Opinion
No. 1 CA-CR 14-0623
03-01-2016
STATE OF ARIZONA, Appellee, v. MICHAEL ANTHONY MEARS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201300803
The Honorable Derek Carlisle, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which Acting Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined. BROWN, Chief Judge:
¶1 A jury convicted Mears of first-degree murder, kidnapping, and second-degree burglary. The trial court sentenced Mears to life imprisonment for the murder count, a concurrent, aggravated 10-year prison term for kidnapping, and a concurrent, aggravated 7-year prison term for second-degree burglary. This timely appeal followed. Mears argues his constitutional right to counsel was violated and that the court erred in allowing one of the State's rebuttal witnesses to offer an expert opinion. For the reasons that follow, we affirm.
DISCUSSION
I. Right to Counsel
A. Irreconcilable Conflict
¶2 Approximately four months after his arraignment, Mears sent a letter to the trial court requesting the removal of his court-appointed counsel, Harry Moore and Ira Shifflet. At a subsequent hearing, Mears withdrew the request, stating his concerns were "no longer an issue."
¶3 Several months later, Mears filed a motion in the trial court again requesting removal of his appointed counsel. Mears asserted that Moore (1) did not have adequate time to handle his case; (2) argued with Mears' mother during several telephonic conversations; and (3) doubted Mears' innocence. Mears also expressed frustration that his attorneys were not pursuing the course of investigation he believed would be most helpful to the case. Shortly before trial, Moore filed a motion to withdraw from representation, asserting he and co-counsel could not be prepared for trial, which was scheduled on June 2, 2014. At a hearing on the motions, Moore acknowledged his heavy caseload, agreed he could not provide the personal, individualized attention Mears expected, and noted that he had reviewed the weaknesses of the case with Mears, which Mears found upsetting. Nonetheless, Moore asserted he had "devoted a lot of time to the case," expressed his belief that "communication [with Mears] has been fairly good" during the course of the representation, denied ever stating a belief that Mears was guilty, and assured the court that he was prepared to proceed with the case if provided more time to prepare for trial. After hearing from the parties, the court found no irreconcilable conflict and that appointed counsel was competent. The court denied Mears' request for new counsel and Moore's motion to withdraw, but continued the trial for more than six weeks to allow Moore additional time to prepare.
Mears simultaneously sent a letter to the court seeking the same relief.
¶4 Mears argues the trial court erred by denying his request for substitution of counsel because an irreconcilable conflict arose with appointed counsel. The Sixth Amendment to the United States Constitution gives an accused the right to assistance of counsel for his defense. U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24. "A defendant is not, however, entitled to counsel of choice or to a meaningful relationship with his or her attorney." State v. Cromwell, 211 Ariz. 181, 186, ¶ 28 (2005).
¶5 When the relationship between the accused and counsel is "completely fractured" and undermined by an "irreconcilable conflict," the appointment of new counsel is generally required. Id. at ¶ 29. However, an accused's allegation of lost confidence in counsel and disagreements over defense strategies "do not constitute an irreconcilable conflict." Id. Instead, to demonstrate an irreconcilable conflict, "a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible." State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 12 (App. 2007) (internal quotation omitted).
¶6 When considering a motion to substitute counsel, the trial court "evaluates several factors designed specifically to balance the rights and interests of the defendant against the public interest in judicial economy, efficiency and fairness." Cromwell, 211 Ariz. at 187, ¶ 31. These factors include:
whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed
between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel.Id. (internal quotation omitted). We review a trial court's denial of a request for new counsel for an abuse of discretion. Id. at 186, ¶ 27. We defer to a court's finding "so long as the record supports it." Paris-Sheldon, 214 Ariz. at 505, ¶ 13.
