State v. Bruce ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CARLEEN CRENSHAW BRUCE, Appellant.
No. 1 CA-CR 13-0788
FILED 11-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2010-112998-001 SE
The Honorable David B. Gass, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. BRUCE
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Carleen Crenshaw Bruce challenges her convictions for
interfering with judicial proceedings, a Class 1 misdemeanor; resisting
arrest, a Class 6 felony; and possession of dangerous drugs, a Class 4 felony.
She claims that the trial court erred by: (1) conducting a suppression
hearing in her absence and (2) denying a motion to suppress her statement
to police prior to receiving Miranda1 warnings. For the reasons that follow,
we affirm.
FACTUAL BACKGROUD
¶2 Before trial, Bruce filed a motion to suppress statements that
she made to a Mesa police officer after her arrest for interfering with judicial
proceedings and resisting arrest. In her presence, the court set the motion
for a hearing on November 4, 2011. The State subsequently learned of a
conflict and, with no defense objection, the court moved the hearing to
November 2 by minute entry.
¶3 Bruce did not appear for the rescheduled hearing. The trial
court asked if the parties wanted to proceed. Bruce’s lawyer advised the
court that he had left a message with his client of the change in schedule,
but did not know if she received the message. Counsel, however, told the
court that he was ready to “go forward with the motion at this time,” and
confirmed that he was not going to call Bruce to testify.
¶4 The hearing proceeded and the police officer, the sole witness,
testified. The court denied the motion to suppress. Bruce was subsequently
convicted at a bench trial and sentenced.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. BRUCE
Decision of the Court
DISCUSSION
I.
¶5 Bruce argues on appeal that her rights under the Sixth
Amendment and Fourteenth Amendment to the United States Constitution
were violated and the trial court committed reversible error by holding the
suppression hearing in her absence. U.S. Const. amend. VI; Ariz. Const. art.
2, § 14. We disagree because any error was invited and her argument is
foreclosed by the invited error doctrine.
¶6 The invited error doctrine provides that a defendant who
invites error at trial may not complain of that error on appeal. State v.
Pandeli, 215 Ariz. 514, 528, ¶ 50, 161 P.3d 557, 571 (2007). The purpose of
the doctrine is to prevent a party from creating or injecting error into a
proceeding and then profiting from it on appeal. State v. Logan, 200 Ariz.
564, 566, ¶ 11, 30 P.3d 631, 633 (2001). Thus, if error is invited, we do not
consider if the alleged error is fundamental because doing so would run
contrary to the purposes of the doctrine. Id. at 565-66, ¶ 9, 30 P.3d at 632-
33.
¶7 Bruce argues that her presence at the hearing would have
been helpful because she could have heard the officer’s testimony and been
available to testify and contradict the officer’s testimony.2 Bruce’s trial
lawyer, however, had the opportunity to ask the court to continue the
hearing if he thought Bruce’s presence at the hearing would have been
helpful to his interrogation of the officer. He apparently did not think her
presence was necessary and specifically informed the court that he did not
intend to call her to testify and wished to proceed without her.
¶8 Although she may argue with his strategy, a defendant may
be bound by her counsel’s “trial strategy, misconduct and mistakes of
counsel so long as counsel’s assistance at trial was not reduced to a ‘mere
farce or sham.’” State v. Levato, 186 Ariz. 441, 444 n.3, 924 P.2d 445, 448 n.3
(1996) (quoting State v. Jones, 110 Ariz. 546, 550, 521 P.2d 978, 982 (1974)).
Bruce’s lawyer thought he could proceed in her absence, and the record
confirms that he was prepared to challenge the officer’s testimony.
Consequently, because Bruce’s lawyer explicitly told the court that he
2 Bruce has not specified on appeal how she could have assisted her lawyer
at the hearing other than a generalized assertion of assistance.
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STATE v. BRUCE
Decision of the Court
wished to proceed in her absence, Bruce may not now assert her absence as
error on appeal. Pandeli, 215 Ariz. at 528, ¶ 50, 161 P.3d at 571.
II.
