THE STATE OF ARIZONA, Appellee, MICHELLE CHAMBERS, Appellant. No. 2 CA-CR Filed April 10, 2014

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1 IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. MICHELLE CHAMBERS, Appellant. No. 2 CA-CR Filed April 10, 2014 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P Appeal from the Superior Court in Pinal County No. S1100CR The Honorable Boyd T. Johnson, Judge AFFIRMED COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Eleanor L. Miller, Phoenix Counsel for Appellant

2 MEMORANDUM DECISION Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. K E L L Y, Presiding Judge: 1 Michelle Chambers appeals her convictions and sentences for possession and transportation of marijuana for sale. She argues the traffic stop that resulted in her convictions was pretextual, and urges this court to depart from Arizona s adherence to Whren v. United States, 517 U.S. 806 (1996), to declare such stops constitutionally unreasonable. She further claims the trial court erred by restricting her cross-examination of her former co-defendant. For the following reasons, we affirm. Factual and Procedural Background 2 We view the facts in the light most favorable to upholding Chambers s convictions and sentences. See State v. Becerra, 231 Ariz. 200, 2, 291 P.3d 994, 996 (App. 2013). In April 2012, a Casa Grande police officer assigned to the K-9 Unit in which officers work with highly trained narcotics detection dogs observed a vehicle traveling along Interstate 10 late at night with what appeared to be obstructions hanging from the rearview mirror. After initiating a traffic stop, the officer approached the vehicle and noticed a strong odor of air freshener coming from the vehicle. He saw multiple air fresheners hanging from the rearview mirror, the rear passenger windows, the air vents, and the dashboard. 3 The officer informed the driver, Megan Chang, that she would be receiving a warning for the obstructed windshield, 1 and 1Section (B), A.R.S., prohibits operat[ing] a motor vehicle with an object or material placed, displayed, installed, affixed or applied on the windshield or side or rear windows... or [that otherwise] obstructs or reduces a driver s clear view through the windshield or side or rear windows. 2

3 asked if he could search her vehicle. Chang declined, citing a tight timeframe. The officer then informed Chang he was going to run [his patrol service] dog around the vehicle... to make sure there [were] no illegal drugs in the vehicle. The dog alerted to the vehicle and, following a search, the officer found approximately forty to forty-five pounds of marijuana in the trunk, wrapped inside several layers of packaging and odor-masking materials. 4 Both Chang and Chambers were charged with possession and transportation of marijuana for sale. Before trial, Chang pled guilty to attempted possession of marijuana for sale, admitted involvement in packing and transporting marijuana including the boxes found in the April 2012 traffic stop and agreed to testify for the prosecution in its case against Chambers. Following a jury trial, Chambers was found guilty of possession of more than four pounds of marijuana for sale and transportation of two pounds or more of marijuana for sale. The trial court sentenced her to concurrent, partially mitigated four-year terms of imprisonment. Chambers timely appealed. We have jurisdiction pursuant to article VI, 9 of the Arizona Constitution and A.R.S (A)(1) and (A). Pretextual Stops 5 In this appeal, Chambers argues for the first time that the pretextual, initial seizure of the vehicle and its occupants in this case violated the Arizona Constitution. Without alleging the traffic stop was improper under Arizona law, Chambers argues [t]he initial stop in the instant case was a complete ruse a pretext 2 and urges us to interpret article II, 8 of the Arizona Constitution 2Chambers admits the officer stopped Chang s vehicle for a traffic violation but suggests the stop was pretextual because the officer was a trained drug interdiction officer... [whose] assignment was to interdict drugs, not make traffic stops for minor violations. Because she does not allege the officer lacked reasonable suspicion to stop Chang s vehicle, we do not address this issue. See State v. Larson, 222 Ariz. 341, 23, 214 P.3d 429, 434 (App. 2009) (arguments not raised in opening brief on appeal deemed waived). 3

