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State v. Collins

Court of Appeals of Arizona, First Division, Department A

September 10, 2013

STATE OF ARIZONA, Appellee,
v.
GERALD VERNELL COLLINS, Appellant.

(Not for Publication – Rule 111, Rules of the Arizona Supreme Court)

Appeal from the Superior Court in Maricopa County Cause No. CR2011-147566-002 The Honorable Cynthia Bailey, Judge

Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorney for Appellee.

James Haas, Maricopa County Public Defender Phoenix By Tennie B. Martin, Deputy Public Defender Attorney for Appellant.

Gerald V. Collins Tucson Appellant.

MEMORANDUM DECISION

KENT E. CATTANI, Judge

¶1 Gerald Vernell Collins appeals his conviction of one count of possession for sale of narcotic drugs, a Class 2 felony, and the resulting sentence. Collins's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, counsel found no arguable question of law that was not frivolous. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, 30, 2 P.3d 89, 96 (App. 1999). Collins was given an opportunity to file a supplemental brief and did so, arguing that the State did not present sufficient evidence to support his conviction. After reviewing the entire record, we affirm Collins's conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND[1]

¶2 Phoenix Police Officers Huptich and Elfritz were on patrol when they observed what appeared to be illegal drug activity involving Collins and co-defendant Thomas McLean. The officers set up surveillance using a spotting scope on the top of a parking garage located approximately one city block away. During surveillance, Officer Huptich observed a woman with white hair walk up to McLean. The woman gave McLean some money, and McLean pointed to Collins. The woman approached and spoke with Collins, who removed a small white object from an Altoids tin and gave it to her. After the woman left, Collins took another white object from the Altoids tin, placed it in what Officer Huptich identified as a crack pipe, and smoked it.

¶3 Officer Huptich subsequently observed a male with a backpack walk up to Collins. Collins said something to this man and pointed to McLean. The man walked over to McLean, talked with him, and gave him money. The man then returned to Collins, who opened up the Altoids tin, "picked out one of the white objects from the tin[, ] and gave it to the subject."

¶4 After the man walked away, Officer Huptich radioed for other officers in the area to make contact with Collins and McLean. As Officer Huptich watched through his scope, he observed Collins quickly pick up the Altoids tin and place it in a black backpack as officers approached. Officer Huptich conveyed this information to the officers on the scene.

¶5 Officers arrived at the scene and attempted to determine who owned the black backpack. After Collins denied knowing to whom it belonged, Officer Fluty searched the backpack and found paperwork with Collins's name on it. Collins then admitted that the backpack belonged to him, gave the officers permission to look inside it, and told Officer Fluty there was an Altoids tin containing cocaine in the side pocket. In addition to the Altoids tin from the backpack, officers also recovered a large amount of money from McLean's pockets.

¶6 Officers arrested Collins, and he was read his Miranda[2]rights at the South Mountain Precinct. Collins stated that he understood his rights and agreed to answer the officer's questions. Collins admitted (1) he was selling crack cocaine; (2) he had two rocks of cocaine in the Altoids tin; (3) he had given crack cocaine to the woman with the white hair and to the man with the backpack; and (4) he had placed crack cocaine in a pipe and smoked it. Collins was charged by indictment with one count of possession for sale of narcotic drugs, a Class 2 felony.

¶7 Collins subsequently asserted that the police did not read him his Miranda rights before questioning, but the superior court rejected this claim after conducting ...


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