State v. Yashar ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ELIZABETH YASHAR, Appellant.
No. 1 CA-CR 14-0792
FILED 1-7-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-030247-001
The Honorable Virginia L. Richter, Commissioner
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Law Office of David Michael Cantor, PC, Phoenix
By Stephen Garcia
Counsel for Appellant
STATE v. YASHAR
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
¶1 Elizabeth Yashar appeals from her conviction and sentence
for possession of a dangerous drug (methamphetamine), a class 4 felony.
She argues that the trial court erred when it (1) allowed the State to
introduce evidence of her refusal to communicate with an investigating
police officer; (2) permitted the State during closing argument to comment
on her silence; (3) failed to sua sponte take corrective action in response to
instances of prosecutorial misconduct; (4) admitted methamphetamine
evidence; (5) denied her motion to preclude a criminalist’s report; (6)
denied her motion to quash the indictment and failed to order the State to
disclose the grand jury’s transcripts; (7) violated her speedy trial rights;
and (8) failed to admit a video recording of her interview with police. For
the reasons set forth below, we affirm.
BACKGROUND
¶2 We view the evidence in the light most favorable to
sustaining the jury’s verdict and resolve all reasonable inferences in
support of the verdict. See State v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008);
see also State v. Guerra, 161 Ariz. 289, 293 (1989).
¶3 While visiting a casino in November 2014, Yashar
inadvertently left her purse near a slot machine. A few minutes later, a
casino employee discovered the purse, and security personnel retrieved it.
A security supervisor searched the purse for information identifying its
owner and found a plastic baggie under a closed flap in the purse. The
baggie contained a suspicious substance. Meanwhile, Yashar was nearby
attempting to claim the purse. Security contacted police, and Yashar
accompanied the supervisor to an office.
¶4 Officer S.P., a Gila River Police Department officer, arrived
and spoke with Yashar. Although she admitted the purse was hers,
Yashar explained that the baggie was not, and she did not know what it
contained. Officer S.P. did not arrest Yashar that night; instead, he seized
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STATE v. YASHAR
Decision of the Court
the baggie and explained he would be calling her in the next few days.
After he viewed the casino’s surveillance video depicting Yashar leaving
her purse by the slot machine and the ensuing moments until security
retrieved the purse, Officer S.P. tried calling Yashar multiple times. She
did not return his calls.
¶5 Laboratory testing subsequently revealed that the substance
in the baggie was methamphetamine. On July 16, 2013, the State charged
Yashar with one count of possessing dangerous drugs. On September 11,
2013, the State moved to dismiss the charge without prejudice. The court
granted the motion, and the State filed its direct complaint commencing
this case on November 4, 2013.
¶6 The grand jury issued an indictment on March 28, 2014.
Yashar, appearing on her own behalf, moved to quash the indictment on
the basis it was not “appropriate as a determination of Probable Cause”
and alternatively requested a preliminary hearing. Yashar also sought
disclosure of the grand jury transcripts. The court denied both motions.
¶7 Yashar was arraigned on April 7, 2014, and the court noted
the last day by which to try Yashar was October 4, 2014. On June 20, 2014,
Yashar filed a motion to dismiss, arguing her speedy trial rights were
violated. Trial commenced on September 23, 2014, and resulted in a
mistrial six days later. The matter was assigned to another judge, and the
second trial commenced on October 6, 2014.
¶8 The jury returned a guilty verdict, and the court placed
Yashar on two years of supervised probation. Yashar timely appeals. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and 13-4033.
DISCUSSION
I. Comment on Yashar’s Right to Remain Silent
¶9 Yashar testified that she had returned Officer S.P.’s phone
calls and left messages for him at the police station. In rebuttal, the State
recalled Officer S.P., who testified that he tried calling Yashar during the
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STATE v. YASHAR
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week after the incident at least twice and never received any phone
messages from her.1
¶10 Yashar argues that Officer S.P.’s testimony was inadmissible
because it was an improper comment on Yashar’s right to remain silent.
Because she did not object to the testimony at trial, we review for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
Yashar has the burden to show that error occurred, the error was
fundamental, and that she was prejudiced thereby. See id. at 567–68, ¶¶
20–22.
¶11 Although the State is not permitted to comment on a
defendant’s post-arrest, post-Miranda2 warnings silence, a prosecutor may
comment on a defendant’s pre-Miranda silence. State v. Ramirez, 178 Ariz.
