Opinion
No. 1 CA-CR 11-0243
01-19-2012
STATE OF ARIZONA, Appellee, v. DL THOMAS, JR., Appellant.
Thomas C. Horne, Arizona 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 Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix
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(Not for Publication -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. CR2010-048662-001 DT
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Arizona 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 Louise Stark, Deputy Public Defender
Attorneys for Appellant
Phoenix
HALL, Judge
¶1 DL Thomas, Jr. (defendant) appeals from his convictions and sentences imposed for two counts of aggravated assault. For the reasons set forth below, we affirm.
¶2 Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999).
¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003).
¶4 Defendant was indicted on one count of aggravated assault for knowingly touching a peace officer's face with the intent to injure, insult or provoke him (Count 1), a class five felony in violation of Arizona Revised Statutes (A.R.S.) sections 13-1203(A)(3) (2010), -1204(A)(8)(a) (Supp. 2011), and one count of aggravated assault by intentionally, knowingly or recklessly causing physical injury to a peace officer's hand (Count 2), a class four felony in violation of A.R.S. §§ 13-1203(A)(1), -1204(A)(8)(a).
¶5 The following evidence was presented at trial. On October 5, 2010, while defendant was being tried in another case before the Honorable Roger Brodman, he repeatedly interrupted the proceedings by yelling that the witness testifying, Phoenix Police Officer Thomas Baker, was a "liar." After the trial court warned defendant that any further interruptions would result in his removal from the courtroom, defendant interrupted Officer Baker again, and Judge Brodman ordered defendant to be removed from the courtroom.
¶6 Maricopa County Deputy Sheriff Brian Dais testified that as he was escorting defendant out of the courtroom, defendant "attacked [Officer Baker] sitting in the witness chair." Deputy Dais further stated that defendant "lunged at [Officer Baker] with a strike." Deputy Dais immediately put "a bear-hug" hold on defendant "to pull him away from the witness and [Deputy Dais] took [defendant] to the ground." A scuffle ensued between defendant and Deputy Dais and Officer Baker. During the scuffle, Deputy Dais heard Officer Baker exclaim, "he's biting me."
Defendant was not handcuffed.
¶7 Officer Baker testified that as defendant was being escorted out of the courtroom for interrupting his testimony, defendant "lunged towards" him and "with a closed fist, punched [him] in the jaw." Officer Baker and Deputy Dais "tackled" defendant to the ground and defendant "grab[bed] [Officer Baker's] hand and pull[ed] it into his mouth" and "bit[]" Officer Baker's hand. Officer Baker yelled and then kneed defendant several times in his left side before defendant released his hand. Deputy Dais activated defendant's stun belt and then handcuffed him. Officer Baker stated that he suffered "several lacerations where [defendant's] teeth had punctured the skin."
¶8 The jury found defendant guilty as charged and also found aggravating circumstances as to each count. After finding mitigating circumstances and that defendant had two historical prior felony convictions, the trial court sentenced him to the presumptive term of five years in prison on Count 1 and ten years in prison on Count 2. The court further ordered these two counts to be served concurrently with one another, but consecutive to the sentences previously ordered in cases CR 2008-178969 and CR 2009-135905.
¶9 Defendant presents seven issues in his supplemental brief, which we address in turn.
Double Jeopardy
¶10 Defendant first argues that he was improperly charged with two counts of aggravated assault because the charges stemmed from one victim and one incident and it was therefore double jeopardy. We disagree.
¶11 Double jeopardy bars multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 497-98 (1984). A conviction is considered "punishment;" therefore, double jeopardy bars a conviction of multiple counts for a single offense. Ball v. United States, 470 U.S. 856, 861-62, 864-65 (1985). Double jeopardy principles are not implicated, however, if the charges stem from separate conduct by the defendant, even if the conduct occurs close in time. See Blockburger v. United States, 284 U.S. 299, 302-03 (1932). In this case, defendant was charged with and convicted of two counts of aggravated assault against a peace officer based on his separate conduct of striking the officer in the face and biting his hand.
"Physical Injury" Never Defined
¶12 Defendant next argues that the court failed to legally define physical injury for Count 2. Defendant is incorrect. The final jury instructions included the definition of physical injury.
Judge Having Prior Knowledge of Witness
¶13 Defendant next contends that Judge Samuel Thumma should not have presided over his trial because he discussed the case with Judge Brodman before trial.
