Opinion
No. 1 CA-CR 10-0991
01-12-2012
STATE OF ARIZONA, Appellee, v. QUINN DOUGLAS FITZGERALD, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas Baird, Deputy Public Defender Attorneys for Appellant Quinn Douglas Fitzgerald Appellant
NOTE: 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. 31.34
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-030384-001 DT
The Honorable Robert L. Gottsfield, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Thomas Baird, Deputy Public Defender
Attorneys for Appellant
Phoenix
Quinn Douglas Fitzgerald
Appellant
St. Johns TIMMER, Presiding Judge
¶1 Quinn Douglas Fitzgerald appeals his conviction and resulting sentence after a jury found him guilty of misconduct involving weapons, a class four felony. Fitzgerald's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire record on appeal, he found no arguable question of law that is not frivolous. This court granted Fitzgerald an opportunity to file a supplemental brief in propria persona, and he has done so. For the reasons that follow, we affirm.
BACKGROUND
¶2 On the morning of July 22, 2008, Scottsdale police were called to the scene of a potential burglary of a restaurant on North Scottsdale Road. When police arrived, Fitzgerald was at the scene standing near his truck. Officer Kimberly Savage questioned Fitzgerald about the incident and items in his truck. Officer Savage also asked for and obtained Fitzgerald's drivers license and ran a wants-and-warrants check, which revealed his license had been suspended. She did not, however, immediately inform Fitzgerald of the status of his license.
¶3 Officer Savage returned the suspended license to Fitzgerald, who subsequently drove from the scene. Officer Savage immediately pulled him over and arrested him for driving with a suspended license. After the arrest, Officer Savage impounded the vehicle, conducted an inventory search, and found a handgun underneath the driver's seat. Fitzgerald was taken to the police station for fingerprinting and interrogation. During the interrogation, Fitzgerald admitted he had owned the gun for "a couple of months" and kept it either in his truck or on his hip. Fitzgerald also admitted he was a convicted felon.
¶4 On July 30, 2009, the grand jury indicted Fitzgerald on one count of misconduct involving weapons in violation of Arizona Revised Statutes ("A.R.S.") section 13-3102(A)(4) (Supp. 2010). After trial, a jury convicted Fitzgerald of the charge. The trial court subsequently sentenced him to a three-year imprisonment term with sixty-nine days' presentence incarceration credit. This timely appeal followed. Fitzgerald presents numerous issues on appeal, which we address in turn.
Absent material revisions after the date of the offense, we cite a statute's current version.
DISCUSSION
I. Motion to suppress
A. Denial of continuance
¶5 Fitzgerald asserts the court erred by denying his motion to continue the suppression hearing. The denial of a motion for continuance rests "solely within the sound discretion of the trial judge." State v. Jackson, 112 Ariz. 149, 154, 539 P.2d 906, 911 (1975). Thus, we will not disturb the trial court's ruling unless Fitzgerald can show that the trial court abused its discretion and that the denial was prejudicial. Id.
¶6 On the morning of the suppression hearing, Fitzgerald moved to continue the hearing in order to subpoena two additional police officers to appear and testify. When queried, Fitzgerald informed the court at the hearing that each officer would testify he knew Fitzgerald's license had been suspended but failed to inform him of this fact. Additionally, Fitzgerald stated they would testify he was questioned about the purported burglary. This evidence, however, was elicited from Officer Savage. Because the two additional officers would not have added anything to the proceedings, and in light of the late timing of the motion, the court did not err by denying it, and Fitzgerald did not suffer prejudice.
B. Denial of motion to suppress
¶7 Fitzgerald argues the trial court erred by denying his motion to suppress evidence because (1) the police did not offer him the opportunity to reject the inventory search, (2) the police did not conduct the search in good faith, and (3) the search violated the principles set forth in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). Because Fitzgerald did not raise his first and third contentions to the trial court, he has forfeited his claims of error absent fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). We review the trial court's denial of the motion to suppress based on Fitzgerald's second contention for an abuse of discretion. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). In deciding the propriety of the court's ruling, we consider only the facts adduced at the suppression hearing, State v. Teagle, 217 Ariz. 17, 20, ¶ 2, 170 P.3d 266, 269 (App. 2007), and we view that evidence in the light most favorable to affirming the ruling. State v. Organ, 225 Ariz. 43, 46, ¶ 10, 234 P.3d 611, 614 (App. 2010).
