Opinion
No. 1 CA-CR 18-0265
05-21-2019
STATE OF ARIZONA, Appellee, v. THEODORE LAWRENCE PARKER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Gracynthia Claw Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Scott L. Boncoskey Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2016-030704-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Gracynthia Claw
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Scott L. Boncoskey
Counsel for Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Theodore Lawrence Parker appeals his conviction and sentence for possession of a dangerous drug. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 This Court views the facts in the light most favorable to sustaining the conviction and resolves any conflicts in the evidence against the defendant. State v. Pena, 235 Ariz. 277, 279 ¶ 5 (2014). One evening in November 2015, Tempe Police Officer Medina responded to a 9-1-1 call that reported people possibly using drugs in a car parked at an apartment complex. Inside the car were Parker and his passenger, Rachel Martin. Officer Medina arrived and parked behind the car. Parker immediately exited his car and approached Officer Medina while appearing nervous and anxious to get away from his car, which Officer Medina considered uncommon behavior. Officer Medina obtained Parker's identification and was checking his record when Tempe Police Officer McManus arrived.
¶3 Officer McManus escorted Parker behind Parker's car and toward a curb on the passenger side. Officer McManus inspected the ground around Parker, and after seeing nothing in the area, had him sit on the curb. During this time, Officer Medina was trying to escort Martin out of the car, and Officer McManus briefly diverted his attention toward them. In that brief moment, Officer McManus heard a "quick movement" and looked back at Parker. Officer McManus saw cigarettes scattered on the ground and Parker's left hand behind his body. Officer McManus told Parker to bring his hand forward while he looked behind Parker's body. Officer McManus saw a baggie of methamphetamine on the ground next to Parker's left hip, which contained a usable quantity of the drug. Officer McManus told Parker to slide to his right, but Parker slid to his left and "tried to sit on top of the baggie and then scoot . . . with [the baggie] under his butt." Believing that Parker was trying to hide the methamphetamine with his body, Officer McManus arrested Parker and seized the methamphetamine.
¶4 Meanwhile, Officer Medina had escorted Martin from Parker's car. Martin had been inside the car from the time Officer McManus had initially inspected the ground where Parker sat to the time he saw the baggie next to Parker. Martin never came near the area where the baggie was found next to Parker, and Officer McManus was standing next to Parker when Officer Medina escorted Martin away from the car. After removing Martin from the car, Officer Medina searched her incident to an arrest on an outstanding warrant. Officer Medina found a straw with white residue but no methamphetamine on Martin's person. Afterward, Martin asked for her jacket, which Officer Medina retrieved from the car. Within the jacket, Officer Medina found a baggie containing methamphetamine. At that point, Martin claimed that the methamphetamine and jacket, which was noticeably a female jacket, were not hers. Parker was charged with possession of the "dropped baggie" of methamphetamine. He was charged separately from Martin, who was subsequently charged and convicted for possessing the "jacket baggie" of methamphetamine.
¶5 In August 2017, Parker noticed insufficient evidence as his only defense. In September 2017, the State made its disclosure pursuant to Arizona Rule of Criminal Procedure ("Rule") 15.1. On February 12, 2018, about five months after the State made its disclosure and six months after Parker had been arraigned, Parker filed a supplemental notice of defenses claiming third-party culpability. Parker stated that he intended to argue that the dropped baggie had belonged to Martin and wanted to introduce evidence that Martin had pled guilty to possessing the jacket baggie, which included a certified copy of her felony conviction. On February 19, 2018, the State moved to preclude evidence of Martin's conviction. It argued that the disclosure was untimely under Rule 15.2, and that Arizona Rules of Evidence 401-403 required preclusion of evidence of Martin's conviction because it was irrelevant and unduly prejudicial.
¶6 The court addressed the State's motion before conducting voir dire on February 22, 2018. Parker claimed that he had not decided to pursue the third-party culpability defense until "a few days" before he filed his supplemental notice, at which point he requested a certified copy of the conviction. Parker stated that he did not receive a copy of the conviction until the week prior and disclosed it as soon as he received it. The court noted that Parker knew from the case's inception that Martin was a third-party involved in the case, and Parker agreed. When asked why he waited until around February 10 to pursue the third-party culpability defense, Parker's counsel responded, "It was just throughout the period of my investigation . . . . That's the only reason I can give. It wasn't something that [Parker] and I had made a decision on until around that period of time."
¶7 The court asked the State whether it could subpoena and call Martin as a rebuttal witness if the motion was denied. It replied that it could subpoena Martin, but the late subpoena would constitute a disclosure violation and allow Parker to move to preclude Martin as a witness. The court granted the State's motion and precluded evidence of Martin's conviction. It reasoned that "[g]iven the length of time that we had, there wasn't anything new that popped up at the last minute. This was something that could have been and should have been disclosed prior to allow the State to prepare to address that issue at trial." The court nevertheless allowed Parker to present a third-party culpability defense.
