State v. Siddle

• Decision Date: 18 June 2002
• Docket Number: No. 2 CA-CR 2000-0253.,2 CA-CR 2000-0253.
• Citation: 47 P.3d 1150,202 Ariz. 512
• Parties: The STATE of Arizona, Appellee, v. Dwight Douglas SIDDLE, Appellant.
• Court: Arizona Court of Appeals

47 P.3d 1150

202 Ariz. 512

The STATE of Arizona, Appellee, v. Dwight Douglas SIDDLE, Appellant.

No. -0253.

Court of Appeals of Arizona, Division Two, Department B.

June 18, 2002.

As Corrected July 17, 2002.

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and Diane M. Ramsey, Tucson, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, By Brian X. Metcalf, Tucson, for Appellant.

OPINION

HOWARD, Presiding J.

¶ 1 A jury found appellant Dwight Siddle guilty of unlawful possession of a dangerous drug for sale, unlawful possession of equipment or chemicals for the purpose of manufacturing a dangerous drug, possession of drug paraphernalia, and possession of a deadly weapon during the commission of a felony drug offense. The trial court sentenced Siddle to concurrent terms of imprisonment for the drug offenses, the longest of which was 9.25 years and a consecutive 4.5-year prison term for the possession of a deadly weapon charge. On appeal, Siddle contends the trial court improperly permitted a witness to refer to the fact that he had invoked his Fifth Amendment right to remain silent. Siddle also contends that his convictions for both the drug offenses and for possession of a deadly weapon during a felony drug offense violate federal and state double jeopardy principles and A.R.S. § 13-116.¹ Because we disagree with Siddle's contentions, we affirm.

BACKGROUND

¶ 2 We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). Siddle had been living with Traci at her residence. Traci gave law enforcement officers permission to search her residence for a firearm. During that limited search, officers observed other items suggesting criminal activity. While the officers were in the process of obtaining a telephonic search warrant for the residence, Siddle drove up in a car towing a utility trailer.

¶ 3 After taking Siddle into custody, the officers searched the residence, Siddle, the car he had been driving, and the utility trailer he had been towing. In the residence, the officers found a spoon that had methamphetamine residue on it, a syringe containing methamphetamine, several empty syringes, and several materials used in the manufacture of methamphetamine. On Siddle's person, the officers found five plastic bags of methamphetamine and $295. In the car, officers found a handgun, syringes, $2,290, and numerous packs of matches. In the utility trailer, the officers found numerous materials used in the production of methamphetamine, including iodine, two- and three-phase liquids containing methamphetamine or methamphetamine byproducts, several over-the-counter nasal decongestants, methamphetamine recipes, a scale containing methamphetamine residue, and numerous other items used to produce methamphetamine.

DISCUSSION

¶ 4 Siddle first contends the trial court erred by allowing a law enforcement officer who testified at trial to be asked a juror's question that improperly referred to Siddle's invocation of his right to remain silent. On direct examination the prosecutor asked the officer, "So you've taken [Siddle] into custody. What happened then?" The officer responded, "I proceeded to Mirandize him, and we wanted to ask Mr. Siddle questions." The prosecutor did not elicit any further testimony from the officer regarding the questioning of Siddle. But, after both parties' attorneys finished examining the officer, a juror submitted a written question inquiring whether Siddle had admitted "that the paraphernalia [in the residence] belonged to him." After a bench conference in which the prosecutor recommended not asking the question, the trial court asked the officer, "Did Mr. Siddle make any statements to you about who the paraphernalia and items belonged to?" The officer responded that Siddle had not made any such statements. The prosecutor did not refer to Siddle's silence in closing arguments. Siddle did not object to this testimony below, and has, therefore, waived all but fundamental error. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). Fundamental error is error that deprives a defendant of a right essential to his or her defense and of a fair trial, or goes to the very foundation of the defendant's theory of the case. State v. Valenzuela, 194 Ariz. 404, ¶ 15, 984 P.2d 12, ¶ 15 (1999).

