State v. Johnson

THE STATE OF ARIZONA, Appellee, v. WANDA KAY JOHNSON, Appellant.

No. 2 CA-CR 2017-0184

ARIZONA COURT OF APPEALS DIVISION TWO

December 4, 2018

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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Cochise County

No. CR201600920

The Honorable James L. Conlogue, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Karen Moody, Assistant Attorney General, Tucson

Counsel for Appellee

Gail Gianasi Natale, Phoenix

Counsel for Appellant

MEMORANDUM DECISION

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.

BREARCLIFFE, Judge:

¶1 Wanda Johnson appeals from her convictions after a jury trial on four counts of possession of drug paraphernalia. The trial court placed her on three years' probation. We affirm.

Issues

¶2 Johnson contends the trial court erred by failing to grant her pre-trial motion to suppress her statements to law enforcement and by denying her Rule 20 motion for judgment of acquittal. She also contends the court abused its discretion in admitting expert testimony and certain irrelevant and prejudicial character evidence and the prosecutor committed misconduct. The state contends the court properly denied Johnson's motion to suppress her statements, sufficient evidence supported her conviction, the court's other evidentiary rulings were correct, and no prosecutorial misconduct occurred. The issues are: 1) whether the statements Johnson made were custodial, in violation of Miranda,¹ and therefore should have been precluded; 2) whether the state presented sufficient evidence to support the verdicts; 3) whether the investigating agent's testimony identifying drug residue was permissible; 4) whether the court allowed irrelevant, impermissible character evidence in violation of Arizona Rules of Evidence 401, 402, 403, and 404(a); and 5) whether the prosecutor committed misconduct.

Factual and Procedural History

¶3 In examining a trial court's rulings at a suppression hearing, we review only the evidence presented to the court at the hearing and view the facts in the light most favorable to upholding the court's pre-trial ruling. State v. Maciel, 240 Ariz. 46, ¶ 9 (2016). In our evaluation of the rulings at trial, we view the evidence "in the light most favorable to sustaining the conviction." State v. Robles, 213 Ariz. 268, ¶ 2 (App. 2006).

¶4 At about 1:20 a.m. on June 3, 2016, Shirley Mecklenburg drove a sport utility vehicle (SUV) through a fixed United States Border Patrol checkpoint north of Tombstone. Johnson was in the front passenger seat. Border Patrol Agent Kathleen June's K-9 unit dog "alerted" on the vehicle, and another agent directed Mecklenburg to pull into the secondary inspection area. Johnson stated the SUV was registered in her husband's name, and, when asked, gave June consent to search the vehicle.² Johnson and Mecklenburg got out of the SUV and sat on a nearby bench. When June asked where they were traveling, Mecklenburg said they were on their way to the airport in Tucson to pick up a friend.

¶5 The dog jumped into the SUV and alerted on two purses in the front seat. Johnson identified the larger of the two purses as hers. The dog then alerted on the bags in the rear cargo area of the SUV, and stared at a multi-colored plastic bag; Agent June determined "that that was where [the dog] believed the source was." June removed all four bags, and placed them on the ground, approximately six-to-eight feet away from Johnson and Mecklenburg. Johnson said all of the bags were hers.

¶6 In the multi-colored bag, Agent June found a small red bag with a cell phone box inside. Inside the box were two pipes and marijuana "[s]hake." June had been a Border Patrol agent for ten years and had been trained to identify illegal substances and paraphernalia. She testified one of the pipes contained black residue that smelled like burnt marijuana. She testified the other pipe had both black and white residue, and, in light of her training and experience, it appeared to be a methamphetamine pipe. After the paraphernalia was discovered, Johnson said the cell phone box "might have been her nephew's."

¶7 Also in the multi-colored bag, Agent June found a small black pouch holding two digital scales. She testified there was residue on the weighing platforms she believed was methamphetamine. Using a testing kit, June conducted a preliminary field test on the residue, which, to her, confirmed that belief. In Johnson's purse, June found a torch lighter that, based on her training and experience, appeared to be drug paraphernalia, used for heating methamphetamine pipes. Johnson testified she used the torch lighter to light a wood-burning stove and a wall heater.

