                            IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                  JAMONTE LAWRENCE OLAGUE,
                          Appellant.

                     No. 2 CA-CR 2015-0056
                      Filed August 16, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20120104002
        The Honorable Teresa Godoy, Judge Pro Tempore

                          AFFIRMED


                           COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Dean Brault, Pima County Legal Defender
By Scott A. Martin and Stephan McCaffery,
Assistant Legal Defenders, Tucson
Counsel for Appellant
                        STATE v. OLAGUE
                        Opinion of the Court


                             OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Judge Espinosa and Judge Staring concurred.


E C K E R S T R O M, Chief Judge:

¶1           Following a jury trial, appellant Jamonte Olague was
convicted of first-degree murder and armed robbery. On appeal, he
challenges the denial of his motion to suppress his statements to law
enforcement officers, his motion to dismiss, and his motions for a
new trial. We affirm for the reasons that follow.

                Factual and Procedural Background

¶2           The issues presented on appeal mainly involve
procedural facts that we develop as needed in the discussion
sections below. Viewed in the light most favorable to upholding the
convictions, the evidence at trial established the following. State v.
Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). On
December 30, 2011, Olague and several codefendants arranged to
buy one pound of marijuana from the victim. The next day they
robbed and fatally shot him.

¶3            After Olague’s arrest, a detective provided him the
advisory required by Miranda v. Arizona, 384 U.S. 436 (1966), and
conducted an interview. Before trial, Olague filed a motion to
suppress the statements from the interview, which the trial court
denied, finding that Olague knowingly, voluntarily, and
intelligently had waived his constitutional rights and had properly
been advised of those rights pursuant to Miranda. In addition, the
court denied Olague’s motion to dismiss the indictment, rejecting
his argument that he had been “selectively prosecuted” for murder
because he and his codefendants were minorities, yet several
“white” people who had assisted the victim in the attempted drug
sale had not been similarly charged.




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                         STATE v. OLAGUE
                         Opinion of the Court

¶4           After the jury found Olague guilty of the charges, he
filed two motions for a new trial based on alleged juror misconduct.
The trial court denied the motions and prohibited Olague from
initiating further contact with jurors absent the court’s prior
approval. The court then sentenced Olague to concurrent prison
terms, the longer of which is life without the possibility of release for
twenty-five years. We have jurisdiction over his delayed appeal
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1)
and (2).

                         Motion to Suppress

¶5           Olague first contends the trial court erred in denying his
motion to suppress his statements to detectives because he did not
validly waive his Miranda rights. A waiver of such rights must be
voluntary, meaning the product of “free and deliberate choice rather
than intimidation, coercion, or deception.” Berghuis v. Thompkins,
560 U.S. 370, 382 (2010), quoting Moran v. Burbine, 475 U.S. 412, 421
(1986); accord In re Andre M., 207 Ariz. 482, ¶ 7, 88 P.3d 552, 554
(2004).1 Olague asserts his statements were inadmissible because he
did not answer the detectives’ questions or spontaneously speak to
the officers; instead, he merely responded to a law enforcement
command to tell his side of the story, which he characterizes as an
“inherently coercive order.”

¶6           We review a trial court’s ruling on a motion to suppress
for an abuse of discretion, State v. Villalobos, 225 Ariz. 74, ¶ 10, 235
P.3d 227, 231 (2010), and defer to the court’s factual determinations.
State v. Maciel, 238 Ariz. 200, ¶ 10, 358 P.3d 621, 624 (App. 2015). “In
assessing a waiver, courts examine the totality of the surrounding
circumstances, ‘including the defendant’s background, experience,
and conduct.’        The defendant’s prior interactions with law
enforcement are relevant to this inquiry.” State v. Naranjo, 234 Ariz.
233, ¶ 7, 321 P.3d 398, 403 (2014) (citation omitted), quoting State v.

      1 Voluntariness  and Miranda typically present distinct legal
issues. See State v. Amaya-Ruiz, 166 Ariz. 152, 172, 800 P.2d 1260,
1280 (1990). Olague expressly states on appeal that he is not raising
a voluntariness claim.


