State v. Gutierrez

240 Ariz. 460

381 P.3d 254

746 Ariz. Adv. Rep. 14

State of Arizona, Appellee,

v.Elroy Gutierrez, Appellant.

No. 1 CA–CR 15–0342

Court of Appeals of Arizona, Division 1.

FILED September 1, 2016

Arizona Attorney General's Office, Phoenix, By Linley Wilson, Counsel for Appellee

White Law Offices, PLLC, Flagstaff, By Wendy F. White, Counsel for Appellant

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Patricia A. Orozco and Judge Donn Kessler joined.

OPINION

JOHNSEN, Judge:

¶ 1 We address in this appeal two statutory interpretation issues: Whether use or possession of multiple deadly weapons during the commission of a drug felony constitutes just one offense under Arizona Revised Statutes (“A.R.S.”) section 13–3102(A)(8) (2016), and whether a defendant convicted of transportation of methamphetamine for sale under A.R.S. § 13–3407(A)(7) (2016) is eligible for early release.¹ We also consider whether the superior court judge who participated in a settlement conference violated the defendant's due-process rights by imposing a greater sentence after the defendant was convicted than she had promised him during the settlement conference.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 A highway patrol officer parked in the median of Interstate 17 north of Cordes Junction one summer afternoon saw Elroy Gutierrez drive by with his windows rolled down and noticed Gutierrez slowed below the speed limit as he passed.² The officer pulled out to follow Gutierrez, and stopped him after he saw Gutierrez twice apply the brakes for no apparent reason and the car's right tires twice swerve across the white fog line. After Gutierrez and his passenger gave inconsistent statements, the officer requested a drug canine unit. The dog alerted, and a search of the car revealed two handguns, just under a half-pound of heroin, more than four pounds of methamphetamine and a black zippered case containing a small quantity of heroin and a used syringe. Interviewed following his arrest, Gutierrez admitted he used heroin earlier in the day and voluntarily provided a urine sample. A drug test revealed metabolites of heroin, methamphetamine and marijuana.

¶ 3 Gutierrez was indicted on one count of transportation of a dangerous drug for sale (methamphetamine), a Class 2 felony; one count of transportation of a narcotic drug for sale, a Class 2 felony; two counts of misconduct involving weapons, each a Class 4 felony; two counts of possession of drug paraphernalia, each a Class 6 felony; and two counts of aggravated driving under the influence, each a Class 4 felony. His passenger also was indicted on the drug and weapons charges. After a joint trial, the jury acquitted Gutierrez of one count of aggravated driving under the influence and transportation of a narcotic drug for sale but found him guilty of the other DUI charge, as well as transportation of a dangerous drug for sale, possession of a narcotic drug, possession of drug paraphernalia and misconduct involving weapons. The jury also found the co-defendant guilty of all charges and found presence of an accomplice and commission of the offense for pecuniary gain as aggravating factors. The superior court sentenced Gutierrez to concurrent aggravated prison terms, the longest of which was 14 years.

¶ 4 Gutierrez timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1) (2016), 13–4031 (2016), and –4033(A)(1) (2016).

DISCUSSION

A. Denial of Motion to Suppress.

¶ 5 Gutierrez contends the superior court erred by denying his motion to suppress the drugs and guns found in the car because the officer did not have reasonable suspicion for the traffic stop. At the suppression hearing, the officer testified he stopped the car because of concern the driver was impaired or sleepy. Based on the officer's testimony, given the officer's concern that the driver was impaired, the superior court found the officer had reasonable suspicion of a traffic violation.

¶ 6 We will not reverse the denial of a motion to suppress absent a clear abuse of discretion. State v. Guillory , 199 Ariz. 462, 465, ¶ 9, 18 P.3d 1261 (App. 2001). “In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, and view that evidence in the light most favorable to upholding the trial court's ruling.” State v. Evans , 235 Ariz. 314, 315, ¶ 2, 332 P.3d 61 (App. 2014) (quoting State v. Olm , 223 Ariz. 429, 430, ¶ 2, 224 P.3d 245 (App. 2010) ). We defer to the superior court's factual determinations, including its evaluation of the credibility of the witnesses, but review its conclusions of law de novo . State v. Gonzalez–Gutierrez , 187 Ariz. 116, 118, 927 P.2d 776 (1996).