¶7 Consistent with the trial court's findings, the record reflects that the conflicts arising between Mears and Moore were primarily matters of defense strategy, something that does not compel appointment of new counsel. See Cromwell, 211 Ariz. at 186, ¶ 29. Mears also expressed a lack of confidence in appointed counsel, but this lack of confidence arose out of frustration that the attorneys were not convinced of Mears' innocence, not doubts regarding their experience and ability. Therefore, as found by the trial court, the friction over trial strategy and approach did not rise to the level of an irreconcilable conflict, did not affect the quality of representation Mears received by competent and prepared counsel, and did not justify the appointment of new counsel.
B. Substitution of Counsel
¶8 On June 17, 2014, Mears filed a motion to continue trial to allow him to retain private counsel. At the hearing held on this motion, Moore explained that Mears wanted new counsel, Shannon Glau, because Mears disagreed with Moore's trial strategy. Moore added that he had spoken to Glau and she "would be requiring about a two-month continuance," but Moore was prepared to proceed to trial on July 21, as scheduled. When Glau addressed the court, she acknowledged she had never handled a murder trial and preferred to have a longer continuance, but stated she could proceed in sixty days if the court was unwilling to continue the matter for a longer period. The prosecutor noted that the original trial date had already been continued twice at Mears' request. The prosecutor also explained that due to his existing trial schedule, and the schedule of the lead detective on the case, he would not be able to conduct a trial in September or October. The trial court found that Moore was competent and prepared for trial and that a third continuance would be substantially inconvenient to the victims, witnesses, and the court. Although Mears "probably" requested the continuance "for a legitimate reason," the court concluded, on balance, "the factors weigh[ed] in favor of denying the motion to continue." Nonetheless, the court noted that Glau could appear as Knapp counsel and assist in Mears' representation.
Knapp v. Hardy, 111 Ariz. 107 (1974) (holding privately retained counsel has a right to associate with the public defender's office).
¶9 Mears argues the trial court violated his constitutional right to counsel of choice by denying his request for a continuance to allow Glau to substitute as counsel twelve days before the scheduled trial date. "A trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar." State v. Aragon, 221 Ariz. 88, 90, ¶ 5 (App. 2009) (internal quotation omitted). "But an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates a defendant's right to counsel of choice." Id. (internal quotation omitted). "Whether an accused's constitutional rights are violated by the denial of a request for a continuance [to substitute private counsel of the defendant's choice] depends on the circumstances present in the particular case." Id. (internal quotation omitted). On review, we consider:
whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory.Id. (quoting State v. Hein, 138 Ariz. 360, 369 (1983)). We will affirm a trial court's rulings denying a motion to continue and request for change of counsel absent an abuse of discretion. State v. Amarillas, 141 Ariz. 620, 622 (1984); Paris-Sheldon, 214 Ariz. at 504, ¶ 8.
¶10 The trial court conducted a hearing on Mears' motion and questioned Mears and Moore regarding their attorney-client relationship. Applying the Aragon/Hein factors, the court found: (1) Mears was previously granted two continuances; (2) Mears had two competent, experienced defense attorneys prepared to proceed to trial as scheduled; (3) the court already sustained considerable inconvenience with the previous continuances and the court, witnesses, and victims would be significantly inconvenienced by a third continuance; (4) Mears requested a sixty-day delay, and Glau stated her preference that the court grant a longer continuance to provide her adequate time to prepare for her first homicide trial; (5) the case was complex; and (6) the requested delay was "probably" for a legitimate reason. Acknowledging the relevant considerations, we cannot say the court abused its discretion by denying Mears' motion to continue to allow for substitution of counsel.
C. Appointment of Alternate Counsel
¶11 On June 30, 2014, Mears filed another motion to remove counsel, asserting a conflict of interest. Specifically, Mears claimed Moore shared confidential information regarding his case with a fellow inmate whose son was one of the officers scheduled to testify at Mears' trial. Mears also claimed that the inmate could be called as a witness at trial. At the outset of the hearing on this motion, Mears requested the appointment of new counsel for the hearing because he felt ill-equipped to question witnesses. The court denied the request and asked whether Mears wished to have the inmate testify. Mears explained that he did not want the nature of the allegedly disclosed information presented in open court and requested that he instead be afforded an opportunity to address the court.
