Opinion
No. 1 CA-CR 11-0841
03-26-2013
STATE OF ARIZONA, Appellee, v. JOE THOMAS CAMPBELL, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant
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(Not for Publication -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. CR 2010-159375-003
The Honorable Dawn M. Bergin, Judge
CONVICTIONS AND SENTENCES AFFIRMED;
PRESENTENCE INCARCERATION CREDIT MODIFIED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix James Haas, Maricopa County Public Defender
By Kathryn L. Petroff, Deputy Public Defender
Attorneys for Appellant
Phoenix 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 Joe Thomas Campbell's convictions of shoplifting, a Class 1 misdemeanor, and burglary in the third degree, a Class 4 felony. Ariz. Rev. Stat. ("A.R.S.") §§ 13-1506 (West 2013), -1805 (West 2013). Campbell'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). Campbell was given the opportunity to file a supplemental brief, but he did not do so. Campbell did request counsel, however, to raise two issues, which we address below. After reviewing the entire record, we affirm Campbell's convictions and sentences, but modify his presentence incarceration credit to reflect 379 days.
Absent material revisions after the date of an alleged offense, we cite a statute's current version.
FACTS AND PROCEDURAL BACKGROUND
¶2 Campbell was charged with one count of shoplifting and one count of burglary in the third degree for stealing beer and cigarettes from a convenience store. As captured on the store's surveillance camera, Campbell and another individual walked into the store, took multiple 30-packs of beer from the refrigerated section and left without paying. About ten minutes later, Campbell returned to the store and walked behind the cashier's counter, where cartons of cigarettes were stored in closed cases. Campbell saw that the clerk behind the counter was calling the police and "put[] his fist up like you're not on the phone are you?" He then took several cartons of cigarettes and ran out of the store toward a nearby apartment complex. ¶3 The responding police officers went to the complex and obtained consent to enter an apartment, where they found Campbell and the individual who entered the convenience store with him. The 30-packs of beer were in the apartment; the cartons of cigarettes were found in another apartment a few doors away. The convenience store clerk later identified Campbell and the other individual as the persons who stole the beer and cigarettes. While Campbell was seated in an officer's vehicle, he stated that he stole the beer and cigarettes to sell them for profit. ¶4 The jury found Campbell guilty of shoplifting and burglary in the third degree and found the existence of one aggravating circumstance. Campbell stipulated to having three historical prior felony convictions and the court found he was on parole at the time he committed the offenses. See A.R.S. §§ 13-703(J) (West 2013), -708(C) (West 2013). The court sentenced Campbell to concurrent terms of six months in jail on the shoplifting count and the presumptive ten years' incarceration on the burglary count, with 378 days of presentence incarceration applied to both counts. ¶5 Campbell timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A) (West 2013).
We review the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Campbell. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
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DISCUSSION
A. Issues Campbell Requested Counsel to Raise.
1. Failure to be arraigned. ¶6 Campbell requested his counsel raise the issue of "[f]ailure to have been arraigned in the case." Because Campbell did not object in the superior court to any alleged failure to be arraigned, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19, 20, 115 P.3d 601, 607 (2005) (appellant must establish both fundamental error and that the error caused him prejudice). To establish prejudice from a failure to have been arraigned, the defendant must show that the failure deprived him of notice of the charges and thereby deprived him of the opportunity to defend against those charges. See State v. Leenhouts, 218 Ariz. 346, 348, ¶ 9, 185 P.3d 132, 134 (2008). ¶7 A minute entry in the record titled "Not Guilty Arraignment" states that Campbell entered "a plea of not guilty to all charges." We therefore find no evidence that Campbell was not arraigned or was not aware of the charges against him.