¶8 Deputy Christopher Robison with the Tombstone Marshall's Office arrived at the checkpoint and arrested Johnson and Mecklenburg. Johnson was ultimately charged with five counts of possession of drug paraphernalia.

¶9 Before trial, Johnson filed a "Motion to Suppress Evidence Obtained Via Illegal Custodial Interrogation" and a "Motion for Voluntariness Hearing." In the motion to suppress, Johnson asserted the stop by Agent June had been illegal because it was based on the Border Patrol K-9 unit dog alerting to Johnson's SUV, but no evidence had been "disclosed to verify what the canine has been trained to detect, nor has the animal's accuracy been established." Johnson further asserted she had not "engaged in any behavior that falls within the limited scope of what the checkpoint is authorized to enforce against." Johnson claimed the state had failed to produce "any information that Agent June is endowed with law enforcement powers of peace officers in Cochise County . . . while also using her federal authority to arrest." Johnson argued all evidence obtained as a result of the stop should be suppressed. In her motion for voluntariness hearing, Johnson did not assert any specific basis for a claim her statements were involuntary, but merely requested a pre-trial hearing on voluntariness.

¶10 At the hearing on the two motions, Agent June and Deputy Robison testified. June testified to her training and experience and to her K-9 unit dog's training, certifications, and periodic evaluations. She testified the dog was certified to detect, by odor, concealed humans and drugs, including heroin, cocaine, methamphetamines, ecstasy, and marijuana and its derivatives. June also testified that, when the dog encounters odors it has been trained to detect, its alerts consist of increased respiration and change in body posture and the dog "alerted" to Johnson's SUV when it drove through the checkpoint. Once the dog alerted, it pulled June toward the SUV. June then testified that, after that alert, she had directed the primary agent to send the SUV to the secondary inspection area for further inspection.

¶11 Once Mecklenburg pulled into the secondary inspection station, Agent June asked Johnson for consent to have the dog sniff the interior and exterior of the SUV, which Johnson gave. June then testified substantially to the facts detailed above, including that, after the dog alerted to the bags in the cargo area of the SUV, Johnson admitted to owning all of them, and Johnson also admitted to owning the larger of the two green purses in the passenger compartment. June then testified she had found the drug paraphernalia during her physical search of the bags andJohnson's purse. She told the trial court Johnson had been "detained" throughout the search though not handcuffed, but she had not given Johnson Miranda warnings at any time.

¶12 The state argued against suppression because Johnson had a "diminished expectation of privacy" at the checkpoint, the trained dog alerted to the odor of illegal drugs thus providing Agent June probable cause, and Johnson gave consent for the further search within the vehicle. The state further argued Johnson's statements were not taken during a custodial interrogation, but rather were voluntary. Johnson argued June was a federal officer but working as an agent of the State of Arizona and "[w]e haven't heard anything that authorizes that." Johnson argued the stop itself was illegal and all seized evidence must be suppressed as a consequence. Johnson did not argue her statements to June were involuntary or even that the state had failed to show they were voluntary; her arguments were limited to the propriety of the stop itself. The trial court denied the motion to suppress, and found Johnson's statements were voluntary and there was no violation of Miranda.

¶13 At trial, after the state's case, Johnson moved for a judgment of acquittal on all counts on the grounds of insufficient evidence. The trial court granted the motion as to Count 3 (related to a spoon as drug paraphernalia), but denied the motion as to all other counts. Johnson was convicted and placed on probation as described above; this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).

Analysis

Claimed Miranda Violation

¶14 On appeal, Johnson asserts Agent June and Deputy Robison interrogated her while she was in custody, but without giving her the required Miranda warnings, and the trial court therefore erred in denying her motion to suppress her statements made during interrogation. This is a new argument by Johnson. As stated above, in the trial court, Johnson did not assert or argue her statements to June were involuntary or even that the state had failed to carry its burden to show voluntariness. She argued only that her statements and all other evidence must be suppressed because there was no reasonable suspicion to justify the stop, thus making the stop itself illegal. Because Johnson did not argue below as she does here that her statements were the fruit of an illegal custodial...