Opinion
No. 2 CA-CR 2018-0073
03-25-2019
THE STATE OF ARIZONA, Appellee, v. DORA CELENA MATIAS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson 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NOT FOR PUBLICATION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 Cochise County
No. CR201700137
The Honorable James L. Conlogue, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Following a jury trial, Dora Matias was convicted of conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale, and possession of drug paraphernalia. On appeal, she argues the trial court violated her constitutional right to counsel by allowing her attorney to represent both her and her co-defendant. She also argues the court erred by denying her motion to suppress evidence because the law enforcement officer lacked reasonable suspicion to initiate a traffic stop. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 2 (App. 2013). In January 2017, Department of Public Safety Officer Tim Wiedemann saw a green sports utility vehicle (SUV) following a red sedan at an unsafe distance in the right-hand lane of a highway. He then paced the cars and determined they were driving about five miles per hour over the posted speed limit. Border Patrol Agent Daniel Mendoza, believing the cars were suspicious, was also following in an unmarked car. As Mendoza, who was driving in the left-hand lane, attempted to drive alongside the SUV to look inside, it suddenly changed lanes in front of him, causing him to brake and swerve into the right-hand lane to avoid a collision.
¶3 After the SUV turned left onto another street, Wiedemann activated his emergency lights and initiated a traffic stop. Matias's co-defendant, David Duffy, was driving, Matias was in the front passenger seat, and a third man was seated in the rear. While standing next to the vehicle, Wiedemann saw several "bundles . . . wrapped in burlap sacks" in the back. Based on his experience, he suspected the bundles contained marijuana and placed all three occupants of the car in handcuffs. Later testing revealed the bundles contained about 242 pounds of marijuana.
¶4 A grand jury indicted Matias for conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale, possession of marijuana for sale, and possession of drug paraphernalia. The jury found Matias guilty on all counts, but the trial court later dismissed the possession of marijuana count as a lesser-included offense of the transportation count. The court sentenced Matias to concurrent terms of imprisonment on the remaining counts, the longest of which is seven years. We have jurisdiction over Matias's appeal pursuant to A.R.S. § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The grand jury indicted Matias for two conspiracy counts. On the second day of trial, however, the trial court merged them into a single count. --------
Joint Representation
¶5 Matias first argues the trial court erred by allowing her attorney to represent both her and Duffy at trial. She contends the joint representation violated her Sixth Amendment right to counsel because the attorney could not effectively represent both of them as they could potentially have pursued different defenses. "We review de novo alleged violations of a defendant's Sixth Amendment right to counsel . . . ." State v. Boggs, 218 Ariz. 325, ¶ 50 (2008).
¶6 Before trial, the prosecutor suggested there could be a potential conflict if one attorney represented both Matias and Duffy based on the prosecutor's view that "there is at least a potential for adverse defenses." Defense counsel, however, avowed that Matias and Duffy had both signed an agreement "to waive any potential conflict." He further explained, "[T]he facts, as they pertain to both defendants, are identical. The statements that both defendants have made to counsel without going further, are identical. They appear to have a common defense, common defense strategy, and essentially we have a common defense agreement." The trial court deferred to defense counsel as to whether there was an impermissible conflict and confirmed the trial dates.
¶7 As an initial matter, Matias's argument that the joint representation violated her right to effective assistance of counsel may only be brought in the context of a proceeding for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. See State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). Specifically, any issue about why counsel did not pursue alternative defenses and whether she and Duffy signed a waiver of conflict are evidentiary issues that "can only be developed at an evidentiary hearing in a post-conviction relief proceeding." State v. Tucker, 205 Ariz. 157, ¶ 26 (2003). The case law Matias cites supports this conclusion. Those cases, establishing the applicable legal standards for whether joint representation gives rise to ineffective assistance of counsel, were decided in the Rule 32 context. See State v. Jenkins, 148 Ariz. 463, 465 (1986) (conflicts of interest stemming from "multiple representation of co-defendants" presents issue of "ineffectiveness of counsel"); see also Holloway v. Arkansas, 435 U.S. 475, 483-87 (1978) (trial courts must investigate objections to joint representation to ensure defendants' right to effective assistance of counsel not violated); State v. Martinez-Serna, 166 Ariz. 423, 425 (1990) (joint representation implicates "right to effective assistance of counsel"). Accordingly, we do not address Matias's argument that one attorney representing both defendants amounted to ineffective assistance of counsel. See Spreitz, 202 Ariz. 1, ¶ 9 (ineffective assistance of counsel claims raised on direct appeal "will not be addressed by appellate courts regardless of merit").
¶8 Matias further argues the trial court erred because it "never verified that the waiver of the conflict was knowing, intelligent, and voluntary." This standard, however, applies when a defendant waives her right to counsel entirely, which Matias did not do. See Faretta v. California, 422 U.S. 806, 834-36 (1975) (defendant must understand "dangers and disadvantages of self-representation" and knowingly and intelligently waive right to counsel); see also State v. Cook, 170 Ariz. 40, 48 (1991) (defendant has constitutional right to waive right to counsel so long as done knowingly and voluntarily); State v. Russell, 175 Ariz. 529, 531-32 (App. 1993) (same). Matias does not cite any authority, and we are aware of none, that requires a court to ensure a defendant's waiver of a conflict is knowing, intelligent, and voluntary.
