State v. Massey ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SILVIA MARIE MASSEY, Appellant.
No. 1 CA-CR 15-0322
FILED 12-24-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-002197-004
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mays Law Office, PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant
STATE v. MASSEY
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
G O U L D, Judge:
¶1 Silvia Marie Massey (“Defendant”) appeals from her
conviction and sentence for conspiracy to commit possession of marijuana
for sale. Defendant’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
advising this Court that after a search of the entire appellate record, no
arguable ground exists for reversal. Defendant was granted leave to file a
supplemental brief in propria persona, and did not do so.
¶2 Our obligation in this appeal is to review “the entire record
for reversible error.” State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031 and 13-4033(A)(1) (West 2015).1 Finding no reversible
error, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶3 On January 17, 2013, the Maricopa County Sheriff’s Office
conducted a reverse sting operation. Using a confidential informant,
officers set up a deal for the informant to sell 200 pounds of marijuana to a
drug trafficking organization. The confidential informant was provided
with a vehicle loaded with the marijuana that she then drove to a pre-
determined location to await instructions from her contact who was
1 Unless otherwise specified, we cite to the current version of the
applicable statutes because no revisions material to this decision have
occurred.
2 We view the evidence in the light most favorable to sustaining the
convictions and resulting sentences. See State v. Guerra, 161 Ariz. 289, 293
(1989).
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STATE v. MASSEY
Decision of the Court
brokering the drug with the buyers. The informant was also outfitted with
a body wire so officers could monitor the sale.
¶4 After meeting her contact, who was also working as an
informant, the confidential informant was directed to drive to a residence.
This information was relayed over radio to officers involved in the sting
operation so they could set up surveillance on the residence before the drug
transaction took place. Sherriff’s department officers monitored the
residence as the confidential informant pulled into the garage of the
residence.
¶5 Once the vehicle with the marijuana was parked in the garage,
two men began to unload the marijuana into the kitchen and weigh it. An
older woman, the broker for the buyers, was also present at the residence
when the informants arrived. About a half an hour after the marijuana was
brought to the residence, a white Dodge Caravan pulled up to the
residence. The van was parked in the garage and Defendant and her co-
defendant, Coleman, entered the house. While Coleman, Defendant, the
buyer’s broker, and the two informants counted the money, the two men
who had been weighing the marijuana began loading it into the white
Dodge Caravan. The transaction complete, the two informants left the
residence; Coleman and Defendant also left shortly thereafter.
¶6 Once the confidential informants were clear of the residence,
the surveillance officers were directed to conduct a traffic stop of the white
Dodge Caravan. Defendant and Coleman were the sole occupants of the
van. Upon approaching the van, the officers could smell a strong odor of
marijuana coming from the vehicle. A canine unit was brought in and the
dog alerted on the passenger side sliding door towards the rear of the van.
The officers searched the van and found what appeared to be bundles of
marijuana covered with some jackets in the back of the van. The total
weight of marijuana recovered from the van was about 96 pounds. Officers
also found Defendant’s purse containing about $42,000 in cash wrapped in
a plastic grocery bag.
¶7 Defendant was arrested and charged with one count of
conspiracy to commit possession of marijuana for sale, a class 2 felony, one
count of possession of marijuana for sale, a class 2 felony, and one count of
money laundering in the second degree, a class 3 felony. Prior to trial
Defendant joined in Coleman’s motion to suppress the drugs and money
recovered from the van. Defendant also filed a motion to sever her trial
from Coleman’s trial. The court held evidentiary hearings on both motions
and denied both motions.
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STATE v. MASSEY
Decision of the Court
¶8 Defendant went to trial. At the close of the State’s case, the
court granted Defendant’s Rule 20 motion as to the money laundering
count, and submitted the remaining charges to the jury. The jury found
Defendant guilty of the conspiracy charge, but not guilty of the possession
charge. The jury further found the State had not proven its alleged
aggravating factors. Accordingly, the court suspended Defendant’s
sentence and placed Defendant on probation for 3 years. Defendant timely
appealed.
DISCUSSION
¶9 We have read and considered counsel’s brief, carefully
searched the entire record for reversible error and found none. Clark, 196
Ariz. at 541, ¶ 49. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure and substantial evidence
supported the finding of guilt. Defendant was present and represented by
counsel at all critical stages of the proceedings. At sentencing, Defendant
and her counsel were given an opportunity to speak and the court imposed
a legal sentence.
¶10 Defendant joined in co-defendant Coleman’s motion to
suppress evidence obtained as a result of the traffic stop. The court held an
evidentiary hearing and ultimately denied the motion.
¶11 Officers must have reasonable suspicion of criminal activity
to conduct an investigatory stop of a vehicle. State v. Fornof, 218 Ariz. 74,
76, ¶ 5 (App. 2008). The totality of the circumstances must “raise a
justifiable suspicion that the particular individual to be detained is involved
in criminal activity.” State v. Graciano, 134 Ariz. 35, 37 (1982). We review
whether there was reasonable suspicion to justify a stop de novo; however,
we defer to the trial courts findings of fact. Fornof, 218 Ariz. at 76, ¶ 5.
¶12 At the hearing, the State produced evidence that officers
observed the white Dodge Caravan pull into the garage of the house where
the marijuana reverse sting took place. Officers were informed by a
confidential informant involved in the sting that the marijuana had been
loaded into the van at the house before the van left. The van was followed
as it left the residence until the stop was conducted; additionally, the license
plate of the van had been recorded as it entered the house. These facts
create a reasonable suspicion that the occupants of the van had been
involved in criminal activity; therefore the stop was justified.
¶13 Defendant also filed a motion to sever her case from
Coleman’s. Defendant argued she would be prejudiced by the fact that the
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STATE v. MASSEY
Decision of the Court
weight of evidence against Coleman was more substantial than the
evidence against her and would result in a harmful “rub-off” effect. The
court held an evidentiary hearing and denied Defendant’s motion.
¶14 To further the interest of judicial economy, “joint trials are the
rule rather than the exception.” State v. Murray, 184 Ariz. 9, 25 (1995). In
seeking a severance, a defendant must show “’compelling prejudice against
which the trial court [is] unable to protect’” absent severance. Id. (quoting
State v. Cruz, 137 Ariz. 541, 544 (1983)). We review the trial court’s decision
to grant or deny severance for an abuse of discretion. Id.
¶15 The court did not abuse its discretion in finding a severance
was not warranted. Coleman’s defense was not antagonistic with
Defendant’s, because both defendants claimed to have no involvement in
the drug transaction. Additionally, the evidence presented at trial was
facially incriminating to both Coleman and Defendant. Thus, Defendant
did not show the requisite compelling prejudice to obtain a severance.
¶16 Counsel’s obligations pertaining to Defendant’s
representation in this appeal have ended. Counsel need do nothing more
than inform Defendant of the status of the appeal and her future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz.
582, 584-85 (1984). Defendant shall have thirty days from the date of this
decision to proceed, if she so desires, with an in propria persona motion for
reconsideration or petition for review.
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