116, 125 (1994). Here, Officer S.P. testified Yashar did not return his calls
during his investigation, which was before she was arrested and
presumably given her Miranda warnings. Consequently, her silence was
admissible as substantive evidence. See State v. Lopez, 230 Ariz. 15, 19–20,
¶¶ 15–16 (App. 2012). Moreover, even if the testimony was not admissible
as substantive evidence, it was admissible to impeach Yashar because she
testified at trial that she did not know the methamphetamine was in her
purse. See State v. Stevens, 228 Ariz. 411, 416, ¶ 14 (App. 2012) (“If a
defendant chooses to waive the Fifth Amendment right to remain silent by
testifying at trial, the prosecutor may impeach the defendant like any
other witness, including inquiring about pre-Miranda warnings silence.”);
see also State v. Williams, 113 Ariz. 442, 444 (1976) (“Counsel may comment
on the credibility of a witness where his remarks are based on the facts in
evidence.“).
¶12 Similarly, we disagree with Yashar’s contention that the
court abused its discretion when it overruled her objection during closing
arguments. Yashar argues that, by commenting during closing argument
on her failure to return Officer S.P.’s phone calls, the prosecutor shifted to
Yashar the burden of proving innocence. We disagree, because the
primary objective of the State’s reference to Yashar’s silence was to
1 Yashar incorrectly asserts in her reply brief that Officer S.P. testified
during the State’s case-in-chief about Yashar’s failure to return his
telephone calls. The officer’s testimony was presented by the State in
rebuttal.
2 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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STATE v. YASHAR
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demonstrate her lack of credibility as a witness. See State v. Bible, 175 Ariz.
549, 602 (1993) (“[D]uring closing arguments counsel may summarize the
evidence, make submittals to the jury, urge the jury to draw reasonable
inferences from the evidence, and suggest ultimate conclusions.”).
¶13 No error, much less fundamental error resulting in
prejudice, resulted from admitting Officer S.P.’s testimony. See State v.
Lavers, 168 Ariz. 376, 385 (1991) (explaining this court “must first find that
the trial court committed some error” before it engages in fundamental
error analysis).
II. Prosecutorial Misconduct
¶14 Next, Yashar argues the prosecutor engaged in misconduct
by making a sarcastic comment and attempting to inflame the jury during
closing arguments.3 Because Yashar did not object in superior court to
these purported instances of prosecutorial misconduct, we review for
fundamental error. Henderson, 210 Ariz. at 567, ¶ 19.
¶15 Yashar takes issue with several of the prosecutor’s
comments during closing arguments, including:
“The officer doesn’t get a bonus if the defendant is
convicted. The security guards don’t get a bonus if the
defendant is convicted. [The criminalist] doesn’t get a party
if the defendant is convicted. He’s a nice guy, but he’s not
going to get a party after this case.”
The prosecutor also told the jury “meth doesn’t grow on trees,” a
comment Yashar contends was overly sarcastic and therefore constituted
misconduct.
¶16 We disagree with Yashar’s characterization of the State’s
arguments because the comments at issue do not constitute fundamental,
prejudicial error. Rather, they constitute argument that officers, guards,
3 Yashar also points to two instances of alleged misconduct during
the State’s questioning of a witness. As Yashar notes, however, the court
sustained her objections to this questioning. Because we must presume
the jury followed the court’s instruction to not consider questions that
were subjected to a sustained objection, we cannot conclude Yashar was
prejudiced.
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STATE v. YASHAR
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and criminalists do not have a motive to testify untruthfully.
Accordingly, we discern no error.4
III. Chain of Custody: Methamphetamine
¶17 Yashar also argues the trial court erred by admitting into
evidence the methamphetamine found in her purse. She contends the
evidence lacked foundation because the State failed to establish the chain
of custody. Specifically, Yashar argues no witness testified why the drugs
introduced into evidence were not contained in the same small plastic bag
that was discovered in her purse. She also suggests the State improperly
failed to present the testimony of each person who handled the drugs
from the time they were discovered in the purse until they were admitted
into evidence.
