FALSE TESTIMONY BY OFFICER, LOST SECURITY VIDEO, HEARSAY EVIDENCE: APPEAL FILED IN DRUG TRANSPORT
- Prosecution argued "of course, he knew" about drugs in truck
- Officer said residential address in Benson didn't exist, but it did
In January 2016, Danny Alan Marlo of Tucson was sentenced to four years in prison after a jury found him guilty of transporting 268 pounds of marijuana hidden in a secret compartment of a flatbed truck he was driving.
The drugs were detected by a canine unit after an April 29, 2014 traffic stop north of Douglas that was initiated by Arizona Dept of Public Safety (DPS) Detective Jeff Richardson.
Richardson testified the only reason he had the truck pulled over was because the flatbed’s railing system looked to have been modified.
Marlo told officers he was hired to drive the truck to Douglas where a Mr. Wells was to buy it. When no one showed up, he began driving toward Benson where the truck’s owner claimed to live. Marlo, a part-time mechanic and U.S. Air Force Veteran, consistently insisted he did not know drugs were concealed in the truck.
Last month, Marlo’s court appointed appeals attorney filed arguments in the Arizona Court of Appeals to set aside his conviction on jurisdictional grounds and for fundamental errors made at trial due to “the improper admission of hearsay testimony” in violation of Marlo’s “right to confront the witnesses against him.”
DISAPPEARING EVIDENCE
The brief, prepared by Tucson attorney Harriette Levitt, notes that a surveillance video from a Tucson gas station had been in the possession of DPS but “was never shown to defense counsel” and disappeared before the trial.
Cochise County Superior Court judge Wallace Hoggatt allowed Border Patrol agent Reynaldo Ruiz to testify that he viewed the original video, which purportedly showed Marlo with two other men at the Pilot gas station earlier on the day of his arrest.
Levitt argues that Hoggatt should not have allowed testimony from Ruiz about what he recalled viewing on the video nearly one and a half years before, because without the defense seeing it, there was no way to verify Ruiz “was accurately recounting what was shown on the video.”
Ruiz was also allowed to testify about comments made to him by a gas station employee who was not called as a witness. And, prosecutor Roger Contreras of the Cochise County Attorney’s Office was forced to introduce a copy of a receipt Ruiz claimed came from the gas station because the original receipt also went missing from DPS-held evidence.
JURY TOLD "NO SUCH ADDRESS" BUT . . . .
Another key piece of testimony by Detective Richardson dealt with the truck’s vehicle registration which listed to an Isac Bozwa Torres at 1340 N Ocotillo Road in Benson. Richardson provided false testimony when he stated there was no house at that address, information he claimed came from DPS officer Lane Ciminski.
According to Richardson’s testimony, Ciminski heard the vehicle registration address given out by dispatch and he then called the detective’s personal cell phone - not an agency issued cell phone - to tell Richardson there were no houses on that part of Ocotillo Rd. Richardson testified that at a later date he confirmed Ciminski’s “no such address” information by looking it up via the internet.
However, the Cochise County Assessor’s office shows a home at that address since at least 2010 and there are six other homes visible from Ocotillo Road within a half mile of that address.
Nothing in the trial transcript explains why DPS officer Ciminski was not called to testify as to his alleged actions and comments, and why privately retained defense attorney Thomas Holz did not object to Ciminski’s lack of testimony.
It is unclear if Holz, who replaced deputy public defender William Brown less than two months before trial, made an attempt to identify or locate Torres, but online court records show a parking ticket was issued to a man with that name in Douglas in 2004.
The transcript for Day 4 of the trial shows that just before the jury was prepared for deliberation, Hoggatt read the jurors a one-sentence statement that the parties were stipulating to the fact there was actually a house at 1340 Ocotillo.
What impact that stipulation had on the jurors is unknown, but that one sentence (in the 700+ page transcript) was overlooked by the probation officer assigned to write Marlo’s pre-sentence report for Hoggatt, in which he referred to the vehicle registration address as “bogus.”
ARGUMENT: ERROR OF SUCH MAGNITUDE, FAIR TRIAL DENIED DEFENDANT
The brief points out that Holz did not object to any of the hearsay testimony, even though under Arizona court rules hearsay is usually inadmissible. Citing an U.S. Supreme Court decision on hearsay, Levitt wrote that “despite the fact that defense counsel failed to object to this evidence, (Marlo’s) conviction should be reversed.”
Overturning the conviction is warranted in this case, she noted, when there has been an “error of such magnitude that the defendant cannot possibly have received a fair trial.”
Levitt also argues that a lack of clear jurisdiction is further grounds for reversing the conviction. In the brief, she notes the State of Arizona was required to prove every element of the alleged crime, with jurisdiction being one such element. Despite testimony from four law enforcement officers, Levitt notes “there was no proof sufficient to establish that the offense occurred in Cochise County” and the conviction should be overturned based on fundamental error.
Marlo, who faced a sentence of 3 to 13.5 years on the transportation charge, is currently housed at the Arizona State Prison Complex in Yuma. He is scheduled for release in February 2019, to be followed by a nine-month period of parole.
His only prior criminal history was a 2010 arrest for allowing a passenger to have an open liquor container in his vehicle, a charge for which he was assessed a fine and required to attend a MADD program.
The State of Arizona is being represented in the appeal by Tanja K. Kelly of the Arizona Attorney General’s Office. A response to the Marlo appeals brief is due October 7.
Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com
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Editor's Note: WHERE MARLO SAID HE WAITED IN DOUGLAS
The appeal mentions an element of Marlo's version of events which included his waiting in Douglas for an extended period, in a parking area of the historic railroad station - now renovated and used by the City of Douglas Police Dept. AZ Dept of Public Safety Detective Richardson testified during trial that he used an office at that location on Friday Aug 29, 2014 and could have seen anyone parked there. That day, he said, he washed his vehicle in the parking area and would have noticed the flatbed truck waiting.
The large property, at the corner of Hwy 80 (16th St) and Pan American Ave, has multiple public parking areas, some shared with a visitors center and small park, plus a fenced non-public parking section for official vehicles and storage. It is located two blocks from a Motel 6 where Marlo checked in for a few hours.