¶ 5 Due process demands that the state refrain from introducing testimony reflecting that a defendant had invoked his or her right to remain silent. State v. Gilfillan, 196 Ariz. 396, ¶ 36, 998 P.2d 1069, ¶ 36 (App. 2000). But testimony that falls short of disclosing a defendant's invocation of the right to remain silent does not run afoul of the Due Process Clause. See id. at ¶ 38, 998 P.2d 1069 (no reversible error when "question and answer did not necessarily suggest to the jury that the defendant was guilty because he had invoked his right to counsel during police questioning"); State v. Flores, 160 Ariz. 235, 237, 772 P.2d 589, 591 (App. 1989) (no error when reference to Miranda warnings did not call jury's attention to defendant's invocation of his right to remain silent); State v. Oppenheimer, 138 Ariz. 120, 124, 673 P.2d 318, 322 (App.1983) (officer's testimony that defendant had stated "if he didn't feel like answering some questions he wouldn't" not reversible error). Because the officer here did not state or imply that Siddle had invoked his right to remain silent, the trial court did not commit error, much less fundamental error. See Gilfillan; Flores; Oppenheimer.

¶ 6 Moreover, the only way in which Siddle claims to have been prejudiced is that the reference hampered his defense that Traci had possessed the contraband materials. That argument ignores the fact that the vast majority of contraband was found on Siddle, in the car he had been driving, and in the utility trailer he had been towing. There was no evidence that Traci had exercised any dominion over Siddle's shorts, the car, or the trailer. And, even assuming that Traci possessed the contraband found in the residence, the remaining contraband provided overwhelming evidence of Siddle's guilt on each count. See A.R.S. §§ 13-3102(A)(8); 13-3407(A)(2) and (3); 13-3415(A). The error, if any, was not fundamental.

¶ 7 Siddle also contends that his convictions violate federal and state double jeopardy principles because the substantive drug offenses are lesser-included offenses of possession of a deadly weapon during the commission of a drug felony and he has thus been punished multiple times for the same offenses.² U.S. Const. amend. V; Ariz. Const. art. II, § 10. The state and federal double jeopardy clauses generally provide the same protection to criminal defendants. State v. Eagle, 196 Ariz. 188, ¶ 5, 994 P.2d 395, ¶ 5 (2000). We review de novo whether double jeopardy applies. State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, ¶ 5 (App.2001), approved, 200 Ariz. 363, 26 P.3d 1134 (2001).

¶ 8 "The Double Jeopardy Clause bars a second prosecution for the same offense after conviction or acquittal and bars multiple punishments for the same offense." Id. Because Siddle's convictions occurred in a single trial, we are only concerned with the prohibition against multiple punishments for the same offense.

¶ 9 "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983); see also Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977)

("Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional [double jeopardy] guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."); United States v. Salameh, 261 F.3d 271, 277-78 (2d Cir.2001); Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, ¶ 6. In the context of a single trial, absent "a clear indication of contrary legislative intent," we presume that the legislature did not intend to authorize multiple punishments for a violation of two statutory provisions that are the same offense for double jeopardy purposes. Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715, 724 (1980); see also Brown, 432 U.S. at 166,

97 S.Ct. at 2225-26,

53 L.Ed.2d at 194; Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, ¶ 6.

¶ 10 Distinct statutory provisions constitute the same offense if they are comprised of the same elements. Brown, 432 U.S. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194. If "`each provision requires proof of an additional fact that the other does not,'" they are not the same offense. Id., quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)

. In the context of lesser-included offenses, the test has been articulated as "whether [the purported lesser-included offense] is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, ¶ 12 (App.1998) (emphasis added). See also State v. Welch, 198 Ariz. 554, ¶ 7, 12 P.3d 229, ¶ 7 (App.2000). In applying this test we focus on the elements of each provision and do not "consider the particular facts of the case." State v. Cook, 185 Ariz. 358, 361, 916 P.2d 1074, 1077 (App. 1995); see also Brown, 432 U.S. at 166,

97 S.Ct. at 2226,

53 L.Ed.2d at 194.

¶ 11 With the exception of possession of drug paraphernalia, the drug offenses here are greater offenses than the weapons offense by reason of felony classification. Compare § 13-3102(J) (violation of § 13-3102(A)(8) is...