1. Opportunity to reject inventory search
¶8 After conducting an evidentiary hearing, the trial court found that Fitzgerald was properly stopped and arrested for driving with a suspended license and that Officer Savage found the gun during a valid inventory search. Inventory searches allow officers to "protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372 (1987). It is an "incidental administrative step following arrest and preceding incarceration." State v. Davis, 154 Ariz. 370, 375, 742 P.2d 1356, 1361 (App. 1987) (quoting Illinois v. Lafayette, 462 U.S. 640, 644 (1983)). Inventory searches are valid if: (1) law enforcement officers "have lawful possession or custody of the vehicle," and (2) the search is "conducted in good faith and not used as a subterfuge for a warrantless search." Organ, 225 Ariz. at 48, ¶ 21, 234 P.3d at 616. Inventory searches benefit from a presumption of good faith, however, when they are conducted according to established search procedures. Id.
¶9 Fitzgerald argues the inventory search was invalid because he was not given an opportunity to refuse it. To support his position, he relies on cases that rest on Washington state law, United States v. Wanless, 882 F.2d 1459 (9th Cir. 1989), State v. Williams, 689 P.2d 1065 (Wash. 1984), or address the search of a hotel room in which the occupant had a greater expectation of privacy, United States v. Lyons, 706 F.2d 321 (D.C. Cir. 1983). None of these cases holds that the Fourth Amendment requires the police to ask a driver's permission before conducting an inventory search of an impounded vehicle. Arizona does not impose this requirement. See Organ, 225 Ariz. at 48, ¶ 21, 234 P.3d at 616; see also Bertine, 479 U.S. at 373-74 (stating Fourth Amendment does not require police to permit defendant to make alternative arrangements to secure contents of impounded vehicle). We do not detect fundamental error.
2. Good faith search
¶10 Fitzgerald primarily contends the search was not undertaken in good faith as his arrest and the subsequent search were merely a subterfuge to find evidence relating to the burglary. He points to (1) Officer Savage's purported violation of a Scottsdale Police Department Field Order by failing to take the license when she learned it had been suspended and (2) her testimony that she did not take the license from him initially because police were present to investigate the burglary, as evidence that Officer Savage returned his license to trick him into operating his truck with a suspended license in violation of A.R.S. § 28-3473 (2004). According to Fitzgerald, the officer's "ruse" improperly led to his arrest and the subsequent inventory search.
¶11 The trial court did not abuse its discretion by rejecting Fitzgerald's argument. First, the trial court did not err by disregarding the import of the field order because it was not introduced in evidence at the suppression hearing. See Teagle, 217 Ariz. at 20, ¶ 2, 170 P.3d at 269. Second, although Officer Savage stated she did not take Fitzgerald's license initially because she was then primarily concerned with investigating the burglary, nothing prevented her from stopping Fitzgerald once he took the additional step of driving with the suspended license. This is so even if she was motivated to stop him for a traffic violation because she suspected he was involved in the burglary. Whren v. United States, 517 U.S. 806, 813 (1996) (holding validity of traffic stop does not depend on motive of officer); United States v. Robinson, 414 U.S. 218, 221 n.1 (1973) (concluding that a traffic-violation arrest is not rendered invalid even if it was "a mere pretext for a narcotics search"). Because Officer Savage had probable cause to believe Fitzgerald was operating his truck with a suspended license, the stop was valid even if the officer had an ulterior motive to investigate a separate crime for which she did not have reasonable suspicion. Whren, 517 U.S. at 812-13.
¶12 We also do not detect any error by the trial court in ruling that the inventory search was proper. Arizona law requires a police officer to either immobilize or impound a vehicle when the officer determines a person is driving a vehicle with a suspended or revoked license. A.R.S. § 28-3511(A)(1) (Supp. 2010). Also, Officer Savage testified that the Scottsdale Police Department's policy is to impound a vehicle when an officer arrests the driver for operating the vehicle on a suspended license. Once the officer impounded Fitzgerald's truck, she was entitled to conduct an inventory search. South Dakota v. Opperman, 428 U.S. 364, 373 (1976) ("It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it." (citation omitted)); Wanless, 882 F.2d at 1463 ("[I]t is undisputed that once a vehicle has been impounded, the police may conduct an inventory search."). Even though Officer Savage may have been additionally motivated to conduct the inventory search in furtherance of the burglary investigation, because the search reasonably followed valid impoundment of the truck, the trial court did not err by concluding that the officer conducted the search in good faith. Organ, 225 Ariz. at 49, ¶ 25, 234 P.3d at 617 ("[S]ubjective motives of police need not be 'simplistically pure'; rather, the inquiry is whether the inventory search was reasonable under objective standards." (citing In re One 1965 Econoline, 109 Ariz. 433, 435, 511 P.2d 168, 170 (1973))).