2. Juror's use of a magnifying glass. ¶8 While speaking with the jury after the trial concluded, defense counsel learned that one juror had used a magnifying glass during deliberations to scrutinize the store surveillance video. At Campbell's sentencing hearing, his counsel informed the court about this incident "just [to] . . . note[], for the record, for purposes of an appeal." On appeal, Campbell requested his counsel to raise the issue of whether the juror's use of the magnifying glass constituted juror misconduct. ¶9 The jury's receipt of extrinsic evidence or experimentation with evidence may constitute misconduct warranting a new trial. See State v. Hall, 204 Ariz. 442, 447, ¶ 16, 65 P.3d 90, 95 (2003); State v. Ferreia, 152 Ariz. 289, 293-94, 731 P.2d 1233, 1237-38 (App. 1986). But because Campbell did not request an evidentiary hearing or move for a mistrial or new trial, he waived any claim that the verdict was tainted absent fundamental error. See State v. Trostle, 191 Ariz. 4, 13-14, 951 P.2d 869, 878-79 (1997). ¶10 The juror's use of a magnifying glass to scrutinize the surveillance video does not amount to fundamental error. First, the magnifying glass itself did not constitute extrinsic evidence. See Ariz. R. Crim. P. 24.1(c)(3)(i); U.S. v. Brewer, 783 F.2d 841, 843 (9th Cir. 1986) ("We cannot accept the characterization of the magnifying glass . . . as extrinsic evidence."). Rather, the magnifying glass merely assisted the juror in more carefully reviewing evidence that was properly admitted. "We are unable to see how the use of the magnifying glass to view [the evidence] differs from the use of corrective eyeglasses by jurors." Id. ¶11 Additionally, the juror's use of the magnifying glass did not constitute improper experimentation with the surveillance video. See State v. Conn, 137 Ariz. 152, 157, 669 P.2d 585, 590 (App. 1982) ("[F]urnishing . . . a magnifying glass to the jury is not the equivalent of permitting the jury to improperly experiment with the evidence."). The magnifying glass only enhanced the juror's visual acuity; there was no experimentation unless the record indicates that the magnification produced additional evidence and there is no such indication here. See State v. Griffin, 866 P.2d 1156, 1163 (N.M. 1993). Thus, the juror's use of a magnifying glass to examine the surveillance video did not constitute fundamental error.
B. Fundamental Error Review.
¶12 The record reflects Campbell received a fair trial. He was represented by counsel at all stages of the proceedings against him. Because he refused to be transported to the courthouse, Campbell was not present when his counsel moved for a competency evaluation pursuant to Arizona Rule of Criminal Procedure 11. Campbell was not prejudiced by his absence from that event, however, because he was present at the subsequent hearing when the court determined he was competent pursuant to A.R.S. § 13-4510 (West 2013). See Henderson, 210 Ariz. at 568-69, ¶ 26, 115 P.3d at 608-09. Campbell also was not present at the final trial management conference. The court stated, "by virtue of his conduct prior to this matter being called, [Campbell] has waived his right to be present," and found him in criminal contempt. Though we cannot discern from the record what behavior caused Campbell to waive his right to be present or whether his counsel objected, Campbell nonetheless suffered no prejudice by his absence because only scheduling matters were conducted at the conference. See State v. Dann, 205 Ariz. 557, 571, ¶ 53, 74 P.3d 231, 245 (2003) (defendant's right to be present is limited "to those proceedings . . . [in which a defendant's] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge"). Campbell was present at all other critical stages. ¶13 The court held appropriate pretrial hearings. The court did not conduct a hearing pursuant to Arizona Rule of Evidence 609 because Campbell did not testify. The court also did not conduct a voluntariness hearing; however, the record does not suggest a question about the voluntariness of Campbell's statements to police. See State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974). ¶14 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 unanimous verdicts, which were confirmed by juror polling. The court received and considered a presentence report, addressed its contents during the sentencing hearing and imposed legal sentences for the crimes of which Campbell was convicted. See A.R.S. § 13-703(J).
C. Presentence Incarceration Credit.
¶15 Campbell was taken into custody on November 8, 2010, and sentenced on November 22, 2011. He therefore was entitled to 379 days' presentence incarceration credit, but the superior court awarded him 378 days. Because Campbell is entitled to the additional day of credit, we modify his sentence to include credit of 379 days. See A.R.S. § 13-712(B) (West 2013).
CONCLUSION
¶16 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel's obligations pertaining to Campbell's representation in this appeal have ended. Defense counsel need do no more than inform Campbell 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, Campbell has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for reconsideration. Campbell has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review.
____________________________
DIANE M. JOHNSEN, Judge
CONCURRING: ____________________________
SAMUEL A. THUMMA, Presiding Judge
____________________________
MICHAEL J. BROWN, Judge