Opinion
No. 1 CA-CR 06-0982
10-06-2011
STATE OF ARIZONA, Appellee, v. TERRI SUE ORSACK, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Melissa Swearingen, Assistant Attorney General Attorneys for Appellee Phoenix Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix
NOTICE: 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
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR 1987-008056
The Honorable Sherry K. Stephens, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Division
Melissa Swearingen, Assistant Attorney General
Attorneys for Appellee
Phoenix Maricopa County Public Defender
By Tennie B. Martin, Deputy Public Defender
Attorneys for Appellant
Phoenix IRVINE, Judge
¶1 Terri Sue Orsack appeals from her convictions for possession of dangerous drugs for sale; possession of equipment and chemicals for the purpose of manufacturing dangerous drugs; and possession of marijuana. Orsack argues that the trial court erred by admitting evidence of her invocation of the right to be free of warrantless searches, denying her requested instruction on reasonable doubt, and failing to sua sponte dismiss her convictions. For reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Shortly after 1:00 a.m. on August 14, 1987, Phoenix Police officers responded to a suspicious odor in a Phoenix neighborhood. An officer recognized the odor as ether and believed the odor was coming from a particular house in the neighborhood. The officers knocked on the front door of the residence, and Orsack answered. The officers explained about the odor in the neighborhood and asked if they could come inside to check the home. Orsack asked if the officers had a warrant. Upon being informed that they did not, Orsack slammed the door.
¶3 The fire department was called to the scene and began to check the neighborhood with an explosive-gas detector. It was eventually determined that the source of the odor was a vent pipe on the west wall of the residence. Based on tests of the air around the vent pipe, the police decided to enter the residence due to the potential hazard posed to the public. When Orsack again answered their knock, the officers told Orsack that because of the hazardous situation, they were going to enter the home. Orsack said, "Not without a warrant," and attempted to close the door. The officers pushed the door open and entered the residence.
¶4 Once inside, officers smelled a strong odor of ether and removed Orsack from the residence. The officers observed various containers and other equipment in the kitchen that appeared to be part of a drug laboratory. A male, later identified as Paul Osborne, approached the officers from a hallway. He was also removed from the residence. After obtaining a search warrant, officers discovered multiple plastic baggies, glass vials, laboratory equipment, chemicals, and Tupperware containers containing varying amounts of white, tan, or brown crystal powder or rock that was later determined to be methamphetamine. The officers also found a plastic baggie containing marijuana.
¶5 On September 8, 1987, Orsack and Osborne were indicted on charges of possession of dangerous drugs for sale, a class 2 felony; possession of equipment and chemicals for the purpose of manufacturing dangerous drugs, a class 4 felony; and possession of marijuana, a class 6 felony. Following their arrests, Orsack and Osborne were released on bond pending trial. Neither appeared for trial, and they were tried together in absentia in April 1989. On May 3, 1989, the jury returned verdicts finding both defendants guilty on all three counts.
¶6 Orsack remained a fugitive until September 2006, when she was arrested during a traffic stop on a bench warrant issued in regards to her failure to appear for trial. On November 14, 2006, the trial court suspended sentencing on the three 1989 convictions and placed Orsack on probation for two years with the condition she pay a total of $2750 in mandatory fines. Orsack timely appealed.
DISCUSSION
¶7 Prior to trial, Orsack moved to suppress evidence of her refusal to consent to a warrantless search. Orsack compared the invocation of her rights under the Fourth Amendment of the United States Constitution and Article II, Section 8 of the Arizona Constitution to the invocation of her rights under the Fifth Amendment to remain silent or to request an attorney in response to police questioning. The trial court denied Orsack's motion and allowed the State to introduce evidence at trial of her refusal to consent to entry. We review a motion to suppress evidence for abuse of discretion if it involves a discretionary issue, but we review constitutional and purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004).
¶8 Orsack relies on State v. Palenkas, 188 Ariz. 201, 933 P.2d 1269 (App. 1996), in arguing the trial court erred in denying her motion to suppress evidence of her refusal to consent to entry into the home. In Palenkas, we held "the prosecution's references to defendant's invocation of his fourth amendment rights to refuse to consent to a warrantless entry and to his contact with an attorney prior to his arrest violated defendant's due process rights to a fair trial." Id. at 212, 933 P.2d at 1280; see also State v. Wilson, 185 Ariz. 254, 258, 914 P.2d 1346, 1350 (App. 1996) ("Just as it is generally impermissible for a prosecutor to comment on a defendant's invocation of his Fifth Amendment right to silence, so is it generally impermissible to use a defendant's invocation of Fourth Amendment protections against him.") (citations omitted).
¶9 The State contends that Palenkas was wrongly decided and should be reversed. According to the State, the holding in Palenkas is based on a misreading of Doyle v. Ohio, 426 U.S. 610, 618 (1976), which held that due process protects a defendant from the State's use of his invocation of his right to remain silent against him at trial. The State asserts that the United States Supreme Court has subsequently made clear that the due-process protection announced in Doyle is limited to Miranda-induced silence and has refused to extend this protection to pre-Miranda and pre-arrest conduct, citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980); Brecht v. Abrahamson, 507 U.S. 619, 628 (1993); and Portuondo v. Agard, 529 U.S. 61, 75 (2000).