¶8 Parker's counsel raised this defense in opening statements, asserting that the evidence would show that Martin had possessed methamphetamine and attempted to hide the methamphetamine from the police, which resulted in Parker being "caught in the crosshairs." During Parker's cross-examination of Officers Medina and McManus, they testified that Martin had an outstanding warrant that led to her arrest, had possessed a straw with white residue, and had requested the jacket in which the jacket baggie was found. They also testified that the jacket baggie and dropped baggie looked alike and that Martin had denied ownership of the jacket and methamphetamine after the jacket baggie was found. Officer McManus testified that Parker had stated that he was at the complex to meet his friend, but that his friend had moved out and was not answering his phone.
¶9 Parker testified, however, that he had gotten lost earlier that evening and had asked Martin for directions. Although Parker had never met Martin before, she offered to give Parker directions if he gave her a ride to her friend's apartment complex. Parker testified that after arriving at the complex, he waited for Martin's friend to come home. While waiting, he decided to get out of the car to stretch, which is when he saw Officer Medina pull up and stop behind his car. He testified that after he gave his identification information, he grabbed a pack of cigarettes from the car and lit a cigarette. Parker then noticed that Officer McManus had arrived, and he claimed that Officer McManus came directly at him, threatened him with a taser, asked him where the drugs were, and threatened to use a search dog. Parker stated that he kept asking Officer McManus why he was "doing this," and he became frustrated with Officer McManus and "swore" at him. He further stated that Officer McManus put him in an "arm bar, jerked [him] off [his] feet, popped [his] shoulder out of the socket, and . . . dragged [him] toward [his] car[.]" He then testified that Officer McManus arrested him and threw his possessions "all over the place." Parker denied knowledge, possession, and ownership of the dropped baggie of methamphetamine.
¶10 On cross-examination, the State asked Parker if he had told Officer McManus that he was at the complex to meet his friend and that his friend was not answering his phone; Parker denied the statements. Parker then testified that he heard Officer McManus's testimony stating his reason for being at the complex, and the State asked him if Officer McManus "was not telling the truth." Parker objected, arguing the question was improper because it asked for an opinion on Officer McManus's credibility, which was a question for the jury. In response, the State argued that it was not asking for Parker's opinion and that Parker could say whether Officer McManus was lying or telling the truth. The court overruled the objection and allowed the State to ask the question again. Parker replied that he was "telling the truth" and that he "d[id]n't think [Officer McManus] remembered what happened."
¶11 In closing, Parker argued that Martin was the owner of both baggies and that she had gotten rid of the dropped baggie when the officers were not looking. Parker also argued that while Officer McManus may have found the dropped baggie near him, he did not know about the baggie. In the State's closing, it directed the jury to read the jury instructions' definitions for "possession" and "control" and explained that a person could constructively possess an item without owning it if the person "exercise[s] some sort of power over [the] item." The State also argued that the identity of the dropped baggie's owner was irrelevant because even if Parker did not own the baggie, he possessed the baggie when he attempted to hide it from Officer McManus by purposely sitting on it and scooting with it underneath him. The State did not present any argument about Parker's opinion about Officer McManus's credibility. The jury found Parker guilty for possession of a dangerous drug, and the trial court suspended his sentence and placed him on 18 months' supervised probation. Parker timely appealed.
DISCUSSION
1. Preclusion of Conviction Evidence
¶12 Parker argues that the trial court committed reversible error in precluding him from introducing evidence of Martin's conviction as a sanction for violating Rule 15.2. He asserts that the circumstances weighed in favor of a less severe sanction and that preclusion made his third-party culpability defense unviable. We need not review this claim as a disclosure matter, however, because we resolve the claim as an evidentiary matter. The State argued in the trial court and argues now on appeal that Martin's conviction was irrelevant. This Court "will uphold the court's ruling if legally correct for any reason supported by the record." State v. Moreno, 236 Ariz. 347, 350 ¶ 5 (App. 2014). We review evidentiary rulings for an abuse of discretion. State v. Cooperman, 232 Ariz. 347, 349 ¶ 7 (2013). "The admission of third-party culpability evidence is governed by the standards of Rules 401 through 403 of the Arizona Rules of Evidence[.]" State v. Machado, 226 Ariz. 281, 284 ¶ 16 (2011). "Evidence is relevant if it has any tendency to make a factor more or less probable than it would be without the evidence; and the fact is of consequence in determining the action." Ariz. R. Evid. 401.
