State v. Waters, 1 CA-CR 20-0527

Background

In April 2016 police executed a search warrant at Kenneth Waters’ home and seized 41 grams of methamphetamine, glass pipes, a scale, a large amount of cash, and a sawed-off shotgun.
Waters admitted ownership of the house and the methamphetamine, admitted selling methamphetamine, and had fingerprints on the shotgun.
He was indicted on: possession of dangerous drugs for sale (Class 2), misconduct involving weapons (Class 4), and two counts of possession of drug paraphernalia (Class 6).
After a five-day trial in May 2018 a jury convicted Waters on all counts; Waters had absconded before the jury returned its verdict and was sentenced after being arrested months later.
Counsel filed an Anders brief asserting no meritorious appellate issues; Waters filed a pro se supplemental brief raising several claims (jurisdiction/waiver, excluded witness invoking Fifth Amendment, denial of new counsel, alleged withheld evidence, and multiple paraphernalia convictions).
The court affirmed all convictions and sentences except it vacated one paraphernalia conviction and modified the judgment to a single conviction under A.R.S. § 13-3415(A).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction/appeal waiver due to Waters’ absence at sentencing	State would assert Waters’ voluntary absence waived his right to appeal under A.R.S. § 13-4033(C)	Waters challenged any implied waiver and argued the court lacked findings that his absence was knowing, voluntary, intelligent	Court retained jurisdiction because the State did not obtain or the trial court did not make the requisite waiver findings at sentencing
Exclusion of witness (J.W.) who invoked Fifth Amendment outside jury	Court and State maintained the in-camera hearing and exclusion were appropriate to assess the Fifth Amendment claim	Waters argued the jury should have been told J.W. invoked the privilege to support third-party culpability	Court did not abuse discretion; valid Fifth Amendment assertion permitted exclusion and no requirement to inform jury
Denial of motion for new counsel	State defended the trial court’s exercise of discretion	Waters argued the court erred in denying new counsel	Record on appeal was incomplete; appellate court presumed omitted rulings supported trial court and found no reversible error
Alleged prosecutorial suppression of exculpatory evidence (Brady claim)	State showed the search warrant was unsealed/available and trial testimony covered the contested material	Waters claimed evidence and witness leniency were withheld	Court found the record contradicted Waters’ claims and no suppression shown
Multiple paraphernalia convictions for pipe and scale	State prosecuted separate counts for each item	Waters argued multiple paraphernalia items constitute one offense under § 13-3415(A)	Per State v. Soza, simultaneous possession of multiple paraphernalia items is a single violation; one paraphernalia conviction/sentence vacated and judgment modified

Key Cases Cited

Anders v. California, 386 U.S. 738 (1967) (procedure when counsel finds no meritorious issues on appeal)
State v. Leon, 104 Ariz. 297 (1969) (Arizona authority invoked with Anders practice)
State v. Raffaele, 249 Ariz. 474 (App. 2020) (trial court must find waiver of appeal was knowing, voluntary, intelligent when defendant absent)
State v. Bolding, 227 Ariz. 82 (App. 2011) (discusses implied waiver when defendant’s absence prevents timely sentencing)
State v. Maldonado, 181 Ariz. 208 (App. 1994) (permissible in-camera hearing to assess Fifth Amendment privilege)
State v. Rosas-Hernandez, 202 Ariz. 212 (App. 2002) (standard for excusing a witness asserting the privilege)
State v. Soza, 249 Ariz. 13 (App. 2020) (simultaneous possession of multiple paraphernalia items is a single violation)
State v. Slemmer, 170 Ariz. 174 (1991) (new law applies retroactively to cases pending on direct appeal)