State v. Brown

250 Ariz. 121

475 P.3d 1161

The STATE of Arizona, Appellee,

v.Robert Allen BROWN, Appellant.

No. 2 CA-CR 2019-0302

Court of Appeals of Arizona, Division 2.

Filed October 2, 2020

Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief Counsel, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee

Cochise County Office of the Legal Advocate, By Xochitl Orozco, Legal Advocate, Bisbee, Counsel for Appellant

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Robert Brown challenges the revocation of his probation after a contested hearing, as well as his sentence of imprisonment for possession of a dangerous drug imposed after the revocation. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the record in the light most favorable to upholding the trial court's decision. See State v. Rowe , 116 Ariz. 283, 284, 569 P.2d 225, 226 (1977) ; State v. Wideman , 165 Ariz. 364, 369, 798 P.2d 1373, 1378 (App. 1990). In January 2019, Brown pled guilty to one count of possession of a dangerous drug. The court suspended his term of imprisonment and imposed four years of intensive probation, which included the condition that Brown "not possess or use illegal drugs or controlled substances and ... submit to drug and alcohol testing." In September 2019, the state petitioned the court to revoke Brown's probation, alleging he had violated this condition.

¶3 At the revocation hearing, the state presented evidence that, on August 20 and September 19, 2019, Brown had provided urine samples that tested positive for methamphetamine. Specifically, a surveillance officer described collecting the samples, and a probation officer explained matters related to the test results and chain of custody. During the officers’ testimony, Brown repeatedly objected, initially claiming that the chain-of-custody forms constituted unreliable hearsay and potentially lacked required information. Brown also claimed the urinalysis results were hearsay, lacked proper foundation on chain of custody, and were unreliable, due in part to "the method with which they were taken, pursuant to some ... issues raised pursuant to the [Arizona Code of Judicial Administration]."

¶4 The trial court admitted Brown's urinalysis results and found he had violated the conditions of his probation. And, although Brown claimed " A.R.S. § 13-917 should not mandate revocation pursuant to due process, separation of powers, and cruel and unusual punishment grounds," the court, having concluded it had "no discretion" to do otherwise, revoked Brown's probation and sentenced him to 2.5 years’ imprisonment. See generally § 13-917(B) (finding of probationer's additional felony offense mandates revocation and "term of imprisonment as authorized by law"). This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(3), (4), (B). See State v. Regenold , 226 Ariz. 378, ¶¶ 8, 12, 249 P.3d 337 (2011) ( § 13-4033(B) does not bar pleading defendant from appealing sentence entered after contested revocation hearing).

Admissibility of Urinalysis Evidence

¶5 Brown first contends the trial court erred in admitting his urinalysis results. We review a court's admission of evidence in a probation revocation hearing for an abuse of discretion. See State v. Tulipane , 122 Ariz. 557, 558, 596 P.2d 695, 696 (1979).

¶6 Rule 27.8(b)(3), Ariz. R. Crim. P., allows the trial court in a revocation hearing to "receive any reliable evidence, including hearsay, that is not legally privileged." Under this rule, evidence is considered "reliable" when it is trustworthy, dependable to the extent of "the generally recognized exceptions to the hearsay rule," and proven to be consistent in providing satisfactory results. State v. Stotts , 144 Ariz. 72, 82, 695 P.2d 1110, 1120 (1985). "Our courts have repeatedly found urinalysis reports to be reliable, admissible evidence when there is ‘testimony establishing how the sample was taken’ and ‘nothing to indicate that [the] report [is] inaccurate, or that the hospital testing procedures were generally unreliable.’ " State v. Carr , 216 Ariz. 444, ¶ 5, 167 P.3d 131 (App. 2007) (alterations in original) (quoting State v. Flores , 26 Ariz. App. 400, 401, 549 P.2d 180 (1976) ); see also Tulipane , 122 Ariz. at 559, 596 P.2d at 697 ; State v. Rivera , 116 Ariz. 449, 451, 569 P.2d 1347, 1349 (1977) ; State v. Snider , 172 Ariz. 163, 164, 835 P.2d 495, 496 (App. 1992) ; State v. Brown , 23 Ariz. App. 225, 231, 532 P.2d 167, aff'd , 112 Ariz. 29, 536 P.2d 1047 (1975).

