Opinion
No. 1 CA-CR 14-0098
10-01-2015
STATE OF ARIZONA, Appellee, v. MULUGETA YEMANE MICAEL, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Kerri L. Chamberlin 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR 2012-154081-001
The Honorable Roland J. Steinle, III, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellant
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. GOULD, Judge:
¶1 Mulugeta Yemane Micael appeals his conviction for armed robbery, a class two felony. The offense involved Micael taking a cell phone from the victim while implying he had a gun underneath his shirt. For reasons that follow, we affirm.
DISCUSSION
A. Waiver of Street Clothes.
¶2 After Micael's first trial ended in a mistrial, the jury at his second trial found him guilty of armed robbery as charged. Before jury selection at each trial, Micael was advised by the trial court that street clothes were available for him to wear at trial. Both times, after acknowledging that he had the option to wear street clothes, Micael stated he wanted to wear his jail attire at trial. On appeal, Micael argues his appearance at trial in jail attire was fundamental error, claiming he did not voluntarily waive his right to wear street clothes.
¶3 It is a violation of due process and equal protection for a court to compel a criminal defendant to wear jail attire at trial. Estelle v. Williams, 425 U.S. 501, 503-04 (1976). Although a defendant has the right to wear street clothes during trial, a defendant can waive this right. State v. Garcia-Contreras, 191 Ariz. 144, 146 (1998). The waiver of this right, however, must be voluntary. State v. Jeffers, 135 Ariz. 404, 416 (1983). No specific colloquy is required to show that a defendant voluntarily waived his right to wear street clothes. See Garcia-Contreras, 191 Ariz. at 146; Jeffers, 135 Ariz. at 416.
¶4 Here, the trial court found Micael voluntarily waived his right to wear street clothes. Our review of the record finds nothing that suggests Micael's waiver was anything but voluntary. The trial court is in the best position to judge whether a defendant's waiver is voluntary, which is "basically an issue of fact," and this court should not second-guess the trial court's decision absent an abuse of discretion. State v. Bishop, 139 Ariz. 567, 569 (1984) (citation omitted).
¶5 We also disagree with Micael's argument that his waiver was involuntary because the trial court did not explain to him why wearing the jail attire was against his best interest. Contrary to Micael's contention, before finding that Micael's decision to forego street clothes was voluntary at his first trial, the trial court clearly explained that there was a risk jurors might convict him because, seeing him in jail attire, they might believe he was a criminal. While Micael initially stated that he did not understand that, after further questioning by the trial court, Micael told the trial court he understood the risk of wearing jail clothes. There was no error by the trial court in finding Micael voluntarily waived his right to wear street clothes at trial.
B. Jury Selection.
¶6 At the start of jury selection at the second trial, the trial court asked the jury venire if there was any reason they could not serve. One venire person who answered in the affirmative stated he was a sergeant with the Maricopa County Sheriff's Office and that he "had dealings" with Micael. Without asking him any further questions, the trial court released this potential juror from service.
¶7 Micael contends the sergeant's statement tainted the other potential jurors, and the trial court erred by failing to strike the entire jury venire. We will not find error in the trial court's failure to strike a jury panel "unless the record affirmatively shows that . . . a fair and impartial jury was not secured." State v. Lujan, 184 Ariz. 556, 560 (App. 1995) (quoting State v. Arnett, 119 Ariz. 38, 50 (1978)).
¶8 Micael fails to direct our attention to any objective indications of prospective jurors' taint and our review of the record finds none. Instead, he relies on Mach v. Stewart, 137 F.3d 630 (9th Cir. 1998), in arguing that prejudice should be presumed. Micael's reliance on Mach is misplaced as it is readily distinguishable. See State v. Doerr, 193 Ariz. 56, 62, ¶ 19 (1998) (holding Mach to be "clearly distinguishable" because comments in Mach involved repeated "expert-like" statements by the prospective juror that "dealt with material issues of the defendant's guilt and the victim's truthfulness"). The sergeant's brief remark is not comparable to the statements in Mach.
¶9 Further, unlike the situation in Mach, Micael failed to object to the jury venire. Accordingly, our review is limited to fundamental error. State v. Canez, 202 Ariz. 133, 147, ¶ 32 (2002). To obtain relief under this standard of review, Micael bears the burden of showing both fundamental error and resulting prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). Given the vague and ambiguous nature of the sergeant's remark and the complete absence of any showing that a fair and impartial jury was not impaneled, Micael has failed to meet his burden of establishing prejudice. See Canez, 202 Ariz. at 147, ¶ 32 ("Juror prejudice will not be presumed but must be demonstrated by objective evidence.").
¶10 Micael also argues that the trial court erred by improperly striking Juror 20 for cause. Because Micael did not object to the release of this venire person, our review is again limited to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19.
¶11 The trial court is obligated to excuse a juror "[w]hen there is reasonable ground to believe that a juror cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b); see also Ariz. Rev. Stat. § 21-211(4). The trial court retains broad discretion under Rule 18.4(b) to "'determine [w]hen there is [a] reasonable ground to believe' that a venire person could not be fair and impartial." State v. Eddington, 226 Ariz. 72, 79, ¶ 17 (App. 2010); see also State v. Payne, 233 Ariz. 484, 510, ¶ 100 (2013) (noting trial court is in best position to observe a juror's demeanor, in conjunction with the juror's answers, and determine first-hand whether the juror can render fair and impartial verdict).
