Opinion
No. 2 CA-CR 2015-0458
05-29-2018
THE STATE OF ARIZONA, Appellee, v. DANNY RAY MORRIS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee John William Lovell, 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NOT FOR PUBLICATION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. CR201400380
The Honorable John F. Kelliher Jr., Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee John William Lovell, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Following a jury trial, Danny Morris was convicted of possession of marijuana for sale and four counts of possession of drug paraphernalia. The trial court sentenced him to 10.5 years' imprisonment for the drug possession offense, to be followed by three years of supervised probation for the paraphernalia possession offenses. On appeal, Morris raises a number of issues relating to the search warrant and his motion to suppress the evidence resulting from the search. He also argues the court erred in admitting certain other evidence and in precluding him from calling a late-disclosed witness. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In reviewing a motion to suppress, we consider only the facts presented to the trial court at the suppression hearing, viewing those facts in the light most favorable to upholding the court's ruling. State v. Mendoza-Ruiz, 225 Ariz. 473, n.1 (App. 2010). In February 2014, after being arrested with a backpack containing marijuana, A.H. informed Cochise County Sheriff's detectives she had been at Morris's house the previous day to deliver water for "undocumented alien drug mules" on the property. While there, she had seen "8-10 bundles of marijuana" in the house, and Morris had cut the marijuana in her backpack from one of those bundles. A.H. also said Morris had received the bundles of marijuana on the property after they were dropped there by "an ultra light air craft," although it is unclear whether she personally witnessed the delivery or heard about it from Morris. A.H. also mentioned having "seen a handgun at the house" and that Morris had traded marijuana in exchange for a vehicle, without stating when either incident had occurred or how she knew about the latter. The record does not reflect precisely when the interview took place or how long it lasted, but it was evening by the time A.H. left the police substation.
¶3 Based on the information A.H. provided, along with three outstanding warrants for Morris's arrest, including one for failure to appear on marijuana and paraphernalia charges, Detective Hudson contacted Justice of the Peace Timothy Dickerson about submitting a search warrant application via fax. Judge Dickerson swore in the detective by telephone and reviewed the faxed affidavit and warrant, ultimately signing the warrant and emailing it back. Detective Hudson's "supervisors and the powers that be" then decided to utilize a SWAT team to conduct and serve the warrant, but there was not enough time remaining in the day "to have all of the resources brought in before the 10:00 p.m. . . . time-frame for a daytime search." Hudson again contacted Judge Dickerson about changing the warrant to a nighttime search, to which the judge agreed.
¶4 Following the execution of the search warrant by the SWAT team, evidence was obtained that resulted in the charges against Morris, who had not been present that night and was not actually found and arrested for some weeks. Morris filed a motion to suppress all the evidence on the basis that it had been obtained in violation of the state and federal constitutions, A.R.S. §§ 13-3913, 13-3914, and 13-3917, and Franks v. Delaware, 438 U.S. 154 (1978), and State v. Buccini, 167 Ariz. 550 (1991). The trial court held a two-day hearing on the motion to suppress, but ultimately denied the motion on each basis alleged. Morris was subsequently convicted and sentenced as noted above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Search Warrant
¶5 "We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Moody, 208 Ariz. 424, ¶ 62 (2004) (internal citation omitted). However, when a defendant has not objected to an alleged error before the trial court, our review is limited to fundamental error, which is that "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, ¶ 19 (2005), quoting State v. Hunter, 142 Ariz. 88, 90 (1984). Additionally, "we are required to affirm [a trial] court's denial of [a] motion to suppress for any legally correct reason." State v. Boteo-Flores, 230 Ariz. 551, ¶ 8 (App. 2012).
Nighttime Search
¶6 Morris first argues the nighttime execution of the search warrant by the SWAT team violated his rights under the Fourth Amendment to the U.S. Constitution and article II, § 8 of the Arizona Constitution. In particular, he argues there was no good cause for the warrant to be served at night, as required by § 13-3917, and therefore the search violated article II, § 8 of the Arizona Constitution, which states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Morris additionally argues "the use of SWAT to serve the search warrant at night was unreasonable and, therefore, in violation of the Fourth Amendment." We address these arguments in turn.
