State v. Washington ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SHERRY LYNETTE WASHINGTON, Appellant.
No. 1 CA-CR 14-0808
No. 1 CA-CR 15-0730
(CONSOLIDATED)
FILED 4-11-2017
Appeal from the Superior Court in Maricopa County
No. CR2011-008033-001
CR2011-123789-008
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
STATE v. WASHINGTON
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Sherry Lynette Washington (“Washington”) appeals her
convictions and sentences in CR2011-123789-008 and CR2011-008033-001
for illegal control of an enterprise, conspiracy to commit sale or
transportation of marijuana, fraudulent schemes and artifices, conspiracy
to commit money laundering in the second degree, money laundering in
the second degree, and fraudulent schemes and artifices.1 Washington
argues the State failed to disclose information in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and challenges the sufficiency of evidence
supporting her convictions. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 After police conducted a four-month long wiretap
investigation into a nationwide drug trafficking organization (“DTO”), the
State charged Washington and 28 others, both directly and as accomplices,
with various criminal offenses associated with their alleged participation in
utilizing a private delivery service to send large amounts of marijuana and
cash to and from Maricopa County. Specifically, Washington faced one
count each of illegal control of an enterprise, a class 3 felony; conspiracy to
commit sale or transportation of marijuana, a class 2 felony; conspiracy to
commit money laundering, a class 3 felony; forgery, a class 4 felony; and
three counts each of second degree money laundering, class 3 felonies; and
fraudulent schemes and artifices, class 2 felonies. Washington and three of
her co-defendants proceeded to a 36-day dual jury trial, which included six
days of deliberations. At trial, the State dismissed the forgery count, two
counts of fraudulent schemes and artifices, and two counts of second
degree money laundering.
¶3 The jury that considered Washington’s case found her guilty
of the remaining five counts as charged. Washington unsuccessfully moved
for a new trial, arguing the court had erred in denying her motion for
1 The superior court consolidated the cases for trial.
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STATE v. WASHINGTON
Decision of the Court
judgment of acquittal made pursuant to Arizona Rule of Criminal
Procedure 20. The court imposed concurrent prison terms for four of the
convictions, the longest of which was four-and-a-half years. For the
remaining conviction, the court ordered a two-year term of probation
commencing upon Washington’s release. Washington was credited 123
days’ presentence incarceration. Washington timely appealed her
convictions and sentences.
¶4 Thereafter, Washington successfully requested this court stay
her appeal, and she moved in superior court to join a co-defendant’s motion
for new trial, which argued the State violated its disclosure obligations by
failing to disclose an email the prosecutor had sent to counsel for Warren
Braithwaite, another co-defendant, who had received a plea offer in
exchange for his testimony at trial. The court allowed Washington to join
in the motion, but denied the new trial motion after conducting an
evidentiary hearing. The court subsequently granted Washington post-
conviction relief to file a delayed notice of appeal from the denial of the
second motion for new trial. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1). 2
DISCUSSION
A. Sufficiency of Evidence.
¶5 Washington contends the trial court erred by denying her
Rule 20 motion, and her motion for a new trial, see Ariz. R. Crim. P. 24.1,
both based upon the same claim of insufficient evidence. We need not
address Washington’s claim in multiple contexts. See State v. Neal, 143 Ariz.
93, 98 (1984) (“A Rule 20 motion is designed to test the sufficiency of the
state’s evidence.”); State v. Mincey, 141 Ariz. 425, 432–33 (1984) (noting
similarity of Rule 20 and Rule 24.1 standards and deciding issues regarding
sufficiency and weight of evidence without separate analyses); State v.
Davis, 226 Ariz. 97, 99, ¶ 7 (App. 2010) (holding no error in denying motion
for new trial based on claim that verdict was against “the weight of the
evidence” where State presented evidence sufficient to support a verdict of
guilt).
¶6 We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Our review of the sufficiency of
2 Absent material revision after the date of an alleged offense, we cite
a statute's or rule’s current version.
