State v. Zavala ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ADRIAN ISRAEL ZAVALA, Appellant.
No. 1 CA-CR 21-0577
FILED 1-03-2023
Appeal from the Superior Court in Maricopa County
No. CR2021-001132-001
The Honorable Scott Sebastian Minder, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Diane Leigh Hunt
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
STATE v. ZAVALA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
T H U M M A, Judge:
¶1 Defendant Adrian Israel Zavala appeals from his convictions
for possession or use of dangerous drugs and possession of drug
paraphernalia and his resulting probation grants. Because Zavala has
shown no reversible error, this court affirms.
FACTS AND PROCEDURAL HISTORY
¶2 One early morning in July 2018, Mesa police stopped a car for
a cracked windshield. The officers checked for outstanding warrants for the
driver and Zavala, who was sitting in the passenger seat, and found Zavala
had a warrant issued by Tempe City Court. The officers arrested Zavala on
the warrant, placed him in a patrol car and advised him of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). While performing a
search incident to arrest, the officers found a digital scale in Zavala’s pocket
with a “white flaky residue” on it. The driver consented to a search of the
car, which revealed a yellow bag containing a “white crystal-like
substance” inside the door compartment by the passenger seat inches away
from where Zavala had been sitting.
¶3 Zavala was charged with one count of possession or use of
dangerous drugs, a Class 4 felony, and possession of drug paraphernalia, a
Class 6 felony. Zavala waived his right to a jury trial. At the bench trial, a
forensic scientist testified that her testing of the residue on the scale and the
substance in the yellow bag revealed that both contained
methamphetamine. The arresting officer also testified. During direct
examination, the prosecutor asked the officer to “tell us how that
investigation developed.” After summarizing the information listed above,
the officer volunteered the following, using a mix of present and past tense
in his answer:
I take [the yellow bag] out of the door and I set
it on the passenger’s seat and I continue to
search that area to make sure I didn’t miss
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STATE v. ZAVALA
Decision of the Court
anything, to which I later put [it] back in my
patrol vehicle and attempted to interview
Adrian Zavala at a later time, while he was still
in that vehicle before we extradited him. Read
his Miranda Rights; he understood by saying
yes, that he did not waive his rights and he
requested an attorney, so I did not make any
attempt to interview him further about the
drugs.
¶4 After the State rested, Zavala moved for a judgment of
acquittal, which the court denied. Zavala then elected to testify. During
Zavala’s direct examination, the following exchange took place:
Q. Now, the officer searched the vehicle at one
point and they stated he found the small baggie,
which is in evidence here of some dangerous
drugs. Was this your drugs?
A. At this point -- no. No. I knew nothing -- he
didn’t even tell me -- he just said, You’re gonna
-- want to talk about what I found, is what he
said, I believe. At that point, was I already
Mirandaed. When I was taken from the vehicle,
with the warrant, telling me there’s a warrant
recall, he goes -- he went ahead and Mirandaed
me, and I invoked. I said, Okay, well, this is kind
of getting kind of dicey here. I invoke the fifth
amendment ‘cause I kind of felt like there was
going to be some kind of impropriety in my
mind, ‘cause the way they followed us off to the
-- off the res into Mesa.
....
But with that, I don’t know whether he was
satisfied with that or not. Like I said, I was
Mirandaed and I invoked. I was like, Okay,
well, I kind of felt a little bit under -- under
threat at that point. And so I -- you know, I was
taken to the back of the cruiser, and it wasn’t
until -- I can’t remember which officer -- but
three times the officer came back and I guess
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STATE v. ZAVALA
Decision of the Court
you could say prodded me about what he
found, and he never told me what it was.
On cross-examination, the prosecutor asked Zavala about his interaction
with the officers.
Q. All right. You mentioned that you did invoke
your right, your fifth amendment right, not to
incriminate, correct? Not to speak to an officer
without a lawyer present?
A. Yes. After I was Mirandaed, yeah.
Q. Okay. And the officers never came back and
talked to you after that, did they?
