State v. King

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

NICHOLAS LORIN KING, Appellant.

No. 1 CA-CR 19-0161
FILED 4-14-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-159215-001
The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
 STATE v. KING
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Nicholas Lorin King (“King”) appeals his convictions and
sentences for Count one, possession or use of dangerous drugs; Count two,
possession or use of narcotic drugs; and Counts three and four, promoting
prison contraband. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Police were called to a scene where an individual witnessed a
man arguing with a female victim. The male suspect was also observed
being violent towards the female victim. Police detained the man, who
turned out to be King, in order to investigate the situation. The officers
conducted a brief, initial search for weapons on King’s person when
detaining him, and the officers did not find any weapons or other
contraband. After questioning King, officers learned that King and the
female victim knew one another, and there was a court order that
prohibited King from having contact with her.

¶3 King was then arrested, and a more thorough search was
conducted. He was patted down from top to bottom, pockets were
emptied, and his belt and jewelry were removed. Officers still did not
locate any illegal contraband. King was then transported to a holding
facility, and upon his arrival, another thorough search of King was
conducted. King was patted down again, pockets checked, and his shoes
were taken off. King was booked into jail and placed in a holding cell alone.
About an hour or two after his arrival, another man was placed into the cell
with King. For the most part, the two men sat on opposite corners of the
cell.

¶4 King’s holding cell was being surveilled and monitored,
although the surveillance screens have a grey box over the toilet area of the
cell to respect the privacy of the arrested individuals. An officer noticed
that King kept going to the toilet area of the cell, which was mostly blocked
from the view of the cameras. However, whenever King was in view of the

2
 STATE v. KING
Decision of the Court

cameras, King looked to be manipulating something in his hands.
Suspicious, the officer continued to closely monitor King within the cell.
The officer noticed King start to roll a thumb-sized, white object in his
hands. The officer then saw King pull the front of his pants out and place
this small object in the front pocket of his underwear. The officer told his
supervisor, who then watched the surveillance video of King. The
supervisor agreed that King appeared to be acting suspiciously, and he
decided that a strip search should be conducted on King.

¶5 King was removed from the holding cell and placed in the
search area. King’s clothes were removed, and the officers thoroughly
searched each item. An officer saw the front of King’s boxer shorts were
ripped and there was a hole cut into the front flap of the boxers. The officer
removed a brown, tar-like substance and a white, crystal-like substance
from the boxers, which were both wrapped in a plastic wrapper and a piece
of toilet paper. When asked what the substances were, King admitted to
possessing meth. Later testing revealed the brown substance to be heroin
and the white substance to be methamphetamine.

¶6 King was charged with disorderly conduct and domestic
violence for the events that led to his original arrest. In addition, King was
charged with possession of drugs and promoting prison contraband. King
pled guilty to the disorderly conduct and domestic violence offense. At
trial for the drug-related offenses, King admitted to possessing the heroin
and methamphetamine, but he denied that he entered the jail with the
drugs. Instead, King claimed after he was booked and before he was placed
into a cell alone, he was first placed in a cell with four or five other
individuals. He claimed one of these individuals gave him the drugs. Two
officers testified King was never placed in a holding cell with four or five
other individuals, and instead, immediately upon his arrival, King was
placed in a cell alone.

¶7 A detention officer that participated in the strip search also
testified. King’s counsel questioned the detention officer about whether
there were any recorded statements of King throughout his stay at the jail.
In response to one of the questions, the detention officer commented that
King had “invoked his right to an attorney.” King’s counsel did not object
to the statement and continued his questioning. Shortly after, a bench
conference was held. Out of the presence of the jury, King’s counsel
notified the court that the detention officer stated King “invoked his right
to an attorney” and asked for a mistrial. The parties agreed to further
discuss the issue during the next recess. After recess was called, King’s
counsel moved for a mistrial, which the prosecution opposed. After

3
 STATE v. KING
Decision of the Court

considering the motion for a mistrial, the superior court denied it, and trial
continued.

¶8 The jurors convicted King on all counts. The superior court
found that King had four prior felony convictions, sentencing him to two
presumptive terms of ten years for count one, possession or use of
dangerous drugs; and count two, possession or use of narcotic drugs. King
was sentenced to two mitigated terms of fourteen years for the two counts
of promoting prison contraband. The sentences were all ordered to be
served concurrently.

¶9 King appeals his convictions and sentences. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶10 King contends the superior court erred when it denied his
motion for a mistrial after a detention officer testified that he invoked his
right to an attorney.

¶11 “A declaration of a mistrial is the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Adamson, 136 Ariz. 250, 262 (1983). In deciding whether to grant a mistrial
based on witness testimony, the superior court considers whether “the
testimony called to the jury’s attention matters that it would not have been
justified in considering in reaching the verdict,” and “the probability that
the testimony influenced the jury.” State v. Gulbrandson, 184 Ariz. 46, 62
(1995). The decision to deny a mistrial is within the discretion of the
superior court, and we will not disturb its decision absent an abuse of
discretion. State v. Simms, 176 Ariz. 538, 540 (App. 1993).

