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Not for Publication Rule 111, Rules of the Supreme Court.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 PIMA COUNTY Cause No. CR20060752 Honorable Richard S. Fields, Judge.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Diane Leigh Hunt Tucson, Attorneys for Appellee.
Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean Tucson, Attorneys for Appellant.
MICHAEL MILLER, Judge.
¶1 Blanca Cordova appeals her conviction and sentence for possession of marijuana. Cordova argues the trial court erred in precluding testimony of third-party culpability. Finding no error, we affirm the conviction and sentence.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In February 2006, a Pima County Sheriff's deputy stopped a vehicle for speeding. When the vehicle stopped, two men—the driver and a back-seat passenger—ran away. The deputy found Cordova in the car, trying to move over to the driver's seat from the passenger seat.
¶3 A "very strong" odor of fresh marijuana came from inside the vehicle. In the back seat, the deputy found a large tape-covered cardboard box filled with marijuana, a "basketball size" bundle of marijuana covered in plastic wrap and tape, a white trash bag containing marijuana, and Cordova's purse. In the glove compartment, the deputy found a roll of packing tape that appeared to match the tape on the box and bundle. The box, bundle, and trash bag contained a total of thirty-two pounds of marijuana. The deputy arrested Cordova, who initially gave him a false name and said she had just met the two men, who were giving her a ride to Phoenix. Cordova's mother eventually was identified as the owner of the vehicle.
¶4 Cordova was charged with possession of marijuana for sale, transportation of marijuana for sale, and possession of drug paraphernalia. At the first trial in 2006, the trial court dismissed the possession for sale count, and Cordova was tried in absentia and convicted on the remaining charges; she was arrested in 2010 and sentenced to concurrent prison terms, the longest of which was three years. Cordova appealed, but a portion of the trial transcripts was lost. After the trial court determined the record was incapable of reconstruction and set aside the conviction and sentence, we dismissed the appeal. The state retried Cordova on the transportation and paraphernalia counts. At the second trial, the jury found her not guilty on the paraphernalia count but on the transportation count the jury found her guilty of the lesser-included offense of possession of marijuana. Cordova was sentenced to time served, 780 days, and this appeal followed.
¶5 Cordova principally contends the trial court erred in precluding evidence of third-party culpability "thus depriving her of her constitutional rights to present a complete defense." The proffered evidence was testimony from her cousin, V.M., that the driver had said Cordova had nothing to do with the marijuana, presumably because it belonged to him. The driver, D.M., was in custody but refused to testify.
¶6 We review evidentiary rulings for a clear abuse of discretion unless they are based on constitutional law, in which case they are reviewed de novo. State v. Armstrong, 218 Ariz. 451, ¶ 20, 189 P.3d 378, 385 (2008). The constitutions of the United States and Arizona guarantee criminal defendants the opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986); Ariz. Const. art. II, § 24. Within this guarantee, "[f]ew rights are more fundamental than that of the accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302 (1966); see also State v. Oliver, 158 Ariz. 22, 30, 760 P.2d 1071, 1079 (1988). To exercise this right, a defendant must comply with the rules of evidence, but those rules must "not be applied mechanistically" such that a defendant is denied a fair trial. Chambers, 410 U.S. at 302.
¶7 The state moved before trial to preclude V.M. from testifying. The parties' arguments were based on the transcript from a telephonic interview of V.M. conducted by counsel. V.M. told the attorneys she had visited D.M. in jail two years earlier. The purpose of the visit was to talk about Cordova and get D.M. to "tell the truth . . . so [Cordova] can come out of jail . . . and get . . . her kids back." She said she told D.M. to "say the truth and just make a letter or a statement saying that she had nothing to do with those drugs in the car and that she didn't even know that they were in there, " and D.M. answered "he ...