¶7 Section 13-3917 provides, "Upon a showing of good cause therefor, the magistrate may, in his discretion[,] insert a direction in the warrant that it may be served at any time of the day or night. In the absence of such a direction, the warrant may be served only in the daytime." The statute defines "night" as "the period from ten p.m. to six-thirty a.m." § 13-3917. As he did below, Morris cites State v. Rypkema, 144 Ariz. 585 (App. 1985), in support of his argument challenging the requisite showing of good cause.
¶8 In Rypkema, this court addressed good cause under § 13-3917 where the state asserted the nighttime search was merited because of "the urgency of the moment," the commonness of "drug sales at night," the defendant's reputation as a known drug trafficker, and information the defendant "allegedly just brought back to the residence a large quantity of cocaine." Id. at 588. We concluded good cause had not been established, noting the affidavit did "not indicate drug transfers observed at any time, much less during the night, nor any facts from which the magistrate could infer that there was a possibility of a violent confrontation during a daytime search." Id. at 589. In fact, we found the affidavit "made no effort whatsoever, as testified to by the affiant, to set forth any reasons why the house should be searched at night." Id. We concluded "[t]he state's reliance on the nature of the contraband and the allegation that drug sales often occur at night [we]re insufficient to support a nighttime search," to which there is a "strong historical aversion." Id. at 588-89.
¶9 Here, the state attempts to distinguish Rypkema, arguing "the possible presence of numerous people on the property and of at least one firearm, combined with the quantity of marijuana, posed the possibility of a violent confrontation." The state additionally argues the fact that Morris had given A.H. some marijuana and traded more to someone else for a vehicle, along with the "undocumented alien drug mules" present on the property, "leads to a reasonable inference that the immigrants were there to move the bundles of marijuana that had recently arrived by ultralight aircraft." We are unpersuaded.
¶10 Two instances of drug trades, only one of which was actually identified as having occurred on the property, do not rise to the level that sales were "occurring during all times of the day and night from the residence to be searched" accepted by our supreme court in State v. Jackson, 117 Ariz. 120, 122 (1977), and discussed in Rypkema, 144 Ariz. at 589. Nor does the presence of "undocumented alien drug mules" and one handgun, without more, suggest a daytime search would have heightened the possibility of a violent confrontation. See Rypkema, 144 Ariz. at 589, citing Tuttle v. Superior Court, 174 Cal. Rptr. 576, 580 (Ct. App. 1981) ("The crux of this case . . . is that there are no facts within the affidavit which could reasonably allow a magistrate to infer that it was probable the contraband would be moved or the possibility of a violent confrontation lessened by nighttime service.").
¶11 Like the affiant in Rypkema, Detective Hudson's testimony at the suppression hearing indicates he had not demonstrated good cause for a nighttime search. 144 Ariz. at 589. Indeed, he acknowledged that when he had telephoned Judge Dickerson the second time to request nighttime service of the warrant, he may not have even informed the judge the request was based on the SWAT team needing more time. And the detective expressly stated he had offered no additional information to justify the nighttime search. Both his testimony and that of Judge Dickerson suggested they believed nighttime service was warranted merely because of the movable nature of the contraband. But that is insufficient to establish good cause under § 13-3917. See id.
¶12 As Morris acknowledges, however, A.R.S. § 13-3925(A) states, "Any evidence that is seized pursuant to a search warrant shall not be suppressed as a result of a violation of this chapter except as required by the United States Constitution and the constitution of this state." That section was added in 2000, after Rypkema was decided. See 2000 Ariz. Sess. Laws, ch. 49, § 4. Thus, although previously "suppression of the fruit of the nighttime search [wa]s the proper remedy for a violation of § 13-3917," Rypkema, 144 Ariz. at 590, such is no longer the case. See State v. Foncette, 238 Ariz. 42, ¶ 25 (App. 2015) ("Absent a constitutional violation, Arizona law does not contemplate suppression of evidence to remedy a violation of the nighttime search statute.").
¶13 Below, Morris argued only that the nighttime search violated § 13-3917. On appeal, he additionally contends it violated the Arizona and federal constitutions, acknowledging that his failure to raise those issues in the trial court has waived all but fundamental error on appeal. See Henderson, 210 Ariz. 561, ¶ 19. Morris now argues the lack of good cause for nighttime service of the search warrant means it was served "without authority of law," and therefore in violation of his rights under article II, § 8 of the Arizona Constitution. According to Morris, the language of article II, § 8 elevates to a constitutional violation any statutory breach touching upon a person's privacy rights. Under that line of reasoning, however, § 13-3925(A) would be both self-contradictory and a nullity under the Arizona Constitution insofar as it draws a distinction between statutory and constitutional violations of search warrant procedures. We need not dwell on this issue, however, because Morris has identified no authority to support it, nor has he proffered any authority distinguishing article II, § 8 from the Fourth Amendment in this context. See State v. King, 226 Ariz. 253, ¶ 11 (App. 2011) (appellate arguments must be supported by authority to avoid abandonment and waiver).