A. No. They did. I was -- I had an officer -- like
I said, I can’t remember which one it was, but he
came back three times while I was handcuffed
and detained in the back of the cruiser,
prodding me. Comes to find out -- we’re going
to talk about this; you’re going to tell me what I
found. And then I believe there was a -- some
argument between the two officers that said --
finally I had to say, Leave me alone. I invoked.
And I kind of got upset the last time, and my
witness statement to -- what the officer said,
Well, he’s got the right to shut the f--- up.
....
But the officer that was in the video, was, I
believe, the one that was prodding me, the one
that kept on coming back to the cruiser, saying,
You’re going to tell me about what I found and
all this. And I’m like, I’ve already been
Mirandaed; I invoked; and yeah, that was -- that
was well after, you know, that point too. I had
been Mirandaed and I invoked. It wasn’t until
maybe seemed like a half hour later, like, he
came in asking me all these questions, and that’s
when I was kind of afraid right there.
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¶5 In initial closing argument, the prosecutor stated
[Zavala] claims the involvement of these other
people, but he chose not to bring them here,
which is not a comment on silence, rather it’s a
comment on the weakness of his own case. He
chose to present a case here today, but he did
not call witnesses that could reasonably be
expected to support what he’s told us here. So
he has a very low credibility. He’s talked about
commentary made to him by police officers, to
the affect of, his warrant has been recalled. He
talked about being prodded for more
information, even after he had invoked his
rights. None of that is credible. It’s not
supported by the video evidence. It’s flatly
contradicted by Officer Echols, and there’s no
reason to believe that these additional
conversations actually happened.
At no point during trial was there any objection to the officer’s testimony
or the prosecutor’s argument, nor was there any motion to strike or request
for a mistrial.
¶6 At the close of trial, after stating it had considered “all the
evidence that was presented and arguments,” the court found Zavala guilty
on both counts. The court then suspended Zavala’s sentences and placed
him on supervised probation for nine months. This court has jurisdiction
over Zavala’s timely appeal under 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) (2022).1
DISCUSSION
¶7 Zavala argues that the State’s use of his post-invoking silence
as substantive evidence of guilt or for impeachment violates his due process
rights and is fundamental error resulting in prejudice, requiring reversal of
his convictions. The admission of unobjected-to evidence is subject to
fundamental error review. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018).
An error is fundamental if it “goes to the foundation of the defendant’s case,
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. ZAVALA
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takes away a right essential to the defense, or is of such magnitude that it
denied the defendant a fair trial.” Id. at 138 ¶ 1. Zavala must also show it
was prejudicial. Id. at 142 ¶ 21.
¶8 The State cannot use a criminal defendant’s invoking of his
right to remain silent for impeachment or substantive evidence of guilt. See,
e.g., Doyle v. Ohio, 426 U.S. 610, 618 (1976); State v. Sorrell, 132 Ariz. 328, 330
(1982); State v. Bowie, 119 Ariz. 336, 341 (1978); State v. Palenkas, 188 Ariz.
201, 212 (App. 1996). Thus, the admission of evidence about Zavala’s
invoking his right to remain silent, and related argument, was error. See,
e.g., Escalante, 245 Ariz. at 141 ¶ 19; State v. Carrillo, 156 Ariz. 125, 131–32
(1988); Sorrell, 132 Ariz. at 329. This point is particularly true here because
the State’s witness was the first to testify about Zavala invoking. And as the
Arizona Supreme Court held in State v. Keeley, a defendant does not obviate
any error by also commenting on his invoking after the State first raises the
issue. 178 Ariz. 233, 236 (App. 1994).
¶9 Although the State argues that referencing a defendant’s
invoking is fundamental error only if used as substantive evidence of guilt,
the cases cited by the State do not apply here. See Carrillo, 156 Ariz. at 131–
32 (holding State could introduce evidence of a defendant’s invoking to
determine whether defendant understood the right to remain silent in
determining voluntariness); State v. Stevens, 228 Ariz. 411, 417 ¶ 16 (App.
2012) (holding court erred in allowing the State to admit evidence of
defendant invoking her Fourth Amendment rights and arguing she did so
to prevent police from finding illegal drugs in her home); State v. Allen, 253
Ariz. 306, 329–30 ¶¶ 34-39 (2022) (finding statements made by a detective
during an interrogation were not offered for the truth of the matter asserted
and therefore were not hearsay and not testimonial under the
Confrontation Clause of the Sixth Amendment of the U.S. Constitution).