¶12 The court granted Mears' request, and his subsequent comments focused only on his continuing frustration with Moore's alleged ineffectiveness. In response, Moore acknowledged he had not followed Mears' proposed strategy because Moore concluded it was without merit and failed to address the State's evidence. With respect to the charge that he divulged confidential information, Moore acknowledged he previously represented the inmate, but unequivocally denied he had ever disclosed any client confidences and further stated that he could not have done so at the times alleged (May 21-28, 2014) because the inmate had changed counsel and was represented by another attorney in May 2014. In denying the motion, the trial court noted that Mears had failed to address his allegation that Moore had revealed confidential information, notwithstanding that was the purpose of the hearing, and had not raised any new basis to justify the removal of counsel.
¶13 Mears contends the trial court denied his right to counsel by refusing to appoint alternate counsel to represent him at the conflict of interest hearing. Relying primarily on United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987), Mears argues the appointment of alternate counsel was necessary because the hearing was a critical stage and he was in an adversarial position vis-à-vis Moore.
¶14 "The Sixth Amendment right to counsel extends to all critical stages of the criminal process." State v. Moody, 208 Ariz. 424, 445, ¶ 65 (2004) (internal quotation omitted). Although a motion to replace defense counsel "admittedly creates a delicate situation for the lawyer, the defendant and the court," in most cases, "bringing in a new lawyer is not required to protect the defendant's rights." LaGrand v. Stewart, 133 F.3d 1253, 1277 (9th Cir. 1998).
¶15 In Wadsworth, the defendant was dissatisfied with appointed counsel's trial strategy and petitioned the court for new counsel. 830 F.2d at 1510. The trial court held a hearing on the motion and "relied heavily upon [appointed counsel's] claim of a lack of cooperation and hostility towards his client in ruling that the defendant must proceed to trial the next day without an attorney or time to prepare a defense." Id. On review, the Ninth Circuit Court of Appeals noted that the defendant was "not only [] unrepresented by counsel at this hearing," but his attorney expressed "bitter[ness]" toward the defendant and "provided the most damaging evidence against his client's demand that the court substitute competent counsel for his defense." Id. The court concluded the hearing was a critical stage and, "[u]nder the unusual circumstances of [the] case," the trial court "should have suspended the proceedings and appointed an attorney for the defendant at the competency of counsel hearing, as soon as it became apparent that [appointed counsel] had taken an adversary and antagonistic position[.]" Id. at 1511.
¶16 The adverse effect of the actual conflict in Wadsworth was clear from the record, namely, the defendant was forced to proceed to trial without counsel. Id. at 1511 ("Forcing an unprepared defendant to trial without counsel under these circumstances was an abuse of discretion."). By way of contrast, here, even assuming an actual conflict between Mears and Moore existed, which Moore unequivocally denied, Mears has not claimed, much less demonstrated, an adverse effect from the conflict. The record reflects that in response to direct questioning from the trial court, Moore acknowledged that he found the allegation of an ethical violation "annoying," but avowed that the allegation did not "affect [his] professional dedication" to competently representing Mears at trial. Because Mears has not alleged any adverse effect from the alleged conflict, and none is apparent from the record, we cannot say the trial court erred by denying Mears' request for alternate counsel.
II. Expert Testimony
¶17 At the time the victim's body was discovered, significant decomposition had occurred. As a result, the State resorted to identifying the date and time of death based on forensic evidence, the victim's last financial transactions and telephone communications, as well as Mears' cellular phone activity. Together, this evidence led the State to conclude the victim was killed on December 16, 2012.