¶18 This argument is without merit. The record does not reflect
that the methamphetamine admitted in this case was not in the bag found
in Yashar’s purse. Indeed, the exhibit worksheet indicates the drugs were
in a “small plastic bag.” Regarding the purportedly deficient testimony,
the State presented the testimony of (1) the security officer who
discovered the bag containing a suspicious substance; (2) Officer S.P., who
retrieved the bag at the casino; and (3) the criminalist who performed the
test that determined the substance was methamphetamine. This chain of
custody testimony is sufficient; the State is not required to offer the
testimony of every person who handled the methamphetamine. See State
v. Lopez, 23 Ariz. App. 554, 556 (App. 1975) (“[I]n establishing the chain of
possession the prosecution need not call forth every person who comes in
contact with the evidence where there is nothing to suggest the
probability of substitution or tampering.”). Thus, the court did not abuse
its discretion when it admitted the methamphetamine. See State v.
McCray, 218 Ariz. 252, 256, ¶ 8 (2008) (“A trial court’s conclusion that
evidence has an adequate foundation is reviewed for an abuse of
discretion.”).
4 Yashar also contends the prosecutor improperly attempted to mislead
the court with respect to a ruling made by the previous trial judge. This
argument is unpersuasive because the second trial court independently
determined the admissibility of the statements in question.
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STATE v. YASHAR
Decision of the Court
IV. The Drug Test Report
¶19 Before trial, Yashar contested the admissibility of a drug test
report. The second page of the three-page report was a graph created by
the criminalist who determined the substance found in Yashar’s purse
was methamphetamine. Two pages of the report, including the
conclusion that the substance was methamphetamine, were timely
disclosed, but the graph was disclosed later. Yashar moved to preclude
the entire report as a result. The trial court denied her motion, and Yashar
challenges that ruling. We review for an abuse of discretion. Id.; State v.
Rienhardt, 190 Ariz. 579, 584, (1997).
¶20 Arizona Rule of Criminal Procedure 15.1 requires the State
to disclose all existing reports created by a law enforcement agency in
connection with a charged crime no later than 30 days after arraignment.
Ariz. R. Crim. P. 15.1(b)(3), (c)(1). A failure to timely disclose a report will
result in a court-imposed sanction unless the court finds the failure to
comply with Rule 15.1 was “harmless.” Ariz. R. Crim. P. 15.7(a).
¶21 Here, the State disclosed the graph on September 10, 2014,
the day after it received notice from Yashar that the report was missing a
page. Thus, the graph’s disclosure occurred 13 days before Yashar’s first
trial, well over 30 days after her arraignment. The State concedes, for the
sake of this appeal, that the disclosure was untimely.
¶22 Accepting this concession, the untimely disclosure was
nonetheless harmless. The graph illustrates the relationship between “%
Transmittance” and “Wavenumbers (cm-1),” while the remainder of the
timely disclosed report indicates the chemical composition of the tested
substance and the criminalist’s conclusion that the substance was
methamphetamine. The graph, therefore, was not necessary for the report
to establish that the substance found in the purse was in fact
methamphetamine. Additionally, before the report was admitted into
evidence, the criminalist testified the results indicated the substance was
methamphetamine. Although Yashar argues the failure to disclose the
graph “had a crippling effect on [her] ability to prepare an adequate
defense in time for trial,” she did not at trial—and does not on appeal—
provide an offer of proof as to any expert opinion that would have
interpreted the graph in a manner contradicting the criminalist’s
conclusion that the tested substance was methamphetamine. On this
record, we find no abuse of discretion in the court’s refusal to sanction the
State by suppressing either the entire report or the untimely disclosed
page containing the graph.
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STATE v. YASHAR
Decision of the Court
V. Denial of Motion to Quash Indictment
¶23 Yashar argues the court erred in not granting her motion to
quash the indictment. She contends the motion was an implicit request
for disclosure of the grand jury transcripts, because, by requesting a
preliminary hearing, she was “substantively moving for new findings of
probable cause.”
¶24 We find no error. Yashar provides no substantively
meaningful argument, supported by relevant authority, challenging the
court’s denial of her motion to quash. See Ariz. R. Crim. P. 31.13(c)(1)(vi)
(“The appellant’s brief shall include . . . [a]n argument which shall contain
the contentions of the appellant with respect to the issues presented, and
the reasons therefor, with citations to the authorities, statutes and parts of
the record relied on.”). Furthermore, it is a litigant’s responsibility to
make clear her requests to the trial court, and Yashar cannot now contend
that the court misunderstood the intent of her motion.
¶25 And, assuming Yashar’s motion to quash was a challenge to
the grand jury’s finding of probable cause, she cannot on appeal seek
relief from the court’s denial of her motion. “To obtain review of a denial
of redetermination of probable cause, a defendant must seek relief before
trial by special action.” State v. Murray, 184 Ariz. 9, 32 (1995). The sole
exception to this rule is when a defendant claims the State knowingly
presented the grand jury with perjured material testimony. See id.