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                          STATE v. OLAGUE
                          Opinion of the Court

Montes, 136 Ariz. 491, 495, 667 P.2d 191, 195 (1983). Our appellate
review is limited to the evidence presented at the suppression
hearing, State v. Newell, 212 Ariz. 389, ¶ 22, 132 P.3d 833, 840 (2006),
which we view in the light most favorable to upholding the trial
court’s ruling. Naranjo, 234 Ariz. 233, ¶ 4, 321 P.3d at 403.

¶7             Although Olague bases his argument on the precise
language the detective used to secure the waiver here, our record on
appeal does not include the exhibits admitted at the suppression
hearing. An appellant has the burden of ensuring the appellate
record contains the necessary items for the arguments presented.
State v. Jessen, 130 Ariz. 1, 8, 633 P.2d 410, 417 (1981). Despite the fact
that the state’s answering brief noted this deficiency, Olague has
taken no steps to cure it. Instead, he asserted in his reply brief that a
recording of the interview was properly admitted at the suppression
hearing and should have been included automatically in the record
on appeal pursuant to Rule 31.8(a)(1), Ariz. R. Crim. P. He therefore
urged this court to supplement the record “with no negative
ramifications for [him].” It is an appellant’s duty to supplement an
incomplete record, however, not this court’s. State v. Kerr, 142 Ariz.
426, 430, 690 P.2d 145, 149 (App. 1984).

¶8           At the suppression hearing, a detective testified that he
read a verbatim Miranda advisory to Olague at the beginning of the
custodial interview. That advisory informed Olague of his right to
remain silent and to have an attorney present before and during any
questioning. See Miranda, 384 U.S. at 444, 469-70. After Olague
stated he understood his rights, the detective sought a waiver by
asking if he was “cool with” their discussion continuing. The
detective testified that he had brief conversations with Olague in the
past and that he had phrased his question as he did both to tailor it
to Olague’s level of understanding and to create a relaxed
atmosphere. Similarly, the detective removed Olague’s handcuffs to
create a less stressful environment. Thus, on the record properly
before us, we find no abuse of discretion in the trial court’s ruling
that Olague understood and voluntarily waived the Miranda
protections. Cf. Thompkins, 560 U.S. at 375, 385 (reasoning that
defendant who understood rights chose not to invoke or rely on
rights when he did speak); State v. Zimmerman, 166 Ariz. 325, 330,


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                         STATE v. OLAGUE
                         Opinion of the Court

802 P.2d 1024, 1029 (App. 1990) (finding statements admissible when
detective told defendant he “wanted to . . . get his information, get
the story over with,” reminded defendant of Miranda advisory, then
asked if defendant wanted to talk).

¶9            As the parties point out, a recording of the interview
was admitted at trial, and a transcript was attached to one of the
state’s pretrial motions. Yet even if we considered these additional
items, we still would find no basis to disturb the trial court’s
determination that Olague had not been coerced. In context, the
detective’s preliminary questions—“All right?” and “You cool with
that?”—implied that any further discussion on the topic of “what
went down” would be voluntary and subject to termination if
Olague invoked the Miranda rights the detective had explained only
moments earlier. The full record shows an absence of law
enforcement overreach or compulsion. See State v. Carrillo, 156 Ariz.
125, 135, 750 P.2d 883, 893 (1988) (stating voluntariness of waiver
depends on objective evaluation of police conduct).

                         Motion to Dismiss

¶10          Before trial, Olague joined a motion to dismiss his
murder charge due to selective prosecution based on impermissible
racial discrimination. The trial court denied the motion because it
rested on the faulty legal premise that a person could be charged
with felony murder for the sale of marijuana below the two-pound
threshold amount set forth in A.R.S. § 13-3401(36)(h).

¶11           Our felony-murder statute, A.R.S. § 13-1105(A)(2),
enumerates the predicate offenses that will support a first-degree
murder charge. The list includes “marijuana offenses under
§ 13-3405, subsection A, paragraph 4, dangerous drug offenses
under § 13-3407, subsection A, paragraphs 4 and 7, [and] narcotics
offenses under § 13-3408, subsection A, paragraph 7 that equal or
exceed the statutory threshold amount for each offense or combination of
offenses.” § 13-1105(A)(2) (emphasis added). On appeal, Olague
continues to argue that this threshold-amount clause in the felony-
murder statute applies only to specified narcotics offenses, the
clause’s last antecedent. He maintains that threshold amounts do
not apply to marijuana offenses, dangerous drug offenses, or the


                                   5
                         STATE v. OLAGUE
                         Opinion of the Court

various other disparate offenses enumerated in § 13-1105(A)(2), such
as child molestation and terrorism.