There are only a few limited circumstances in which our supreme court has found the Arizona Constitution to provide greater protection than the U.S. Constitution. See State v. Ault, 150 Ariz. 459, 466 (1986) (declining to extend inevitable discovery doctrine to home, based on violation of article II, § 8 of the Arizona Constitution regardless of federal law); State v. Bolt, 142 Ariz. 260, 265 (1984) (per state constitutional law, warrantless entry of home prohibited absent exigent circumstances or other necessity). Those cases are not relevant here, nor do they extend as far as Morris suggests.
¶14 Morris also claims "the use of SWAT to serve the search warrant at night" violated the reasonableness clause of the Fourth Amendment. In support, he cites a number of federal cases, but none is on point or persuasive here. As an initial matter, United States v. Curry, 530 F.2d 636, 637 (5th Cir. 1976), addressed not the Fourth Amendment's application to nighttime search warrants but rather the good cause requirement for nighttime service under Rule 41, Fed. R. Crim. P., and we have already determined good cause was lacking here.
Although the version of Rule 41 in effect at the time Curry was decided referred to "reasonable cause" for nighttime service, see Curry, 530 F.2d at 637, the current version refers to "good cause," see Fed. R. Crim. P. 41(e)(2)(A)(ii).
¶15 Additionally, Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005), Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179 (10th Cir. 2001), Ernst v. City of Eugene, 903 F. Supp. 2d 1172 (D. Or. 2012), and Rush v. City of Mansfield, 771 F. Supp. 2d 827 (N.D. Ohio 2011), are distinguishable in that they involved civil rights lawsuits against government officials and did not consider the admissibility of evidence seized pursuant to a search warrant. Thus, the "reasonableness" referred to in those cases did not implicate the validity of the search, much less any search warrant, but rather the reasonable-use-of-force test of Tennessee v. Garner, 471 U.S. 1, 7-8 (1985), and Graham v. Connor, 490 U.S. 386, 397 (1989). Notably, Morris was not at the property during the search and therefore has no basis for arguing the police used unlawful force against him while conducting it.
¶16 Morris lastly cites Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011), as authority for suppressing the evidence based on the use of the SWAT team for the nighttime execution of the search warrant. Although that too was a civil rights action against government officials, the court considered the validity of the search warrant. See id. at 1083. The court expanded the federal rule that "a no-knock entry is justified only by 'exigent circumstances'" to the use of a SWAT team to conduct a search at night, citing many of the same civil rights cases as Morris does here. Id. at 1085-86.
¶17 To the extent Bravo could be construed as authority for applying the exclusionary rule to nighttime SWAT team searches in the absence of exigent circumstances, we first note that we are not bound by Ninth Circuit precedent. See State v. Montano, 206 Ariz. 296, n.1 (2003) ("We are not bound by the Ninth Circuit's interpretation of what the Constitution requires."). Moreover, at least two other federal circuit courts have indicated that nighttime searches are not subject to different Fourth Amendment standards than daytime searches. See Youngbey v. March, 676 F.3d 1114, 1124-26 (D.C. Cir. 2012); United States v. Rizzi, 434 F.3d 669, 675 (4th Cir. 2006). Rizzi, unlike the cases Morris cites, considered suppression of evidence resulting from a nighttime search, and noted, "The Supreme Court . . . has never held that the Fourth Amendment prohibits nighttime searches." 434 F.3d at 675. The court further reasoned, "Unlike the simple knock-and-announce requirement, the appropriate time for a search of a home is not amenable to a universal rule." Id.
¶18 We find this reasoning more persuasive than that in Bravo and therefore reject Morris's argument that a nighttime SWAT team search, at least on the facts before us, "requires higher justification beyond mere probable cause" to be reasonable under the Fourth Amendment. Accordingly, we conclude the nighttime SWAT team execution of the search warrant here did not violate Morris's constitutional rights. Additionally, although there was not good cause for the nighttime service of the warrant under § 13-3917, Morris has not demonstrated that statutory violation amounted to a violation of the Arizona Constitution. Thus, in accordance with § 13-3925(A), suppression of the evidence was not required under the circumstances here.