¶10 In Jenkins, the Court held impeachment with pre-arrest silence does not violate due process. 447 U.S. at 238. In Brecht, the Court upheld the admissibility of a defendant's pre-arrest conduct, distinguishing it from the defendant's silence in Doyle on the basis it was not induced by any implicit promises on the part of law enforcement. 507 U.S. at 628. Finally, in Portuondo, the Supreme Court rejected the argument that Doyle precluded the prosecutor from commenting on the defendant's presence at trial and ability to hear the other witnesses, noting that the Court has "consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." 529 U.S. at 75.
¶11 Based on this line of post-Doyle decisions, the State maintains that federal due process does not preclude admission of evidence of a defendant's pre-arrest refusal of consent to search. Instead, the State suggests admission of this evidence should be controlled solely by the rules of evidence. The State further asserts that the evidence of Orsack's refusal to consent was properly admitted because it was probative of her dominion and control of the residence where the drug laboratory was located.
¶12 It is unnecessary to address the State's challenge to our holding in Palenkas. Even if a federal due-process right does exist precluding an adverse inference from being drawn, there is no error in the State introducing evidence of its exercise where it is "admitted as a fair response to a claim by the defendant or for some other proper purpose." United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999). Under such circumstances, the evidence is "not an unfair penalty for defendant's asserting a constitutional privilege." United States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991). For example, in McNatt, the court held that there was no error in the prosecutor commenting on the defendant's refusal to consent to a search in response to the claim that the police planted the drugs. Id.
¶13 In Dozal, the defendant claimed error in the admission of testimony regarding his refusal to allow the police to search a portion of his residence, arguing that this evidence "erroneously allowed the jury to infer guilty knowledge based on the exercise of constitutionally guaranteed rights." 173 F.3d at 793. The court held the evidence was admissible "for the proper purpose of establishing dominion and control over the premises where a large part of the cocaine was found." Id. at 794.
¶14 We hold that evidence of Orsack's refusal to allow the police to search the home was likewise admissible to establish her dominion and control over the residence. Orsack's defense was "mere presence," and her counsel presented evidence and argument to the effect that she was merely a visitor. Accordingly, the evidence regarding her statements and conduct in refusing to consent to a search was properly admitted to rebut this defense.
¶15 Orsack additionally contends the trial court erred in refusing her proposed instruction expanding on the concept of reasonable doubt. We review a trial court's refusal to give requested instructions for abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
¶16 The jury was instructed on the State's burden of proof and reasonable doubt as follows:
The law does not require a defendant to prove his or her innocence. Every defendant is presumed by law to be innocent. The State must prove a defendant guilty beyond a reasonable doubt. This means that the State must prove each element of the charges beyond a reasonable doubt. If you conclude that the State has not met its burden of proof beyond a reasonable doubt, then reasonable doubt exists and the defendant must be acquitted of that charge."Reasonable doubt" was not defined. Orsack argues the trial court's refusal to give her proposed instruction denied her due process because the reasonable-doubt instruction did not allow the jury to consider possible doubts about the evidence.
¶17 There is no due-process requirement that the trial court define reasonable doubt. State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479 (1985); see also United States v. Glass, 846 F.2d 386, 387 (7th Cir. 1988) (holding "reasonable doubt" should not be defined; the phrase "must speak for itself"). In State v. Portillo, 182 Ariz. 592, 594-97, 898 P.2d 970, 972-75 (1995), our supreme court, after first acknowledging the absence of a constitutional requirement for defining reasonable doubt, elected to require as a matter of state law that trial courts instruct the jury in all future criminal cases in accordance with a variation of the Federal Judicial Center's proposed definition of reasonable doubt, effective January 1, 1996. At the time of Orsack's trial, however, Arizona trial courts were free to define reasonable doubt if they saw fit, but they were not required to do so. Bracy, 145 Ariz. at 535, 703 P.2d at 479. The trial court therefore did not abuse its discretion in refusing Orsack's proposed instruction.
¶18 Finally, Orsack claims that the trial court erred in not sua sponte dismissing her convictions after being informed that the prosecutor's office erroneously dismissed the convictions against Osborne. Because Orsack failed to raise this issue below, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of review, Orsack has the burden of establishing the existence of both fundamental error and prejudice. Id. at ¶ 20.
¶19 Orsack cannot demonstrate fundamental error. Orsack cites no authority to support her argument that "fundamental fairness" requires her convictions be dismissed because of the prosecutorial error, and we are unaware of any. It is undisputed that dismissal of the case against Osborne was the result of a "flat-out" mistake. However, the fact that one defendant received a windfall dismissal because of a prosecutorial error does not automatically entitle co-defendants to a similar windfall.
¶20 Additionally, Orsack does not allege that she suffered any specific prejudice from the dismissal of the convictions against Osborne. Absent a showing that the prosecutor's mistake impaired or otherwise negatively affected Orsack's right to a fair trial, there was no fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (defining "fundamental error" as "error going to the foundation of the case, error that takes from the defendant a right essential to [her] defense, and error of such magnitude that the defendant could not possibly have received a fair trial").
CONCLUSION
¶21 For the above reasons, we affirm Orsack's convictions and sentences.
PATRICK IRVINE, Judge CONCURRING: ANN A. SCOTT TIMMER, Presiding Judge DANIEL A. BARKER, Judge