3. Violation of Gant
¶13 Fitzgerald argues the search violated the principles set forth in Arizona v. Gant, 129 S. Ct. 1710, because he was handcuffed and secured in a police car at the time of the search. Gant concerned searches incident to arrest, however, and did not address inventory searches like the one in this case. Id. at 1716. The reasoning in Gant is therefore inapplicable.
Fitzgerald also argues the trial court erred by failing to grant his motion to vacate judgment based on the alleged violation of Gant. For the same reasons, we reject this argument.
¶14 For the foregoing reasons, the trial court did not err in refusing to suppress the evidence found in the valid inventory search of Fitzgerald's truck.
II. Preliminary jury instruction
¶15 Fitzgerald argues the trial court erred in stating during the preliminary jury instructions that "[y]ou must think the Defendant is guilty just because he has been charged with a crime." Because Fitzgerald raises this issue for the first time on appeal, we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶16 We do not discern fundamental error. First, because the preliminary instructions in the record properly state that the jury must not think Fitzgerald is guilty merely because the State charged him with the offense, it is unclear whether the judge misstated the instruction or the court reporter omitted a critical word. Second, assuming the transcription is accurate, when read in context, it is apparent the court simply misspoke and a reasonable jury would not have been confused by the court's instruction:
The State has charged the Defendant with a crime. The charge is not evidence against the Defendant. You must think the Defendant is guilty just because he has been charged with a crime. The Defendant has pleaded not guilty. The Defendant's plea of not guilty means the State must prove every part of the charge beyond a reasonable doubt.Third, and finally, any confusion was cured by the trial court's final jury instructions, which correctly stated that "[y]ou must not think the Defendant is guilty just because of a charge."
III. Reference to multiple convictions
¶17 Fitzgerald argues the trial court erred in denying his motion for mistrial because the prosecutor elicited evidence that he had multiple felony convictions after the trial court had limited the State to proving only one conviction. We review the trial court's decision to deny the motion for an abuse of discretion. State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993). Because "declaration of a mistrial is the most dramatic remedy for a trial error [it] should be granted only if the interests of justice will be thwarted otherwise." State v. Roque, 213 Ariz. 193, 224, ¶ 131, 141 P.3d 368, 399 (2006). To determine whether a mistrial should be granted, the court should consider (1) whether the prosecutor's questions called to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of this particular case, were influenced by the remarks. Id. at ¶ 128.
¶18 During the State's examination of Scottsdale Police Detective Benjamin Glass, the following exchange took place:
Q. At that point did you ask the Defendant any questions about his prior felony convictions?Fitzgerald immediately objected to the characterization because the trial court had "agreed to allow only the one conviction" and moved for mistrial. The trial court denied Fitzgerald's motion, finding that the prosecution's reference to multiple convictions was "just a misstatement" and was "not prejudicial at all."
A. I did.
Q. And did the Defendant say to you he has prior felony convictions?
A. He did.
¶19 Fitzgerald does not explain how he was prejudiced by the brief reference to multiple convictions, especially as the State redacted two additional felonies listed on the penitentiary pack ("pen pack") prior to publishing it to the jury. Additionally, Fitzgerald admitted to an officer that he had a prior conviction and admitted the gun belonged to him. Thus, even assuming the State drew unwarranted attention to Fitzgerald's multiple convictions, the court did not err by concluding that this revelation probably did not influence the verdict.
¶20 In a related argument, Fitzgerald contends the trial court erred by failing to instruct the jury to disregard the State's reference to multiple convictions. Because Fitzgerald did not ask for such an instruction and raises this issue for the first time on appeal, we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Consistent with our conclusion that the reference to multiple convictions probably did not influence the verdict, we decide the lack of a curative instruction did not prejudice Fitzgerald.