Amendment of Search Warrant Request
¶19 Morris also challenges the validity of the search warrant on grounds that Hudson's telephonic request for nighttime service "was not recorded, nor was there evidence that the request was made under oath or affirmation," in violation of the Fourth Amendment and Arizona statutes. Although Morris raised the recording issue below, he concedes he did not mention the oath-or-affirmation issue and therefore our review of his constitutional argument is again limited to fundamental error. See Henderson, 210 Ariz. 561, ¶ 19.
¶20 Section 13-3914(C) provides that in place of or in addition to a written affidavit, "the magistrate may take an oral statement under oath which shall be recorded" and "is deemed to be an affidavit for the purposes of issuance of a search warrant." Morris argues that Detective Hudson's call requesting nighttime authorization constituted an amendment of the previously authorized warrant and the failure to record it violated § 13-3914(C). Because a violation of § 13-3914(C) without an accompanying constitutional violation would not be subject to suppression pursuant to § 13-3925(A), however, we need not address Morris's statutory argument and instead consider only his constitutional one.
¶21 Morris relies on State v. Boniface, 26 Ariz. App. 118 (1976), in which we considered whether a police officer's call to the magistrate explaining that the address for the previously authorized search warrant had been incorrect but that he had obtained the correct address from the informant, needed to be recorded and under oath for the magistrate to authorize the address change. Id. at 119. Citing the Fourth Amendment's text that warrants must "particularly describ[e] the place to be searched," and noting that the street address was the only location description provided for the warrant, we concluded that changing the listed address was an "amend[ment]." Id. at 119-20. We then considered whether a warrant can be amended over the telephone, concluding it could be as long as the information conveyed was given under oath and recorded in compliance with § 13-3914(C). Id. at 121. As Morris points out, we stated that such an amendment "is tantamount to the issuance of a new warrant." Id.
When Boniface was decided, § 13-3914(C) was codified as A.R.S. § 13-1444(C) but was materially the same. See 26 Ariz. App. at 120; 1977 Ariz. Sess. Laws, ch. 142, § 142.
¶22 The situation in the present case, however, is readily distinguishable from that addressed in Boniface. While the Fourth Amendment specifically states that warrants must "particularly describ[e] the place to be searched," it does not say anything about the time for warrants to be served. See U.S. Const. amend. IV. And Boniface suggests no constitutional requirement that the warrant specify whether it was to be served during the day or at night. Thus, Morris has not established that changing the time of service is "tantamount to the issuance of a new warrant" under the Fourth Amendment, Boniface, 26 Ariz. App. at 121, or any fundamental error on this ground. Franks Analysis of Warrant Affidavit
¶23 Morris next argues the evidence resulting from the warrant should have been suppressed under Franks, 438 U.S. 154, and Buccini, 167 Ariz. 550, because Detective Hudson "fabricated, exaggerated and misrepresented material information" supporting the warrant. Under those cases, evidence will be ruled inadmissible if the defendant proves "by a preponderance of the evidence that the affiant's statement to the judge was knowingly or intentionally false or was made in reckless disregard for the truth, and that the false statement was necessary to a finding of probable cause." State v. Spreitz, 190 Ariz. 129, 145 (1997). We review a trial court's findings on the first prong of the Franks test for clear error, but if that prong is met, we review de novo whether the remainder of the affidavit provided sufficient probable cause for the warrant to issue. See Buccini, 167 Ariz. at 554-55.
¶24 Morris raised Franks and Buccini in his motion to suppress below, arguing the warrant affidavit described the structures on the property but did not "mention . . . how Det. Hudson came to know the layout of the property well enough to describe it in detail." He also complained that Hudson did not inform the judge that the property had a caretaker, John Lang, who had "access to the entire property" or that Lang had "multiple prior felony convictions." And finally, Morris argued the affidavit should have stated that A.H. had denied ownership of the marijuana in the backpack just before implicating Morris and that she "was heavily addicted to pills and other drugs," and "had prior felony convictions."
