State v. Nelson
| Decision Date | 21 June 2013 |
| Docket Number | 2 CA-CR 2012-0226 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOSHUA DAVID NELSON, Appellant. |
| Court | Arizona Court of Appeals |
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 DECISIONNot for Publication
AFFIRMED IN PART AND VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Amy Pignatella Cain
Tucson
Attorneys for Appellee
Joel A. Larson, Cochise County Legal Defender
Bisbee
Attorney for Appellant
¶1 Joshua Nelson appeals from his jury convictions for transportation of methamphetamine for sale, possession of methamphetamine, and possession of drug paraphernalia. Nelson contends the trial court erred in denying his motion to suppress post-Miranda1 statements he had made to sheriff's detectives. He also asserts that, based on double-jeopardy principles, the conviction of possession of methamphetamine must be vacated because it is a lesser-included offense of transportation of methamphetamine for sale. We affirm the transportation and drug paraphernalia convictions and sentences but vacate the possession of methamphetamine conviction and sentence.
¶2 We view the trial evidence and the inferences from that evidence in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). So viewed, the evidence established that in April 2011, Cochise County Sheriff's detective Kevin Jamka stopped Nelson because Nelson had been speeding. Nelson did not have a driver's license and the car did not belong to him or the passenger in the car. Nelson consented to a search of the car, where the detective found a digital scale with white residue on it, three empty baggies, and a baggie containing methamphetamine. Nelson also allowed the detective to look at his cell phone messages, which showed text messages of drug sales, and voluntarily spoke to the detective about the messages. The detective arrested Nelson and questioned him with another detective at the sheriff's substation. Nelson admitted having transportedmethamphetamine repeatedly and gave the detectives specific information related to deliveries of methamphetamine.
¶3 Nelson was indicted on six counts: one count of transportation of methamphetamine for sale, one count of possession of methamphetamine for sale, three counts of possession of drug paraphernalia, and use of cell phone to facilitate sale of methamphetamine. Nelson filed a motion to suppress statements he made on the basis they had been taken after he invoked his right to remain silent. The trial court denied the motion. After a three-day jury trial, at which the jury heard the audio recording of the statements, Nelson was convicted as detailed above; acquitted of two drug paraphernalia counts and the cell phone count; and sentenced to presumptive, concurrent terms, the longest of which was ten years. This appeal followed.
Denial of motion to suppress statements
¶4 Nelson first argues the trial court erred by denying his motion to suppress statements he had made to the detectives at the substation, insisting Detective Jamka continued to question him after he had invoked his Fifth Amendment right not to answer any questions. He asserts, as he did in his motion, that he had invoked his rights by responding "no" when Detective Jamka asked if he would answer questions. The state contends the detective merely asked a clarifying question in response to an ambiguous response, which ultimately resulted in a clarification and explicit consent. Nelson disputes any ambiguity.
¶5 We review the denial of a motion to suppress a defendant's statements to law enforcement officers "for 'clear and manifest error,' the equivalent of abuse of discretion." State v. Mendoza-Ruiz, 225 Ariz. 473, ¶ 6, 240 P.3d 1235, 1237 (App. 2010), quoting State v. Newell, 212 Ariz. 389, ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006). The trial court's legal conclusions, however, are reviewed de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In doing so, we review only the evidence presented at the suppression hearing, Newell, 212 Ariz. 389, ¶ 22, 132 P.3d at 840, and defer to the court's determinations of the credibility of the interrogating officers and the reasonableness of their inferences, Mendoza-Ruiz, 225 Ariz. 473, ¶ 6, 240 P.3d at 1237.
¶6 When a suspect is in custody,2 interrogation must cease if the defendant states that he wishes to remain silent. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). In Rhode Island v. Innis, 446 U.S. 291, 301 (1980), the Supreme Court defined "interrogation" under Miranda as "express questioning," and "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Not all express questioning constitutes interrogation, however, and "'[a] definition of interrogation that included any question posed by a police officer would be broader than that required to implement the policy of Miranda itself.'" United States v. Foster, 227 F.3d 1096, 1102-03 (9th Cir. 2000), quoting United States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981); see also State v.Smith, 193 Ariz. 452, ¶¶ 19-20, 974 P.2d 431, 436-37 (1999) (); State v. Waggoner, 139 Ariz. 443, 445, 679 P.2d 89, 91 (App. 1983) (); cf. State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 578-79, 583 P.2d 229, 234-35 (1978) (). To determine whether police conduct is "interrogation," the focus is "not on the form of words used, but the intent of the police officers and the perceptions of the suspect." State v. Finehout, 136 Ariz. 226, 230, 665 P.2d 570, 574 (1983).
¶7 Detective Jamka testified at the suppression hearing that before interrogation began, he read the Miranda warnings from a department-issued card. The detective asked Nelson if he understood the warnings, and Nelson answered that he did. The detective then asked if Nelson wished to speak to him. Detective Jamka described the rest of the exchange between them as follows:
¶8 Detective Jamka again asked Nelson if he understood his rights. Nelson answered that he did. The detective asked again, "Having these rights in mind, do you wish to talk to us now[?]" This time, Nelson answered, "[Y]es." The detective asked Nelson to explain why he had changed his answer, to make sure they "were all on the same sheet of music." Nelson answered that he had not understood the question the first time it was asked and that he had not meant to invoke his right to remain silent. The trial court took the motion under advisement.
¶9 In its written ruling, the trial court found that Detective Jamka had been "surprised" by Nelson's refusal to answer questions after he gave him the Miranda warnings because the "Defendant had consented to everything else . . . ." The court reasoned in determining whether to grant the motion to suppress, the essential question was "whether Detective Jamka's 'No?' was a question amounting to continued interrogation following an invocation of rights, or whether it was a reiteration of theDefendant's answer which sounded like a question because Detective Jamka was surprised." The court found the detective had not interrogated Nelson after Nelson responded. Instead, the court found, Jamka "didn't challenge or ignore Defendant's answer," he had "attempted to confirm it." The court concluded Nelson then had clarified he had misunderstood the question and, after he again was given the Miranda warning, he had waived "the right to remain silent," and answered the detective's questions. Based on the record before us, the court did not abuse its discretion.
¶10 The trial court's conclusion was premised on the finding that Detective Jamka's response of, "No?" was not a true question and was not, therefore, custodial interrogation. Nelson contends on appeal that the court's ruling also is premised on the implicit finding that Nelson's initial...
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