Opinion
No. 2 CA-CR 2013-0289
06-25-2014
THE STATE OF ARIZONA, Appellee, v. JERRY JACKSON, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Manch Law Firm PLLC, Tucson By Eric S. Manch Counsel for Appellant
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20113358001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Manch Law Firm PLLC, Tucson
By Eric S. Manch
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 In this appeal from his convictions for armed robbery, attempted armed robbery, and three counts of aggravated assault, appellant Jerry Jackson claims the trial court erred in denying his motion for a judgment of acquittal, admitting a videotaped deposition of a witness, and "considering unconstitutional aggravating factors" at sentencing. Finding no error, we affirm.
Factual and Procedural Background
¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). In August 2011, D.W. arranged to meet Jackson to buy an iPad listed on an internet website. When D.W. arrived at the meeting place, Jackson got into the passenger side of his vehicle, took out a gun, told D.W., "Give me everything you've got," and shot him in the neck. D.W. provided police officers with the phone number and electronic-mail address he had received through the website, and officers traced the latter to Jackson.
¶3 M.Z. likewise arranged in August 2011 to meet Jackson to buy an iPhone, and Jackson robbed him at gunpoint. M.Z. provided officers with two phone numbers he had used in communicating with Jackson, one of which was the same number provided by D.W.
¶4 Jackson was arrested and charged with armed robbery, attempted armed robbery, and three counts of aggravated assault. After a jury trial, he was convicted as charged, and the trial court sentenced him to enhanced, presumptive, consecutive and concurrent prison terms totaling eighteen years.
Videotaped Deposition Testimony
¶5 Jackson first contends "[t]he trial court erred in admitting the video[taped] deposition testimony of M.Z." "We review a trial court's rulings on the admission of evidence for an abuse of discretion." State v. Dann, 220 Ariz. 351, ¶ 66, 207 P.3d 604, 618 (2009).
¶6 By the time he was deposed in September 2012, M.Z. lived out of state. The state filed a motion for a court order to take the deposition at that time, noting that M.Z. had "made arrangements to be available for the original trial date," but the trial had been continued. The motion also stated, "Both parties agree to a deposition." The court issued an order for M.Z. to appear, and he was deposed. Jackson's attorney was present, but did not cross-examine M.Z. Jackson was not present, and his attorney stated during the deposition "we have stipulated that [he] need not be present." On the second day of trial both the prosecutor and defense counsel indicated they had "agreed by stipulation" to the admission of the deposition.
¶7 Jackson contends Rule 15.3, Ariz. R. Crim. P., was violated because he was not present at the deposition and did not validly waive his presence. That rule provides: "A defendant shall have the right to be present at any examination" of a witness who is substantially likely not to be available at the time of trial or is incarcerated to ensure his or her appearance. Ariz. R. Crim. P. 15.3(e). The rule also provides procedures for ensuring the presence of a defendant who is in custody, including a requirement that he or she waive the right to be present in writing. Id. Jackson argues that this written waiver requirement applies to him, despite his being out of custody at the time of the deposition. The clear language of the rule, however, contradicts his position, particularly because the relevant sentence begins with "If a defendant is in custody," and makes no mention of out-of-custody defendants. Ariz. R. Crim. P. 15.3(e).
¶8 Furthermore, because he was out of custody, it was Jackson's responsibility "to remain in contact with his or her attorney and with the court." State v. Love, 147 Ariz. 567, 570, 711 P.2d 1240, 1243 (App. 1985). If a defendant voluntarily absents himself, even from a critical stage of the proceeding, with the exception of sentencing, he has waived his presence. Id. As Jackson acknowledged in his opening brief, his counsel stated at the deposition that there was a stipulation that Jackson need not be present. Jackson was advised upon his release from custody that if he failed to appear, proceedings would continue without him. The state's motion for the deposition listed the location, date, and time of the deposition. And, unlike the defendant in State v. Grannis, on which Jackson also relies, Jackson neither objected nor asserted his right to have been present at the deposition. 183 Ariz. 52, 62, 900 P.2d 1, 11 (1995), overruled in part on other grounds by State v. King, 225 Ariz. 87, 235 P.3d 240 (2010). Although Jackson maintains more was needed to establish his voluntary absence, as discussed above, we do not agree that Rule 15.3(e) requires a written waiver of presence from an out-of-custody defendant, and Jackson has cited no other law to suggest that counsel could not waive his presence under these circumstances or that he had not voluntarily waived his right to be present by his absence.