¶12           We review questions of statutory interpretation de
novo, striving to give effect to the intent of the enacting legislature.
State v. Jones, 235 Ariz. 501, ¶ 6, 334 P.3d 191, 192 (2014). We look
first to the statute’s language to determine its meaning. State v.
Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). When that
language is susceptible to more than one reasonable interpretation,
as is the relevant clause of § 13-1105(A)(2), we employ secondary
methods of construction to determine its meaning. See State ex rel.
Polk v. Campbell, 239 Ariz. 405, ¶ 5, 372 P.3d 929, 930 (2016).

¶13           The history of § 13-1105(A)(2) resolves the question of
legislative intent. See Campbell, 239 Ariz. 405, ¶ 5, 372 P.3d at 930
(recognizing context and historical background of statute as tools for
interpretation). In 1987, the only drug crimes that served as
predicate felonies for first-degree murder were certain “narcotics
offenses,” with no minimum amount of the drug specified by law.
1987 Ariz. Sess. Laws, ch. 307, § 7. In 1993, the legislature expanded
§ 13-1105(A)(2) to include offenses involving the transportation or
sale of marijuana or dangerous drugs. 1993 Ariz. Sess. Laws, ch.
255, § 20. The legislature also introduced “statutory threshold
amount[s]” for various drug offenses, 1993 Ariz. Sess. Laws, ch. 255,
§§ 38-43, broadening the application of a concept that previously
had applied only to marijuana offenses. See S. Revised Fact Sheet for
S.B. 1049, 41st Leg., 1st Reg. Sess., at 3 (Ariz. Feb. 5, 1993)
(hereinafter S. Fact Sheet); H.R. B. Summary for SB 1049, 41st Leg.,
1st Reg. Sess., at 3 (Ariz. Mar. 23, 1993) (hereinafter H.R. B.
Summary).

¶14          The legislative history of the 1993 crime bill shows that
both chambers intended the application of the felony-murder statute
to depend on the quantity of the drug involved. For marijuana, the
amount originally was set at eight pounds, consistent with the
former version of A.R.S. § 13-3405(C). See S. Fact Sheet, at 2-3; H.R.
B. Summary, at 3; see also 1990 Ariz. Sess. Laws, ch. 366, § 7. The bill
that ultimately emerged from the conference committee reduced this
amount and removed the language specifying different quantities
for different types of drugs. S. & H. Free Conf. Comm. Amends. to

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                         STATE v. OLAGUE
                         Opinion of the Court

H. Engrossed SB 1049, 41st Leg., 1st Reg. Sess., at 8 (Ariz. Apr. 16,
1993). As amended, the bill instead uniformly applied the new
language concerning “statutory threshold amount[s].” Id. In
making these changes, the conference committee both moved the
threshold-amount clause to its present location and added the
language specifying that it applied “for each offense or combination
of offenses.” Id. The full clause therefore reflects that the legislature
understood and intended “each” different type of drug crime listed
in the series—namely, marijuana, dangerous drug, and narcotics
offenses—to require a statutory threshold amount. § 13-1105(A)(2).

¶15          In sum, first-degree murder based on felony murder
under § 13-1105(A)(2) requires a statutory threshold amount for
offenses under §§ 13-3405(A)(4) and 13-3407(A)(7), not just those
under § 13-3408(A)(7). 2 Because we agree with the trial court’s
construction of the felony-murder statute, we find no error in the
court’s denial of the motion to dismiss.