¶12 On cross-examination, King’s counsel asked the detention
officer several questions about whether certain areas of the jail were being
audio recorded. King’s counsel continued:

Counsel: Okay. What about the common area? I’m going
to call it the common area, that’s probably not what it’s
referred to, but this interior area?

Officer: Yeah. So we call it the search area. To my
knowledge there’s no recording in there.

4
 STATE v. KING
Decision of the Court

Counsel: Okay. So no recordings of any statements that
you attribute to Mr. King, correct?

Officer: Correct.

Counsel: Not on body cam, not on any sort of tape
recorder or anything like that, correct?

Officer: Just when he invoked his right to an attorney,
that’s the only one.

Counsel: What happened to those boxer shorts?

Officer: I don’t know.

Counsel: You don’t know where they’re at today?

Officer: I don’t know.

Counsel: If I can have just a moment, Your Honor?

Court: You may.

Counsel: No further questions, Your Honor.

(Emphasis added).

¶13 It is well settled that a witness may not comment on a
defendant’s invocation of his right to counsel, and the defendant’s due
process may be violated if this occurs. State v. Gilfillan, 196 Ariz. 396, 406,
¶¶ 35-36 (App. 2000) (overruled on other grounds). However, this does not
always amount to reversible error if the error is harmless. See State v.
Palenkas, 188 Ariz. 201, 212-13 (App. 1996) (“Error is ‘harmless’ when it can
be said beyond a reasonable doubt that it did not contribute to or affect the
verdict.”).

¶14 Here, the superior court found that there was “no reasonable
possibility that the jury would understand the reference” or that it
otherwise would “perceive that that’s an admission of guilt.” The
statement was no more than a “brief reference to the defendant’s request
for counsel” and it “did not necessarily suggest to the jury that the
defendant was guilty because he had invoked his right to counsel during
police questioning.” Gilfillan, 196 Ariz. at 406, ¶ 38. The detention officer’s
testimony that King “invoked his right to counsel” was buried within a line
of questioning regarding whether King’s statements to police were

5
 STATE v. KING
Decision of the Court

recorded. And following this statement, King’s counsel immediately went
into a new line of questioning regarding King’s boxer shorts. King’s
counsel did not object to the witness’ statement or draw attention to it in
any other way, making it even less likely that the statement influenced the
jury.

¶15 The detention officer’s statement was also a response to a
question asked by King’s counsel, and it was not elicited by the prosecution
as a deliberate attempt to establish King’s guilt.1 See Gilfillan, 196 Ariz. at
406, ¶ 38; see also Palenkas, 188 Ariz. at 213. Although King argues that the
detention officer “was a trained officer who knew that he should not
reference the invocation,” the Arizona Supreme Court has rejected this
argument, finding “an able lawyer conducting cross-examination can
usually avoid the injection of known inadmissible testimony by using
narrow, leading questions.” State v. Stuard, 176 Ariz. 589, 601 (1993).
During trial, the prosecutor even interrupted defense counsel’s cross-
examination of the detention officer and asked for a bench conference. The
prosecutor warned King’s counsel that his cross-examination might be
confusing the detention officer, and to be more direct in his questioning, so
the witness did not make another remark about King invoking his right to
counsel. There is no evidence of prosecutorial misconduct, nor that the
detention officer was intentionally trying to improperly influence the jury.

¶16 The trial judge did not believe that the jurors took note of the
detention officer’s reference that King asserted his right to counsel. And
even if they did, the court did not believe the jury would understand such
statement to be an indication of King’s guilt. “The trial judge is able to sense
the atmosphere of the trial, the manner in which the objectionable statement
was made, and the possible effect it had on the jury and the trial.” State v.
Koch, 138 Ariz. 99, 101 (1983). King argues that such deference should not
be given to the court in this case, because the judge “did not remember the
improper statement,” and “was asleep at the switch.” However, the record
does not show “that the judge did not observe the atmosphere, manner, and

1 In the opening brief, King’s counsel argues that it was the prosecutor
that was questioning the detention officer when the “improper statement”
was made, and that “the prosecutor was deliberately leading his own
witness.” King himself wrote a separate letter to the court also claiming
that the prosecutor was the one questioning the detention officer when the
officer stated King invoked his right to counsel. However, a review of the
transcript shows that King’s counsel was questioning the detention officer
when the comment regarding King invoking his right to an attorney was
made.

6
 STATE v. KING
Decision of the Court

effect” of the detention officer’s comment as King contends. Instead, the
judge stated he could not “remember exactly what [the detention officer]
said.”

¶17 We find that the superior court did not abuse its discretion by
denying King’s motion for a mistrial. There is overwhelming evidence that
supports the jury’s verdict. King admitted to knowingly possess the drugs,
and although he claims another individual gave him the drugs inside a
holding cell, two detention officers provided testimony to rebut this
contention. Given the overwhelming evidence in this case, there was no
reasonable probability that the detention officer’s response regarding
King’s request for counsel materially affected the outcome of the trial, and
therefore, there is no error requiring reversal.

CONCLUSION

¶18 For the foregoing reasons, we affirm King’s convictions and
sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

7