Opinion
No. 1 CA-CR 13-0842
01-27-2015
STATE OF ARIZONA, Appellee, v. SONNY MAURICE JAGASSAR, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alan L. Almann Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-103066-002
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alan L. Almann
Counsel for Appellee
Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Sonny Maurice Jagassar appeals his conviction and sentence for possession of marijuana for sale, a class 2 felony. He argues the superior court fundamentally erred by instructing the jury with respect to deliberate ignorance. More specifically, he contends: (1) There was insufficient evidence to support the instruction; (2) The instruction had the effect of "reliev[ing] the State of its burden of proving an essential element of the crime [of] . . . knowingly possess[ing] marijuana for sale;" and (3) The instruction was legally deficient because it did not require the jury to find that Jagassar took deliberate action to avoid learning the truth about the boxes containing marijuana. For the following reasons we find no reversible error and affirm Jagassar's conviction and sentence.
Jagassar was also convicted of a second count, possession or use of marijuana, a class 6 felony that he does not appeal.
FACTUAL AND PROCEDURAL HISTORY
¶2 In January 2013, the Maricopa County Sheriff's Office Parcel Interdiction Unit was surveilling a private postal shipping company. A red car parked in the lot, the driver opened the trunk and then he and a passenger went inside without removing anything from the trunk. A detective looked in the trunk and saw two heavily taped packages with handwritten air bills, appearing to be consistent with packages used to ship contraband.
¶3 Jagassar came out of the store, returned to the car, and closed the trunk. One of the uniformed detectives approached and told Jagassar the detectives were part of the parcel interdiction unit looking for drugs and contraband. The encounter was audio recorded and the recording was admitted into evidence and played for the jury at trial.
¶4 Jagassar initially told the detectives he was Ronnie Wallace. At first Jagassar denied that he was shipping anything, but after Detective L. told him that the detectives had seen the packages in the trunk, Jagassar said he was shipping books.
Eventually, Jagassar provided his Arizona license indicating his name was Sonny Jagassar and subsequently a California license bearing the name Ronnie Wallace was also impounded.
¶5 Jagassar denied requests to let the police look inside the packages and to let a drug dog sniff the car, and told Detective L. he had not packaged the boxes, but rather got them from someone on the street. According to the police, Jagassar appeared nervous, did not make a lot of eye contact, and was breathing heavily when he then told Detective L. that Pepe was paying him a couple dollars to ship the boxes to Florida. He said he had known Pepe for a decade, but did not know Pepe's last name.
¶6 Jagassar again told the detective that he was shipping books, but then also stated he "was going to go to jail." Because the detective thought this was an odd statement he asked why, to which Jagassar stated, he "knew it was going to happen," and asked "if he could get out of it." When the detective asked if there was something in the boxes that "shouldn't be," Jagassar admitted he had a "strong suspicion" there was and "[did not] doubt it." Jagassar also stated he "hope[d] [the boxes were] not what [he thought they were]," and that the boxes might contain marijuana. However, Jagassar did not respond when asked about the timing of his "strong suspicion" and whether it occurred when he got the boxes from Pepe or when he made contact with the detectives. Jagassar never said he knew what was in the boxes or that they contained marijuana.
¶7 Eventually, after a dog alerted on the trunk, the detectives obtained a warrant and searched the car and boxes. Inside each box was a compressed bundle of marijuana wrapped in cellophane, dryer sheets, and packing peanuts. The bundles weighed over sixteen pounds and Jagassar had more than two grams of marijuana in his pocket. Based on what they had seen and been told by Jagassar, the detectives believed Jagassar was responsible for the marijuana in his car.
¶8 At trial Jagassar detailed the events leading to his arrest. Jagassar testified that his nephew borrowed his car that morning and then returned with the car and a man named Pepe. The nephew asked Jagassar to go with him and then drove Jagassar's car to a gas station where they dropped off Pepe. When Jagassar asked his nephew why he wanted Jagassar to go with him, the nephew told Jagassar to "just wait, [I'll] tell [you]." Jagassar and his nephew then went to a convenience store where his nephew got cash and then told Jagassar to drive "across the street" to the postal store.