¶25 At the suppression hearing, A.H. stated, "It's all—it is a blur. Everything's like—it is a blur, because I was really, really on a lot of pills." She also testified, "I don't remember saying anything [to the officers about Morris]. I don't remember exactly what I was asked. I do remember being panicked, being extremely panicked. And if I had said anything or did say anything, it was probably just to get them off my back." On cross-examination, the prosecutor asked A.H. if she was "guessing" about what she had told the officers because everything was "a blur," and A.H. responded, "I'm not guessing, I just—I can't see myself saying like a lot of these things. If I did, I truly apologize. I was really nervous."
¶26 Three officers also testified at the suppression hearing. Detective Hudson stated the information in his affidavit had come from what Deputy Clark and Detective Tartaglia told him A.H. said following her arrest. Hudson then "clarified some of the finer points" with A.H. while "drafting the affidavit." Deputy Clark testified that after he had arrived at the police substation with A.H., he took her to Detective Tartaglia so the detective could speak with her. And Tartaglia testified he and Detective Hudson had "beg[u]n to talk with [her], and pretty much Guy Hudson became the case officer, and I was just in and out of the office that we were talking to her in."
¶27 On appeal, Morris bases his Franks challenge on A.H.'s denial of "making all, or at least some, of the statements implicating Morris, attributed to her by Hudson, who did not interview her, with morsels picked up by Hudson from Clark and Tartaglia, neither of whom would admit to interviewing her." Morris argues "[t]he only reasonable explanation" for the officers' apparently contradictory testimony regarding who had interviewed A.H. was "that all, or at least some, of the statements allegedly made by [her] were fabricated or exaggerated in order to obtain the search warrant and because of this not one of the officers w[as] willing to take responsibility for the interview." The record, however, suggests otherwise.
¶28 First, the essence of A.H.'s statements as reported in Detective Hudson's warrant affidavit was that she had obtained the marijuana in her backpack from Morris the previous day, procured from a much larger supply he had at his house. A reasonable interpretation of the testimony is that A.H. conveyed this information to Deputy Clark and Detective Tartaglia outside a formal interview, and they passed it along to Detective Hudson before his meeting with A.H. to "clarif[y] some of the finer points," which Detective Tartaglia considered an interview but Detective Hudson did not. And A.H.'s denial of having told the officers anything about Morris was framed as her not recalling and yet apologizing for anything she did say. Most importantly, the testimony and credibility of the witnesses was for the trial court to assess and resolve, see State v. Waller, 235 Ariz. 479, ¶ 5 (App. 2014), as it did here. Thus, Morris has not shown by a preponderance of the evidence that the affidavit "was knowingly or intentionally false or was made in reckless disregard for the truth." Spreitz, 190 Ariz. at 145.
¶29 Morris also argues some of the "statements in the search warrant affidavit . . . were at best unreliable and misleading and at worst exaggerations or fabrications." He points to the averment that the marijuana reached the property via ultralight aircraft, with no indication whether A.H. had seen this occur or heard it from someone else, presumably Morris. Morris additionally complains the affidavit "did not state that [A.H.] saw [him] cut the marijuana from the bundles." Lastly, he points to the sentence, "[A.H.] stated on 2/12/14, Danny Ray Morris observed 8-10 bundles inside the house." That statement, however, appears to contain a mere typographical error. And as for the other alleged defects, "[a]n affidavit in support of the search warrant need not be drafted with the precision of a model legal instrument nor interpreted in a hyper-technical manner." State v. Jung, 19 Ariz. App. 257, 260 (1973). Again, we conclude the claimed flaws do not rise to the level of demonstrating a violation of Franks or Buccini.
Trial Judge's Statements at Hearing
¶30 Lastly, Morris claims the trial court demonstrated bias in favor of the magistrate who issued the search warrant and therefore its ruling on the motion to suppress violated the Due Process Clause of the Fourteenth Amendment. "A trial judge is presumed to be free of bias and prejudice. To rebut such a presumption, a party must prove bias or prejudice by a preponderance of the evidence." State v. Hurley, 197 Ariz. 400, ¶ 24 (App. 2000) (internal citations omitted). Morris acknowledges he did not raise this issue below; therefore, our review is once again limited to fundamental error. See Henderson, 210 Ariz. 561, ¶ 19.
¶31 At the start of the suppression hearing, the trial judge disclosed that Judge Dickerson was "a close personal friend, colleague of [his]" and that he was friends with two of the other witnesses. He also stated, "We have had past personal and professional contacts. And I don't know what he is going to testify to, but much like [one of the other witnesses], if he told me the sky was blue, I would believe it, if that causes anyone any concerns." After Judge Dickerson testified "in [his] opinion" he did not need "a great deal of extra bases" to authorize a nighttime search, the trial judge asked him to elaborate because he did not "do search warrants" or "know much about them." At the conclusion of Judge Dickerson's testimony, the trial judge reiterated, "I also consider Judge Dickerson a close personal friend. . . . And if he told me the sky was green, I would believe that."
