State v. Torres
| Docket Number | 2 CA-CR 2022-0023 |
| Decision Date | 08 June 2023 |
| Parties | The State of Arizona, Appellee, v. Joseph Angel Torres, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20170508001 The Honorable Christopher Browning, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee
Law Offices of Thomas Jacobs By Thomas Jacobs, Tucson Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
¶1 Joseph Torres appeals from his conviction and sentence for second-degree murder. He claims prosecutorial error denied him a fair trial and insufficient evidence supports his conviction. He also asserts the trial court abused its discretion by denying his motion to suppress. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to sustaining the verdict, resolving all reasonable inferences against Torres. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In 2016, Torres and four other individuals, including Alice P., were involved in a street fight they initiated with the victim, I.A., and I.A.'s half-brother, M.G. M.G. testified he wrestled a bat away from an assailant and held off three of the men while Torres and I.A. fought. At one point, M.G. approached Torres and hit him with the bat, telling him to let I.A. go. Moments later, Torres shot and killed I.A. Torres, with the gun in his hand, fled in a car with three others while Alice P. fled on foot. Officers arrested Torres some months later, after Alice P. identified him as the shooter.
¶3 Following a five-day jury trial, Torres was convicted of second-degree murder and sentenced to thirteen years' imprisonment. Torres appealed, and except as noted below, we have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶4 Torres challenges the trial court's denial of his motion for new trial pursuant to Rule 24.1, Ariz. R. Crim. P., on two grounds. He claims prosecutorial misconduct denied him a fair trial and that there is not substantial evidence supporting his conviction. However, Torres's notice of appeal does not encompass the court's denial of his motion for new trial, and we therefore lack jurisdiction to consider it. See State v. Wilson, 253 Ariz. 191, n.3 (App. 2022); see also State v. Nunn, 250 Ariz. 366, ¶ 4 (App. 2020) (). Notwithstanding this, we have jurisdiction to consider both claims of error as they are independently reviewable in conjunction with Torres's appeal from the final judgment of conviction. See § 13-4033(A)(1).[1]
¶5 Torres challenges the trial court's denial of his motion to suppress ammunition seized from his home pursuant to a search warrant. We review a court's ruling on a motion to suppress for an "abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Booker, 212 Ariz. 502, ¶ 10 (App. 2006). We only consider the evidence presented at the suppression hearing, viewing it in the light most favorable to upholding the ruling. State v. Olm, 223 Ariz. 429, ¶ 2 (App. 2010).
¶6 Shortly after the shooting occurred on October 23, 2016, officers identified and arrested Alice P. for her involvement. On November 30, Alice P. participated in a "free talk" with police, at which time she implicated Torres as the shooter. On February 1, 2017, police arrested Torres and obtained a search warrant for his home. The warrant authorized the search and seizure of "[f]irearms," "[a]mmunition," "[i]ndicia of ownership," "DNA from Joseph Angel Torres Jr." and "photographs of Joseph Angel Torres Jr."
¶7 During the search warrant application, the detective did not disclose that police had found a nine-millimeter spent cartridge casing at the crime scene. Upon searching Torres's home, police found and seized nine-millimeter ammunition which was the same brand as the casing recovered from the scene.
¶8 Before trial, Torres moved to suppress the evidence obtained pursuant to the warrant, generally arguing the warrant was based on stale information and lacked particularity regarding items to be seized. After an evidentiary hearing, the trial court found that the warrant was not stale, but it was impermissibly general in its description of firearms and ammunition as items subject to search and seizure. It therefore granted Torres's motion "as it pertain[ed] to any firearms or ammunition not similar to the CCI 9mm cartridge found," but denied the motion "as it relate[d] to all other evidence found and seized by the police."
¶9 Torres first argues that probable cause did not exist when the warrant was issued because the detective "never explained why there was probable cause to believe evidence from a homicide committed several months earlier would be located at [Torres's home]." Probable cause justifying a search warrant must exist at the time it is issued, but there is no arbitrary time limit on how old information in the affidavit may be. State v. Hale, 131 Ariz. 444, 446 (1982). When determining whether information contained in a search warrant affidavit is stale, our supreme court has considered whether the illegal activity "is of a continuous nature or in a course of conduct," State v. Smith, 122 Ariz. 58, 60 (1979), as well as whether the type of evidence sought "would likely be consumed or thrown away" and whether "[t]he [a]uthorities acted with dispatch as soon as the facts were made known to them," State v. Kasold, 110 Ariz. 563, 565-66 (1974) ().
¶10 Here, we agree with the trial court that probable cause existed despite the approximately three-month lapse between the homicide and the issuance of the search warrant. Although this offense is not continuous in nature or part of a course of conduct, that is only one consideration. See Smith, 122 Ariz. at 60. Like the evidence in Kasold, the evidence sought by police here-firearms, ammunition, DNA, indicia of ownership, and photographs of Torres-is not particularly consumable or disposable, and it is not unreasonable to believe Torres would still have them in his possession three months later. Additionally, the police only learned of Torres's involvement in the shooting from Alice P.'s free talk, and they obtained the warrant approximately two months after that.
¶11 Torres next claims the trial court abused its discretion when it failed to suppress the nine-millimeter ammunition found at his home despite finding the warrant lacked particularity "as it relate[d] to the caliber, or lack thereof, of the firearm and ammunition to be seized." The state counters that the court applied the proper remedy by only suppressing evidence "not similar to the cartridge found at the scene."
¶12 When a warrant contains sections which are impermissibly broad, a trial court's ruling on a motion to suppress should determine whether the "valid portions are 'meaningfully severable' from the entire warrant." State v. Roark, 198 Ariz. 550, ¶ 10 (App. 2000) (quoting United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982)). If the valid portions of the warrant are severable, the court "may redact the invalid phrases and suppress only the evidence seized pursuant to these invalid portions." Id.
¶13 Here, the trial court implied that it struck and severed the firearm and ammunition clauses from the warrant because it found they were impermissibly broad.[2] We disagree with that finding. But because we conclude the court erred by finding that the warrant lacked particularity in the first instance, we agree with its refusal to suppress the nine-millimeter ammunition. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012) (). We review de novo whether the warrant was sufficiently particular to comply with the Fourth Amendment. Roark, 198 Ariz. 550, ¶ 6.
¶14 The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This requirement "prevents general, exploratory searches and indiscriminate rummaging through a person's belongings," and the specificity required "varies depending on the circumstances of the case and the type of items involved." United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). To determine whether a warrant is sufficiently particular, we have concentrated on one or more of the following factors:
(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.
State v. Dean, 241 Ariz. 387, ¶ 7 (App. 2017) (quoting Spilotro, 800 F.2d at 963).
¶15 First, we disagree with the trial court's finding that police did not have probable cause to seize all firearms...
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