¶9 The nephew told Jagassar to open the trunk after which Jagassar followed his nephew directly in to the store; neither went to the trunk first. Jagassar did not think this was odd because he thought his nephew had something to pick-up and went inside with him in case he needed help. Inside the store his nephew was looking at packing supplies and looking out the window towards the car. When Jagassar asked him what was going on, the nephew told Jagassar that he was trying to call some people who were not answering and that he had two packages in the trunk. Jagassar testified it was at this point that he first learned about the two boxes in the trunk, but maintained he did not actually know what was in them.
¶10 Jagassar testified he went outside, saw the two boxes for the first time in the trunk and then closed the trunk and sat in the car. Although he maintained that he did not know what was in the boxes, Jagassar testified that when talking to the detective he just guessed at the contents, stating that they were books. Jagassar denied knowledge of the contents of the packages, suggesting at trial that the contents could have been drugs or stolen car parts. He testified that he did not tell police that he thought his nephew and Pepe had contraband in the car because he thought Pepe, "who is involved in a lot of stuff" might retaliate against him for telling the detectives that the boxes belonged to his nephew. Although Jagassar testified he told the detective the packages were being shipped to Florida because that is what he assumed based on his nephew being from Florida, he also testified that he just told the detectives the first things that popped into his head, and was giving misleading answers because he was "trying to put the officers in a spot where they would be able to get to the bottom of this thing."
¶11 Finally, Jagassar testified he did not become suspicious about the contents of the boxes until "all the questioning . . . about the boxes." However, he also testified that he stated aloud that he was going to jail because there were "five police officers there. . . . [a]nd the consistency of them questioning me . . . at which point I started putting two and two together, trying to figure out if, you know, something is really wrong with them boxes. . . . But first it was [my nephew] and his phone call. The next time it was Pepe in the garage . . . he didn't want to tell me why he was talking to Pepe . . . . and the boxes in the trunk of the car that he didn't tell me about . . . ."
¶12 The parties specifically discussed and approved the jury instructions proposed by the State including the deliberate ignorance instruction with appropriate modifications from the Revised Arizona Jury Instructions ("RAJI") Standard Criminal 40:
The RAJI contains language choice options in brackets. For example, "[he] [she]," "[package(s)] [container(s)] [vehicle]," and "[insert name of illegal drug]." RAJI Stand. Crim. 40, available at http://www.azbar.org/media/58832/2-standard_criminal_revised_2013.pdf (last visited January 13, 2015).
The State is required to prove beyond a reasonable doubt that the defendant knew that he was in possession of Marijuana. That knowledge can be established by either direct or circumstantial evidence showing that the defendant was aware of the high probability that the packages contained Marijuana, and that the defendant acted with conscious purpose to avoid learning the true contents of the packages. You may not find such knowledge, however, if you find that the defendant actually believed that no Marijuana was in the packages, or if you find that the defendant was simply careless.
¶13 The jury convicted Jagassar of both charges and he timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 13-4031 (West 2015) and -4033(A)(1) (West 2015).
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
DISCUSSION
I. Issues on appeal and standards of review.
¶14 Jagassar did not propose jury instructions, but rather reviewed and approved those proposed by the State with no additions. The minor modifications to the RAJI 40 deliberate ignorance instruction were discussed and approved in open court. On appeal however, Jagassar contends that the deliberate ignorance instruction was not warranted by the evidence, did not accurately state the law, and lowered the State's burden of proof as to the mens rea element of the offense.
