State v. Williamson

Decision Date20 July 2015
Docket NumberNo. 2 CA-CR 2014-0008,2 CA-CR 2014-0008
CourtArizona Court of Appeals



See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20121779003

The Honorable Paul E. Tang, Judge



Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Interim Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant


Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Espinosa concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Chris Williamson was convicted of four counts of conspiracy to commit various offenses for his participation in a plan to commit a home invasion robbery to steal drugs. The trial court sentenced him to presumptive, concurrent terms of imprisonment, the longest of which were 9.25 years. On appeal, Williamson argues the court erred by denying his motions: (1) to dismiss for outrageous government conduct; (2) to recuse the Pima County Attorney's Office; (3) for jury instructions concerning the government's destruction of evidence and the definition of "inducement" for his entrapment defense; and, (4) for a mistrial after the prosecution added "incorrect and inflammatory" subtitles to a video played for the jury and after an officer "testified that the defendants were not entrapped." He also argues the four counts of conspiracy are multiplicitous and should be reduced to a single count. We agree the charges were multiplicitous and vacate his convictions for conspiracy to commit armed robbery, to commit aggravated robbery, and to commit possession of a narcotic drug. We otherwise affirm.

Factual and Procedural Background

¶2 The events leading up to Williamson's arrest are sufficiently set forth in State v. Williamson, 236 Ariz. 550, ¶¶ 2-7, 343 P.3d 1, 5-6 (App. 2015), which we incorporate here. We present only those facts pertinent to this appeal, which we view in the light most favorable to sustaining Williamson's convictions. See State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013).

¶3 In April 2012, Tucson Police Department (TPD) officers Miguel Verdugo and Brandon Angulo orchestrated a reverse-stingoperation while undercover. Based on an introduction made by a confidential informant, Williamson and the officers met to discuss a "home invasion" of a drug stash house. In subsequent meetings, Williamson introduced the officers to his brother Craig, Randy Chapman, and Timothy Preston Adams, who all agreed to participate. On May 2, 2012, the officers met Williamson and the others in a parking lot and provided them with firearms and a vehicle to be used during the home invasion later that day. The officers then drove away in a separate vehicle, and a Special Weapons and Tactics (SWAT) team moved in to make the arrests.

¶4 A grand jury indicted Williamson and the others for conspiracy to commit kidnapping, conspiracy to commit armed robbery, conspiracy to commit aggravated robbery, and conspiracy to commit possession of a narcotic drug. During a joint trial for Williamson and his brother,1 the state introduced surreptitiously recorded videos of their meetings with the undercover officers. Williamson and his brother stipulated to the elements of the charges but argued they had been entrapped. The jury found Williamson guilty as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Outrageous Government Conduct

¶5 Williamson argues the trial court erred by denying his pretrial "motion to dismiss the prosecution for outrageous government conduct." Generally, "[w]e review a trial court's ruling on a motion to dismiss criminal charges for abuse of discretion," State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App. 2005), but, to the extent Williamson raises constitutional issues, our review is de novo, see Williamson, 236 Ariz. 550, ¶ 8, 343 P.3d at 6; State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000). "We defer to the trial court's factual findings unless clearly erroneous." State v. O'Dell, 202 Ariz. 453, ¶ 8, 46 P.3d 1074, 1077-78 (App. 2002).

¶6 Williamson's motion to dismiss argued "the entire scheme to engage . . . Williamson . . . in a phony home invasion plot was cooked up by [the] officers solely for the purpose of prosecuting . . . Williamson" and they had "provided him with guns, money, and the plan because he lacked the criminal intent to put it together on his own and then busted him for having guns, money and a plan." The trial court denied the motion. After the trial, Williamson filed a motion to vacate on the same grounds, which the court also denied. In doing so, the court relied on United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013), finding that "under [the] totality of [the] circumstances," the "conduct by these agents [was] not . . . grossly shocking" or even "unreasonable."

¶7 To warrant a dismissal, "the government's conduct must be so egregious that it violates notions of 'fundamental fairness' and is 'shocking to the universal sense of justice.'" Williamson, 236 Ariz. 550, ¶ 9, 343 P.3d at 6, quoting United States v. Russell, 411 U.S. 423, 432 (1973). The defendant must demonstrate: "(1) the government 'engineer[ed] and direct[ed] a criminal enterprise from start to finish,' or (2) the government used 'excessive physical or mental coercion' to induce the defendant to commit the crime." Id. ¶ 11, quoting United States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008), and United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995) (alterations in Williamson). The defendant's burden is "'extremely high.'" Id., quoting United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). In a reverse-sting operation, the defendant must show that officers did more than "suggest the illegal activity," induce the defendant to "'expand or extend previous criminal activity,'" or "provide supplies and expertise." Id., quoting United States v. Mosley, 965 F.2d 906, 911 (10th Cir. 1992). And, with regard to coercion, it is not outrageous for the government to "'employ appropriate artifice and deception in their investigation,' 'make excessive offers,' and 'even utilize threats or intimidation [if not] exceeding permissible bounds.'" Id., quoting Mosley, 965 F.2d at 912 (alteration in Mosley).

¶8 Although "[t]here is no single test for resolving a claim of outrageous government conduct," we approved of the trial court's relying on the factors used by the court in Black inconsidering the totality of circumstances. Williamson, 236 Ariz. 550, ¶ 12, 343 P.3d at 7. Thus, we consider the same factors, including:

(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government's role in creating the crime of conviction; (4) the government's encouragement of the defendants to commit the offense conduct; (5) the nature of the government's participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

Black, 733 F.3d at 303. Applying those factors in this case, we conclude the government's conduct was not outrageous.

¶9 As to the known criminal characteristics and individualized suspicion of the defendants, the state concedes that Angulo and Verdugo had no knowledge of Williamson prior to the reverse-sting operation. The officers targeted Williamson after receiving a tip from their confidential informant. But the absence of specific suspicion or "reasoned grounds" for an investigation does not imply outrageous conduct by itself. United States v. Luttrell, 923 F.2d 764, 764 (9th Cir. 1991). The officers here did not search for an "otherwise innocent person" among a vulnerable population. United States v. Garza-Juarez, 992 F.2d 896, 909 (9th Cir. 1993); see also Black, 733 F.3d at 302-03 (finding it "troubling" that government targeted generalized population characterized by limited "economic and social conditions"). Instead, as the trial court explained, "the record shows that the [informant] was a roommate of the brother of [Chris and Craig Williamson]."

¶10 Next, we turn to the government's role in creating the crimes of conviction. See Williamson, 236 Ariz. 550, ¶ 20, 343 P.3d at 9. As noted above, the government's informant made contact with Williamson, initiating the events that led to his arrest. Also, theofficers' undercover personae and the drug stash house were completely fictional. See Black, 733 F.3d at 307 (characterizing government's role as "quite strong" after noting government lacked individualized suspicion but initiated contact and proposed crime). However, the officers only presented Williamson with the opportunity and left the planning of the home invasion to him. And, during their first meeting, when Williamson told the officers he wanted backup for the home invasion, the officers told him, "that's on you" to find a crew.

¶11 Moreover, any concern about the government's role in creating the fictitious crime is further mitigated when we consider the fourth factor—the government's role in encouraging Williamson to take part in the crime. See Williamson, 236 Ariz. 550, ¶¶ 22-23, 343 P.3d at 9-10. Five minutes into their first meeting, Williamson told the officers that he was "[r]eady to do some work."2 He then stated "he had multiple felonies on his record" and "had done burglaries before." Angulo "made [it] very clear that this was not going to be a burglary" and, instead,...

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