NOTICE: 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. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. EDMUND EUGENE WALKER, Appellant. No. 1 CA-CR 10-0464 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CR2009-143243-001 SE The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General By Kent Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix J O H N S E N, Judge 1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967, and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969, following Edmund Eugene Walker s
conviction on one count of possession or use of marijuana, a Class 6 felony, and one count of possession of drug paraphernalia, a Class 6 felony. Walker s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000; Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999. Walker was given the opportunity to file a supplemental brief, but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Walker s convictions and sentences. FACTS AND PROCEDURAL HISTORY 2 Officers Christopher Marrufo and Justin George detained Walker after they noticed him riding his bicycle at night against traffic on a two-way street. 1 After obtaining Walker s identification, George walked back to the police cruiser to run a background check; in the meantime, Marrufo asked Walker if he was carrying any drugs. Walker responded that he had a small amount of marijuana in his pocket. 3 The background check resulted in no warrants, and George returned to speak with Walker. After hearing from 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Walker. State v. Fontes, 195 Ariz. 229, 230, 2, 986 P.2d 897, 898 (App. 1998. 2
Marrufo that Walker had admitted he was carrying marijuana, George asked Walker if he could search him, and Walker gave his consent. George found a small plastic bag containing marijuana in Walker s pocket. George then advised Walker he was under arrest and read Walker his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966. George next asked if Walker would answer some additional questions, and Walker agreed. Walker admitted he owned the marijuana, he intended to smoke it later, he used it for stress relief and he knew possession was a crime. 4 The superior court held a hearing to determine the admissibility of Walker s statements to the officers. Based on Marrufo s testimony that even before his arrest, Walker was not free to leave, the court held a Miranda violation occurred and barred evidence of statements Walker made before receiving the Miranda warning. The court held Walker s statements after he received the Miranda warning were voluntary and admissible. 5 After the jury convicted Walker, he stipulated that he was not eligible for probation pursuant to Arizona Revised Statutes ( A.R.S. section 13-901.01 (2010, and the court sentenced him to two concurrent aggravated terms of 2.25 years based on a single historical prior felony conviction. Walker timely appealed. We have jurisdiction pursuant to Article 6, 3
Section 9, of the Arizona Constitution, and A.R.S. 12-120.21(A(1 (2003, 13-4031 (2010 and -4033(A(1 (2010. 2 DISCUSSION 6 The record reflects Walker received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members. The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned unanimous verdicts on both counts, which were confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal sentence on the crimes of which Walker was convicted. 7 We now address some concerns of Walker that his counsel has identified with respect to the trial against him. 8 Walker first suggests that improper search and seizure occurred. Without any further detail, we understand Walker to assert that the police lacked the authority to stop and detain him. Given that the testimony was undisputed that 2 Absent material revisions after the date of an alleged offense, we cite a statute s current version. 4
Walker was violating a traffic rule at the time of the stop (i.e., riding against traffic on a street, the officers did not violate Walker s rights by stopping him. See United States v. Sokolow, 490 U.S. 1, 9-10 (1989 (police may conduct an investigative stop when there is reasonable suspicion that criminal activity may be afoot (citation omitted. Alternatively, if Walker means to refer to the court s decision to admit in evidence the marijuana the officers seized from him, the court did not err in admitting that evidence. As Walker s counsel acknowledges in his brief on appeal, even assuming for purposes of argument only that Walker s initial admission that he was carrying marijuana was given in violation of Miranda, that violation would not require exclusion of the marijuana the police found in his pocket. See United States v. Patane, 542 U.S. 630, 641-42 (2004. 9 Walker also suggests that the superior court should have dismissed the charges against him in light of [its] finding that [his] constitutional rights had been violated. We understand this argument to be that Walker s statements that the marijuana was his and that he intended to smoke it later, which he made after receiving a Miranda warning, should have been excluded based on the court s conclusion that his earlier admission to possessing marijuana was given in violation of 5
Miranda. See Missouri v. Seibert, 542 U.S. 600, 617 (2004. The superior court did not err by admitting the post-warning statements, however. The basis of the court s conclusion that the initial statement relating to marijuana was given in violation of Miranda was an officer s testimony during the voluntariness hearing that Walker was not free to leave. Miranda, however, applies only when a suspect is in custody, and does not apply when, as here, a suspect is merely detained during a brief traffic stop. See State v. Stabler, 162 Ariz. 370, 375, 783 P.2d 816, 821 (App. 1989. 10 Walker also suggests that police misconduct and selective prosecution occurred. He does not explain what facts might support either proposition, however, and the record does not contain any such facts. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1391 (1989 (unsupported arguments are abandoned and waived. The same is true for his suggestions that the chain of custody of the evidence was somehow improper, that police testified falsely, that improper evidence [was] submitted to the jury concerning whether he was on the road or the sidewalk, and that a juror after trial indicated that reasonable doubt existed. See id. 6
CONCLUSION 11 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. 12 After the filing of this decision, defense counsel s obligations in this appeal have ended. Defense counsel need do no more than inform Walker of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984. On the court s own motion, Walker has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Walker has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ DONN KESSLER, Presiding Judge /s/ SHELDON H. WEISBERG, Judge 7