¶15 Jagassar did not object to the deliberate ignorance instruction and preserve his argument below. Thus, he bears the burden to show the existence of both fundamental error and prejudice resulting therefrom. See State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013). Error is fundamental if it "goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). In determining this we keep in mind that "[g]iven the case-specific nature of the inquiry . . . the same error may be fundamental in one case but not in another." James, 231 Ariz. at 493, ¶ 13, 297 P.3d at 185 (citation and internal quotation marks omitted). We are also mindful that "[e]ven fundamental error does not require reversal absent a showing . . . of resulting prejudice." Id. at 494, ¶ 15, 297 P.3d at 186; see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court."). "Prejudice under fundamental error review is a fact-intensive inquiry and varies depending upon the type of error that occurred and the facts of a particular case." James, 231 Ariz. at 494, ¶ 15, 297 P.3d at 186 (citation and internal quotation marks omitted).
¶16 Similarly, in reviewing jury instructions de novo for legal accuracy, State v. Bocharski, 218 Ariz. 476, 487, ¶ 47, 189 P.3d 403, 414 (2008), we "evaluate[] [the instructions] in the context of case-specific factors, including the evidence at trial, the defense offered and the parties' arguments to the jury." James, 231 at 494, ¶ 15, 297 P.3d at 186; see also State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174 P.3d 265, 268 (2007) (viewing jury instructions in their entirety to assess legal accuracy); State v. Haas, 138 Ariz. 413, 425, 675 P.2d 673, 685 (1983) ("A case will ordinarily not be reversed because some isolated portion of an instruction, standing alone, might be misleading."). However, we review the superior court's decision to give the instruction for an abuse of discretion. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005). To prove prejudice, Jagassar must show "that a reasonable jury could have reached a different result had the jury been properly instructed." James, 231 Ariz. at 494, ¶ 15, 297 P.3d at 186 (citation and internal quotation marks omitted). II. The deliberate ignorance instruction was legally accurate and does not lower the State's burden of proof.
¶17 Jagassar argues the error "occurred when the trial court relied upon the language in the [RAJI] 40." See supra ¶ 12 ("aware of the high probability" and "acted with conscious purpose to avoid learning the true contents"). He asserts that RAJI 40 is based on language from a decades old Ninth Circuit case. See U.S. v. Lopez-Martinez, 725 F.2d 471, 472 (9th Cir. 1984); State v. Diaz, 166 Ariz. 442, 445, 803 P.2d 435, 438 (App. 1990) (relying on Lopez-Martinez), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d 728 (1991); see also RAJI Stand. Crim. 40 at source. He points out the 2013 revision to RAJI 40 cites a newer Ninth Circuit case, U.S. v. Heredia, 483 F.3d 913, 920 (9th Cir. 2007), which relies on a Ninth Circuit model jury instruction and states the second prong of the deliberate ignorance instruction differently than RAJI 40 and the instruction here. See Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit 5.7 (2010) [hereinafter "Model Instruction"]. Jagassar seems to contend the jury should have been instructed consistent with this federal language for the second prong of the test—"deliberately avoided learning the truth." See Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 (2011) (applying willful blindness doctrine in federal criminal law to patent infringement civil suit and approving of language requiring (1) belief of high probability a fact exists, and (2) "take[s] deliberate actions to avoid learning of that fact"); U.S. v. Yi, 704 F.3d 800, 804-05 (9th Cir. 2013) (applying Global-Tech requirements).
The Ninth Circuit deliberate ignorance instruction states: "You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant: l. was aware of a high probability that [e.g., drugs were in the defendant's automobile], and 2. deliberately avoided learning the truth. You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant's automobile], or if you find that the defendant was simply careless." Model Instruction 5.7 (emphasis added), available at http://www3.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/Criminal_Jury_Instructions_2014_06.pdf (last visited January 14, 2015).
