Opinion
No. 2 CA-CR 2018-0017
05-20-2019
THE STATE OF ARIZONA, Appellee, v. RAHIM JAFFAR HARPER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander Taber, Assistant Attorney General, Tucson Counsel for Appellee Rahim J. Harper, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20153497001
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander Taber, Assistant Attorney General, Tucson
Counsel for Appellee Rahim J. Harper, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After a jury trial, Rahim Harper was convicted of two counts of armed robbery and one count each of attempted armed robbery, aggravated assault with a deadly weapon, disorderly conduct, credit card theft, and identity theft. The trial court sentenced him to concurrent prison terms, the longest of which are 17.5 years. On appeal, Harper argues that his Miranda rights were violated and his statements to law enforcement officers were involuntary. He also raises claims of police and prosecutorial misconduct. For the following reasons, we affirm.
Procedural Background
¶2 In February 2017, Harper was arrested and charged with two counts of armed robbery and one count each of attempted armed robbery, aggravated assault, disorderly conduct, credit card theft, identity theft, and fleeing from a law enforcement vehicle in connection with two carjackings. As noted above, the jury convicted him of all charges except fleeing from a law enforcement vehicle, and he was sentenced to terms of imprisonment. Harper brought this appeal, over which we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Harper was initially represented on appeal, but after counsel filed an opening brief, Harper moved to withdraw counsel, citing "an irreconcilable conflict." The opening brief was subsequently vacated, and Harper filed a new, pro se opening brief. We note that "a defendant acting in propria persona is subject to the same rules as an attorney." State v. Cornell, 179 Ariz. 314, 331 (1994).
Suppression Rulings
¶3 Harper first challenges the trial court's rulings on his pretrial suppression motions. In reviewing such rulings, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the court's rulings. State v. Wyman, 197 Ariz. 10, ¶ 2 (App. 2000). After Harper's arrest, he was detained by a Department of Public Safety sergeant while waiting for a Tucson Police Department ("TPD") detective to arrive. The sergeant asked Harper "biographical data questions" such as his name, address, and telephone number, but not "any questions regarding the incident" for which he was arrested. Harper asked "what this was about," and the sergeant responded, "I think you know what this is about." Harper also asked how long law enforcement had been following him, but the sergeant did not answer. Harper thereafter became emotional and spoke about his daughter. The sergeant responded that Harper "must feel empty and defeated."
¶4 When the detective arrived, he advised Harper of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and interviewed him for about thirty minutes. Harper was coherent and appeared to understand the questions, despite telling the detective that he was "high." The detective told Harper that if he cooperated, he could "cut five years off of his time in prison" and the detective would have favorable things to say to the judge. Harper subsequently made incriminating statements. About thirty minutes after this interview, a TPD officer took custody of Harper and, without any further questioning, Harper apologized "for what happened" to one victim and told the officer where that victim's passport and checkbook were hidden.
¶5 In pretrial motions to suppress, Harper argued his statements to the sergeant and detective were obtained in violation of Miranda, and statements made to the detective and the officer were involuntary because he had been high and because the detective made improper promises to induce incriminatory statements. The trial court rejected Harper's argument that his statements were involuntary due to drug impairment. It also denied Harper's motion as to statements made to the sergeant, finding that "although [Harper] was in custody before receiving his Miranda warnings, he was not questioned or subject to interrogation" because "[t]here was no conduct or actions that were reasonably likely to elicit an inculpatory statement or confession." The court, however, suppressed Harper's statements to the detective made after the "five-year benefit" comment because it "was an express or implied promise by law enforcement that went beyond being couched in terms of a mere possibility or opinion." Finally, the court denied Harper's motion as to statements made to the TPD officer, finding that he "was not responding to the enticement of the five[-]year benefit" and his statements "cannot be considered involuntary" because Harper was not questioned by the TPD officer and the statements were separated in time, person, and circumstance.
¶6 On appeal, Harper repeats the claims made in his motions to suppress. While he provides some citation to legal authority, his argument is otherwise lacking. Harper focuses on his interview with the detective and the detective's suggestion he would face less prison time if he confessed. As noted above, however, the resulting statements were specifically suppressed by the trial court and not introduced at Harper's trial. He also reiterates that he was "highly under the influence of drugs" when he made his post-arrest statements, but does not provide any rationale as to how the court erred in rejecting that claim. He likewise provides no argument that the court erred in finding his statements to the TPD officer admissible. Rule 31.10(a)(7), Ariz. R. Crim. P., requires an opening brief to contain "appellant's contentions with supporting reasons for each . . . [and] citations of legal authorities and appropriate references to the portions of the record on which the appellant relies." Because Harper's brief fails to do so, he has waived the claims relating to his post-arrest statements. See State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
The section of Harper's brief titled "Legal Argument" largely consists of conclusory claims unrelated to his Miranda and involuntariness claims, concerning instead possession and use of his cell phone and the collection of video and fingerprint evidence.
Remaining Claims
¶7 Harper's numerous remaining claims generally allege police and prosecutorial misconduct and abuse of discretion by the trial court. Harper first asserts the prosecutor violated his due process rights after he invoked his speedy trial rights and filed suppression motions by "coerci[ng] and soliciting [the victim] to testify falsely at trial d[ue] to state's lack of evidence on the armed robbery charge," "willfully concealing evidence, tampered, planted and fabricated" by law enforcement officers, and presenting evidence from another case at trial, resulting in "'double jeopardy' violations." He also contends law enforcement officers "fabricate[d] false[] information," tampered with evidence, conspired with a criminalist by "falsely signing [Harper's] signature" on fingerprint cards, "committ[ed] perjury in front of the jury," and illegally obtained a search warrant for his cell phone. Harper further claims the court abused its discretion by admitting improper evidence, allowing "fruits of a poisonous tree" to be admitted over objection, rejecting his pro se motion challenging the grand jury's indictment, denying his motion for a directed verdict, and failing to sever charges. Harper finally concludes that the conduct of law enforcement, the prosecutor, and the court "amounted to outrageous conduct" that "shock[ed] constitutional justice" and "cause[d] severe emotional distress."
¶8 Like Harper's claims relating to incriminating statements, for which he provided no meaningful argument as to how the trial court erred, Harper's remaining issues, as summarized above, are wholly devoid of any support. Accordingly, we conclude he has waived these issues on appeal as well. See id.
Harper also appears to allege fundamental error, asking in his brief, "Did fundamental error occur in the courts, and that is clear, egregious and was the magnitude such that appellant could not possibly have received a fair trial and deprived appellant 'many' rights essential to his defense and did appellant suffer prejudice[?]" But "the first step in fundamental error review is determining whether trial error exists." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Because Harper has waived each issue on appeal, he has not demonstrated trial error, and we therefore do not address his passing reference to fundamental error. --------
Disposition
¶9 For the foregoing reasons, Harper's convictions and sentences are affirmed.