¶32 Morris argues these statements reveal the trial judge "knew very little, or possibly nothing at all, about what constitutes good cause for search warrants or good cause for nighttime searches" and "essentially allowed Dickerson to educate him on what Dickerson believed constituted, or did not constitute, good cause for a nighttime search." We have already determined, however, that there was not good cause for the search warrant to be served at night, yet this did not mandate suppressing the evidence at trial. Thus, even crediting Morris's view of the trial judge's bias, we would not be able to conclude he was prejudiced. See Henderson, 210 Ariz. 561, ¶ 20 ("To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.").
Admission of Evidence
¶33 Morris next argues the trial court erred in allowing certain portions of his police interview to be played for the jury and in permitting Detective Hudson to testify about drug "organizations in Mexico" when use of the word "cartel" had been precluded. "We review a trial court's rulings on the admission of evidence for abuse of discretion," but review related questions of law de novo. State v. Leteve, 237 Ariz. 516, ¶ 18 (2015). As previously noted, when a defendant has failed to object to the evidence at trial, or to object on the same basis being argued on appeal, we review only for fundamental error. See State v. Cooney, 233 Ariz. 335, ¶ 9 & n.3 (App. 2013).
¶34 Before jury selection, the trial court granted Morris's oral motion to preclude testimony that there was methamphetamine residue on one of the items of drug paraphernalia he was charged with possessing. The court also precluded use of the word "cartel," although that ruling was limited to "mention by the State's witnesses on . . . direct examination." During discussion of that issue, the state observed that Morris had said "cartel" in his police interview, but Morris's attorney indicated she did not "think that the interview would even come in because there [wa]s a corpus [delicti] problem." There was no further discussion of the issue.
¶35 Two days later, as the recording of Morris's police interview was being played to the jury, Morris objected, arguing part of it had been precluded by the earlier motions in limine. The trial court and the parties then redacted the recording and accompanying transcripts in certain respects pursuant to the earlier rulings and new objections raised by Morris. Morris also asked the court to remove two questions and answers from the interview regarding where he bought methamphetamine. Those requests were denied after the state pointed out that the motion in limine had only covered references to methamphetamine residue on the paraphernalia found in Morris's trailer. Morris then argued the references should be precluded under Rule 403, Ariz. R. Evid., along with his remark, "when the Feds got [him]" ten years earlier. The court denied those requests as well.
¶36 On appeal, Morris challenges the trial court's refusal to redact the references to buying methamphetamine and the previous federal conviction from the police interview. In addition to his Rule 403 argument, Morris contends for the first time that the statements were irrelevant and inadmissible as relating to other acts under Rule 404(b), Ariz. R. Evid. Because Morris did not raise the relevancy or Rule 404(b) arguments before the trial court, our review of them is once more limited to fundamental error. See Cooney, 233 Ariz. 335, ¶ 8 & n.2.
¶37 Rule 403 provides that a trial court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Although the probative value of the statements complained of was low, we are unconvinced by Morris's passing and conclusory claims that the brief and isolated references were "highly prejudicial" and "more prejudicial than probative." Cf. Moody, 208 Ariz. 424, n.11 (failure to develop argument may constitute waiver). Nor do we find their admission to rise to the level of fundamental error under either Rule 401, Ariz. R. Evid., or Rule 404(b). Cf. State v. Almaguer, 232 Ariz. 190, ¶ 29 (App. 2013) (concluding isolated statements not further mentioned had no reasonable probability of having influenced verdict).
¶38 Morris additionally claims the trial court erred in declining to redact some brief statements he made about methamphetamine use and obtaining cocaine in Mexico. At trial, he argued, "if they came in, it wouldn't be for any probative purpose in this case." Similar to the earlier methamphetamine references, these statements spanned only a few lines of the interview transcript and Morris again argues for the first time on appeal they should have been excluded under Rule 404(b). Rule 401 provides, "Evidence is relevant if . . . it has any tendency to make a [consequential] fact more or less probable." Certainly Morris's admitted drug use had some tendency to make his guilt for the drug paraphernalia charges more probable. See Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 19 (App. 2000) ("evidence is relevant if . . . it 'alter[s] the probability, not prove[s] or disprove[s] the existence, of a consequential fact'"), quoting Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 496 (1987) (alterations in Yauch). And we are again unpersuaded by his fleeting assertion that it was unduly prejudicial under Rule 403. Cf. Moody, 208 Ariz. 424, n.11.