¶18 However, the federal precedent Jagassar cites does not overrule, reject, or even criticize the language of the instruction here derived from RAJI 40—"acted with conscious purpose to avoid learning the true contents." Supra ¶ 12; see also Heredia, 483 F.3d at 920 (holding two-prong instruction of suspicion and deliberate avoidance sufficient, overruling cases suggesting proof of defendant's motive to avoid prosecution was also necessary). Jagassar contends: "Because the instruction as given only requires the jury to find a mental state—conscious purpose—and does not require it to find that [Jagassar] took any deliberate step to avoid learning the truth, the State's burden is reduced substantially." However, the instruction stated acting with conscious purpose to avoid, thus it does not require only a mental state, but also that the jury find Jagassar acted to avoid finding out the truth. Jagassar does not explain why acting with conscious purpose to avoid learning the truth is a different or less legally accurate standard than deliberately avoided learning the truth or taking deliberate action to avoid learning the truth. Compare RAJI Stand. Crim. 40, with Heredia, 483 F.3d at 920, Global-Tech, 131 S. Ct. at 2070, and Model Instruction 5.7. Indeed, a common definition or meaning of "deliberately" is "consciously and intentionally; on purpose." Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/de liberately (last visited January 14, 2015) (emphasis added). Although the jury was not explicitly instructed to apply the ordinary meaning of the undefined words in the instructions, Jagassar does not take issue with that, and we presume the jurors followed the instructions applying legal definitions for terms where provided and common or ordinary meanings to undefined terms. See State v. Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984) (stating that the court need not define a word if it is used in its ordinary sense and is commonly understood by those familiar with the English language).
¶19 That the instruction here and RAJI 40 says in several words—acting with conscious purpose—what the federal Model Instruction 5.7 says in one— deliberately—does not establish that the instruction was legally erroneous, nor that there is substantive difference between the instructions. We agree with the State that the deliberate ignorance instruction here was legally correct. Indeed, in State v. Fierro, we approved the legal accuracy of the same deliberate ignorance instruction and determined that the instruction did not lessen the "knowingly" mens rea requirement. 220 Ariz. 337, 339, ¶¶ 5-7, 206 P.3d 786, 788 (App. 2008); see also Heredia, 483 F.3d at 923-24 (disagreeing that the deliberate ignorance instruction "risks lessening the state of mind that a jury must find to something akin to recklessness or negligence"). Fierro determined that the instruction "accurately stated the law . . . . [and] properly informed the jury that [the defendant's] claim that he lacked the requisite knowledge for the commission of the offense entailed a credibility determination for the jury to make." 220 Ariz. at 339, ¶ 9, 206 P.3d at 788; see also U.S. v. Stewart, 185 F.3d 112, 125-26 (3d Cir. 1999) (finding no reversible error to instruct on willful blindness notwithstanding government's actual knowledge theory and rejecting argument that "conscious purpose to avoid learning the truth" instruction lowered burden of proving intent).
¶20 Moreover, the jury instructions as a whole were accurate because the superior court defined knowingly, see A.R.S. § 13-105(10)(b) (West 2012), the elements of the crime charged, burden of proof, actual and constructive possession, direct and circumstantial evidence, and the jury's duty to assess the credibility of witnesses. See Cox, 217 Ariz. at 356, ¶ 15, 174 P.3d at 268 ("If a jury would be misled by the instructions when taken as a whole, the trial court has committed reversible error. If, on the other hand, the instructions as a whole are substantially free from error, [we will] affirm the conviction[]." (citations and internal quotation marks omitted)); Haas, 138 Ariz. at 425, 675 P.2d at 685 (stating reversal is usually not required "because some isolated portion of an instruction, standing alone, might be misleading").
¶21 For these reasons, we find no reversible error in the deliberate ignorance instruction or in the instructions as a whole. III. The facts of this case warranted a deliberate ignorance instruction.
¶22 A party is entitled to a jury instruction on any theory reasonably supported by the evidence, State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998), and it is within the superior court's discretion to determine whether to give the instruction, Granville, 211 Ariz. at 471, ¶ 8, 123 P.3d at 665 (stating appellate court reviews for abuse of discretion). Jagassar argues that the evidence presented did not warrant the decision to instruct the jury about deliberate ignorance:
We note that there has been some debate in the federal courts regarding the appropriate standard of review as between de novo and abuse of discretion on whether evidence is sufficient to support an instruction. See generally Heredia, 483 F.3d at 921-22 (resolving in favor of abuse of discretion standard). Here the parties do not argue about the correct standard and we conclude that even applying a de novo standard, the evidence warrants the deliberate ignorance instruction.