Because Yashar makes no claim of perjured testimony, she cannot now
challenge the grand jury’s probable cause determination.
¶26 Finally, to the extent Yashar contends she was entitled to be
charged by information after a preliminary hearing, rather than by a
grand jury indictment, we reject such an argument. Yashar cites no
authority, and we are aware of none, standing for the proposition that a
suspect may determine the procedure the State must follow to initiate
criminal proceedings. “Either method—indictment by grand jury or
information after preliminary hearing—is constitutionally proper.” State v.
Bojorquez, 111 Ariz. 549, 553 (1975); see also U.S. Const. amend. V; Ariz.
Const. art. 2, § 30; Ariz. R. Crim. P. 13.1. Consequently, the trial court
properly denied Yashar’s motion to quash the indictment on this basis.
VI. Speedy Trial
¶27 Yashar contends the court violated her right to a speedy trial
because a “miscalculation” of elapsed time resulted in her second trial
commencing more than 180 days after her arraignment in violation of
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Arizona Rule of Criminal Procedure 8.2(a)(2). We review de novo the trial
court’s application of the Rules of the Criminal Procedure. See State v.
Burns, 237 Ariz. 1, 28, ¶ 124 (2015).
¶28 Because she was out of custody, Rule 8.2(a)(2) required
Yashar to be tried within 180 days of her arraignment. A trial ordered
after a mistrial must commence within 60 days of the mistrial. Ariz. R.
Crim. P. 8.2(c). Yashar was arraigned on April 7, 2014, and trial
commenced on September 23, 2014, which was within the 180-day limit.
After the mistrial, the second trial commenced on October 6, 2014, which
was also timely under Rule 8.2(c).
¶29 Yashar nonetheless argues the 21 days of elapsed time
between her initial appearance in the first case and the dismissal of that
case should be considered when determining whether she was timely
tried. However, after a dismissal without prejudice, the speedy trial limits
begin anew, absent prejudice to the defendant or prosecutorial bad faith.
See State v. Rose, 121 Ariz. 131, 137 (1978).
¶30 Here, Yashar has not established that the purported
tardiness prejudiced her. See State v. Wassenaar, 215 Ariz. 565, 571, ¶ 16
(App. 2007) (to prevail on claim of speedy trial violation, defendant must
show prejudice resulting from the untimely trial). She simply asserts that
she suffered anxiety and emotional and financial harm. Such harm, by
itself, is insufficient to establish prejudice. Id. at 572, ¶ 20. No speedy trial
violation occurred.
VII. Failure to Sua Sponte Order Video Recording Into Evidence
¶31 Finally, Yashar argues the trial court erred in not admitting
into evidence a recording of the video depicting her interview with Officer
S.P. at the casino. At trial, the State introduced silent recordings of the
casino surveillance video depicting Yashar leaving the purse in front of a
slot machine and the security officer’s search of the purse. Yashar
contends Arizona Rule of Evidence 106 also required the trial court to
admit into evidence the video of her interview with Officer S.P. She also
contends the court erred in allowing the prosecutor to “distort and
mislead the jury” by introducing into evidence only portions of the
surveillance videos. We review this argument for fundamental error. See
Henderson, 210 Ariz. at 567, ¶ 19.
¶32 Arizona Rule of Evidence 106 provides:
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If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at
that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered
at the same time.
Our supreme court has explained that Rule 106 “requires the admission of
those portions of the statement that are necessary to qualify, explain or
place into context the portion already introduced.” State v. Prasertphong,
210 Ariz. 496, 499, ¶ 15 (2005) (internal quotation and marks omitted).
¶33 Here, the recording of the interview would not “qualify,
explain or place into context” the silent videos of the search or of Yashar
leaving her purse at a slot machine. See id. The three events occurred in
discrete locations and concerned different people. Officer S.P. does not
appear in the recordings that were admitted, and the full interview
recording apparently contains, at least in part, three statements made by
Officer S.P. that the court previously ruled were inadmissible. Rule 106
did not require the court to sua sponte admit the interview video.
Therefore, no error occurred, let alone fundamental error that resulted in
prejudice.
CONCLUSION
¶34 For these reasons, we affirm Yashar’s conviction and
sentence.
:ama
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