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STATE v. WASHINGTON
Decision of the Court
evidence is limited to whether substantial evidence exists to support the
verdicts. State v. Scott, 177 Ariz. 131, 138 (1993); see also Ariz. R. Crim. P.
20(a) (directing courts to enter judgment of acquittal “if there is no
substantial evidence to warrant a conviction.”). Substantial evidence is such
proof “reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable doubt.” State
v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419
(1980)).
¶7 Washington does not assert the State failed to prove any
specific elements of the offenses for which she was convicted; rather, she
generally contends, “There is simply no evidence, let alone sufficient
evidence to support the guilty verdicts in this case.” Specifically,
Washington argues:
There was no direct evidence of any possible
involvement on the part of Washington but for the testimony of
Braithwaite. There was no corroboration, either by other
testimony or by physical evidence, of his testimony. As trial
counsel pointed out on more than one occasion during this
litigation, there was no evidence whatsoever that Washington
ever even met a UPS driver or send or receive [sic] any UPS
packages. Washington is alleged to have engaged in various
activities in support the trafficking activity [sic], however,
other than the testimony of Warren Braithwaite, whose testimony is
incredible and not believable, there was no evidence presented
that Washington intentionally or knowingly acted with any
type of criminal intent.
(emphasis added).
¶8 Although Washington argues “no evidence” supports the
verdicts, she concedes that Brathwaite testified about her involvement in
the DTO. “The strength or weakness of testimony is not measured by the
number of witnesses; one witness, if relevant and credible, is sufficient to
support a conviction.” State v. Montano, 121 Ariz. 147, 149 (App. 1978); see
A.R.S. § 13-302 (“In any prosecution, testimony of an accomplice need not
be corroborated.”). Washington’s assertion that Brathwaite’s testimony was
“incredible and not believable” does not persuade us otherwise. This court
does not determine issues of credibility, nor do we weigh the evidence;
those assessments are solely within the province of the jury. State v.
Soto-Fong, 187 Ariz. 186, 200 (1996). In rendering their verdicts, the jurors
apparently found Brathwaite’s testimony credible. By denying
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STATE v. WASHINGTON
Decision of the Court
Washington’s motion for new trial on the purported basis that the verdicts
were contrary to the evidence, the superior court also determined
Braithwaite’s testimony was credible. See State v. Fischer, 238 Ariz. 309, 313–
14, ¶ 18 (App. 2015) (unlike in a Rule 20 motion ruling, “a [superior] court
is permitted to make credibility determinations and weigh the evidence”
when disposing of a post-verdict motion for new trial based on the weight
of the evidence).
¶9 Accordingly, we reject Washington’s challenge to the
sufficiency of evidence. The court did not abuse its discretion by denying
Washington’s motion for new trial. See Neal, 143 Ariz. at 97 (rulings on a
motion for new trial are reviewed for abuse of discretion).
B. Brady Violation.
¶10 Before trial, the prosecutor offered Braithwaite a five-year
prison term in exchange for Braithwaite’s testimony and cooperation with
the State in this case. Braithwaite’s attorney responded that, should his
client not receive a sentence of time served, Braithwaite was afraid he
would be deported to his birth country where he would face retaliation by
the co-defendants’ associates. The prosecutor replied by email as follows:
Whether or not he can get an ICE hold lifted is of no
consequence to me, although I certainly understand why it
matters to Mr. Braithwaite. What I have told him all along is
that I will treat him in good faith. So although the plea deal
I’m willing to offer today will only go as low as the 5 years I
sent you, if during the course of the testimonial process I believe
Mr. Braithwaite has exceeded the 5 year agreement in value to the
State, I will lower the deal accordingly. That would only be fair
and that’s what I would do.
Mr. Braithwaite has had a mixed start to the process.
During the interview he began by lying. That was a
disappointing start. He has since, however, been honest not
only about the facts of this prosecution but also on other
issues of law enforcement interest. And I hope that this period
of significant and fruitful cooperation will continue.
For many reasons I’m unwilling/unable to go lower
than 5 years. I promise that I will always operate in good faith
with Mr. Braithwaite, but I cannot make any specific promise
about the outcome. Mr. Braithwaite holds that in his hands.