¶10 Recognizing the error, and for purposes of this discussion
presuming it was fundamental, to cause reversal, Zavala must show
resulting prejudice. Escalante, 245 Ariz. at 142 ¶ 21. To do so, Zavala must
show that, without the error, “a reasonable [fact finder] . . . could have
reached a different [verdict].” Id. at 144 ¶ 29 (quoting State v. Henderson, 210
Ariz. 561, 569 ¶ 27 (2005)). “[T]he amount of error-free evidence supporting
a guilty verdict is pertinent” to deciding whether a reasonable fact finder
could have reached a different result. Escalante, 245 Ariz. at 144 ¶ 34.
¶11 Zavala does not challenge the sufficiency of the evidence,
which properly supports the guilty verdicts. Zavala has not shown how the
introduction of his invoking contradicts or negates evidence of his guilt.
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STATE v. ZAVALA
Decision of the Court
Moreover, Zavala’s arguments do not account for the fact that the trial was
to the court, not to a jury. “[J]udges ‘are presumed to know the law and to
apply it in making their decision.’” State v. Lee, 189 Ariz. 608, 616 (1997)
(citation omitted). As this court noted long ago,
An appellate court will not reverse a case tried
to the trial court without a jury for errors in
receiving improper matters into evidence
provided there is sufficient competent evidence
to sustain the judgment. The fact a trial judge
allows such improper evidence to be offered
and received will not require a reversal for the
appellate court will assume, unless it
affirmatively appears to the contrary, that the
trial judge only considered the competent
evidence in arriving at the final judgment.
State v. Warren, 124 Ariz. 396, 402 (App. 1979). Contrary to Zavala’s
argument, the trial court’s statement that it considered “all the evidence
that was presented and arguments,” does not constitute an affirmative
statement that it relied on his invoking when it found Zavala guilty. Indeed,
there is no suggestion that the court, as finder of fact, improperly relied on
evidence and argument that Zavala invoked his right to remain silent.
¶12 Zavala argues “[t]his was a weak case that turned on” his
credibility. The trial record is to the contrary. Zavala was found with a scale
in his pocket, that had a visible “white flaky residue” that testing confirmed
was methamphetamine and that the forensic scientist testified was
commonly used as drug paraphernalia. This “error-free” evidence, which
had nothing to do with Zavala invoking, properly supports his
paraphernalia conviction. See Escalante, 245 Ariz. at 144 ¶ 34; A.R.S. § 13-
3415(A) (prohibiting possession of drug paraphernalia); A.R.S. § 13-
3415(F)(2)(e) (definition of drug paraphernalia includes “[s]cales and
balances used, intended for use or designated for use in weighing or
measuring drugs.”).
¶13 Similarly, arresting officers found a small bag containing a
“white crystal-like substance,” that testing confirmed was
methamphetamine, in the passenger-door compartment inches away from
where Zavala had been sitting. That “error-free” evidence, coupled with
Zavala having a scale with methamphetamine residue in his pocket,
properly supports his conviction for possession or use of dangerous drugs.
See Escalante, 245 Ariz. at 144 ¶ 34; A.R.S. § 13-3407 (prohibiting, among
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other things, possession of dangerous drugs); see also State v. Gill, 248 Ariz.
274, 277 ¶ 7 (App. 2020) (“‘Possession’ means a person ‘knowingly
exercised dominion or control over property,’ and it may be actual or
constructive”) (citations omitted); State v. Villavicencio, 108 Ariz. 518, 520
(1972) (noting fact finder may find constructive possession where substance
is “found in a place under [the defendant’s] dominion and control and
under circumstances from which it can be reasonably inferred that the
defendant had actual knowledge of the existence of the narcotics. Exclusive
control of the place in which the narcotics are found is not necessary.”).
CONCLUSION
¶14 On this record, and given this was a bench trial, Zavala has
not shown the error in admission of evidence, and resulting argument, of
his invoking was prejudicial. Thus, Zavala’s convictions and probation
grants are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: JT
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