State v. Killean
| Decision Date | 22 August 1995 |
| Docket Number | CA-CR,No. 1,1 |
| Parties | STATE of Arizona, Appellee, v. David J. KILLEAN, Appellant. 94-0325. |
| Court | Arizona Court of Appeals |
Appellant David J. Killean was convicted after a jury trial of one count of possession of marijuana for sale, a class 3 felony, and one count of transportation of marijuana for sale, a class 2 felony. He was sentenced to mitigated terms of 3.75 years imprisonment and 5.25 years imprisonment for the respective counts, and the sentences were ordered to run concurrently. He also was ordered to pay a fine in the amount of $36,000. Appellant timely appealed his convictions and sentences to this court. We reverse the convictions and remand for a new trial.
On the evening of May 20, 1993, Detective Kathi Galbari of the Phoenix Police Department, Detective Gary Eggert of the Maricopa County Sheriff's Office, and Sergeant Shelli Woodward of the Arizona Army National Guard were on duty at Phoenix Sky Harbor International Airport. They were assigned to the Phoenix Police Department's Commercial Interdiction Unit ("CIU"), a unit which focuses on intercepting drugs and drug proceeds transported through Sky Harbor.
Between 9:30 p.m. and 10:00 p.m., Eggert observed Appellant step out of an Arizona Shuttle Service van arriving from Tucson. 1 Appellant was wearing a gray suit, carrying a duffle bag, and dragging a new, hard-sided suitcase. Eggert gave a signal to Woodward, who followed Appellant into Terminal Four. Woodward found it suspicious that Appellant was wearing a business suit, but was not carrying a briefcase or a garment bag. Upon entering Terminal Four, Woodward advised Galbari about what had been observed to that point.
Appellant waited for a period of time and then checked his suitcase at the America West Airlines ticket counter. Galbari observed Appellant paying the airline representative with cash. Galbari and Woodward then walked behind the ticket counter to the luggage handling area to examine the suitcase Appellant had checked. It had two name tags--both of which identified Appellant as the owner of the bag. Galbari squeezed the suitcase in an attempt to detect an odor in the air pushed out of the bag. She could not smell anything. She squeezed the suitcase again and felt a hard mass inside which, based upon her experience, she believed to be a bale of marijuana. Galbari then asked Woodward to squeeze the suitcase; she did and smelled an odor of hay. Galbari instructed Woodward to remain with the bag and returned to the airport concourse.
Galbari joined Eggert. After Appellant left the ticket counter, they approached him, identified themselves as police officers, and asked him if he would answer some questions. Appellant agreed. Galbari asked Appellant for his driver's license and airline ticket. When Appellant handed them to her, he was extremely nervous--his hands were shaking and his face was perspiring. Galbari then requested to search Appellant's duffle bag. He agreed and the ensuing search produced no contraband. Galbari then asked Appellant for permission to search his suitcase. Appellant refused. At that time, Galbari informed Appellant that she suspected that his suitcase contained illegal drugs and that he was under investigative detention until a narcotics detection dog could examine it.
Galbari immediately called her supervisor and was informed that a narcotics detection dog would be transported to the airport to sniff the suitcase. Appellant was advised of his Miranda 2 rights, and then transported to the security office in Terminal Three. At 10:55 p.m., Crackers, a narcotics detection dog, sniffed the suitcase and alerted on it. Appellant was arrested and the officers applied for and obtained a search warrant. Thereafter, when the suitcase was opened and searched, officers found three bales of compressed marijuana weighing a total of twenty-three pounds, each pound worth between $500 and $1,000 if sold in Maricopa County.
Appellant was indicted for one count of possession of marijuana for sale and one count of transportation of marijuana for sale. Prior to trial, he filed a motion to suppress. The trial court held evidentiary hearings, took the matter under advisement, and then denied the motion.