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STATE v. WASHINGTON
Decision of the Court
Please let me know your response.
Braithwaite eventually accepted the five-year offer and, as noted, testified
at trial.
¶11 Washington contends the State’s failure to disclose the
foregoing email violated Brady, because the prosecutor’s promise to offer a
better plea deal depending on the “value” to the State of Braithwaite’s trial
testimony could have been used to impeach that testimony.
¶12 The State must disclose all material information in its
possession or control that “tends to mitigate or negate the defendant’s guilt
as to the offense charged, or which would tend to reduce the defendant’s
punishment therefor.” Ariz. R. Crim. P. 15.1(b)(8); see Brady, 373 U.S. at 87
(failure to disclose favorable evidence material to guilt or punishment of
the defendant upon request violates due process). Evidence that a
defendant could use to impeach a State’s witness is subject to this
requirement. See Strickler v. Greene, 527 U.S. 263, 280 (1999). Exculpatory or
impeachment evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Strickler, 527 U.S. at 280 (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)). “[T]here is never a real ‘Brady violation’
unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a different
verdict.” Id. at 281. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional
sense.” United States v. Agurs, 427 U.S. 97, 109–10 (1976).
¶13 The superior court found, and the State concedes, that the
prosecutor was ethically obligated to disclose the email before trial because
the prosecutor’s expressed willingness to consider a more favorable
sentence based on the “value” of Braithwaite’s testimony could motivate
Braithwaite to testify untruthfully against Washington (and her
co-defendants) in a manner that would strengthen the prosecutor’s case.
We agree. The email was potential impeachment evidence and was subject
to mandatory disclosure; the State’s failure to do so was a Brady violation.
¶14 However, at the hearing on the motion for new trial,
Braithwaite testified he did not learn of the prosecutor’s email or its
contents until August 23, 2014, 12 days after the trial ended. After listening
to all the evidence the superior court ruled as follows:
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STATE v. WASHINGTON
Decision of the Court
The e-mail at issue is impeachment evidence. In light of
the totality of evidence presented during this trial, the Court
finds this evidence would not substantially undermine any
testimony of critical significance provided by Mr. Braithwaite.
Mr. Braithwaite was cross-examined at length regarding his
credibility, bias, and motivations for testifying at the trial of the
co-defendants. Defense counsel for all defendants skillfully
challenged all aspects of Mr. Braithwaite’s testimony. The jurors
were told about all of the benefits Mr. Braithwaite received from
testifying and cooperating with the State. The fact his attorney
wanted the prosecutor to give him a better deal than he already
had (three years in prison instead of five years in prison) and the
prosecutor was willing to consider a better offer would not
“substantially undermine his testimony.” The State never
agreed to change the plea agreement or reduce Mr. Braithwaite’s
the [sic] sentence. Mr. Braithwaite denies he was aware of the
content of the e-mail between his attorney and the prosecutor
until after he testified at the trial of the co-defendants.
...
Regarding whether the evidence about the e-mail
would have probably changed the verdict, the Court finds it
would not. There was substantial evidence against each
defendant without considering Mr. Braithwaite’s testimony.
The evidence presented at trial included surveillance evidence
of all defendants, recorded conversations between the
participants in the drug trafficking organization obtained as part
of the Court Ordered Wiretap, and the testimony of many
witnesses with first-hand knowledge about the drug trafficking
organization and the participants in that organization. . . . The
court further finds using the e-mail exchange to impeach Mr.
Braithwaite would not “probably change the verdict” in light of
the other abundant impeachment matters presented at trial.
¶15 Based on this record, we find the superior court did not abuse
its discretion finding that the email’s disclosure would not have affected the
trial’s outcome and a new trial was not required. See State v. Arvallo, 232
Ariz. 200, 206, ¶ 36 (App. 2013) (a superior court’s finding that a Brady
violation does not warrant a new trial is reviewed for an abuse of
discretion).
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STATE v. WASHINGTON
Decision of the Court
CONCLUSION
¶16 Washington’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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