¶14 The background to this claim is as follows. Judge Thumma clearly explained to the prosecutor, defense counsel, and defendant, that Judge Brodman had been listed as a witness and that he and Judge Brodman were colleagues on the same court as well as friends. Judge Thumma explained that he and Judge Brodman occasionally had lunch together and Judge Brodman "talked sort of generally about his experience" in what happened in this case. Judge Thumma stated that he "believe[d] [he] could fairly preside over" the case, but if the parties had any concerns, he would "step aside" and another judge would be appointed. Defense counsel stated that "[m]y client informs me he's fine with you presiding over the case." Judge Thumma then asked defendant directly if he had "any objection . . . to [Judge Thumma] presiding over this matter?" and defendant replied, "No." The State did not object. Absent fundamental error, defendant waived this issue by agreeing that Judge Thumma could preside over his trial. See State v. Callahan, 119 Ariz. 217, 221-22, 580 P.2d 355, 359-60 (App. 1978) (finding waiver of judicial bias claim on appeal because defendant agreed to be sentenced by judge after full disclosure).
¶15 Fundamental error is "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." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). We do not perceive that Judge Thumma's decision not to recuse himself deprived defendant of a fair trial. Accordingly, we reject defendant's argument that Judge Thumma improperly presided over defendant's case.
Failure to Add Lesser Included Offense Instruction
¶16 Defendant next contends he was entitled to a lesser included instruction for both counts of aggravated assault. If the evidence presented at trial is such that a jury could reasonably find that only the lesser included offense elements have been proved, then the defendant is entitled to have the court instruct the jury on the lesser offense. See State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006). Defendant was charged with aggravated assault of a peace officer. Ariz. Rev. Stat. §§ 13-1203(A)(1), -1204(A)(8)(a). A person commits aggravated assault if he assaults another knowing or having reason to know that the victim is a peace officer. Ariz. Rev. Stat. § 13-1204(A)(8)(a). In this case, it is undisputed that defendant knew the person he was accused of assaulting was a peace officer. Thus, the only possible verdicts given the evidence presented to the jury were guilty or not guilty of aggravated assault as to Counts 1 and 2. Defendant was therefore not entitled to have the jury instructed on any lesser included offenses.
Incorrect Answer to Juror Written Question
¶17 Next, defendant maintains the court improperly answered "[p]lease use your common sense," to the jury question asking for a legal definition for "suffered" or "harm." A court is not required to define every phrase or word used in the jury instructions, particularly when the words are commonly understood and used in their ordinary meaning. State v. Eastlack, 180 Ariz. 243, 259, 883 P.2d 999, 1015 (1994). Because "suffered" and "harm" are commonly understood words used in their ordinary sense in this case, defining those words were unnecessary. Therefore, there was no fundamental error. Id. at 259-60, 883 P.2d at 1015-16.
Improper Juror Instruction for Aggravation Phase
¶18 Defendant next contends that the court improperly instructed the jury during the aggravation phase to determine whether the victim suffered emotional or physical harm. Defendant claims the jury should not have been instructed on this aggravator for "one offense that maybe lasted 10 seconds." We disagree. The existence of physical or emotional harm to the victim as an aggravator pursuant to A.R.S. § 13-701(D)(9) (Supp. 2011), does not require that the offense occur over some predetermined amount of time. In any event, notwithstanding the jury's findings of aggravating circumstances, the court sentenced defendant to presumptive prison terms. Therefore, even if any error existed, defendant is unable to demonstrate any prejudice. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).
Ineffective Assistance of Counsel
¶19 Last, defendant argues ineffective assistance of counsel. This court will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). We therefore decline to address this argument. If defendant wishes to pursue a claim for ineffective assistance of counsel, he should file a claim for post-conviction relief pursuant to Arizona Rules of Criminal Procedure 32.
¶20 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted.
¶21 After the filing of this decision, counsel's obligations pertaining to defendant's representation in this appeal have ended. Counsel need do no more than inform defendant of the status of the appeal and his future options, unless counsel's review reveals 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). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed.
_________________________
PHILIP HALL, Judge
CONCURRING:
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MICHAEL J. BROWN, Presiding Judge
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PATRICIA K. NORRIS, Judge