¶9 Bruce also argues that the court committed reversible error by
denying her motion to suppress. We review a ruling on a motion to
suppress for an abuse of discretion. State v. Zamora, 220 Ariz. 63, 67, ¶ 7,
202 P.3d 528, 532 (App. 2009). “We defer to the court’s factual
determinations; however, to the extent its ultimate ruling is a conclusion of
law, we review de novo.” Id. (citation omitted). And in reaching our
decision we only consider the evidence presented at the suppression
hearing and view that evidence, and reasonable inferences therefrom, in the
light most favorable to upholding the ruling. State v. May, 210 Ariz. 452,
454, ¶ 4, 112 P.3d 39, 41 (App. 2005) (citation omitted).
¶10 After Bruce was arrested, she was transported to the police
station for booking. After pulling into the sally port of the garage, Officer
Christopher Colburn testified that he asked Bruce a “routine” question that
he asks all arrestees “for safety purposes;” namely, “if she had anything
hidden on her person that she shouldn’t have.” Bruce replied that she “had
a bag of meth in her left bra.” The information was relayed to a female
detention officer who searched Bruce prior to booking her into jail and
found in Bruce’s bra “a baggie containing a crystalline substance [that]
tested positive for the presence of methamphetamine.” Bruce was
subsequently Mirandized and voluntarily spoke to Colburn about the
matters she was arrested for and possession of a dangerous drug.
¶11 At the suppression hearing, Bruce, by counsel, argued that
Colburn’s question constituted custodial interrogation meant to elicit
incriminating evidence and because she answered before she was
Mirandized, her answer had to be suppressed. In denying the motion, the
court found that the “single question asked before Miranda warnings were
given was not for investigative purposes” but simply a “routine question[]
asked for booking purposes.” In reaching its decision, the court relied on
United States v. Sims, 719 F.2d 375, 378 (11th Cir. 1983), which held that
“requesting ‘routine’ information for booking purposes is not an
interrogation under Miranda, even though that information turns out to be
incriminating.” In fact, the trial court stated:
I’m persuaded there was just one question and
I also find persuasive and a heavy factor that
[defendant] was not suspected of meth
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STATE v. BRUCE
Decision of the Court
possession. The suspicion of the offenses were
violating the order of protection and resisting
arrest, so the fact that the generic question was
asked do you have anything on you does not
concern the Court that [defendant] should have
been Mirandized prior to that single question
being asked, so the statement made is
admissible at trial.
¶12 Bruce contends the court abused its discretion in finding that
the question was a routine booking question rather than a question meant
to elicit incriminating statements. She points out that the booking questions
in Sims and the related cases were different in kind because those questions
involved only identification information. See id. at 379 (address and
telephone number secured in port-arrest interview). See also State v. Jeney,
163 Ariz. 293, 297, 787 P.2d 1089, 1093 (App. 1989) (ownership of residence
searched proved through booking information).
¶13 Although even seemingly innocuous information may, in
retrospect, turn out to be incriminating, the answer to an innocuous
question should not be suppressed so long as the purpose for which the
information is obtained is a routine booking purpose and “not an
interrogation under Miranda.” Sims, 719 F.2d at 378. Here, the court was
persuaded that the officer routinely asked all arrestees this question solely
for officer safety reasons. And the court was also persuaded that the
question was “routine” because the charges that Bruce was arrested for,
violation of an order of protection and resisting arrest, do not necessarily
give rise to a suspicion of drug possession. Because we give deference to
the finder of fact who hears the live testimony and has to judge credibility,
Matter of Pima County Juvenile Action No. 63212-2, 129 Ariz. 371, 375, 631 P.2d
526, 530 (1981), the denial of the motion to suppress was not an abuse of
discretion.3
3 We also find that even if there was any error, it was harmless because the
drugs would have been found in her bra during the search prior to booking.
“Error is harmless only if we can say, beyond a reasonable doubt, that it
‘did not contribute to or affect the verdict.’” State v. Green, 200 Ariz. 496,
501, ¶ 21, 29 P.3d 271, 276 (2001) (quoting State v. Bible, 175 Ariz. 549, 588,
858 P.2d 1152, 1191 (1993)). Therefore, even without her statement, the
drugs in her bra would have been admitted and supports the conviction.
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STATE v. BRUCE
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm defendant’s convictions
and sentences.
:gsh
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