                        Motions for New Trial

¶16          Olague sought a new trial based on at least two types of
alleged juror misconduct. His first motion claimed that Juror 8 had
“pledge[d]” her vote within the meaning of Rule 24.1(c)(3)(iv), Ariz.
R. Crim. P., because she had been “bullied by physical gestures” of
one particularly “intense” juror and had “feared retaliation” from
the others, which made her change her vote to guilty simply to
avoid a confrontation with them. Olague’s supplemental motion
alleged that the same intense juror had committed misconduct by
insisting during deliberations that Olague would receive probation
if convicted. Olague contended, specifically, that this juror’s
comments regarding punishment had injected inadmissible extrinsic
evidence into deliberations, in violation of Rule 24.1(c)(3)(i). Both
the motions included supporting affidavits from Juror 8; the
supplemental motion also included an affidavit from Juror 10.

      2Our analysis does not address the manufacture of a
dangerous drug under § 13-3407(A)(4), which was subsequently
added to the felony-murder statute. 2000 Ariz. Sess. Laws, ch. 50,
§ 2.


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                         STATE v. OLAGUE
                         Opinion of the Court

¶17           The trial court denied the motions on several alternative
grounds. We review the court’s ruling for an abuse of discretion.
See State v. Welch, 236 Ariz. 308, ¶ 17, 340 P.3d 387, 393 (App. 2014).
We will affirm that ruling so long as the court reached the legally
correct result. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214,
1219 (1984).

¶18           Turning first to the allegation of bullying and
retaliation, we note that “[p]ressure from other jurors, generally, will
not serve as the basis for a mistrial.” State v. Hutton, 143 Ariz. 386,
391, 694 P.2d 216, 221 (1985). A juror’s testimony or affidavit that
she felt pressured into her verdict does not establish misconduct.
See State v. Hall, 129 Ariz. 589, 595, 633 P.2d 398, 404 (1981)
(hereinafter Hagen), overruled on other grounds by State v. Bass, 198
Ariz. 571, ¶¶ 12-13, 12 P.3d 796, 801 (2000); State v. Childs, 113 Ariz.
318, 323-24, 553 P.2d 1192, 1197-98 (1976); State v. Cipriano, 24 Ariz.
App. 478, 479-80, 539 P.2d 952, 953-54 (App. 1975); see also State v.
Sands, 145 Ariz. 269, 275, 700 P.2d 1369, 1375 (App. 1985) (“vague
allegations of ‘dictatorial means’ tainting the deliberations” held not
to be misconduct). Indeed, Rule 24.1(d) forbids a court from
receiving evidence of the subjective motives or mental processes that
led a juror to her verdict. State v. Callahan, 119 Ariz. 217, 219, 580
P.2d 355, 357 (App. 1978).

¶19          With respect to the conduct of jurors during
deliberations, a distinction exists between a juror’s “blustering
arrogance,” on the one hand, and threats of violence that would
cause a reasonable person to fear for her safety, on the other.
Anderson v. Miller, 346 F.3d 315, 329 (2d Cir. 2003), quoting United
States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958) (per curiam).
“[A]rticulate jurors may intimidate the inarticulate, [and] the
aggressive may unduly influence the docile,” but such dynamics are
an accepted part of the deliberative process. Jacobson v. Henderson,
765 F.2d 12, 15 (2d Cir. 1985) (per curiam), quoting People v. De Lucia,
229 N.E.2d 211, 213 (N.Y. 1967) (second alteration in Jacobson). A
court will not disturb a verdict based on “‘weakly authenticated
juror statement[s] containing vague allegations of “harassment” and
“verbal abuse.”’” Anderson, 346 F.3d at 330, quoting Mercado v.
Portuondo, 2000 WL 1663437, at *10 (S.D.N.Y. Nov. 3, 2000)


                                   8
                         STATE v. OLAGUE
                         Opinion of the Court

(alteration in Anderson). Polling in open court normally provides the
opportunity for jurors “to communicate directly with the court if
any of them felt unfairly coerced, harassed, intimidated, or felt
themselves to be in physical danger.” Jacobson, 765 F.2d at 15; accord
State v. Kiper, 181 Ariz. 62, 68, 887 P.2d 592, 598 (App. 1994).