¶39 Moreover, Morris has not demonstrated that the admission of that small portion of his police interview constituted fundamental error under Rule 404(b). That rule bars other act evidence except for limited and specific purposes. See Ariz. R. Evid. 404(b). Morris defended against the paraphernalia charges at trial by suggesting the items were not his but rather belonged to John Lang, the property's caretaker. Prior drug use was thus relevant to show knowledge, intent, and absence of mistake. See State v. Stein, 153 Ariz. 235, 239 (App. 1987) (concluding proper basis existed for admitting heroin possession in trial for methamphetamine possession). And even had it been error to admit that portion of the interview, any prejudice was negligible given the fleeting nature of the statement. Cf. Almaguer, 232 Ariz. 190, ¶ 29.
Morris also argues the trial court should have redacted another small portion of his interview in which he mentioned a previous conviction for driving under the influence. Although we agree this reference was not relevant to his present charges, we conclude its admission was at most harmless error given that it was a passing, isolated remark not mentioned again or argued by the state, and highly unlikely to have influenced the jury over the course of the five-day trial. See Leteve, 237 Ariz. 516, ¶ 25 (error is harmless if verdict "was surely unattributable to the error"), quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
¶40 Morris next argues the trial court erred in failing to remove his references to the "cartel" from his police interview, stating "it is clear" the court found the word more prejudicial than probative based on its grant of his motion with respect to the officers' direct examination testimony. At trial, Morris had asked the court to remove references to "cartels" from the interview based on its earlier ruling, but the court denied the request because that ruling had been limited to the state's witnesses on direct examination. Although the court may have been willing to preclude use of the word by the state, it could reasonably find that Morris's own use of the term and accompanying complaints about the abusive practices of the cartels bore some probative value to the charged offenses, while not having an "undue tendency to suggest decision on an improper basis, such as emotion, sympathy or horror." State v. Escalante-Orozco, 241 Ariz. 254, ¶ 48 (2017), quoting State v. Mott, 187 Ariz. 536, 545 (1997). We therefore cannot say the trial court erred.
¶41 Finally, Morris argues the trial court improperly allowed Detective Hudson to testify about drug "organizations in Mexico" using ultralight aircraft to transport drugs across the border, asserting the testimony was "another way of saying 'cartel' and was an end-run around" the earlier ruling. At trial, the detective testified the "ultra light baskets" found at the property were "of typical construction of which organizations in Mexico use to transport bulk amounts of marijuana across the international border." Detective Hudson also explained that the baskets recovered in this case were turned over to a federal agency in part because those offices "have taken the lead in trying to put the ultra light activity all into one investigation . . . to connect it to the organizations on the other side of the border." Morris objected on the basis that the detective was "talking around the key words" already precluded.
¶42 As with Morris's recorded remarks, we find his contentions unpersuasive for several reasons. First, Morris's motion to preclude use of the word "cartel" below was a specific and narrow one, as was the trial court's ruling on that motion. Second, given the clear probative value of the ultralight baskets, we are unconvinced that the detective's testimony explaining their use and the background relating to the federal agency's involvement in the case resulted in unfair prejudice under Rule 403. See Escalante-Orozco, 241 Ariz. 254, ¶ 48. Nor do we agree with Morris's assertion that the detective's testimony constituted other acts evidence subject to Rule 404(b) given that it was merely an explanation of how the investigation proceeded and not a claim or suggestion that Morris had on other occasions been involved with Mexican drug organizations. We thus conclude the court's admission of this evidence did not constitute reversible error.
To the extent Morris's recitation of the facts suggests the trial court did not sufficiently address the inadvertent disclosure of statements in the police interview indicating he had sought to evade capture, he has not provided any argument on that issue, and it is therefore waived. See Moody, 208 Ariz. 424, n.9.
