Opinion
No. 1 CA-CR 17-0362
02-19-2019
STATE OF ARIZONA, Appellee, v. MYRON MARCUS HARPER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Law Offices of Stephen L. Duncan PLC, Scottsdale By Stephen L. Duncan 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-112866-001
The Honorable Danielle J. Viola, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge Peter B. Swann joined.
HOWE, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Myron Marcus Harper has advised this Court that counsel found no arguable questions of law and asks us to search the record for fundamental error. Harper was convicted of one count of participating in a criminal street gang, a class 2 felony, and one count of aggravated assault, a class 3 felony. Harper has filed a supplemental brief in propria persona, which the Court has considered. After reviewing the record, we affirm Harper's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the judgment and resolve all reasonable inferences against Harper. See State v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). One evening on March 16, 2017, Harper and his then-girlfriend, J.T., got into an argument outside of Harper's home. Harper's parents and J.T.'s sister became involved in the argument. After the altercation became physical, J.T.'s sister called the police. When the police arrived, however, the fight had already broken up.
¶3 The following day, on March 17, 2017, J.T. saw a threatening social media post stating that she was going to "get the fade." She also received a message "indicating that [Harper's] sisters wanted to fight . . . because [she] had been fighting with their brother . . . at their mother's house." Concerned for his daughter's safety, J.T.'s father called the police. The police responded to the report but eventually left because "[t]hey couldn't really do anything unless somebody was physically there[.]"
¶4 After the police left, a large group of people, armed with bats, crowbars, and firearms, strutted down J.T.'s street and caused a "commotion" as they approached J.T.'s home. According to witnesses, the group yelled profanities and "bang[ed] bats against the ground." Harper, his sister, and a few members of the West Side City Crips—the largest
criminal street gang in Arizona—were in the group. According to J.T.'s sister, Harper led the group; he was "in charge" and orchestrated the group's actions. Harper's accomplices shouted for J.T. to come outside and threatened to "beat [her] ass" and "kill" her. Meanwhile, a neighbor called the police.
¶5 When police arrived at the scene, the group scattered in different directions. Detective Jay Schultz subsequently interviewed J.T. In the tape-recorded interview, J.T. stated that a few of the men in the group, including Harper, were West Side City Crips members and that all of them were armed with guns. She also told the detective that she saw "[Harper] was standing in the middle of the street in front of her house and that he had a gun in his hand[.]" He then "point[ed] the gun at [her] while yelling and asking where her brothers were." J.T. said that she was intimidated by Harper and that she was in "fear for [her] life" during the incident.
¶6 Harper was arrested the next day, and the police photographed his tattoos during booking. A grand jury subsequently indicted Harper for participating in a criminal street gang, aggravated assault, and stalking. At trial, Harper testified that he never had a gun during the incident, never saw any guns, and never threatened to kill J.T. He testified further that he was not a member of the West Side City Crips because he "can't be someone that hurts people and does bad things[.]"
¶7 A detective from the Phoenix Police Department's gang enforcement unit testified that several of Harper's tattoos demonstrated his gang affiliation. For example, the detective testified that Harper's "WSC" tattoo indicated his membership in the West Side City Crips and that his "16" tattoo demonstrated that his gang claimed the area around 16th Avenue. The detective also testified that Harper's chest tattoo depicting the Phoenix "cityscape" was another common gang motif. Nonetheless, Harper denied any gang affiliation and stated that he only got the tattoos to be "cool."
¶8 J.T. testified at trial about what had happened on March 16th but claimed that she could not remember various details about the March 17th incident. For example, she claimed to have forgotten whether Harper had a weapon and the type of conduct he engaged in during the incident. Also, J.T. testified that on March 17th, she was willing to assist the police in prosecuting Harper but was not willing to do so at the time of trial. She testified further that, although she lacked memory of the March 17th events, she was honest with Detective Schultz during his audio-recorded interview with her following the incident.
¶9 The State subsequently moved to have the audio-recorded interview between Detective Schultz and J.T. played for the jury. The State argued that the recording was admissible under Arizona Rule of Evidence 801(d)(1)(A) as a non-hearsay prior inconsistent statement because J.T.'s testimony reflected feigned memory loss. The court agreed with the State and found that J.T. had "feigned loss of memory" and that the record reflected reasons for her to be evasive—the West Side City Crips had a reputation of retaliating against those who testify against them in court, those who "snitch," and those who assist the police. The court, however, did not permit the State to admit the recording as an exhibit, but did allow the tape to be played for the jury for purposes of impeachment.
¶10 The jury found Harper guilty for participating in a criminal street gang and aggravated assault. The trial court conducted the sentencing hearing in compliance with Harper's constitutional rights and Arizona Rule of Criminal Procedure 26. The court sentenced Harper to a mitigated but enhanced term of 12 years' imprisonment for participating in a criminal street gang and a mitigated but enhanced term of 10 years' imprisonment for aggravated assault. Both sentences included a five-year enhancement based on the jury's finding that the offenses were gang-related. See A.R.S. § 13-714. The court also credited Harper with 136 days' presentence incarceration credit and ordered all terms to run concurrently. Harper timely appealed.
DISCUSSION
¶11 We review the entire record for reversible error. State v. Thompson, 229 Ariz. 43, 45 ¶ 3 (App. 2012). Counsel for Harper has advised this Court that after a diligent search of the entire record, counsel has found no arguable question of law. Harper, however, has filed a supplemental brief arguing that (1) "inconsistent statements . . . cannot sustain a conviction," (2) "hypothetical question[s] . . . cannot sustain a conviction," and (3) "inaccurate" and "fabricated" statements "cannot sustain a conviction."
¶12 Harper first argues that he was denied a fair trial because J.T.'s prior inconsistent statements were used substantively to convict him. He was not denied a fair trial, however. A party may impeach its own witness with the witness's prior inconsistent statement, Ariz. R. Evid. 607, and "[a] claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements," State v. King, 180 Ariz. 268, 275 (1994) (quoting United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976)). Moreover, prior inconsistent statements may be used both as
impeachment and substantive evidence. State v. Hernandez, 232 Ariz. 313, 323 ¶ 47 (2013). Here, J.T. testified that she could no longer remember certain events and the trial court found that she was feigning her memory loss. Because the record supports the court's finding that J.T. was feigning memory loss, her prior statements to Detective Shultz were admissible as inconsistent with her evasiveness at trial.
¶13 Next, Harper claims that he was deprived of "due process" and his "right to confrontation" and rights guaranteed by the Fifth Amendment to the United States Constitution because the state prosecutor asked J.T.'s sister a "hypothetical question." Harper, however, fails to support his argument with any legal authority that this deprived him of any constitutional rights, and he does not otherwise meaningfully develop his argument; therefore, his argument is waived. See Ariz. R. Crim. P. 31.10(a)(7)(A) (An appellant must support his contentions "with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies."); see also State v. Moody, 208 Ariz. 424, 452 n.9 ¶ 101 (2004) (providing that appellant must present significant arguments supported by authority, otherwise the claim is abandoned and waived); c.f. State v. Navarro, 241 Ariz. 19, 21 n.3 ¶ 6 (App. 2016) (declining to address Fourth Amendment-related issues because the defendant failed to develop any argument). In any event, the record does not show that he was deprived of due process, his right to confrontation, or his Fifth Amendment right against self-incrimination. Harper appears to argue that the prosecutor posed a hypothetical question tailored to comment on Harper's failure to testify at trial. Harper's argument fails, however, because the prosecutor's question to JT's sister—"[b]ut you didn't see any guns, right?"—did not even allude to Harper's exercise of his right not to incriminate himself or not to testify at trial.
¶14 Furthermore, Harper was not denied his right to confrontation. The Sixth Amendment to the United States Constitution provides criminal defendants the right to confront adverse witnesses. U.S. Const. Amend. VI. Here, nothing shows that Harper was denied the opportunity to cross-examine any adverse witness. And to the extent that Harper suggests that admission of J.T.'s prior inconsistent statements violated his right to confrontation, such argument also fails. See King, 180 Ariz. at 275-76 (finding that the Confrontation Clause was not violated by the admission of prior inconsistent statements by a testifying witness that could no longer remember details of a crime); see also State v. Salazar, 216 Ariz. 316, 318 ¶ 7 (App. 2007) (noting that the Confrontation Clause does not preclude using a prior statement to impeach a witness).
¶15 Last, Harper argues that J.T. was not a credible witness and that Detective Mesquita made "inaccurate" and "fabricated" statements at trial and such statements "cannot sustain a conviction on appeal." A trial judge, however, must give "full credence to the right of the jury to determine credibility, weigh the evidence, and draw justifiable conclusions" from the evidence presented. McBride v. Kieckhefer Assoc., Inc., 228 Ariz. 262, 265 ¶ 11 (App. 2011); see also State v. Clemons, 110 Ariz. 555, 556-57 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). As such, the jury had full discretion to determine J.T. and Detective Mesquita's credibility and Harper's argument therefore fails.
¶16 We have read and considered counsel's brief and fully reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, counsel represented Harper at all stages of the proceedings, and the sentences imposed were within the statutory guidelines. We decline to order briefing and affirm Harper's convictions and sentences.
¶17 Upon the filing of this decision, defense counsel shall inform Harper of the status of the appeal and of his future options. Counsel has no further obligations 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 (1984). Harper shall have 30 days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶18 For the foregoing reasons, we affirm.