¶18 At trial, defense witness Sherry Paddock, a rural letter carrier for the postal service in Lake Havasu City, testified that she hand-delivered a package to the victim on December 19, 2012. Specifically, Paddock stated that when she delivered the package she inquired about its contents. The victim opened the package and it contained a piece of sports memorabilia, an 8" x 10" autographed photo of Tommy Hearns. Because Mears did not have strong alibi evidence for December 16, but had numerous eyewitness accounts that he was continuously in California after December 17, the shift in the date of death introduced by Paddock was an integral part of his defense.
¶19 As a rebuttal witness, the State called Deborah Carlson, a "postal operations technician" with the postal service's inspection unit. Carlson explained that part of her job is "help[ing] with investigations" and she was contacted by law enforcement to check on the status and delivery of packages enroute to Lake Havasu City. Using the postal service's equipment that "takes images of mail pieces" as they are transported through sorting machinery, Carlson was able to identify two packages containing photographs delivered to the victim. Both packages travelled through the Las Vegas, Nevada hub; one on December 14, 2012 and one on December 15, 2012. The package delivered on December 15 contained an 8" x 10" photograph, consistent with the photograph Paddock testified the victim showed her, and the other package contained a smaller, 5" x 7" photograph. Based on the available records, Carlson testified that the first package left the Las Vegas postal hub for Lake Havasu City on the morning of December 14 but "had fallen from the records before they could print out the proof of its delivery." The second package had an associated proof of delivery for December 15, 2012.
¶20 The State asked Carlson, based on her training and experience, what date the first package would have been delivered and defense counsel objected that the question called for speculation. The court sustained the objection and directed the State to lay "sufficient foundation for [Carlson] to offer her opinion on when it should have been delivered." The State then elicited testimony that Carlson generally tracks seven or eight packages a day in response to inquiries and approximately thirty percent of those tracked packages involve the Las Vegas hub. Over objection, Carlson then testified that generally, packages leaving the Las Vegas hub that are bound for Lake Havasu City are delivered the same day.
¶21 Mears contends the trial court erred by permitting Carlson to testify regarding the probable delivery date of the December 14 package. Specifically, Mears argues Carlson's testimony should have been precluded under Arizona Rule of Evidence 702 because the testimony was not founded "in scientific method or analysis or study."
¶22 We review a trial court's evidentiary rulings for a clear abuse of discretion and will not reverse absent resulting prejudice. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
¶23 When applying Rule 702, "trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury's determination of facts at issue." Ariz. R. Evid. 702 cmt. to 2012 amend. Rule 702 does not, however, prohibit "the testimony of experience-based experts." Id.; see also Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 357, ¶ 14 (App. 2014) (citing the advisory committee note to Federal Rule 702: "Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training or education—may not provide a sufficient foundation for expert testimony"); State v. Delgado, 232 Ariz. 182, 187, ¶ 14 (App. 2013) (noting the amendment to Rule 702 was not intended to preclude the testimony of experience-based experts); McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 251, ¶ 17 (App. 2013) (explaining Rule 702 does not preclude the testimony of experience-based experts; cross-examination allows the opposing party to question the reliability and general application of the expert's experience and knowledge). Thus, we reject Mears' contention that Carlson's opinion testimony was inadmissible because it was not tied to scientific principles.
¶24 In this case, the record reflects that Carlson investigated and located dozens of packages each week and a significant part of her job related to tracking packages that had been shipped through the Las Vegas postal hub. Given this experience, the trial court did not abuse its discretion by finding sufficient foundation for Carlson's opinion as to the probable delivery date of the package containing the "5 x 7" photograph.
Contrary to Mears' assertion that Carlson's "opinion was the only evidence that the package was not delivered on the 19th," the record reflects that Paddock initially informed the police she delivered the package on December 17 and only reported the delivery occurred on December 19 after she was reminded she did not work on December 17. Paddock's account of a December 19 delivery was further undermined by her admission that she was diagnosed with a serious medical illness shortly before these events, the illness affects her memory, and based on her diagnosis, December 2012 was a "traumatic" time for her. --------
CONCLUSION
¶25 Based on the foregoing, we affirm Mears' convictions and sentences.