State v. Jarrott

• Decision Date: 30 November 2012
• Docket Number: 2 CA-CR 2011-0271
• Parties: THE STATE OF ARIZONA, Appellee, v. JOHN ROSALIO JARROTT, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JOHN ROSALIO JARROTT, Appellant.

2 CA-CR 2011-0271

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: November 30, 2012

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Not for Publication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 Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR201000882

Honorable Ann R. Littrell, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz,

and Jonathan Bass

Tucson

Attorneys for Appellee

John R. Gustafson

Tempe

Attorney for Appellant

KELLY, Judge.

¶1 After a jury trial, appellant John Jarrott was convicted of one count of possession of a dangerous drug for sale, one count of transportation of a dangerous drug for sale, and two counts of transportation of a narcotic drug for sale. He was sentenced toa combination of concurrent and consecutive, partially mitigated terms of imprisonment totaling sixteen years. On appeal, he argues the trial court erred in allowing the state to file an untimely response to his motions to suppress evidence and by denying the motions, convicting him of both possession of methamphetamine for sale and transportation of methamphetamine for sale in violation of double jeopardy principles, and effectively sentencing him to aggravated sentences on counts three and five without properly finding aggravating factors. He also claims the prosecutor committed misconduct during closing argument. For the reasons that follow, we vacate Jarrott's sentences on counts three and five and remand for resentencing. In all other respects, we affirm.

Background

¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). An Arizona Department of Public Safety (DPS) officer performed a traffic stop of a vehicle owned by Jarrott in which he was a passenger. After discovering the driver had a suspended license, the officer seized the vehicle for impoundment, conducted an inventory search and called for a canine unit and a tow truck. Before the tow truck arrived, a dog alerted to the vehicle's exterior and to the console area inside the vehicle. Officers searched the console and discovered numerous, separately packaged narcotic drugs including methamphetamine, heroin, and cocaine.

¶3 After Jarrott was arrested and taken to the police station, he admitted to a detective that he owned the methamphetamine and heroin found in the vehicle. Duringthe same interview, Jarrott revealed he had a plastic bag containing methamphetamine concealed in his rectum.

¶4 Jarrott was charged with eight drug-related offenses.¹ Before trial, he filed and the court denied several motions to suppress evidence. He was convicted and sentenced as above and this appeal followed.

Discussion

Motions to Suppress

State's Response: Timeliness and Preclusion

¶5 Jarrott claims the state did not timely file its response to his motions to suppress and the trial court therefore erred in refusing to preclude it pursuant to Rule 16.1, Ariz. R. Crim. P. We review a trial court's decision to consider an untimely motion, rather than preclude it, for abuse of discretion. State v. Vincent, 147 Ariz. 6, 8-9, 708 P.2d 97, 99-100 (App. 1985).

¶6 Jarrott filed his motions to suppress on April 8. At an April 22 hearing on the motions, Jarrott informed the trial court that the state had not filed a response to his motions within the required ten-day period and asked the court to "rule on the pleadings." See Ariz. R. Crim. P. 16.1(b) (response to pretrial motion must be filed within ten days). The state responded that it had not received Jarrott's motions until seven days before the hearing date and offered to file a response within ten days of receipt of the motions if the court deemed it necessary. The court stated that it was "to the State's disadvantage not tohave an opportunity to file something in writing citing the legal authority for their position" and "[d]epending on what happen[ed]" as a result of the hearing, it might allow the state to file written arguments at its conclusion. The court denied Jarrott's motions at the end of the hearing except as to a single issue, which it took under advisement. On the same day, the state filed a response addressing the remaining issue. After Jarrott filed a reply, the court issued a written ruling denying all the motions.