IV. Failure to sanitize the pen pack
¶21 Fitzgerald next contends the trial court erred in admitting the pen pack in evidence without sanitizing the document to reflect only that he had a "felony conviction" rather than a felony conviction for robbery. He further argues the court erred by failing to grant his motion for new trial on this basis. We review the court's rulings for an abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004) (admission of evidence); State v. Rhodes, 219 Ariz. 476, 478, ¶ 9, 200 P.3d 973, 975 (App. 2008) (new trial ruling).
¶22 Even assuming the court erred by failing to sanitize the pen pack, we conclude beyond a reasonable doubt that admission of a sanitized pen pack would not have changed the outcome of the trial. See State v. McCurdy, 216 Ariz. 567, 574, ¶ 17, 169 P.3d 931, 938 (App. 2007) (affirming conviction where any error in admission of prior-convictions documents did not affect outcome of trial). The State was required to prove that Fitzgerald had a prior felony conviction; we do not discern how proving the felony was a robbery prejudiced Fitzgerald more than proving he had committed an unspecified felony. Moreover, the evidence against Fitzgerald was overwhelming. The gun was found under the driver's seat, and Fitzgerald admitted to police he owned the gun and was a convicted felon. The trial court did not commit reversible error.
¶23 In a related argument, Fitzgerald contends the trial court erred by failing to instruct the jury to disregard the fact he had been convicted of robbery. Because Fitzgerald did not ask the trial court for such an instruction and raises this issue for the first time on appeal, we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. Consistent with our conclusion that admission of a sanitized pen pack probably would not have changed the verdict, we decide the lack of a curative instruction did not prejudice Fitzgerald.
V. Leading questions
¶24 Fitzgerald argues the trial court erred in allowing the State to ask leading questions in its direct and redirect examinations of Officer Savage. Fitzgerald did not raise this objection to the trial court, and therefore we review only for fundamental error. Id. We have reviewed the pages of transcript cited by Fitzgerald; although some questions were leading, they were few in number and seemingly innocuous. We do not discern fundamental error.
VI. Inconsistent statements
¶25 Fitzgerald asserts the trial court erred "in allowing extrinsic inconsistent statements" by Officer Savage at the suppression hearing and at trial. Specifically, he points to her testimony that (1) it is illegal to present a suspended license to a police officer, and (2) a police officer is not obligated to arrest an individual every time a suspended license is presented. Fitzgerald did not raise this objection to the trial court, and therefore we review only for fundamental error. Id. The trial court did not err by failing to exclude this evidence without objection. Any inconsistency in Officer Savage's testimony went to her credibility rather than to the admissibility of her testimony. We do not discern fundamental error.
Fitzgerald does not identify any "extrinsic evidence" introduced to prove an inconsistent statement. We have not found such evidence in our review of the record, and we do not address the issue further.
VII. Use of 1993 conviction
¶26 Fitzgerald argues the trial court erred by permitting his 1993 conviction for use of dangerous drugs to form the basis for his status as a prohibited possessor. We reject this argument because Fitzgerald's 2003 robbery conviction formed the basis for his status as a prohibited possessor.
VIII. Motion for new trial
¶27 Fitzgerald next argues the trial court erred by denying his motion for a new trial pursuant to Arizona Rule of Criminal Procedure 24.1. We review a trial court's denial of such a motion for an abuse of discretion. Rhodes, 219 Ariz. at 478, ¶ 9, 200 P.3d at 975.
¶28 Although Fitzgerald asserts the court abused its discretion in denying the motion, outside the context of arguments already addressed in this decision, he fails to articulate any reason why the denial was erroneous, cite supporting authority, or explain how he suffered prejudice. "In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim." State v. Moody, 208 Ariz. 424, 452, ¶ 101 n.9, 94 P.3d 1119, 1147 n.9 (2004) (citation omitted). Because Fitzgerald fails to comply with this requirement outside the context of issues we have already addressed, we do not address the propriety of the court's ruling on the motion for new trial further. See id.
For the most part, Fitzgerald based his motion for new trial in the trial court on the same basis which we have previously addressed and rejected. See supra sections I, III-IV.