The case proceeded to trial. Immediately before jury selection on the morning of Wednesday, March 2, 1994, the court held an informal conference with the attorneys. The court asked the attorneys how long the trial would last and requested a list of witnesses. The prosecution filed its list. Defense counsel Allen Bickart, a certified specialist in criminal law who had been practicing law for thirty-eight years, did not have a witness list. Nevertheless, he proceeded to add to the prosecution's list, in handwriting, three witnesses--a Sharon Ginther employed by America West Airlines, a Karen Shumard employed by the Pueblo Inn in Tucson, and a Ginger (whose last name was unknown) employed in Tucson by Arizona Shuttle Service, Inc. The prosecutor informed the court that defense counsel had not noticed these witnesses previously. The court ordered defense counsel to provide the prosecutor with the names, addresses, and phone numbers of the witnesses by 5:00 p.m. that afternoon. Defense counsel provided this information to the prosecutor and informed her that the witnesses would be made available to be interviewed at 9:00 a.m. on Monday, March 7, 1994.
During his opening statement, defense counsel referred to an Ed Kenefick, who allegedly travelled to Tucson with Appellant under the name Ed Hessberger. Counsel claimed that the suitcase and the marijuana belonged to Kenefick, and that Appellant, unaware that there was marijuana inside of it, had agreed to return the suitcase to Kenefick's wife. Counsel told the jury that they would see documents supporting Appellant's story, including: (1) America West Airlines records demonstrating that Hessberger travelled from Newark to Phoenix with Appellant; (2) Arizona Shuttle Service records demonstrating that Appellant and Kenefick travelled together to Tucson; and (3) Pueblo Inn records demonstrating that Kenefick stayed in the room next to Appellant and made several phone calls while in Tucson.
After court adjourned for the day, the court held another conference with the attorneys. The prosecutor informed the court that she learned for the first time about Kenefick and the documentary evidence supporting Appellant's story during the opening statement of defense counsel. She then moved to preclude the witnesses and Defendant's Exhibits 8, 9, and 10 For Identification ("documentary evidence"). The court denied the motion without prejudice, but indicated that it would reconsider the motion later in the trial after determining whether the prosecution was prejudiced. The court also ordered that all the documentary evidence be delivered to the prosecutor by 10:00 a.m. the next morning. Defense counsel complied with this order.
The prosecution began its case-in-chief on Thursday, March 3, 1994. After a three-day recess in the proceedings, trial resumed on Monday, March 7, 1994. On Tuesday, March 8, 1994, the prosecutor filed a motion to preclude the three witnesses and Appellant's documentary evidence. The court held a conference on the motion. Defense counsel conceded that the disclosure was untimely, but argued that it occurred because Appellant was living in New York and was not present to assist with preparation of his defense. He also asserted that the police reports gave the prosecution sufficient notice. The court rejected both arguments, finding no reason justifying the late disclosure and noting that the case was an old one which already had been continued for several months. The prosecutor then informed the court about the investigation conducted after Appellant's late disclosure. 3 She then argued that the prosecution was prejudiced because: (1) Ginther of America West Airlines was not a custodian of records and could not testify about whether Kenefick made the airline reservation for Appellant; (2) Appellant had not denied ownership of the suitcase previously; (3) Kenefick and Hessberger could not be located in New York and therefore could not be investigated; (4) Galbari was unable to obtain a subpoena to identify whose phone numbers were called from Kenefick's hotel room; and (5) it was impossible to do a complete investigation in a matter of days--two of which fell on a weekend. Because the court felt that the late disclosure prohibited the prosecution from being able to adequately confront and rebut Appellant's evidence fairly, it granted the motion to preclude Appellant from calling three witnesses and from offering his documentary evidence. The court also ordered the prosecutor not to comment about defense counsel's failure to produce the witnesses and documentary evidence mentioned in his opening statement.
The trial proceeded and Appellant took the stand in his own defense. He asserted that he had no knowledge of the contents of the suitcase because it belonged to Kenefick, and because he merely was doing a favor by carrying it back to Kenefick's wife in New York.
Appellant was convicted of both charged offenses. After sentencing, he timely appealed to this court and now raises two arguments: (1) That the trial court committed clear and manifest error by denying his motion to suppress the contents of the suitcase; and (2) that the trial court abused its discretion by precluding him from calling three witnesses and from offering his documentary evidence.
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