4 broadly so as to afford protection against allegedly pretextual stops, as courts in Washington and New Mexico have done. She argues that allowing such stops is not the appropriate interpretation of article II, 8, and that Arizona and federal cases so holding were wrongly decided. She thus invites us to recognize and prohibit pretextual stops and, ultimately, depart from Whren and its progeny to declare such stops constitutionally unreasonable. We decline her invitation. 6 Although Chambers filed two motions to suppress evidence, alleging various constitutional violations, she failed to raise this particular claim below. She has therefore forfeited the right to seek relief on this ground for all but fundamental error. See State v. Paredes-Solano, 223 Ariz. 284, 6, 222 P.3d 900, 903 (App. 2009); see also State v. Henderson, 210 Ariz. 561, 19, 115 P.3d 601, 607 (2005). 7 Fundamental error is that going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice. Henderson, 210 Ariz. 561, 20, 115 P.3d at 607. Chambers, however, has neither alleged that fundamental, prejudicial error occurred here nor presented this court with any argument or authority in this regard. We will not ignore such error if we see it, but we cannot discern any fundamental, prejudicial error from the record before us. See State v. Fernandez, 216 Ariz. 545, 32, 169 P.3d 641, 650 (App. 2007) ( Although we do not search the record for fundamental error, we will not ignore it when we find it. ). Chambers therefore has waived the issue on appeal and we do not address it. 3 See State v. 3Although we may consider constitutional arguments raised for the first time on appeal, State v. Herrera, 232 Ariz. 536, 42, 307 P.3d 103, 117 (App. 2013), we decline to do so here. It is not for this court to determine whether Whren and its progeny should be 4

5 Moreno-Medrano, 218 Ariz. 349, 17, 185 P.3d 135, 140 (App. 2008); see also State v. Musgrove, 223 Ariz. 164, 4, 221 P.3d 43, 45 (App. 2009). Limitation on Cross-Examination Regarding Financial Resources 8 Chambers next argues the trial court erred by restricting her cross-examination of her former co-defendant, Chang, regarding Chang s financial ability to retain private defense counsel. Trial courts retain wide latitude to impose reasonable limits on crossexamination to prevent confusion of the issues or interrogation that is only marginally relevant. State v. Buccheri-Bianca, 233 Ariz. 324, 8, 312 P.3d 123, 127 (App. 2013). We review restrictions on the scope of cross-examination for an abuse of discretion. See State v. Fleming, 117 Ariz. 122, 126, 571 P.2d 268, 272 (1977). We will not disturb the court s ruling absent a clear showing of prejudice. State v. Perez, 233 Ariz. 38, 22, 308 P.3d 1189, 1195 (App. 2013). 9 At trial, Chambers sought to question Chang about how she was able to retain private defense counsel, claiming the unexplained income or source of income... [was] relevant for the jury to consider. Both Chang s attorney and the state objected to such questioning as irrelevant and the trial court sustained the objections, stating Chang was head[ed] into irrelevant territory. See Fleming, 117 Ariz. at 126, 571 P.2d at 272 (no abuse of discretion in absence of showing cross-examination had direct bearing on the credibility of witness s testimony). 10 Both the United States and Arizona Constitutions guarantee a criminal defendant the right to confront witnesses. U.S. Const. amend. VI; Ariz. Const. art. II, 24. This includes the right to cross-examination. State v. Moody, 208 Ariz. 424, 136, 94 P.3d 1119, 1153 (2004); see also Pointer v. Texas, 380 U.S. 400, 404 (1965). A trial judge has discretion to place reasonable limits upon the scope of cross-examination[] without infringing upon the defendant s right of confrontation. State v. Lehr, 201 Ariz. 509, 30, 38 P.3d 1172, 1181 reexamined; rather, we follow our supreme court s precedent. See Lear v. Fields, 226 Ariz. 226, 17, 245 P.3d 911, 917 (App. 2011). 5

6 (2002). These limits include, among other things, concerns about harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. State v. Cañez, 202 Ariz. 133, 62, 42 P.3d 564, 584 (2002), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We evaluate crossexamination restrictions on a case-by-case basis to determine whether the defendant was denied the opportunity to present evidence relevant to issues in the case or the witness credibility. Id. 11 Chambers implies that Chang s private attorney was retained with the profits of criminal conduct, or with the help of a third party, and she should have been allowed to question Chang about any and all information which would provide the jury the ability to weigh her credibility. We disagree, and conclude Chambers has failed to demonstrate that the trial court abused its discretion by excluding this information, Fleming, 117 Ariz. at 126, 571 P.2d at 272, or that she was prejudiced by its exclusion, see Perez, 233 Ariz. 38, 22, 308 P.3d at The jury had ample evidence regarding Chang s illegal activities. Chang testified she had faced the same drug-related charges as Chambers, and admitted she had prior drug-related convictions and had smoked marijuana. She also admitted she had agreed to transport the marijuana at issue for money and had helped package the marijuana for transport. Additionally, Chang admitted she had lied to the police officer at the time of the traffic stop. 13 Although Chambers suggests that cross-examination regarding Chang s ability to hire private counsel could have led either to information about further criminal activity or to others who may have been involved in the drug trafficking at issue, she has failed to demonstrate how the information would have had a direct bearing on Chang s credibility as a witness. See Fleming, 117 Ariz. at 126, 571 P.2d at 272. She also has failed to demonstrate how she was prejudiced by the exclusion of this information in light of other evidence that impeached Chang s credibility, or that the proposed testimony would not confus[e] the issues, or be repetitive or only marginally relevant to the jury s evaluation of Chang. Cañez, 202 6

