103 (no fundamental error where jurors were polled).
¶16 In Engram, the jury returned verdicts for both the greater and its lesser-included offense. 171 Ariz. at 364. The trial court then polled the jurors to confirm their verdicts on the greater offense, but did not poll them on the lesser-included offense. Id. Once the court confirmed that the jurors intended to reach a verdict on the greater offense, but without informing counsel that an inconsistent guilty verdict on the lesser-included offense had also been rendered, he sua sponte vacated the verdict on the lesser-included offense. Id. Once informed of the inconsistent verdicts, neither party objected or asked for any further clarification of the jury. Id. at 366. Though this court found no reversible error, we recommended that a trial court in such a case explain the situation to the jury, reinstruct it on the law, and then allow it to deliberate further. Id.
¶17 In State v. Rich, when the jury returned verdicts for the greater and lesser-included offenses, the trial court read only the greater offense, did not inform counsel of the lesser-included verdict, polled the jury on the greater offense, and sua sponte dismissed the lesser-included offense. 184 Ariz. 179, 180 (1995). Our supreme court noted that "[r]ather than notify counsel and follow the procedure recommended in Engram, the court took it upon itself to ignore the problem." Id. at 181. Because the trial court did not inform the parties of the inconsistent verdicts and allow them to object and argue for a different procedure, the supreme court reversed. Id.
¶18 In Brown, the jury returned verdicts for both the greater and lesser-included offense. 191 Ariz. at 103. The trial court informed counsel of the inconsistent verdicts and told the jurors he deemed the verdict for the lesser-included offense to be "surplusage." Id. Neither counsel objected or asked the court to poll the jury. The court then had the verdicts read and set aside the verdict on the lesser-included offense. Id. At that point, the prosecutor asked the judge to poll the jury, which he did, and the jurors confirmed their verdicts. Id. On appeal, Brown argued that the court erred because it did not take the "preferable course of action" of reinstructing the jury on the law and allowing them to deliberate further. Id. However, because Brown had not asked the court do so, and because the jurors reconfirmed their verdicts once polled, we did not find fundamental error had occurred. Id.
¶19 Here, as in Brown and Engram, the jury returned verdicts for both the greater and lesser-included offense, and the jury reconfirmed its verdicts after being polled. Marruffo did not object to how the trial court handled the situation, nor did he ask the court to reinstruct the jury and permit the jurors to deliberate further. In any event, even if we were to assume error occurred and that the error could be characterized as fundamental, Marruffo has not established how he has been prejudiced. We therefore find no fundamental error. State v. Valverde, 220 Ariz. 582, ¶¶ 17-18 (2009).
Disposition
¶20 For the reasons stated above, we affirm Marruffo's convictions and sentences.