Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-128357-001 The Honorable Brian Kaiser, Judge Pro Tempore.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee.
Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel Counsel for Appellant Frederick Douglas Smoots Appellant.
Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined.
MAURICE PORTLEY PRESIDING JUDGE
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Frederick Smoots has advised us that he has been unable to discover any arguable questions of law after searching the entire record and requests us to conduct an Anders review of the record. Smoots filed a supplemental brief for our consideration.
¶2 Smoots was observed driving out of a Circle K parking lot on June 4, 2011, without stopping for traffic, making a wide right-hand turn and then quickly accelerating to about fifty-five miles per hour in a forty mile per hour zone. Phoenix Detectives Bryan Cuthertson and Marcus Allen pulled Smoots over. With the assistance of illumination, Detective Cuthbertson observed that Smoots had reached across the passenger's seat and underneath the driver's seat before he stopped the car.
¶3 As Detective Cuthertson approached the driver's window, he noticed Smoots was talking on his cell phone and appeared frantic. While locating his driver's license, Smoots said he was driving fast and without headlights, and needed to get home to take his mother to the hospital. Smoots got out of the car and was frisked. He then opened the back door of the car, and Detective Cuthertson told him to stop as Smoots reached inside for a towel.
¶4 Detective Cuthertson conducted a protective sweep of the car, and observed a handgun under the driver's seat. Smoots was arrested and the detectives verified that Smoots was a convicted felon. Once arrested, Smoots said, "I know it was the gun under my seat. It's not mine, it's my friend's. It's legit, it has papers and everything."
¶5 Subsequently, Smoots was given his Mirandawarnings and was asked about the gun. He told the detective that the gun had been in the car "awhile" and that it belonged to his friend, Ernest. Smoots also said, "I know I can't have a gun. Shoot man, I screwed up."
¶6 Smoots was indicted for false reporting to a law enforcement agency, a class 1 misdemeanor, and misconduct involving weapons, a class 4 felony. The case went to trial. In addition to the detectives, the jury heard from Smoots, who admitted that he had two prior felony convictions, and Ernest Sanders, the owner of the handgun. The defense was essentially that Mr. Sanders had purchased the gun, that he had it in the car earlier in the evening and that it had fallen out of his holster; hence, Smoots was not trying to possess the gun.
¶7 The jury acquitted Smoots of false reporting to a law enforcement agency but found him guilty of misconduct involving weapons. He was subsequently sentenced to prison for nine years and given thirty-three days of presentence incarceration credit. We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ...