Opinion
No. 1 CA-CR 16-0074 No. 1 CA-CR 16-0347 Consolidated
08-17-2017
STATE OF ARIZONA, Appellee, v. BENJAMIN FREEMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Hopkins Law Office, PC, Tucson By Cedric Martin Hopkins Counsel for Appellant Benjamin Freeman, Tucson 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. CR2013-003808-001 and CR2013-003877-001
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant Benjamin Freeman, Tucson
Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Chief Judge Samuel A. Thumma joined. CATTANI, Judge:
¶1 Benjamin Freeman appeals his convictions and sentences for one count of fraudulent schemes and artifices, two counts of third-degree burglary, two counts of taking the identity of another, three counts of theft of a credit card, one count of forgery, and one count of criminal possession of a forgery device. Freeman's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
¶2 Freeman filed a pro se supplemental brief raising the following issues: (1) a due process claim involving the change in his court-appointed investigator, (2) an alleged violation of his right to counsel at sentencing, (3) a Confrontation Clause claim regarding testimony before the grand jury, (4) an assertion that the superior court erred by failing to suppress certain evidence discovered during a warrant-based search, (5) sufficiency of the evidence, (6) a Confrontation Clause claim regarding admission of bank records at trial, (7) alleged impropriety of instructing the jury on accomplice liability, (8) a challenge to certain other-acts evidence as unduly prejudicial, and (9) an allegation of prosecutorial misconduct.
¶3 After reviewing the record and considering the issues presented, we affirm Freeman's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶4 In early August 2013, Freeman walked into P.G.'s office while P.G. was out and took at least two of P.G.'s credit cards. Freeman immediately used the two cards to make purchases at several stores around the Phoenix metropolitan area, and he signed at least one receipt as P.G. Meanwhile, P.G. reported to the police and to his bank that his wallet (including the credit cards) had been stolen. Investigating officers identified Freeman from a clear image of him on surveillance video using P.G.'s credit cards and leaving one of the stores.
¶5 In late September, while that investigation was ongoing, Freeman went into P.E.'s office and took her wallet from her purse. Although there were no cameras inside the office, surveillance video showed Freeman just outside P.E.'s office on the afternoon the wallet was stolen. P.E. reported the theft to the police and to her bank, but forgot to cancel one credit card.
¶6 The next day, Freeman drove Sonya Jewell to several stores for her to make purchases on P.E.'s credit card. After the two left the mall, police officers who had been tracking Freeman's vehicle stopped and arrested him. Officers searched Freeman's apartment pursuant to a search warrant and discovered a credit card reader, a credit card encoder, and blank credit cards.
¶7 Freeman was charged by two indictments (later consolidated) with third-degree burglary, taking the identity of another, forgery, and two counts of theft of a credit card relative to the theft and use of P.G.'s credit cards; third-degree burglary, taking the identity of another, theft of a credit card, and fraudulent schemes and artifices relative to the theft and use of P.E.'s credit card; and criminal possession of a forgery device. Freeman waived his right to counsel for a substantial period, but later withdrew the waiver several months before trial. The court conducted several substantive pretrial hearings, including evidentiary hearings on Freeman's motion to suppress evidence discovered during the warrant-based searches—which the court denied—and the State's motion to allow other-acts evidence, including the facts underlying Freeman's 2008 convictions of burglary and theft of a credit card (entering offices and taking unattended wallets or purses)—which the court granted.
¶8 At trial, Freeman testified on his own behalf and offered alternative explanations for his actions and the other facts underlying the charges. He claimed that he had been friends with P.G. (who had died before trial) and that P.G. had given him permission to use the credit cards as a loan. He claimed that Jewell, acting alone and without his knowledge, had stolen and used P.E.'s credit cards, and that he was simply driving her around town in his capacity as a professional limo driver. And he claimed that he intended to use the credit card reader to accept payments in his driving business, and the credit card writer to make discount cards for his customers.
¶9 The jury found Freeman guilty as charged. After trial, Freeman moved to represent himself, and the court found his waiver of the right to counsel to be knowing, intelligent, and voluntary and granted his request. Freeman filed a motion for new trial, see Ariz. R. Crim. P. 24.1, which the superior court denied. After the State proved two historical prior felony convictions, the court sentenced him as a category 3 repetitive offender to a combination of concurrent and consecutive terms yielding an aggregate sentence of 25.75 years, with credit for 837 days of presentence incarceration. Freeman timely appealed.
¶10 Freeman then filed a motion to vacate judgment, see Ariz. R. Crim. P. 24.2, which the superior court denied. Freeman timely appealed from the denial order, and this court consolidated the two appeals. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 13-4033(A).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
I. Freeman's Pro Se Supplemental Brief.
1. Due Process Claim Regarding Investigator.
¶11 Freeman argues he was denied due process because the courtroom clerk failed to mail him a copy of the superior court's order granting his expedited request to change his court-appointed investigator before sentencing. But even assuming this allegation could be used to establish a due process violation, the documents on which Freeman relies show only the date the office of public defense services sent him acknowledgement of appointment of the new investigator, not that the court failed to timely provide notice.
¶12 Moreover, although Freeman asserts that the new investigator "could have located mitigation factors" relevant to sentencing, he made no showing that the investigator was in fact "reasonably necessary." See Ariz. R. Crim. P. 15.9(a). The arguably mitigating factors to which he refers—his claim to have played only a minimal role in the offenses (and that Jewell received a disproportionately lenient sentence) and that that he is "elderly and unlikely to be recidivist"—are either flatly contradicted by the record, or entirely within his own knowledge and control. Accordingly, Freeman is not entitled to relief on this basis.
2. Right to Counsel at Sentencing.
¶13 Freeman argues the superior court violated his Sixth Amendment right to counsel by failing to appoint new counsel upon his oral request at sentencing. After trial (on the day initially set for sentencing), the court granted Freeman's written motion to represent himself, finding that Freeman had knowingly, intelligently, and voluntarily waived his right to counsel. At that time, the court continued sentencing for over 30 days to allow Freeman to prepare, but also warned Freeman that sentencing would not be continued again; Freeman acknowledged the limited amount of preparation time and affirmed that he still wanted to represent himself. On the day of sentencing, however, Freeman orally requested that the court appoint counsel and continue sentencing. The court denied his request.
¶14 Arizona Rule of Criminal Procedure 6.1 effectuates both the Sixth Amendment right to counsel and the equally fundamental constitutional right to self-representation. See also U.S. Const. amends. VI, XIV; Ariz. Const. art. 2, § 24; Faretta v. California, 422 U.S. 806, 818 (1975). Rule 6.1(e) thus allows a defendant to withdraw the waiver of counsel "at any time." Although the rule allows an "unlimited" ability to withdraw waiver of counsel, "[the defendant] is not allowed to use late appointment or retention of counsel to disrupt orderly and timely processing of his case" and thus "cannot delay a scheduled proceeding, nor repeat one already held, solely because of a change of heart concerning his ability to represent himself." Ariz. R. Crim. P. 6.1 cmt. to Rule 6.1(e); see also State v. Dixon, 126 Ariz. 613, 616 (App. 1980) ("The unlimited right to withdraw a waiver of right to counsel granted by the rule does not give the defendant a right to a continuance by an eleventh-hour request for counsel. Neither the United States Constitution nor Rule 6.1(e) gives a defendant the right to manipulate the proceeding . . . . The right to assistance of counsel, while fundamental, may not be employed as a means of delaying or trifling with the court.").
¶15 Here, the court had warned Freeman of the ramifications of waiving counsel and advised him of the time limitations he would face; Freeman expressly acknowledged the limitations and affirmed his desire to represent himself. Given the prior warnings and the late timing of Freeman's request for appointment of counsel during the sentencing proceeding, the superior court did not abuse its discretion by denying the eleventh-hour request.
3. Grand Jury Confrontation Clause Claim.
¶16 Freeman asserts the State violated his rights under the Confrontation Clause of the Sixth Amendment by having the investigating detective testify to hearsay statements before the grand jury. Freeman's claim fails because the Confrontation Clause is applicable only to trials, not grand jury proceedings. See State v. McGill, 213 Ariz. 147, 159, ¶ 50 (2006) (confrontation clause only applies to trials).
4. Suppression Ruling.
¶17 Freeman argues the superior court erred by denying his motion to suppress the evidence discovered in searches of his apartment, his car, and his person, all conducted pursuant to a search warrant. He asserts that the warrant affidavit was based on involuntary statements made by Jewell in a police interview, elicited in violation of Jewell's Fifth Amendment rights; he claims that the resulting warrant was thus invalid, and the searches violated his own Fourth Amendment rights.
¶18 We need not address whether Freeman has standing to raise Jewell's Fifth Amendment rights in the course of challenging searches implicating his own Fourth Amendment interests, because the court reasonably concluded that the affidavit presented probable cause for the searches independent of the references to Jewell's statements. "[A] false statement knowingly and intentionally, or with reckless disregard for the truth, [] included by the affiant in the warrant affidavit" creates a Fourth Amendment violation, but only if the false statement was necessary to establish probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Here, even if Jewell's statements (regarding use of P.E.'s cards) were omitted, the balance of the affidavit set forth probable cause to search Freeman's apartment, car, and person for evidence of burglary (related to credit cards), forgery, identity theft, and fraudulent use of credit cards based on the investigation regarding P.G.'s credit cards. Further, the affidavit referenced the bags of clothing discovered in Freeman's car at the time of arrest (before the searches), which provided a link to the purchases made on P.E.'s credit cards. Accordingly, the affidavit was sufficient regardless of Jewell's statements, so the court did not err by denying this motion to suppress.
5. Sufficiency of the Evidence and Motion for Judgment of Acquittal.
¶19 Freeman argues his convictions were not supported by sufficient evidence, and that the superior court erred by denying his motion for judgment of acquittal. Freeman asserts, based on his own testimony, that he owned the credit card reader and encoder for legitimate business purposes, that P.G. consented to his use of the credit cards, and that Jewell alone committed the offenses against P.E.
¶20 A judgment of acquittal is proper "if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). "Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt," including evidence on which reasonable people could disagree. State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004). We assess sufficiency of the evidence in the light most favorable to upholding the jury's verdicts, drawing all reasonable inferences against the defendant. Id.
¶21 Although Freeman testified to alternative, innocent explanations for his conduct, other evidence supported the jury's verdicts. P.G. reported the cards stolen, and later told his bank that Freeman's transactions were unauthorized (even after Freeman claimed to have returned the cards). Thus, Freeman's testimony notwithstanding, the evidence presented supported the convictions of offenses involving P.G.
¶22 Freeman claimed that he was simply driving Jewell and that he did not know she had stolen and was using P.E.'s credit cards. But other evidence—including Freeman's presence at P.E.'s office the day her credit cards were stolen, his role accompanying Jewell to the stores at which she used the stolen credit cards, the shopping bags found in Freeman's apartment, and his prior consistent conduct—supported his convictions as at least an accomplice to the offenses involving P.E. See A.R.S. § 13-301.
¶23 And while Freeman testified that he planned to use the credit card reader and writer for a legitimate business purpose, other evidence—including the combination of not just a credit card reader, but an encoder and blank credit cards, as well as an inference from Freeman's other conduct with stolen credit cards—supported his conviction of the forgery-device offense. Accordingly, sufficient evidence supported Freeman's convictions, and the superior court did not err by denying the motion for judgment of acquittal.
6. Bank Records Confrontation Clause Claim.
¶24 Freeman argues that admission at trial of P.G.'s bank records (including credit card transaction information and P.G.'s report that the transactions were unauthorized) violated his rights under the Confrontation Clause of the Sixth Amendment because P.G. died before trial and thus was not subject to cross-examination. The Confrontation Clause prohibits admission of testimonial hearsay evidence at trial unless the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004); see also U.S. Const. amend. VI. "Testimonial" statements are those that operate as the functional equivalent of in-court testimony. Crawford, 541 U.S. at 51. Business records, however, generally are not testimonial because they are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
¶25 Here, the bank records as redacted were not testimonial, so their admission did not implicate the Confrontation Clause. The transaction information included in the credit card records was "maintained to facilitate [the bank's] business, not to aid police." State v. Parker, 231 Ariz. 391, 403, ¶ 40 (2013). P.G.'s report to the bank of unauthorized transactions was likewise submitted for the bank's own processing, not to aid the prosecution; he made a separate, testimonial report to the police that was redacted from the bank records and was not admitted at trial. Accordingly, admission of the bank records (as redacted to remove the police report) did not violate the Confrontation Clause.
