State v. Chambers
| Decision Date | 10 April 2014 |
| Docket Number | No. 2 CA-CR 2013-0139,2 CA-CR 2013-0139 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MICHELLE CHAMBERS, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pinal County
The Honorable Boyd T. Johnson, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Eleanor L. Miller, Phoenix
Counsel for Appellant
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
¶1 Michelle Chambers appeals her convictions and sentences for possession and transportation of marijuana for sale. She argues the traffic stop that resulted in her convictions was pretextual, and urges this court to depart from Arizona's adherence to Whren v. United States, 517 U.S. 806 (1996), to declare such stops "constitutionally unreasonable." She further claims the trial court erred by restricting her cross-examination of her former co-defendant. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to upholding Chambers's convictions and sentences. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). In April 2012, a Casa Grande police officer assigned to the K-9 Unit—in which officers work with highly trained narcotics detection dogs—observed a vehicle traveling along Interstate 10 late at night with what appeared to be obstructions hanging from the rearview mirror. After initiating a traffic stop, the officer approached the vehicle and noticed a "strong odor of air freshener coming from the vehicle." He saw multiple air fresheners hanging from the rearview mirror, the rear passenger windows, the air vents, and the dashboard.
¶3 The officer informed the driver, Megan Chang, that she would be receiving a warning for the obstructed windshield,1 andasked if he could search her vehicle. Chang declined, citing a "tight timeframe." The officer then informed Chang he was going to "run [his patrol service] dog around the vehicle . . . to make sure there [were] no illegal drugs in the vehicle." The dog alerted to the vehicle and, following a search, the officer found approximately forty to forty-five pounds of marijuana in the trunk, wrapped inside several layers of packaging and odor-masking materials.
¶4 Both Chang and Chambers were charged with possession and transportation of marijuana for sale. Before trial, Chang pled guilty to attempted possession of marijuana for sale, admitted involvement in packing and transporting marijuana—including the boxes found in the April 2012 traffic stop—and agreed to testify for the prosecution in its case against Chambers. Following a jury trial, Chambers was found guilty of possession of more than four pounds of marijuana for sale and transportation of two pounds or more of marijuana for sale. The trial court sentenced her to concurrent, partially mitigated four-year terms of imprisonment. Chambers timely appealed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and 13-4033(A).
¶5 In this appeal, Chambers argues for the first time that "the pretextual, initial seizure of the vehicle and its occupants in this case violated" the Arizona Constitution. Without alleging the traffic stop was improper under Arizona law, Chambers argues "[t]he initial stop in the instant case was a complete ruse—a pretext"2 and urges us to interpret article II, § 8 of the Arizona Constitutionbroadly so as to afford protection against allegedly pretextual stops, as courts in Washington and New Mexico have done. She argues that allowing such stops "is not the appropriate interpretation" of article II, § 8, and that Arizona and federal cases so holding were "wrongly decided." She thus invites us to "recognize and prohibit pretextual stops" and, ultimately, depart from Whren and its progeny to declare such stops "constitutionally unreasonable." We decline her invitation.
¶6 Although Chambers filed two motions to suppress evidence, alleging various constitutional violations, she failed to raise this particular claim below. She has therefore forfeited the right to seek relief on this ground for all but fundamental error. See State v. Paredes-Solano, 223 Ariz. 284, ¶ 6, 222 P.3d 900, 903 (App. 2009); see also State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
¶7 Fundamental error 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. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "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." Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. Chambers, however, has neither alleged that fundamental, prejudicial error occurred here nor presented this court with any argument or authority in this regard. We will not ignore such error if we see it, but we cannot discern any fundamental, prejudicial error from the record before us. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (). Chambers therefore has waived the issue on appeal and we do not address it.3 See State v.Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Musgrove, 223 Ariz. 164, ¶ 4, 221 P.3d 43, 45 (App. 2009).
¶8 Chambers next argues the trial court erred by restricting her cross-examination of her former co-defendant, Chang, regarding Chang's financial ability to retain private defense counsel. "Trial courts retain wide latitude to impose reasonable limits on cross-examination to prevent confusion of the issues or interrogation that is only marginally relevant." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 8, 312 P.3d 123, 127 (App. 2013). We review restrictions on the scope of cross-examination for an abuse of discretion. See State v. Fleming, 117 Ariz. 122, 126, 571 P.2d 268, 272 (1977). "We will not disturb the court's ruling absent a clear showing of prejudice." State v. Perez, 233 Ariz. 38, ¶ 22, 308 P.3d 1189, 1195 (App. 2013).
¶9 At trial, Chambers sought to question Chang about how she was able to retain private defense counsel, claiming the "unexplained income or source of income . . . [was] relevant for the jury to consider." Both Chang's attorney and the state objected to such questioning as irrelevant and the trial court sustained the objections, stating Chang was "head[ed] into irrelevant territory." See Fleming, 117 Ariz. at 126, 571 P.2d at 272 ().
¶10 Both the United States and Arizona Constitutions guarantee a criminal defendant the right to confront witnesses. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. This includes the right to cross-examination. State v. Moody, 208 Ariz. 424, ¶ 136, 94 P.3d 1119, 1153 (2004); see also Pointer v. Texas, 380 U.S. 400, 404 (1965). A trial judge has discretion to "place reasonable limits upon the scope of cross-examination[] without infringing upon the defendant's right of confrontation." State v. Lehr, 201 Ariz. 509, ¶ 30, 38 P.3d 1172, 1181(2002). These limits include, among other things, concerns about "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Cañez, 202 Ariz. 133, ¶ 62, 42 P.3d 564, 584 (2002), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). "We evaluate cross-examination restrictions on a case-by-case basis to determine whether the defendant was denied the opportunity to present evidence relevant to issues in the case or the witness' credibility." Id.
¶11 Chambers implies that Chang's private attorney was retained with the profits of criminal conduct, or with the help of a third party, and she should have been allowed to question Chang about "any and all information which would provide the jury the ability to weigh her credibility." We disagree, and conclude Chambers has failed to demonstrate that the trial court abused its discretion by excluding this information, Fleming, 117 Ariz. at 126, 571 P.2d at 272, or that she was prejudiced by its exclusion, see Perez, 233 Ariz. 38, ¶ 22, 308 P.3d at 1195.
¶12 The jury had ample evidence regarding Chang's illegal activities. Chang testified she had faced the same drug-related charges as Chambers, and admitted she had prior drug-related convictions and had smoked marijuana. She also admitted she had agreed to transport the marijuana at issue for money and had helped package the marijuana for transport. Additionally, Chang admitted she had lied to the police officer at the time of the traffic stop.
¶13 Although Chambers suggests that cross-examination regarding Chang's ability to hire private counsel could have led either to information about further criminal activity or to others who may have been involved in the drug trafficking at issue, she has failed to demonstrate how the information would have had a direct bearing on Chang's credibility as a witness. See Fleming, 117 Ariz. at 126, 571 P.2d at 272. She also has failed to demonstrate how she was prejudiced by the exclusion of this information in light of other evidence that impeached Chang's credibility, or that the proposed testimony would not "confus[e] the...
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