Opinion
No. 1 CA-CR 10-0874
02-29-2012
STATE OF ARIZONA, Appellee, v. GEORGE WILSON OVERTURF, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant George Wilson Overturf Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-113526-001 DT
The Honorable Pendleton Gaines, Judge (Deceased)
CONVICTION AND SENTENCE AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix
George Wilson Overturf
Appellant
Florence JOHNSEN, Judge
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following George Wilson Overturf's conviction of second-degree murder, a Class 1 dangerous felony. Overturf's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel now asks this court to search the record for fundamental error, and Overturf has filed a supplemental brief raising certain issues for our review. After reviewing the entire record and reviewing the issues Overturf raises, we affirm his conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 Kevin Collins, a manager at a shelter for the homeless, was shot and killed outside the shelter campus in downtown Phoenix. Several witnesses saw Overturf speaking with Collins, then saw him fire a handgun at Collins multiple times. According to the witnesses, Overturf then walked away, only to be tackled by security personnel. Security confiscated a gun found in Overturf's possession. Upon searching Overturf's locker at another shelter nearby, police found a box for a handgun. At trial, the jury heard testimony from persons who had seen the shooting; the jury also watched security camera footage of the shooting.
Upon review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against Overturf. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 The jury convicted Overturf of second-degree murder, a Class 1 dangerous felony. It also found four aggravating factors. After a trial on Overturf's prior convictions, the superior court found Overturf had a prior felony conviction in Minnesota for assault in the first degree. Based on this prior felony conviction and the aggravating factors found by the jury, the court imposed an aggravated sentence of 25 years' incarceration, flat-time.
¶4 Overturf timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and -4033 (2012).
Absent material revisions after the date of an alleged offense, we cite a statute's current Westlaw version.
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DISCUSSION
A. Issues Raised by Appellant.
1. Evidentiary issues.
¶5 In his supplemental brief, Overturf argues certain witnesses' trial testimony was inconsistent with their statements to police after the shooting. Accordingly, he maintains those witnesses' in-court identifications were unreliable and should not have been admitted. It is the sole responsibility of the jury to determine the credibility of witnesses. State v. Pieck, 111 Ariz. 318, 320, 529 P.2d 217, 219 (1974). The court instructed the jury accordingly:
In deciding the facts of this case, you should consider what testimony to accept and what to reject. You may accept everything a particular witness says or part of it or none of it. . . . In evaluating the testimony of witnesses, you should use the tests for accuracy and truthfulness that people use in determining matters of importance in their everyday life.The jury had the opportunity to observe the witnesses as they testified and was properly instructed on how to evaluate such testimony. The superior court did not err in allowing the testimony.
¶6 Overturf also maintains that surveillance video of the shooting should not have been admitted because he did not give his consent to be videotaped. We infer that he argues that the recording constituted an unlawful search under the Fourth Amendment. However, the surveillance cameras that recorded the video were operated by the shelter on shelter property, and the Fourth Amendment's prohibition against unconstitutional searches and seizures only applies to the actions of government agents. State v. Chavez, 208 Ariz. 606, 609, ¶ 14, 96 P.3d 1093, 1096 (App. 2004). Because the shelter was not acting as an agent of the government when it made the recording, the court did not err by allowing the videotape in evidence.
2. Identification procedures.
¶7 Overturf next argues that the identification procedures police officers used at the scene were unduly suggestive and prejudicial. After Overturf was arrested, he was held in a police car within view of witnesses who later identified him as the shooter. Overturf asserts that the witnesses' identifications of him were tainted because the witnesses saw him being held at the scene.
¶8 "The Due Process Clause of the Fourteenth Amendment requires us to ensure that any pretrial identification procedures are conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002). In this case, no evidence suggests that Overturf was prejudiced by events following his arrest. This is not the usual case in which a witness identifies a suspect in a "show up" conducted after the suspect has been apprehended at a location away from the crime scene. Here, witnesses testified that in one series of consecutive events they saw Overturf shoot Collins, walk away from the scene and then almost immediately be tackled by security personnel. Accordingly, the fact that Overturf was then held in a police car at the scene did not result in prejudicial pretrial identifications.
3. Search warrant.
¶9 After Overturf was arrested, the Sheriff's Office obtained a warrant to search Overturf's locker at a nearby facility that provides services for the homeless. In the locker, they found miscellaneous paperwork and a small handgun box. The search warrant listed the location as "Locker #1114, Andre House of Arizona, 1203 W. Polk Street, Phoenix, Arizona 85003." While Andre House operates transitional housing at that address, lockers are located at the Andre House Hospitality Center at 213 S. 11th Avenue, Phoenix, Arizona 85001. Overturf argues that because the warrant listed an incorrect address for the locker, the search was illegal and the evidence discovered pursuant to the warrant should not have been admitted at trial.
¶10 For a search warrant to be valid, the location to be searched must be described with sufficient particularity that the individual executing the warrant can identify that location with reasonable effort. State v. Morgan, 120 Ariz. 2, 3, 583 P.2d 889, 890 (1978); see also U.S. Const. amend. IV. At trial, the officer who executed the warrant in this case did not suggest there was any trouble finding the location or the locker. The address also was preceded by the identifying phrase "Andre House of Arizona." As in Morgan, "the mistake in the address number may . . . be viewed as a minor error under the facts of this case." Morgan, 120 Ariz. at 4, 583 P.2d at 891. We hold the warrant in question described the location of Overturf's locker with reasonable certainty and particularity.