¶7 Here, Brown argues his urinalysis results were unreliable, and thus, the trial court erred in admitting them. He draws our attention to § 6-110 of the Arizona Code of Judicial Administration (ACJA), which governs and provides procedures for "offender alcohol and drug testing conducted by ... probation departments and contracted laboratories." § 6-110(B). Brown alleges that several ACJA violations related to his drug tests rendered the results unreliable. Specifically, he claims: the chain-of-custody form for the second sample lacked the courier's identification information and no alternate chain-of-custody form for the courier was provided, see § 6-110(G)(3)(g) ; there were no transportation logs from the courier, see § 6-110(G)(11) ; the samples were improperly held outside of "secure locked storage," see § 6-110(G)(10) ; and the surveillance officer, instead of Brown, put the labels on the samples, violating § 6-110(E)(8) and (G)(10). Finally, Brown asserts the ACJA's mandate that "all specimens be immediately discarded if there has been a breach of protocol or procedure," § 6-110(D)(2)(c), should have prevented his urinalyses from being used in this case.

¶8 The state counters that it sufficiently demonstrated the reliability of Brown's urinalysis results. It points to testimony indicating that the surveillance officer personally transported the samples before placing them in a sealed envelope and giving them to a courier, that the samples were verifiable by consistent identification numbers, that the samples were monitored the entire time they were stored, and that the officer applied the sample labels "in Brown's presence immediately after [each] specimen was collected." Lastly, the state argues any noncompliance with the ACJA's drug-testing procedures does not render the test results inadmissible.

¶9 Foremost, we agree the ACJA does not determine the admissibility of probationer drug tests. Part Six of the ACJA was promulgated pursuant to our supreme court's "administrative supervision over all the courts of the state," Ariz. Const. art. VI, § 3 (emphasis added); see § 6-110(B), and is intended to "provide minimum standards for offender alcohol and drug testing practices." § 6-110(C). While § 6-110(D)(2)(c) directs a probation department to discard a urinalysis sample if these minimum standards are breached, the ACJA does not purport to govern the admissibility of samples that have not been discarded. Further, the ACJA does not supersede the trial court's discretion and authority regarding the admissibility of evidence in revocation hearings. See Ariz. R. Crim. P. 27.8(b)(3) ; see also In re Jonah T. , 196 Ariz. 204, ¶ 21, 994 P.2d 1019 (App. 1999) ("[W]e find no authority that would allow an administrative order to govern, or conflict with, the rules of admissibility of otherwise reliable evidence ....").

¶10 Here, the trial court relied on evidence sufficient to establish the reliability of Brown's urinalyses. At the hearing, the surveillance officer first described the general procedures he follows for collecting urine samples and then confirmed he followed those procedures when collecting both of Brown's samples. These procedures included: observing the probationer rinse his hands and then provide the urine sample; placing a seal on the sample container in front of the probationer¹ and having the probationer confirm that the seal number matches the chain-of-custody number; having the probationer sign the chain-of-custody form; sealing the sample in a bag; and transporting the sample to the courier, placing it in an envelope, and having it sent to the lab. ¶11 The state presented the chain-of-custody forms for Brown's samples, which included his name, date of birth, the case and chain-of-custody numbers, the time of sample collection, and both Brown's and the officer's signatures. And, the probation officer confirmed that the chain-of-custody numbers on the forms matched the numbers on the results and verified that Brown's information was also on the results. Moreover, the surveillance officer stated that although he did not continuously store the samples in a secured locker, they were nonetheless monitored constantly. He also explained that identifying numbers are used to ensure case documentation corresponds with particular samples. Finally, both officers confirmed they followed the probation department's policy with regard to Brown's samples.

¶12 Although ACJA violations may, under certain circumstances, affect the reliability of urinalyses, the state's evidence nonetheless supported the trial court's ruling on admission in this case. That is, the state explained how Brown's samples were collected, and despite the specific violations Brown alleges, the court was justified in finding the evidence reliable. See Carr , 216 Ariz. 444, ¶ 5, 167 P.3d 131. Thus, the court did not abuse its discretion in admitting the urinalysis evidence.

Constitutionality of A.R.S. § 13-917

¶13 Brown next contends A.R.S. § 13-917(B) unconstitutionally mandates a term of imprisonment upon a trial court's finding, by a preponderance of the evidence, that an intensive probationer has committed an additional felony. We review a statute's constitutionality de novo. State v. Arevalo , 249...