Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201100333 Honorable Wallace R. Hoggatt, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy Pignatella Cain Tucson Attorneys for Appellee.
Joel A. Larson, Cochise County Legal Defender Bisbee Attorney for Appellant.
MICHAEL MILLER, Judge.
¶1 Joshua Nelson appeals from his jury convictions for transportation of methamphetamine for sale, possession of methamphetamine, and possession of drug paraphernalia. Nelson contends the trial court erred in denying his motion to suppress post-Mirandastatements he had made to sheriff's detectives. He also asserts that, based on double-jeopardy principles, the conviction of possession of methamphetamine must be vacated because it is a lesser-included offense of transportation of methamphetamine for sale. We affirm the transportation and drug paraphernalia convictions and sentences but vacate the possession of methamphetamine conviction and sentence.
Factual and Procedural Background
¶2 We view the trial evidence and the inferences from that evidence in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). So viewed, the evidence established that in April 2011, Cochise County Sheriffs detective Kevin Jamka stopped Nelson because Nelson had been speeding. Nelson did not have a driver's license and the car did not belong to him or the passenger in the car. Nelson consented to a search of the car, where the detective found a digital scale with white residue on it, three empty baggies, and a baggie containing methamphetamine. Nelson also allowed the detective to look at his cell phone messages, which showed text messages of drug sales, and voluntarily spoke to the detective about the messages. The detective arrested Nelson and questioned him with another detective at the sheriffs substation. Nelson admitted having transported methamphetamine repeatedly and gave the detectives specific information related to deliveries of methamphetamine.
¶3 Nelson was indicted on six counts: one count of transportation of methamphetamine for sale, one count of possession of methamphetamine for sale, three counts of possession of drug paraphernalia, and use of cell phone to facilitate sale of methamphetamine. Nelson filed a motion to suppress statements he made on the basis they had been taken after he invoked his right to remain silent. The trial court denied the motion. After a three-day jury trial, at which the jury heard the audio recording of the statements, Nelson was convicted as detailed above; acquitted of two drug paraphernalia counts and the cell phone count; and sentenced to presumptive, concurrent terms, the longest of which was ten years. This appeal followed.
Denial of motion to suppress statements
¶4 Nelson first argues the trial court erred by denying his motion to suppress statements he had made to the detectives at the substation, insisting Detective Jamka continued to question him after he had invoked his Fifth Amendment right not to answer any questions. He asserts, as he did in his motion, that he had invoked his rights by responding "no" when Detective Jamka asked if he would answer questions. The state contends the detective merely asked a clarifying question in response to an ambiguous response, which ultimately resulted in a clarification and explicit consent. Nelson disputes any ambiguity.
¶5 We review the denial of a motion to suppress a defendant's statements to law enforcement officers "for 'clear and manifest error, ' the equivalent of abuse of discretion." State v. Mendoza-Ruiz, 225 Ariz. 473, ¶ 6, 240 P.3d 1235, 1237 (App. 2010), quoting State v. Newell, 212 Ariz. 389, ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006). The trial court's legal conclusions, however, are reviewed de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In doing so, we review only the evidence presented at the suppression hearing, Newell, 212 Ariz. 389, ¶ 22, 132 P.3d at 840, and defer to the court's determinations of the credibility of the interrogating officers and the reasonableness of their inferences, Mendoza-Ruiz, 225 Ariz. 473, ¶ 6, 240 P.3d at 1237.
¶6 When a suspect is in custody,  interrogation must cease if the defendant states that he wishes to remain silent. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). In Rhode Island v. Innis, 446 U.S. 291, 301 (1980), the Supreme Court defined "interrogation" under Miranda as "express questioning, " and "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Not all express questioning constitutes interrogation, however, and "'[a] definition of interrogation that included any question posed by a police officer would be broader than that required to implement the policy of Miranda itself.'" United States v. Foster, 227 F.3d 1096, 1102-03 (9th Cir. 2000), quoting United States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981); see also State v. Smith, 193 Ariz. 452, ¶¶ 19-20, 974 P.2d 431, 436-37 (1999) (analyzing whether direct question was designed to elicit incriminating response); State v. Waggoner, 139 Ariz. 443, 445, 679 P.2d 89, 91 (App. 1983) (approving of Booth's holding that "not every question posed in a custodial setting is equivalent to interrogation"); cf. State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 578-79, 583 P.2d 229, 234-35 (1978) (finding one-word question to be interrogation due to inflection, without further analysis). To determine whether police conduct is "interrogation, " the focus is "not on the form of words used, but the intent of the police officers and the perceptions of the suspect." State v. Finehout, 136 Ariz. 226, 230, 665 P.2d 570, 574 (1983).
¶7 Detective Jamka testified at the suppression hearing that before interrogation began, he read the Miranda warnings from a department-issued card. The detective asked Nelson if he understood the warnings, and Nelson answered that he did. The detective then asked if Nelson wished to speak to him. Detective Jamka described the rest of the exchange between them as follows:
[State]: How did he ...