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[T]here was insufficient evidence from which a rational jury could find that [Jagassar] was aware of a high probability that the packages contained marijuana, as opposed to some other contraband. More importantly, there was no evidence that [Jagassar] avoid[ed] learning the truth, either with deliberate action or with a conscious purpose.Jagassar urges us to consider the Ninth Circuit's position regarding the circumstances under which a deliberate ignorance instruction is appropriate: "[because deliberate ignorance or] [w]illful blindness is inconsistent with actual knowledge, [the instruction is] . . . appropriate only where 'the jury could rationally find willful blindness even though it has rejected the government's evidence of actual knowledge,'" Yi, 704 F.3d at 804 (quoting Heredia, 483 F.3d at 922).
¶23 Jagassar contends that the instruction should not have been given because "the State did not even argue the second prong" and the evidence did not support either prong. He maintains that "[a]bsent the improper deliberate ignorance instruction, a reasonable jury could have found the State failed to prove the element of knowingly" and "rejected the State's evidence that [Jagassar] knowingly possessed marijuana for sale." He claims the instruction "vitiated his defense that he was unaware the packages were in the trunk, unaware of their contents and that he took no deliberate steps to avoid learning of the contents."
¶24 We disagree. The evidence warranted the instruction. First, Jagassar maintains that he did not have actual knowledge that there was marijuana in the boxes, but admitted that he had a strong suspicion that some type of contraband was in the packages. Second, Jagassar told the detectives that he "hope[d] [the boxes were] not what [he thought they were]," and that the boxes might contain marijuana. Although Jagassar told the jury he guessed that drugs or stolen car parts might be in the boxes, this does not prevent the jury from determining, based on the totality of the evidence coupled with credibility evaluations, that Jagassar believed there was a high probability there was marijuana in the boxes.
¶25 In addition, the jury heard the factors contributing to Jagassar's suspicion and the actions he took leading up to his arrest. Jagassar testified he stated aloud that he was going to jail because "I started putting two and two together . . . . But first it was [my nephew] and his phone call. The next time it was Pepe in the garage, and he didn't want . . . to tell me why he was talking to Pepe . . . ." Jagassar told the jury that his nephew borrowed his car and told Jagassar to accompany him and Pepe, but would not tell Jagassar why. Jagassar testified he was afraid of retaliation by Pepe because he believed Pepe was "involved in a lot of stuff." Finally, the jury heard that Jagassar initially lied to the detectives about his identity and made a variety of other statements about his involvement with the boxes that he acknowledged at trial were intentionally misleading.
¶26 Thus, the superior court correctly recognized that based on this evidence a jury could reject an actual knowledge theory, but still reasonably conclude Jagassar developed a strong suspicion about the marijuana in the boxes before encountering the detectives and that he acted with conscious purpose to avoid actually learning the truth. There was sufficient evidence to warrant the deliberate ignorance instruction. As discussed above, the jury was properly instructed that it must make credibility determinations when assessing whether Jagassar had the requisite knowledge for the offense including whether he was deliberately ignorant. See supra Section II. The jury is free to disbelieve a witness's testimony in whole or part. See State v. Clemons, 110 Ariz. 555, 557, 521 P.2d 987, 989 (1974); State v. Boggs, 218 Ariz. 325, 335, ¶ 39, 185 P.3d 111, 121 (2008) ("Determining veracity and credibility lies within the province of the jury . . . ."). The jury heard directly from Jagassar about his suspicions, his actions, and his reasons for both being suspicious and acting in the ways he did. By its verdict, the jury evidently resolved the issue of credibility against Jagassar and "it is not the role of this court to second-guess that assessment." Fierro, 220 Ariz. at 339, ¶ 9, 206 P.3d at 788.
¶27 Based on the facts and circumstances of this case, we find no reversible error.
CONCLUSION
¶28 For the reasons stated, we determine the deliberate ignorance instruction here accurately stated the law, did not lower the State's burden of proof, and was warranted based on the evidence. There is no reversible error; we affirm.