State v. Brookter ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
TERRANCE DAMRAN BROOKTER, Appellant.
No. 1 CA-CR 15-0406
FILED 5-5-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-128983-001
The Honorable Brian D. Kaiser, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
STATE v. BROOKTER
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Randall M. Howe joined.
T H U M M A, Judge:
¶1 Terrance Damran Brookter appeals his conviction and
resulting sentence for aggravated driving under the influence (DUI).
Brookter argues the superior court abused its discretion by admitting
evidence of phencyclidine (PCP) in his blood. Because Brookter has not
shown error, his conviction and resulting sentence are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 One day in June 2014, Brookter was stopped by a Phoenix
police officer after making improper turns and driving in a slow and
labored manner. After exhibiting six (out of six) cues of impairment using
the Horizontal Gaze Nystagmus (HGN) test, Brookter was arrested for DUI.
No drug recognition expert (DRE) investigation was performed. With his
consent, Brookter’s blood was drawn within an hour after he was stopped.
Subsequent testing revealed a blood alcohol concentration of .125 and the
presence of PCP in his system. The State indicted Brookter on two counts
of aggravated DUI, alleging his license was revoked at the time of the
offenses.2
¶3 Brookter unsuccessfully moved in limine to preclude any
evidence regarding PCP. At trial, the State introduced evidence that
Brookter’s blood contained PCP, which could cause impairment. Brookter
was found guilty of aggravated DUI, and was sentenced to 11 years in
prison. This court has jurisdiction over Brookter’s timely appeal pursuant
1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).
2 Although Brookter was convicted on both counts, this appeal only
concerns aggravated DUI while impaired to the slightest degree. See Ariz.
Rev. Stat. § 28-1381(A)(1) (2016).
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STATE v. BROOKTER
Decision of the Court
to the Arizona Constitution, Article 6, Section 9, and Arizona Revised
Statutes (A.R.S.) §§ 12–120.21(A)(1), 13–4031, and –4033(A) (2016).3
DISCUSSION
¶4 Brookter argues the superior court erred in admitting
evidence of PCP in his blood, claiming that nothing showed that the PCP
impaired his driving and that any minimally probative value of the
evidence was substantially outweighed by a danger of unfair prejudice and
jury confusion. See Ariz. R. Evid. 403. “Because the trial court is best situated
to conduct the Rule 403 balance, [this court] will reverse its ruling only for
abuse of discretion.” State v. Canez, 202 Ariz. 133, 153 ¶ 61 (2002).
¶5 Brookter has not shown the evidence was irrelevant. See Ariz.
R. Evid. 401. The State’s witnesses testified to the varying signs or
symptoms that a person might exhibit while under the influence of PCP.
Witnesses testified that certain signs of impairment Brookter exhibited
could likely be attributable to PCP use, not alcohol impairment. The
witnesses also testified that the use of PCP and alcohol could enhance the
impairment effects of both substances.
¶6 Relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger . . . of unfair prejudice [or] confusing
the jury.” Ariz. R. Evid. 403. Brookter argues the probative value of the PCP
evidence was substantially outweighed by the danger of unfair prejudice
or jury confusion. He asserts that because the jury sought to ask three
questions of witnesses discussing PCP, they were confused about the topic.4
But because evidence regarding PCP use was relevant in assessing
Brookter’s driving, the fact of jury questions about PCP does not establish
a basis for relief. Brookter has not shown the superior court erred in
applying Rule 403 given these jury questions or otherwise.
¶7 Brookter also argues, without any supporting authority, that
a DRE investigation must be done to establish impairment. But after
observing Brookter making improper turns and driving in a slow and
labored manner and once the HGN test was conducted and revealed the
cues, the arresting officer had probable cause to arrest Brookter, meaning
3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
4 The parties agreed that two of the jury questions were improper because
they sought legal conclusions; they did not object to the third question.
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STATE v. BROOKTER
Decision of the Court
that further impairment tests were unnecessary. See State v. Superior Court
(Blake), 149 Ariz. 269, 276 (1986).
¶8 Finally, Brookter argues that “there was no evidence that the
PCP impaired [his] driving” and that “[n]o one could, or did, testify that
[he] was impaired by the use of PCP.” The superior court denied Brookter’s
motion for judgment of acquittal, finding sufficient evidence to support a
conviction on both counts. See Ariz. R. Crim. P. 20. On appeal, Brookter
argues the State’s criminalist testified generally about how PCP, in
combination with alcohol, can affect driving, but not that Brookter,
specifically, was impaired. But that is the proper scope of expert testimony.
See Ariz. R. Evid. 702. And on this record, the jury had substantial evidence
from which to find that Brookter was impaired by the PCP in his system.
Testimony from both the arresting officer and the criminalist, collectively,
established a basis for finding that Brookter was impaired by “any
combination of liquor [or] drugs.” See A.R.S. 28-1381(A)(1). Accordingly,
Brookter has failed to show the jury’s verdict was not supported by
substantial evidence.
CONCLUSION
¶9 Because Brookter has shown no error, his conviction and
sentence are affirmed.
:ama
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