¶20          Here, as the trial court noted, the juror who alleged she
had been coerced voiced no such concern when she was polled in
open court about her verdict. Furthermore, all three affidavits from
the jurors contained only vague allegations of bullying and fears of
retaliation. They identified no specific threats or other information
suggesting Juror 8 had “pledg[ed]” her vote of guilt. Ariz. R.
Crim. P. 24.1(c)(3)(iv). Although Juror 8’s supplemental affidavit
employed this specific language, in substance it established, at most,
that she had “returned a verdict based solely on the pressure of
other jurors,” as she had stated in her initial affidavit. Because the
affidavits essentially concerned Juror 8’s mental processes and
subjective feelings during the deliberations, the trial court properly
ruled this evidence inadmissible under Rule 24.1(d). We agree with
the court’s conclusion that Olague failed to establish juror
misconduct based on either pledging a vote or threats and
intimidation.3

¶21          We similarly agree that the juror’s comments regarding
sentencing provide no basis for a new trial. A defendant seeking a
new trial for claimed misconduct under Rule 24.1(c)(3)(i) bears the
initial burden of proving that jurors received and considered
extrinsic evidence. State v. Hall, 204 Ariz. 442, ¶ 16, 65 P.3d 90, 95
(2003). The rule refers to outside information a juror collects after
being empaneled. State v. McLoughlin, 133 Ariz. 458, 460-61 & 461
n.2, 652 P.2d 531, 533-34 & 534 n.2 (1982). Extrinsic evidence does
not include a juror’s pretrial beliefs or experiences. See, e.g., State v.
Aguilar, 169 Ariz. 180, 181-82, 818 P.2d 165, 166-67 (App. 1991)
(physician sharing knowledge of alcohol and cocaine intoxication);
State v. Leonard, 151 Ariz. 1, 5-6, 725 P.2d 493, 497-98 (App. 1986)

      3 We   need not decide the disputed question of whether a
verdict ever may be challenged when a juror has affirmed it in a
proper poll.


                                    9
                          STATE v. OLAGUE
                          Opinion of the Court

(former railroad worker stating defendant would lose employment
with railroad if convicted).

¶22          Nothing here suggests the jury received extrinsic
evidence related to punishment. According to the affidavits, the
juror in question stated that Olague would “probably” get probation
or a “minimal” sentence “since [another witness] got immunity” and
Olague “did not pull the trigger.” If these comments represent
anything more than mere speculation, they tend to suggest that the
juror was attempting to draw an inference about likely punishments
based on the trial testimony of the witness who had received
immunity.4 In short, Olague failed to sustain his burden concerning
extrinsic evidence, see Hall, 204 Ariz. 442, ¶ 16, 65 P.3d at 95, and the
trial court properly denied the motions for new trial under
Rule 24.1(c)(3)(i). It did not abuse its discretion.

¶23          As he did below, Olague again challenges the trial
court’s restriction of his contact with jurors. The court prohibited
Olague from contacting jurors without a prior showing of “good
cause” and approval from the court. Albeit with little reasoning or
analysis, we specifically approved this practice in State v. Paxton, 145
Ariz. 396, 397, 701 P.2d 1204, 1205 (App. 1985). Stare decisis
therefore requires special justification to depart from existing
precedent. Turley v. Ethington, 213 Ariz. 640, ¶ 26, 146 P.3d 1282,
1289 (App. 2006). Yet neither party has addressed Paxton on appeal.
Moreover, Olague has not developed a meaningful argument that
the trial court’s order prevented him from discovering any jury
misconduct in this case.

¶24          Using his own investigative techniques, Olague
obtained the contact information for eight jurors. He then was able
to solicit voluntary interviews with four of them. He obtained

      4Although    these comments ran afoul of the trial court’s clear
instructions not to consider possible punishments when deciding the
case, a violation of jury instructions is not included in the list of juror
misconduct under Rule 24.1(c)(3) and consequently cannot support a
motion for new trial. See State v. Chaney, 141 Ariz. 295, 311, 686 P.2d
1265, 1281 (1984); Hagen, 129 Ariz. at 595, 633 P.2d at 404.


                                    10
                        STATE v. OLAGUE
                        Opinion of the Court

affidavits, as noted, from two jurors. The time for filing a new trial
motion already had expired when the trial court made its order
limiting his access to the jurors. Olague has not explained which
jurors, if any, the court’s order prevented him from contacting or
attempting to contact. We therefore find no special justification, on
the particular facts before us, to disturb our holding in Paxton.

                            Disposition

¶25         For the foregoing reasons, the convictions and sentences
are affirmed.




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