¶13 Evidence that Martin was convicted for possessing the jacket baggie was irrelevant to the determination of Parker's guilt in his trial. Under A.R.S. § 13-3407(A)(1), "[a] person shall not knowingly possess or use a dangerous drug." To possess a dangerous drug, a person must "knowingly [] have physical possession or otherwise [] exercise dominion or control over" the drug. A.R.S. § 13-105(34) (defining "possess"). Thus, possession may be actual or constructive. State v. Ottar, 232 Ariz. 97, 99 ¶ 5 (2013). Possession does not require ownership; a person may possess a drug without owning it. See A.R.S. § 13-105(34)-(35); see also State v. Cox, 214 Ariz. 518, 521 ¶ 15 (App. 2007) (concluding that the guns discovered in a prohibited-gun-possessor's car were deemed to be in his possession despite the claim that the guns belonged to his passenger and the passenger had testified to owning the guns). Nor is exclusive possession required; two or more people may jointly possess a drug. State v. Saiz, 106 Ariz. 352, 355 (1970). "Knowingly" is defined as, "with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission." A.R.S. § 13-105(10)(b).
¶14 Here, Martin's conviction for possessing the jacket baggie had no tendency to make more or less probable Parker's possession of the dropped baggie. The fact that Martin pled guilty to possessing the jacket baggie had no bearing on whether Parker possessed the dropped baggie. Assuming arguendo that Martin had owned both baggies and had possessed the dropped baggie before the police arrived, Parker still possessed the dropped baggie when he tried to hide it from Officer McManus by sitting on it and scooting with the bag underneath him. Although Martin's guilty plea made it more probable that she owned the dropped baggie, her conviction did not make it less probable that Parker was not guilty of possessing the dropped baggie. Because Martin's conviction did not tend to create any reasonable doubt as to Parker's culpability for possessing the dropped baggie, evidence of her conviction was inadmissible. See Ariz. R. Evid. 402 ("Irrelevant evidence is not admissible.").
¶15 Parker argues that Martin's conviction made his third-party culpability defense viable because it allegedly supported his claim that Martin owned both baggies and had dropped the baggie that was attributed to Parker. His argument assumes that the jury would find him innocent if it found that Martin had owned both baggies. As stated earlier, however, ownership is irrelevant for determining possession. Thus, evidence of Martin's conviction was irrelevant, and this argument is not persuasive.
¶16 Parker also contends that Martin's conviction was relevant to show that he lacked "knowledge" of the dropped baggie. He asserts that if the conviction evidence was introduced, the jury could have reasonably believed that the dropped baggie originated with Martin and that the jury could consequently find that Parker did not know about the dropped baggie. The record—viewed in the light most favorable to supporting the verdict, see Pena, 235 Ariz. at 279 ¶ 5—shows that the dropped baggie suddenly appeared in an area that was initially clear of any objects, Parker was the only person in the vicinity, Parker scooted in a direction opposite of what he was told, Parker sat on the dropped baggie, and Parker scooted with the dropped baggie underneath him. Thus, this argument fails because Parker's actions demonstrated that he knowingly sat on the dropped baggie in an attempt to conceal it from Officer McManus, regardless who owned the dropped baggie.
¶17 Parker also asserts that if the jury believed that Martin owned the dropped baggie, then it could have reasonably believed that Parker did not know about the dropped baggie and that Officer McManus, upset with Parker's confrontational attitude, falsely claimed that he found it near Parker. The issue before the jury was whether Parker knowingly sat on the dropped baggie to conceal it from Officer McManus, which would constitute possession. Again, ownership of the dropped baggie was irrelevant to whether the jury reasonably believed Officer McManus's account of the events over Parker's. Thus, this argument is not persuasive.
¶18 Parker also claims that the trial court's preclusion of the conviction evidence violated his Sixth Amendment right to a complete defense. He is incorrect. First, the conviction evidence was irrelevant for purposes of lessening Parker's culpability for possessing the dropped baggie; thus, the conviction evidence was properly precluded. The right to present a complete defense "does not extend to presenting irrelevant evidence." State v. Paxson, 203 Ariz. 38, 41 ¶ 13 (App. 2002). Second, Parker was still able to present his third-party culpability defense at trial. He claimed in opening statement and closing argument that the jacket and dropped baggies originated with Martin and that she had thrown the dropped baggie outside of Parker's car. Parker presented evidence that showed that Martin was a passenger in the car, she had the jacket baggie and a straw with white residue in her possession, she had an outstanding warrant, and she was arrested that night. As such, Parker was able to exercise his right to make a complete defense.