IX. Sentencing
A. Invocation of correct sentencing statutes
¶29 Fitzgerald argues the trial court erred in sentencing by improperly applying A.R.S. §§ 13-604, -702, and -702.01. Fitzgerald did not raise these objections to the trial court, and therefore we review only for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶30 Fitzgerald contends the court erred by using A.R.S. § 13-702 because it applies to first-time felony offenses, and, alternatively, it mandates probation. We disagree. The trial court was required to sentence Fitzgerald pursuant to the sentencing statutes in effect as of July 22, 2008, the date of the offense. A.R.S. § 1-246 (2002); State v. Newton, 200 Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001). The applicable version of § 13-702(B) applied to repetitive offenders like Fitzgerald who were sentenced pursuant to A.R.S. § 13-604.
Unless otherwise noted, we cite to the sentencing statutes in effect as of July 22, 2008, throughout the remainder of this decision.
--------
¶31 The applicable version of A.R.S. § 13-604(A) provided that an adult convicted of a class four felony and who has a historical prior felony conviction "shall be sentenced to imprisonment as prescribed in this subsection and shall not be eligible" for probation except under specified circumstances. Fitzgerald was convicted of a class four felony and had one historical prior felony conviction. The minimum sentence prescribed by § 13-604(A) was three years' imprisonment for such offenders, and the court imposed this sentence on Fitzgerald. Consequently, the court did not err.
¶32 Fitzgerald also argues the trial court erred by invoking § 13-604 because that statute applies to class six felonies, and the court convicted him of committing a class four felony. We disagree. Fitzgerald cites the current version of § 13-604, which applies to class six felonies. As explained previously, see supra ¶ 30, the court properly applied the version of § 13-604 in effect at the time of the offense.
¶33 Finally, Fitzgerald argues the court erred by applying § 13-702.01 because the legislature repealed that statute. The repeal was effective January 1, 2009; as explained, the court properly applied statutes in effect as of July 22, 2008. Regardless, the court did not invoke § 13-702.01 to impose an aggravated or mitigated sentence. We do not detect error.
B. Discrepancy in sentencing
¶34 Our review of the record reveals a discrepancy in the oral pronouncement of sentence and the sentencing minute entry. At sentencing, the court stated that the State had proven only the 2003 robbery conviction at trial and then imposed a prison term of three years, which reflected the minimum sentence for conviction of a class four felony with one historical prior felony conviction. A.R.S. § 13-604(A). The sentencing minute entry reflects the three-year prison term but lists Fitzgerald's 1993 conviction for use of dangerous drugs as the applicable historical prior felony conviction. "[W]hen there is a discrepancy between the oral pronouncement of sentence and the minute entry that cannot be resolved by reference to the record, a remand for clarification of sentence is appropriate." State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992) (emphasis omitted). We can resolve the discrepancy by reviewing the sentencing transcript, which reflects the court's finding that the State had proven the 2003 robbery conviction as the historical prior felony conviction used in sentencing Fitzgerald. See State v. Hanson, 138 Ariz. 296, 304-05, 674 P.2d 850, 858-59 (App. 1983) (holding that "the oral pronouncement of sentence controls" over the sentencing minute entry). We therefore amend the sentencing minute entry entered December 10, 2010, by substituting the 2003 robbery conviction (CR 2003-030463-001 DT) for the 1993 drug conviction (CR 9391047) as the applicable historical prior felony conviction.
CONCLUSION
¶35 After the filing of this decision, counsel's obligations pertaining to Fitzgerald's representation in this appeal have ended. Counsel need do no more than inform Fitzgerald of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Fitzgerald shall have thirty days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.
¶36 Accordingly, we affirm Fitzgerald's conviction and sentence as modified.
_________
Ann A. Scott Timmer, Presiding Judge
CONCURRING:
_________
Daniel A. Barker, Judge *
____________
Patrick Irvine, Judge *
* Judge Daniel A. Barker and Judge Patrick Irvine were sitting members of this court when the matter was assigned to this panel of the court. Both judges retired effective December 31, 2011. In accordance with the authority granted by Article 4, Section 3 of the Arizona Constitution and pursuant to Arizona Revised Statutes section 12-145 (2003), the Chief Justice of the Arizona Supreme Court has designated Judges Barker and Irvine as judges pro tempore in the Court of Appeals, Division One, for the purpose of participating in the resolution of cases assigned to this panel during their terms of office.