Preclusion of Defense Witness
¶43 Morris lastly argues the trial court erred in precluding Patrick Callahan from testifying because he was disclosed late and his proffered testimony, third-party culpability evidence about John Lang, was hearsay. We review for an abuse of discretion a trial court's sanction for the untimely disclosure of a witness, including preclusion. See State v. Ramos, 239 Ariz. 501, ¶ 7 (App. 2016). We also review the admissibility of third-party-culpability evidence for an abuse of discretion. See Escalante-Orozco, 241 Ariz. 254, ¶ 62.
¶44 Rule 15.6(c), Ariz. R. Crim. P., provides that "all disclosure required by Rule 15 must be completed at least 7 days before trial." A party wishing to use material or information disclosed less than seven days before trial must file a motion to extend the deadline along with "a supporting affidavit setting forth facts justifying an extension." Ariz. R. Crim. P. 15.6(d)(1). If the trial court finds the material or information could have been discovered or disclosed earlier with due diligence or was not disclosed immediately upon its discovery, the court "may . . . deny the motion to extend the disclosure deadline and deny the use of the material or information." Ariz. R. Crim. P. 15.6(d)(3).
We cite the current version of the Arizona Rules of Criminal Procedure because it is not materially different, as regards the issues here, from the version of Rule 15 in effect at the time the trial court precluded Morris's witness, it is feasible to do so, and it will not result in injustice. See Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). --------
¶45 Morris's trial was set to begin on October 27, 2015. On October 15, he filed nineteen subpoenas ordering seventeen witnesses, including Callahan, to appear and testify at the same time on October 30. On October 21, six days before trial, Morris filed a supplemental disclosure statement disclosing Callahan as a witness, along with the requisite motion for an extension. Morris's counsel alleged she had been unable to make the disclosure before that date because of the "extremely limited and piecemeal" funding for the defense investigator, who had left the state due to a family emergency the previous week.
¶46 On the first day of trial, Morris's counsel informed the trial court that Callahan would provide third-party-culpability evidence by testifying to what Lang told him when "he picked up John Lang from the jail on the morning after the raid," and specifically that he "heard John Lang say that he was going to pin all of these charges" on Morris. The court denied Morris's motion to extend the disclosure deadline, stating, "This case has been going on since July or August of 2014. The information that you seek to submit to the jury, in one form or another, has been available since the beginning of the case, or shortly thereafter." The court also found the proffered testimony to be inadmissible hearsay.
¶47 In State v. Smith, 123 Ariz. 243, 252 (1979), our supreme court identified four factors a trial court must consider before precluding a witness as a discovery sanction: (1) the importance of the testimony, (2) prejudice to the other side, (3) whether bad faith or willfulness motivated the violation, and (4) "any other relevant circumstances." We have recently concluded a trial court's failure to consider the Smith factors or a lesser sanction before precluding a defendant's witness for late disclosure constitutes error. See State v. Medina, 787 Ariz. Adv. Rep. 16, ¶¶ 6-7 (Ct. App. Mar. 20, 2018). Nothing in the record here suggests the trial court did so. However, we will affirm a trial court's ruling on the admissibility of evidence if it was legally correct for any reason. See State v. Herrera, 232 Ariz. 536, ¶ 14 (App. 2013).
¶48 Rule 801, Ariz. R. Evid., defines hearsay as an out-of-court statement "offer[ed] in evidence to prove the truth of the matter asserted in the statement," and hearsay is generally inadmissible. Ariz. R. Evid. 802. Morris argues Callahan's testimony was admissible pursuant to Rule 803(3), Ariz. R. Evid., which allows as a hearsay exception "[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan)." State of mind evidence is admissible only if "the declarant[]'s state of mind is relevant to an issue involved in the criminal proceeding." State v. Adamson, 136 Ariz. 250, 257 (1983).
¶49 Even if Callahan's testimony about Lang's plan could be said to be relevant without any evidence that Lang carried out that plan or even had the opportunity to do so, the trial court's exclusion of the testimony would be at most harmless error. The charges against Morris were based on his possession of drugs and paraphernalia found in the trailer he admitted owning. Moreover, the state acknowledged that additional marijuana had been found in the house on the property along with indicia of Lang's ownership, and Morris suggested in closing that all the marijuana belonged to Lang and even invited the jury "to think about whether Mr. Lang had more than one motive to pin this on [him]." Under these circumstances, we are confident beyond a reasonable doubt that the exclusion of Callahan's testimony could have had no influence on the jury's verdict. See Leteve, 237 Ariz. 516, ¶ 25.
Disposition
¶50 For all of the foregoing reasons, Morris's convictions and sentences are affirmed.