7 Ariz. 133, 62, 42 P.3d at 584. The court did not abuse its discretion in limiting cross-examination in this regard. Limitation on Cross-Examination Regarding Potential Penalties 14 Finally, Chambers argues the trial court erred by refusing to allow her to cross-examine Chang regarding the full range of penalties Chang would have faced had she not accepted a plea agreement and agreed to testify against Chambers. Before trial, Chambers filed a motion in limine seeking a ruling permitting her to cross-examine Chang regarding the punishment she hope[d] to avoid by agreeing to testify against Chambers. She renewed her argument at trial, asserting she wished to elicit from Chang her belief that she faced between three and twenty-five years in prison if she did not cooperate with the state. The state maintained this was an inaccurate statement of Chang s potential sentences 4 that could mislead the jury about the sentencing ranges for Chambers s as well as Chang s offenses. The court agreed and also expressed its concern that this was a backdoor method for eliciting sympathy for the defendant, commenting that this is why the comments on punishment are prohibited, at least as far as the jury is concerned. Finally, the court noted that Chang had only agreed with counsel that she was facing three to twenty-five years; she had not articulated the sentencing range herself. The court then allowed Chambers to cross-examine Chang about taking the deal to avoid a substantial prison sentence which has a minimum sentence of three years and [could] be substantially more. 15 The trial court has broad discretion in admitting or excluding evidence. Pima Cnty v. Gonzalez, 193 Ariz. 18, 14, 969 4The aggravated maximum sentence Chambers faced for each count was 12.5 years. A.R.S (A), (D) (aggravated maximum sentence for class two felony is 12.5 years). Because in this case the two charges arose from a single act, the sentences were required to be imposed concurrently. See State v. Provenzino, 221 Ariz. 364, 23, 212 P.3d 56, 61 (App. 2009); A.R.S (act punishable in different ways by different sections of the laws may be punished under both, but sentences must be concurrent). 7

8 P.2d 183, 187 (App. 1998). This discretion extends to limiting the scope of cross-examination, so long as it is within reasonable limits. State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996). We review a trial court s order restricting the scope of crossexamination on a case-by-case basis to determine whether the court unduly inhibited the defendant s ability to present information bearing on issues or on the credibility of witnesses. Id. We will not disturb the court s decision absent a clear showing of abuse of discretion and of prejudice. Thompson v. Better-Bilt Aluminum Products Co., 187 Ariz. 121, 128, 927 P.2d 781, 788 (App. 1996); see also State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982). 16 On appeal, Chambers argues the trial court erred by not granting her wide latitude in cross-examining Chang regarding the full potential of sentences she was facing had she not reached a plea agreement which, she claims, the jury would have found highly relevant to the weight to be given to Chang s testimony. We disagree. Not only did the proposed cross-examination suggest a sentencing range that was double the actual sentence for these offenses, but as the court correctly noted, it had great potential to confuse the jury or improperly garner sympathy for Chambers regarding her own sentence. See Cañez, 202 Ariz. 133, 62, 42 P.3d at Chambers also has failed to demonstrate how she was prejudiced by the jury hearing that Chang faced three years and [possibly] substantially more instead of the inaccurate statement that her sentencing range was three to twenty-five years. Either sentence provides motivation to reach a plea agreement, and the difference between the two did not affect Chang s credibility on cross-examination. 5 See Perez, 233 Ariz. 38, 22, 308 P.3d at Chambers has not established the court abused its discretion, nor 5Chambers also suggests the jury should have been permitted to hear testimony that Chang faced a presumptive, five-year sentence. See A.R.S (D). Because she did not raise this argument below, we do not address it. See State v. Kinney, 225 Ariz. 550, 7, 241 P.3d 914, 918 (App. 2010) (defendant must make sufficient argument to allow trial court to rule on issue). 8

9 has she shown how she was prejudiced by these reasonable restrictions on the scope of cross-examination. Id. Disposition 18 For the foregoing reasons, Chambers s convictions and sentences are affirmed. 9