¶ 7 The Fourth Amendment forbids “unreasonable searches and seizures.” U.S. Const. amend. IV. A law enforcement stop of a vehicle constitutes a seizure under the Fourth Amendment and “must be justified by some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.” State v. Richcreek , 187 Ariz. 501, 503–04, 930 P.2d 1304 (1997) (quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). “Although an officer's reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause.” United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citation omitted). “In reviewing a claim that law enforcement officers lacked the reasonable suspicion required for an investigatory stop, we apply a peculiar sort of de novo review, slightly more circumscribed than usual, because we defer to the inferences drawn by the [trial] court and the officers on the scene, not just the [trial] court's factual findings.” Evans , 235 Ariz. at 317, ¶ 8, 332 P.3d 61 (alterations in original) (citation and internal quotation marks omitted); see also State v. Teagle , 217 Ariz. 17, 24, ¶ 26, 170 P.3d 266 (App. 2007) (“In reviewing the totality of the circumstances, we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions.”).

¶ 8 Here, the superior court did not abuse its discretion; the unnecessary braking and the weaving out of the traffic lane constituted a sufficient objective basis on which the officer could conclude the driver might be impaired. See United States v. Brignoni–Ponce , 422 US. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (erratic driving can support reasonable suspicion for stop). Gutierrez argues the officer's reason for stopping his car was a pretext, but as long as a stop is not a product of prohibited racial profiling (Gutierrez does not argue he was illegally profiled), the stop does not violate the Fourth Amendment simply because an officer's “ulterior motives” may include objectives other than traffic enforcement. Whren v. United States , 517 U.S. 806, 811–13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; see also Jones v. Sterling , 210 Ariz. 308, 311, ¶ 11, 110 P.3d 1271 (2005) (“[E]vidence seized as a result of a traffic stop meeting ‘normal’ Fourth Amendment standards is not rendered inadmissible because of the subjective motivations of the police who made the stop.”).

¶ 9 Gutierrez cites State v. Livingston , 206 Ariz. 145, 147–48, ¶¶ 6, 10, 75 P.3d 1103 (App. 2003), in which an officer stopped a driver for violating A.R.S. § 28–729(1) (2016). In relevant part, that statute requires a motorist to “drive a vehicle as nearly as practicable entirely within a single lane.” After the officer testified he stopped the car because the defendant's right tires once crossed the shoulder line, the superior court suppressed the evidence seized from the car. We affirmed, concluding the statute did not penalize “brief, momentary, and minor deviations outside the marked lines.” Id. at 148, ¶ 10, 75 P.3d 1103.

¶ 10 The officer in this case did not stop Gutierrez for violating A.R.S. § 28–729(1), or for swerving over the fog line just once. The stop was based on the totality of the driver's conduct, which, the superior court found, demonstrated a reasonable likelihood that the driver might be impaired. In light of the officer's testimony, the superior court did not abuse its discretion in ruling the driver's conduct established reasonable suspicion to support the stop.

B. Denial of Motion to Sever.

¶ 11 Gutierrez contends the superior court erred in denying his motion to sever his trial from that of his co-defendant. Defendants may be joined for trial “when each defendant is charged with each offense included, or when the several offenses are part of a common conspiracy, scheme or plan or are otherwise so closely connected that it would be difficult to separate proof of one from proof of the others.” Ariz. R. Crim. P. 13.3(b). Despite the possibility of confusion from joinder, joint trials are favored in the interest of judicial economy. See State v. Murray , 184 Ariz. 9, 25, 906 P.2d 542 (1995). The court, however, must grant a motion to sever trial of two or more defendants when “necessary to promote a fair determination of the guilt or innocence of any defendant of any offense[.]” Ariz. R. Crim. P. 13.4(a). Thus, the court should grant severance when it detects features of the case that might prejudice the defendant, such as “when ... evidence admitted against one defendant has a harmful rub-off effect on the other defendant ... or ... co-defendants present antagonistic, mutually exclusive defenses or a defense that is harmful to the co-defendant.” Murray , 184 Ariz. at 25, 906 P.2d 542.

¶ 12 We review the denial of a motion to sever trial of a co-defendant for an abuse of discretion. State v. Blackman , 201 Ariz. 527, 537, ¶ 39, 38 P.3d 1192 (App. 2002). To establish an abuse of discretion, a defendant must show that at the time he moved to sever, he had proved his defense would be prejudiced...