¶9 Jackson further contends, however, that admitting the videotape of the deposition violated his due process and confrontation clause rights as well as Rule 19.3, Ariz. R. Crim. P. That rule provides that statements made under oath in a deposition under Rule 15.3 are admissible if the defendant had an opportunity to cross-examine the witness and the witness is unavailable. Ariz. R. Crim. P. 19.3(c). Jackson maintains the state failed to establish that M.Z. could not have appeared at trial and asserts that even if he waived his right to be present at the deposition, he did not "permanently waive his right to confront M.Z. on the witness stand." But Jackson stipulated to the admission of the deposition, thereby relieving the state of its burden to establish M.Z.'s unavailability. See State v. Allen, 223 Ariz. 125, ¶ 11, 220 P.3d 245, 247 (2009) (stipulation of fact relieves party of burden to present evidence to prove fact); see also State v. Parker, 231 Ariz. 391, ¶ 61, 296 P.3d 54, 68 (2013) (defendant who stipulated to admission of videotaped interview could not assert error on appeal). Moreover, Rule 15.3 provides that depositions are to be taken in the manner provided by the civil rules, which allow an opportunity for cross-examination. See Ariz. R. Civ. P. 30(c). At the close of M.Z.'s deposition, defense counsel stated, "I have no cross," thereby waiving cross-examination. Thus, Jackson was not denied the opportunity to cross-examine M.Z.
In his reply, Jackson asserts Parker is distinguishable from his case because he "himself had no input on the decision to stipulate to the admission of" the deposition. But a defendant is generally bound by the actions of his counsel. State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138 (App. 1982).
Judgment of Acquittal
¶10 Jackson next maintains the trial court erred in denying his motion for a judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., as to the armed robbery count and one of the aggravated assault counts, both related to the robbery of M.Z. Jackson argues that the videotaped deposition was wrongfully admitted, and the state "substantially relied" on M.Z.'s testimony, and that without it, "there was not substantial evidence of [his] guilt." But, as discussed above, the court properly admitted the deposition testimony, and this claim is therefore without merit.
Sentencing
¶11 Finally, Jackson asserts "[t]he trial court erred in considering unconstitutional aggravating factors at sentencing," specifically by using Jackson's use of a firearm both to enhance his sentence and as an aggravating circumstance. Jackson did not object on this basis below, but because the basis for his claim "did not become apparent until the court's pronouncement of the sentence," he has not forfeited review of the claim. State v. Vermuele, 226 Ariz. 399, ¶ 6, 249 P.3d 1099, 1101 (App. 2011). But, "we will not disturb a sentence that is within the appropriate statutory range unless the court has abused its discretion," and "'[a] trial court has broad discretion to determine the appropriate penalty to impose upon conviction.'" Id. ¶ 15, quoting State v. Cazares, 205 Ariz. 425, ¶ 6, 72 P.3d 355, 357 (App. 2003) (alteration in Vermuele).
¶12 Pursuant to A.R.S. § 13-701(D)(2), the use of a deadly weapon or dangerous instrument may be considered as an aggravating circumstance unless it is an essential element of the offense or is used to enhance. In this case, the crimes were determined to be dangerous and the sentences imposed were enhanced on that basis. The jury found the offenses were of a dangerous nature and that Jackson had committed them for pecuniary gain and used a firearm during the offense. As Jackson concedes, however, it is not clear that the trial court also relied on the use of a firearm as an aggravating circumstance. At sentencing, the state did not urge the court to do so and before imposing sentence, the court stated,
I was struck by the letters that I received and by the mitigation report because you have a loving family who supports you. You had a good upbringing. And despite your loving family and the support and the opportunities you had, frankly, you turned into a[n internet] predator. You went out and victimized people. And I don't understand how you got to this point.The court then imposed presumptive sentences on all counts.
¶13 "Trial judges 'are presumed to know the law and to apply it in making their decisions.'" State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997), quoting Walton v. Arizona, 497 U.S. 639, 653 (1990). In the absence of any indication in the record that the trial court here improperly aggravated Jackson's sentence based on his use of a gun, we presume the court properly applied the sentencing law. Jackson asserts we cannot do so because the court did not make a "list of aggravating or mitigating factors" it considered. But he cites no authority to suggest such a list is required when a presumptive sentence is imposed. Rather, he merely argues the court was required to consider the mitigating factors presented. Based on the court's statement quoted above, however, it is clear the court had read and considered the evidence presented, but determined the presumptive sentence was appropriate. We therefore cannot say the court abused its discretion or imposed an unlawful sentence.
Disposition
¶14 For the reasons above, Jackson's convictions and sentences are affirmed.