¶12 After explaining the function of a jury, the trial court inquired whether there was anyone who could not fulfill the duties of a juror. Juror 20 answered in the affirmative and told the trial court, "I don't believe a lot in what's going on here on a personal level, and I tend to make decisions very quickly. I already feel like the defendant is innocent." When asked if her mind was made up even though no evidence had been presented, Juror 20 answered, "I feel like that, yeah, like I don't feel fair and impartial, so to speak, in the interest of fairness." On this record, there was no error by the trial court in striking Juror 20 for cause.
C. Limitation on Cross-Examination.
¶13 The victim failed to appear at the time scheduled by the State at Micael's second trial, and the State requested a bench warrant to ensure his appearance the next day. Before the victim testified the following day, the trial court, without objection, stated that there was to be no comment on how the witness "came here today," ruling it was both irrelevant and subject to preclusion under Rule 403 of the Rules of Evidence because any probative value is outweighed by its prejudice. Micael argues this restriction on cross-examination of the victim violated his confrontation rights by improperly precluding him from informing the jury that the only reason the victim appeared to testify is because "he was arrested and forced to attend the trial," asserting that his unwillingness to testify was relevant to his motive, bias and credibility. Because Micael did not object below, our review is limited to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19.
¶14 The Confrontation Clause of the Sixth Amendment protects a defendant's ability to prove a witness's motive or bias. U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 316-17 (1974). The Confrontation Clause, however, does not prevent a trial judge from imposing limits on defense counsel's inquiry into the potential bias of a prosecution witness; courts retain wide latitude to impose reasonable limits on cross-examination based on, among other things, prejudice, confusion of the issues, and interrogation that is only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We generally review rulings on the admissibility of evidence for abuse of discretion, but we review rulings that implicate the Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).
¶15 There was no error in the limitation of cross-examination of the victim about the arrest warrant. Although the failure to appear in response to a subpoena may suggest animosity and bias against the party serving the subpoena, there is no "bright line rule" on whether the trial court abuses its discretion in ruling on the admissibility of such evidence. State v. Riggs, 189 Ariz. 327, 334 (1997). In this case, the record indicates there was no unwillingness by the victim to testify, but rather merely a scheduling conflict. This conclusion finds support in the fact that the victim freely appeared and testified against Micael at his first trial. Under these circumstances, the trial court could reasonably find that the matter of the issuance of the warrant to insure the victim's appearance at the second trial was only marginally relevant at best and that injecting this issue into the trial would only serve to confuse the issues. Thus, there was no abuse of discretion by the trial court in precluding evidence of the bench warrant issued to compel the victim's appearance.
¶16 Moreover, to obtain relief under fundamental error review, Micael bears the burden of establishing prejudice from the alleged error. Henderson, 210 Ariz. at 567, ¶ 20. On appeal, however, Micael does not even argue that he was prejudiced. Instead, he asserts the burden is on the State to prove beyond a reasonable doubt that he was not prejudiced by the error. Accordingly, even if error occurred, Micael would not be entitled to relief because he has not met his burden of showing prejudice.
D. Jury Instructions.
¶17 At the start of trial, the trial court instructed the jury as to the law and their role as jurors, including matters relating to their consideration of the evidence presented. Before commencing to read the final instructions at the close of evidence, the trial court told the jury:
There aren't any major changes in the instructions and so if you turn to page 6 of your packet of instructions, the instructions on duty of jurors, evidence, statements of lawyers and rulings, rulings of the court, credibility of the witnesses, credibility of law enforcement and any expert witnesses I will not repeat to you. I just read it to you yesterday morning. So we will start at Page 6, charging document is not evidence and then in the end, there are two additional closing instructions I will read to you after the lawyers have given their closing argument.
¶18 Micael argues the trial court erred by failing to re-read all of the preliminary instructions during final jury instructions. Because Micael did not object to the manner in which the trial court handled the final instructions, our review is limited to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19. Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. (citation omitted).
¶19 Our supreme court has held that preliminary instructions cannot be a substitute for final instructions, and "judges must instruct juries on basic legal principles, including burden of proof and reasonable doubt, following the evidence and before the commencement of deliberations." State v. Johnson, 173 Ariz. 274, 276 (1992). Although a trial court should reinstruct on all relevant instructions during final instructions, a trial court's failure to re-read the preliminary instructions addressing how the jury is to consider evidence and witnesses does not constitute fundamental error. State v. Alvarez, 205 Ariz. 110, 112, ¶¶ 2-3 (App. 2003).
¶20 As in Alvarez, the trial court in the instant case instructed the jury on the elements of the offense, the burden of proof, and reasonable doubt in the final instructions, but did not reinstruct on the preliminary instructions concerning direct and circumstantial evidence, objections, and witness credibility. Even though the trial court did not re-read all of the preliminary instructions at the close of evidence, they were included in the written copies of the final instructions given to the jurors. This court held in Alvarez that, under such circumstances, the defendant "waived any arguable error by not objecting to the trial court's omission of those instructions and . . . the resulting error, if any, did not approach the level of fundamental error." 205 Ariz. at 112, ¶ 3. The same is true here. Because the trial court fully instructed on the applicable law and all of the basic legal principles essential to the jury's deliberations, there was no fundamental error in the final instructions.
CONCLUSION
¶21 For the foregoing reasons, we affirm Micael's conviction and sentence.