7. Accomplice Liability Instruction.
¶26 Based on his own testimony that he was simply acting as a professional driver for Jewell, Freeman argues the superior court erred by instructing the jury on accomplice liability. An accomplice instruction is appropriate if reasonably supported by evidence that the defendant solicited, aided, or enabled commission of the offense. See A.R.S. § 13-301; State v. Baldenegro, 188 Ariz. 10, 13 (App. 1996).
¶27 Here, the evidence that Freeman was at P.E.'s office the day her credit card was stolen and then drove Jewell to multiple stores where she used P.E.'s credit card supported an inference that Freeman and Jewell were working together. Moreover, defense counsel did not object to the accomplice instruction, but rather requested that the court instruct on mere presence as well, and the court did so. Accordingly, the evidence supported instruction on accomplice liability, and the court did not err by giving the unobjected-to instruction.
8. Other-Acts Evidence.
¶28 Freeman argues that testimony from the victim of the offense underlying his 2008 conviction of theft of a credit card—admitted as other- acts evidence, see Ariz. R. Evid. 404(b)—was unduly prejudicial. See Ariz. R. Evid. 403. The other-acts victim testified that she had placed her purse on the reception desk at her office, and when she returned "less than two minutes later" her purse was gone; Freeman later attempted to use the victim's credit card, and he was arrested and convicted of the offense.
¶29 Freeman now argues that the other-acts victim's testimony was unfairly prejudicial or misled the jury because surveillance video from P.E.'s building showed him enter then leave the building "2 minutes" later. But Freeman has made no showing of how this coincidence of two-minute timing could mislead the jury or otherwise cause unfair prejudice. Moreover, the court instructed the jury that other-acts evidence could be considered only for proper purposes (as relevant here, intent, preparation, or plan) and not as propensity evidence, and we presume the jury followed this instruction. See Ariz. R. Evid. 404(b); State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Accordingly, Freeman has not shown a basis for relief.
9. Prosecutorial Misconduct.
¶30 Freeman argues the State improperly failed to disclose evidence of YouTube videos he viewed about how to steal a PIN number, and later illicitly showed the YouTube videos to the jury. Prosecutorial misconduct warrants reversal only if "(1) misconduct is indeed present[,] and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004).
¶31 During trial, the State presented testimony from a computer forensics officer regarding his examination of Freeman's laptop, which uncovered references to eBay searches for a credit card reader and writer, viewings of YouTube videos regarding credit card readers and writers, and a Google search for "how to disable or remove a GPS chip on an [iPad]." Without objection, the State used the computer analysis report as a demonstrative exhibit to help the jury follow the officer's testimony, but did not admit the report into evidence.
¶32 Freeman claims the State failed to disclose the evidence of his YouTube viewings regarding a credit card reader and writer, but the record does not support his contention. Freeman was represented by counsel at trial, and there is no indication defense counsel was surprised or unaware of the computer forensic evidence; counsel did not object to demonstrative use of the report, and she was amply prepared to effectively cross-examine the officer on his findings. Moreover, Freeman himself acknowledges that the State had "provided the results of the Forensics Examination on paper in a Police Report," albeit not in digital form.
¶33 Freeman further suggests a conspiracy theory based on the State allegedly arranging a stenograph malfunction on the last day of trial, then using the disruption to again show the jury YouTube videos. Although the stenograph malfunction is apparent in the record, there is no indication of any illicit YouTube viewings or any other misconduct. Even after the stenograph was repaired, no one—not the court, defense counsel, or anyone else—even alluded to any such impropriety. Accordingly, Freeman failed to show any disclosure violation or any other misconduct, and his claim for relief fails.
II. Fundamental Error Review.
¶34 We have read and considered counsel's brief and have reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find none.
¶35 Freeman was present at all critical stages of the proceedings against him, and throughout the proceedings he was either represented by counsel or representing himself after a knowing, intelligent, and voluntary waiver of counsel. The record reflects that the superior court afforded Freeman all his constitutional and statutory rights, and that the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The court conducted appropriate pretrial hearings, and the evidence presented at trial was sufficient to support the jury's verdicts. Freeman's sentences fall within the range prescribed by law, with proper credit given for presentence incarceration.
CONCLUSION
¶36 Freeman's convictions and sentences are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Freeman's representation in this appeal will end after informing him of the outcome of this 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 (1984). On the court's own motion, Freeman has 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.