2. Prosecutorial Misconduct
¶19 Parker argues that the State's "were they lying" questions constituted misconduct that reasonably affected the verdict. Because Parker objected to the State's line of questioning, this Court applies harmless error review. State v. Martinez, 230 Ariz. 208, 216 ¶ 39 (2012). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Goudeau, 239 Ariz. 421, 465 ¶ 193 (2016) (quoting State v. Hughes, 193 Ariz. 72, 79 ¶ 26 (1998)). "A conviction will be reversed for prosecutorial misconduct only if '(1) the prosecutor committed misconduct and (2) a reasonable likelihood exists that the prosecutor's misconduct could have affected the verdict.'" Id. (quoting State v. Benson, 232 Ariz. 452, 463 ¶ 40 (2013)).
¶20 "[W]ere they lying" questions are not always improper, but parties should "refrain from asking such questions." State v. Morales, 198 Ariz. 372, 375 ¶ 13 (App. 2000). Such questions may be appropriate when (1) "the only possible explanation for the inconsistent testimony is deceit or lying" or (2) "when a defendant has opened the door by testifying about the veracity of other witnesses on direct examination." Id.
¶21 Parker argues that neither Morales exception applies in this case. First, he notes that "distraction" rather than "deceit or lying" was a likely explanation for the inconsistency between Officer McManus's and Parker's testimony. He specifically highlights that Officer McManus testified that his attention was diverted while he was speaking to Parker, and the accounts differed only in detail, not in kind. Second, Parker notes that he never testified during direct examination that Officer McManus was lying or a liar.
¶22 In response, the State concedes that the first exception does not apply because it limited its argument on appeal to only the second exception. It argues that although Parker did not explicitly testify that Officer McManus was a liar, Parker's testimony overall implied that Officer McManus "had a motive to lie on the stand to cover-up his inappropriate behavior from that night, and he had been less than truthful when testifying about the drugs and other matters, including what Parker told him regarding his purpose for being at the apartment complex."
¶23 The State claims that State v. Doerr, 193 Ariz. 56 (1998) is instructive on this issue. In Doerr, the defense elicited testimony from a police officer that the defendant had been untruthful with him on the day of the arrest. Id. at 63 ¶ 25. When the State asked the officer on redirect if he "felt that the defendant was being untruthful with [him]," the defense objected. Id. The trial court overruled the objection because the defense had opened the door, and the court allowed the officer to testify why he did not believe the defendant at the time of the arrest. Id. On appeal, the defendant argued that the officer's testimony "intruded on the jury's duty to determine the ultimate issue[,]" but the supreme court disagreed and found no prosecutorial misconduct. Id. at ¶¶ 25-28. The supreme court reasoned that "the defense opened the door to [that] testimony" because the defense's cross-examination of the officer (1) established an "overall tone" that suggested the officer "deliberately expressed disbelief regarding the defendant's story as a ploy to induce, by intimidation or otherwise, a confession or a material inconsistency" and (2) "implied that the police had improperly failed to look for an assailant other than the defendant." Id. at ¶ 28.
¶24 Doerr, however, is distinguishable from this case. The officer there was asked whether he believed the defendant was truthful at the time of arrest—not at trial. The supreme court noted that the defendant never testified at trial and that the officer's opinion "was not intended as a comment on the defendant's credibility as a witness." Id. at ¶ 26. The court specifically stated that "[o]ne witness may not . . . state an opinion as to the credibility of another." Id. In contrast, Parker and Officer McManus both testified at trial and were therefore witnesses. The State then asked Parker to testify whether Officer McManus was truthful at trial—not at the time of arrest. Thus, Doerr is inapplicable. Because Doerr and the exceptions in Morales do not apply to the facts of this case, the State's questioning was inappropriate.
¶25 Having determined that the questioning was inappropriate, this Court must determine whether the questions affected the verdict and requires reversal. See Goudeau, 239 Ariz. at 465 ¶ 193. The record shows that the jury received instructions that stated that an attorney's questions were not evidence, that the jury alone determined credibility, and that a police officer's testimony should not be given greater weight merely because he or she is an officer. This Court presumes that the jury followed those instructions. See Martinez, 230 Ariz. at 216 ¶ 40. Additionally, the State asked the improper questions on only one occasion and did not raise the subject in closing argument. Thus, the State's questions did not permeate the trial. Moreover, the questions resulted in a defendant disagreeing with the arresting officer, which would not have surprised the jury nor damaged Parker's credibility. See State v. Canion, 199 Ariz. 227, 237 ¶ 43 (App. 2000) ("The jury could not have been surprised to hear that [the defendant] believed the officer was mistaken in his recollection of the events, . . . nor do we think that [the defendant's] acknowledgment of the discrepancies was likely to affect the jury's overall assessment of either witness's credibility."). Furthermore, Parker's response to the State's question mitigated any potential harm to his credibility when he did not accuse Officer McManus of lying and instead stated that Officer McManus misremembered the incident. As such, the record shows that the State's inappropriate questioning was harmless and did not affect the jury's verdict. Parker therefore received a fair trial.
CONCLUSION
¶26 For the foregoing reasons, we affirm.