¶7 Whether or not the state's response was untimely under Rule 16.1(b), Jarrott has not established that the trial court was required to preclude it.² Although Rule 16.1(c) provides for preclusion of motions and objections not timely raised, because the "trial court has the power to extend the time to file motions, it also has the discretion to hear late motions." State v. Zimmerman, 166 Ariz. 325, 328, 802 P.2d 1024, 1027 (App. 1990); see also State v. Alvarez, 228 Ariz. 579, ¶ 11, 269 P.3d 1203, 1206 (App. 2012). Preclusion "is a judicial remedy designed to protect judicial interests. Its invocation, therefore, rests in the discretion of the trial court subject to review only for abuse." Vincent, 147 Ariz. at 8-9, 708 P.2d at 99-100. Preclusion should be imposed only in"instances where it will fairly serve the interest in judicial administration by punishing those who for tactical reasons seek to subvert that interest." Id. at 8, 709 P.2d at 99. Jarrott has not explained why allowing the state to file a response, to which he filed a reply, constituted an abuse of the court's discretion.³ We therefore conclude the court did not err in considering the state's response.⁴

Denial of Motions

¶8 Jarrott argues the trial court erred in denying his motions to suppress. We review the court's ruling on a motion to suppress evidence for an abuse of discretion to the extent it involves a discretionary issue, but we review constitutional and legal issues de novo. See State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). We consider only the evidence presented at the hearing on the motion to suppress, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), and we view it in the light most favorable to sustaining the court's ruling. State v. Rosengren, 199 Ariz. 112, ¶ 2, 14 P.3d 303, 306 (App. 2000).

¶9 Jarrott first claims the inventory search of his vehicle violated the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution, which prohibit unreasonable searches and seizures. See State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App. 2007). Inventory searches are a well-defined exception to the Fourth Amendment's probable cause and warrant requirements. State v. Organ, 225 Ariz. 43, ¶ 20, 234 P.3d 611, 616 (App. 2010). "An inventory search of a vehicle is valid if two requirements are met: (1) law enforcement officials must have lawful possession or custody of the vehicle, and (2) the inventory search must have been conducted in good faith and not used as a subterfuge for a warrantless search." Id. ¶ 21. "[A]n inventory search conducted pursuant to standard procedures is presumptively . . . conducted in good faith and therefore reasonable." Id.

¶10 As the trial court noted, the DPS officer impounded the vehicle upon discovering its driver had a suspended license. See A.R.S. § 28-3511(A)(1) (officer required to immobilize or impound vehicle when license of driver suspended). An inventory search then was conducted in accordance with standard DPS procedures. See Organ, 225 Ariz. 43, ¶ 21, 234 P.3d at 616. Although Jarrott asserts the search was invalid because "standardized routine procedures were not followed" he has not identified any procedural defects with the search nor has he alleged that it was not conducted in good faith. We agree with the court's ruling that the inventory search was lawful.

¶11 Jarrott next contends the trial court erred in determining the officer performing the traffic stop had reasonable suspicion to detain the vehicle until the canineunit arrived. But the vehicle was detained because it was to be impounded, not because the officer had reasonable suspicion. § 28-3511(A)(1). And, as the court noted, when a vehicle is lawfully detained in a public area it may be subjected to a dog sniff without "reasonable suspicion of drug-related activity" because a dog sniff of the exterior of a car is not a search for the purposes of the Fourth Amendment. State v. Box, 205 Ariz. 492, ¶ 15, 73 P.3d 623, 627-28 (App. 2003). Therefore, the reasonableness of the officer's suspicion is irrelevant to the legality of the detention and subsequent search of the vehicle.

¶12 Jarrott next argues the statements he made to the police detective after his arrest were involuntary and therefore the trial court erred in refusing to suppress them. Statements made to a police officer must be voluntary to be admissible. State v. Ellison, 213 Ariz. 116, ¶ 30, 140 P.3d 899, 910 (2006). "A confession is 'prima facie involuntary and the state must show by a preponderance of the evidence that the confession was freely and voluntarily made.'" State v. Newell, 212 Ariz. 389, ¶ 39, 132 P.3d 833, 843 (2006), quoting State v. Montes, 136 Ariz. 491, 496, 667 P.2d 191, 196 (1983). When determining whether a statement is voluntary, the court "must look to the totality of the circumstances surrounding the confession and decide whether the will of the defendant has been overborne." State v. Lopez, 174 Ariz. 131, 137, 847 P.2d 1078, 1084 (1992).

¶13 Upon meeting with the detective, Jarrott agreed to waive his rights as set forth in Miranda,⁵ asked immediately what the detective "could do for him" andexpressed a desire to act as a confidential informant to "work off the charges that he was facing." The detective explained that while this was "possible," he could not make any promises or...