¶9 To the extent Matias is arguing the trial court sua sponte should have conducted a further inquiry into whether joint representation was appropriate, we disagree. "Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). Moreover, based on defense counsel's ethical obligation to avoid conflicts of interest and inform the court should one arise, a court "may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist." Id. It is the attorney, and not the court, who "is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." Id. (quoting Holloway, 435 U.S. at 485). Based on defense counsel's avowals to the court as described above, the court acted appropriately by deferring to counsel's avowal that there was no conflict. See id.
¶10 Moreover, nothing in the record would have alerted the trial court to any possible conflict. Consistent with their counsel's previous statements, both Duffy and Matias testified at trial to the same version of events: A mutual friend had called Matias and asked if they would pick up the friend's father, who had been stranded in the Huachuca Mountains for a few days. They testified that after they found a man they assumed was their friend's father, he got into the vehicle and several men "jumped out" from the bushes and loaded the bundles of marijuana into the SUV. Believing that the male passenger was armed and that the red sedan and Mendoza's unmarked car were with the men who had just loaded the marijuana bales into their SUV, they cooperated. Accordingly, the court had no reason to know or even suspect any further inquiry into a potential conflict was necessary. See id.
Motion to Suppress
¶11 Matias next argues the trial court erred by denying her motion to suppress evidence found during the traffic stop. She contends the officer lacked reasonable suspicion that Duffy had committed a traffic violation. Considering only the evidence presented at the suppression hearing, State v. Gonzalez, 235 Ariz. 212, ¶ 2 (App. 2014), "[w]e review a denial of a motion to suppress for an abuse of discretion, but review constitutional issues de novo," State v. Huez, 240 Ariz. 406, ¶ 3 (App. 2016) (quoting State v. Salcido, 238 Ariz. 461, ¶ 6 (App. 2015)).
¶12 An investigatory traffic stop constitutes a seizure under the Fourth Amendment. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996). Because such stops are less intrusive than an arrest, an officer may initiate the stop if he has "'an articulable, reasonable suspicion, based on the totality of the circumstances,' that a traffic violation has occurred." State v. Sweeney, 224 Ariz. 107, ¶ 16 (App. 2010) (quoting State v. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007)); see also State v. Starr, 222 Ariz. 65, ¶ 11 (App. 2009).
¶13 At the suppression hearing, Officer Wiedemann testified that he had seen a green SUV driving behind a red sedan "closer than reasonable and prudent," in violation of A.R.S. § 28-730(A). He then "caught up to the vehicles" and "began pacing them at 60 miles an hour," despite the fifty-five-mile-per-hour posted speed limit. See A.R.S. § 28-701; see also State v. Rich, 115 Ariz. 119, 121 (App. 1977) (driving over posted speed limit creates presumption of violation of § 28-701). Lastly, he observed the SUV make an unsafe lane change by "cut[ting] . . . off" Officer Mendoza's vehicle, forcing him to "swerve[] into the right lane." See A.R.S. § 28-729. Based on these observed violations, Wiedemann initiated a traffic stop of the SUV. We agree with the trial court's determination that reasonable suspicion supported Wiedemann's decision to stop the SUV. See Sweeney, 224 Ariz. 107, ¶ 16; see also Heien v. North Carolina, ___ U.S. ___, ___, 135 S. Ct. 530, 536 (2014).
¶14 Matias argues, however, that "the stop was based not on reasonable suspicion, but rather on [Mendoza's] attempt to force . . . Duffy to commit a traffic violation." She points to Duffy's trial testimony that Mendoza had pulled parallel to him, gestured, and "swerved into [Duffy's] lane." But Duffy did not testify at the suppression hearing, and this court is not permitted to consider trial testimony when reviewing a motion to suppress. See Gonzalez, 235 Ariz. 212, ¶ 2. In ruling on the motion to suppress, the trial court only heard testimony from the officers who had observed Duffy abruptly change lanes in front of Mendoza, causing him to swerve to avoid a collision. See State v. Olquin, 216 Ariz. 250, ¶ 10 (App. 2007) (this court defers to trial court's determinations of witness credibility). Moreover, Wiedemann testified he had observed two other traffic violations, either of which provided reasonable suspicion to initiate the traffic stop. See Sweeney, 224 Ariz. 107, ¶ 16. We therefore reject this argument.
¶15 Matias further asserts that Wiedemann only stopped the SUV based on Mendoza's "hunch" that it seemed suspicious. As described above, however, Wiedemann testified he had observed the driver of the SUV commit three separate traffic violations, thus giving him reasonable suspicion to stop the vehicle. See id. Further, to the extent Matias is arguing that Wiedemann only initiated the stop because of Duffy's actions towards another "law enforcement vehicle," we note that an officer's subjective motives are irrelevant so long as the stop is otherwise supported by reasonable suspicion. See State v. Livingston, 206 Ariz. 145, ¶ 13 (App. 2003). Even so, the fact that a law enforcement vehicle and officer were placed in peril by an unsafe-lane-change traffic violation does not make the conduct any less a traffic violation. Because the traffic stop here was supported by reasonable suspicion, the trial court did not abuse its discretion in denying Matias's motion to suppress. See Huez, 240 Ariz. 406, ¶ 3; see also Sweeney, 224 Ariz. 107, ¶ 16.
Disposition
¶16 For the reasons stated above, we affirm Matias's convictions and sentences.