4. Motion in limine.
¶11 Overturf argues the superior court improperly granted the State's motion in limine to preclude him from making any references at trial about alleged child molestation. The superior court did not err in concluding that Overturf failed to offer sufficient evidence on that issue to support any potential defense to the charge against him.
5. Prior felony conviction.
¶12 After Overturf was found guilty of second-degree murder, the superior court held a trial on his prior conviction, which was alleged to have taken place in Minnesota. Trial began on February 5, 2010. After discussion about the State's sentencing memorandum and offer of proof, the court commented that the State's proof was insufficient to establish the prior felony, and continued the trial to April 30, 2010, to allow the State to procure additional evidence of the foreign conviction. Overturf argues the court erred by continuing the trial to allow the State another opportunity to prove his prior conviction. We conclude the court did not abuse its discretion in continuing the trial on the prior conviction. See, e.g., State v. Cons, 208 Ariz. 409, 412, ¶ 6, 94 P.3d 609, 612 (App. 2004) (within court's discretion to continue a trial on prior convictions in order to allow the State to amend its allegation of prior convictions).
¶13 Overturf also argues the superior court incorrectly determined that his prior felony conviction for assault in the first degree in Minnesota matched the elements of aggravated assault in Arizona. "[T]he State may qualify an out-of-state conviction as an enhancing prior felony by establishing that the defendant was convicted under a particular subsection of a foreign statute, if that subsection encompasses only conduct that would constitute a felony in Arizona." State v. Thompson, 186 Ariz. 529, 532, 924 P.2d 1048, 1051 (App. 1996). The superior court found that Overturf pled guilty to assault in the first degree - great bodily harm, in violation of Minnesota Statutes § 609.221 (1995). This statute provided, "Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years." Assault was defined in Minnesota Statutes § 609.02(10) (1995) as:
1. An act done with intent to cause fear in another of immediate bodily harm or death;"Great bodily harm" was defined in Minnesota Statutes § 609.02(8) (1995) as "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm."
or
2. The intentional infliction of or attempt to inflict bodily harm upon another.
¶14 These elements match those of aggravated assault under A.R.S. § 13-1204(A)(1) (1995), a Class 3 felony, committing assault and causing "serious physical injury to another." Assault was defined in A.R.S. § 13-1203(A) (1995) as:
1. Intentionally, knowingly or recklessly causing any physical injury to another person; orAccordingly, a conviction under Minnesota Statute § 609.221 necessarily involved conduct that would have constituted a felony in Arizona under A.R.S. § 13-1204(A)(1). The superior court did not err in enhancing Overturf's sentence based on this determination.
2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or
3. Knowingly touching another person with the intent to injure, insult or provoke such person.
6. Sentence.
¶15 Overturf argues that his aggravated sentence of 25 years flat-time was unlawful. He contends an Arizona inmate typically serves only 85 percent of his or her sentence, and argues from that that his maximum sentence should have been 21.25 years. Overturf's sentence, however, was dictated by the clear language of A.R.S. § 13-710(B) (2012), which states the maximum possible sentence is "25 calendar years." For purposes of this statute, "calendar year" means the sentence must be a flat-time sentence. State v. Jenkins, 193 Ariz. 115, 118, ¶ 8, 970 P.2d 947, 950 (App. 1998). Therefore, under the terms of the statute, Overturf was sentenced to a lawful term of imprisonment.
¶16 Overturf also argues that because his sentence included a term of community supervision equal to one-seventh of his prison term, he effectively was sentenced to a term of 28.57 years, which exceeds the maximum term of imprisonment allowed for the crime of which he was convicted. A.R.S. § 13-603(I) (2012) requires a term of community supervision in a case such as this, and provides that it will run consecutive to imprisonment:
If a person is convicted of a felony offense and the court sentences the person to a term of imprisonment, the court at the time of sentencing shall impose on the convicted person a term of community supervision. The term of community supervision shall be served consecutively to the actual period of imprisonment if the person signs and agrees to abide by conditions of supervision established by the state department of corrections. Except pursuant to subsectionContrary to Overturf's assertion, a term of community supervision imposed pursuant to the statute is not a sentence of imprisonment.
J, the term of community supervision imposed by the court shall be for a period equal to one day for every seven days of the sentence or sentences imposed.
7. Alleged judicial misconduct.
¶17 Overturf next argues the superior court engaged in judicial misconduct. First, he contends the court made disparaging remarks about Overturf's vocabulary and education. Our review of the record, however, discloses no such remarks. Second, he claims the court did not read all of his motions. Our review of the record reveals that, to the contrary, although Overturf filed many motions, the court took great pains in considering them and granted Overturf several hearings. We conclude that there is no evidence of judicial misconduct in this trial.
8. Alleged ineffective assistance of counsel.
¶18 Finally, Overturf argues his trial attorney was ineffective. This argument may not be raised on direct appeal, but instead may be raised only in a petition for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
B. Fundamental Error Review.
¶19 The record reflects Overturf received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. Pursuant to Arizona Rule of Evidence 609, the court held a hearing on Overturf's prior conviction and sanitized his prior felony conviction.
¶20 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with two alternates. The court properly instructed the jury on the elements of the charges, the State's burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed a legal sentence for the crime of which Overturf was convicted.
CONCLUSION
¶21 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶22 After the filing of this decision, defense counsel's obligations pertaining to Overturf's representation in this appeal have ended. Defense counsel need do no more than inform Overturf of the outcome of this appeal and his future options, unless, upon review, counsel finds "an issue appropriate for submission" to the Arizona Supreme Court by petition for review.
See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, Overturf has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Overturf has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
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DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
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PATRICIA A. OROZCO, Judge
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LAWRENCE F. WINTHROP, Judge