Opinion
1 CA-CR 11-0411
04-11-2013
STATE OF ARIZONA, Appellee, v. LARRY EUGENE KURTLEY, JR., Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant
NOTICE: 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(Not for Publication -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. CR2009-171896-002DT
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Tennie B. Martin, Deputy Public Defender
Attorneys for Appellant
Phoenix KESSLER, Judge ¶1 Larry Eugene Kurtley, Jr. ("Appellant") filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his convictions of Count 1: aggravated driving or actual physical control of a vehicle while under the influence of intoxicating liquor or drugs, a class four felony (with one prior historical felony conviction); and Count 2: aggravated driving or actual physical control of a vehicle with an alcohol concentration of 0.08, a class four felony (with one prior historical felony conviction). Both offenses were non-dangerous but repetitive, and in violation of Arizona Revised Statutes ("A.R.S") sections 28-1381 (A)(1) and (2) (2012), -1383(A)(1) (2012). ¶2 Finding no arguable issues to raise, Appellant's counsel requested that this Court search the record for fundamental error. Appellant filed a pro per supplemental brief asking this Court to review the following issues: (1) jury tampering; (2) insufficiency of the evidence and actual innocence; (3) perjury; (4) ineffective assistance of counsel; (5) Miranda violations; (6) judicial misconduct; and (7) error in grand jury proceedings. Although not present in Appellant's supplemental brief, Appellant counsel's opening brief listed one additional issue that Appellant wished to raise: (8) failure to timely allege prior convictions. For the reasons that follow, we affirm Appellant's convictions and sentences.
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
FACTUAL AND PROCEDURAL HISTORY
¶3 On November 13, 2009, Officer C. waited to make a left turn while patrolling the area near the Phoenix International Raceway. Officer C. saw a red SUV approach in the far right northbound lane with one headlight out. Looking through the windshield as the SUV approached, Officer C. observed a balding white man wearing a denim jacket seated in the driver's seat and a woman with dark hair seated in the passenger's seat. Officer C. activated his lights and siren, and the red SUV turned into a side street and stopped. ¶4 From ten feet away, Officer C. observed the SUV move from side to side immediately after it stopped. Moving quickly to the vehicle, Officer C. noticed that the occupants had switched positions and the male driver, whom he identified as Appellant, was now seated in the passenger seat, and the woman was sliding into the driver's seat. Although Officer C. estimated that the side windows of the SUV were illegally tinted, he "clearly" saw the woman "getting seated in the driver's seat." ¶5 Officer C. noted that Appellant had bloodshot, watery eyes and detected the "odor of intoxicants" emanating from the vehicle. Appellant denied that he was driving the vehicle, but admitted that he had been drinking. When asked for a driver's license, Appellant presented an Arizona ID card. Officer C. administered standard field sobriety tests and a breath test on Appellant. Appellant's breath test revealed .096 percent blood alcohol at 9:50 p.m. and .092 blood alcohol at 9:57 p.m. Appellant also submitted to a blood test administered by Officer C. after his arrest, which registered 0.112 percent ethanol alcohol. ¶6 The State charged Appellant with two felony counts for the events of November 13, 2009: Count 1, aggravated driving under the influence, a class four felony offense; and Count 2, aggravated driving under the influence, a class four felony offense. Both offenses were non-dangerous but repetitive. ¶7 Officer L. testified that he arrived at the stop to assist Officer C., and spoke with the female occupant, P.P., who stated that she had been driving the vehicle. Officer L. testified that after he told P.P. that he was citing her for lying to a police officer, she admitted that she had switched positions with Appellant after he told her to "hop over." ¶8 P.P. testified that she was driving the red SUV on November 13, 2009 and was wearing a "blue jean jacket." After counsel presented P.P. with Exhibit 5, a photo of Appellant taken the night of November 13, P.P. testified that Appellant appeared to be wearing a "blue dress shirt." ¶9 P.P. testified that she had undergone her fifth abdominal surgery five weeks prior to November 13 and was still recovering. P.P. stated that she had placed her purse underneath the driver's seat, and was pulling back the seat to retrieve it when Officer C. walked up to the passenger side of the SUV. P.P. testified that she noticed Appellant holding a bottle of beer as Officer C. approached, and "started hitting him a little bit." P.P. testified that the SUV was "shaking" because she was pulling the front seat back and hitting Appellant. P.P. stated that her multiple abdominal surgeries would have prevented her from switching places with Appellant. ¶10 Appellant's mother, S.G., the owner of the SUV, testified that the SUV's shocks needed replacement. S.G. stated that she disliked driving the SUV because it was "wobbly." S.G. testified that the red SUV's windows were tinted by an Arizona company in compliance with Arizona law. S.G. stated that a person three to five feet away from the SUV would be unable to see inside. ¶11 Appellant acknowledged that his driver's license was suspended. The State admitted into evidence Appellant's Motor Vehicle Division (DMV) record, which showed that Appellant's driver's license was on suspension on November 13. ¶12 The jury found Appellant guilty of both counts. The court sentenced Appellant to concurrent three-year minimum sentences for Counts 1 and 2. See A.R.S. § 13-703(B)(2), (I) (Supp. 2012). ¶13 Appellant's appeal is timely. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, as well as A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
STANDARD OF REVIEW
¶14 In an Anders appeal, this Court must review the entire record for fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20. On review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
DISCUSSION
¶15 After careful review of the record, we find no grounds for reversal of Appellant's convictions. The record reflects Appellant had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Appellant was present and represented at all critical stages of trial, was given the opportunity to speak at sentencing, and the sentences imposed were within the range for Appellant's offenses. We first review the sufficiency of the evidence and then address each of Appellant's arguments.
I. SUFFICIENCY OF THE EVIDENCE
¶16 Appellant challenges the sufficiency of the evidence and asserts his actual innocence. As noted above, we review the evidence in the light most favorable to sustaining the verdict. "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶17 There is evidence in the record to support the jury's conviction of Appellant for both counts. To obtain a conviction for Count 1, the State must show that the defendant: (1) drove or was in actual physical control of a vehicle; (2) while under the influence of intoxicating liquor; (3) and impaired to the slightest degree; (4) while his driver's license was suspended. A.R.S. §§ 28-1381(A)(1), -1383(A)(1). To obtain a conviction for Count 2, the State must show that the defendant: (1) drove or was in actual physical control of a vehicle; (2) with an alcohol concentration of 0.08 or more within two hours of driving; (3) and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle; (4) while his driver's license was suspended. A.R.S. §§ 28-1381(A)(2), -1383(A)(1). ¶18 In regard to the first element of both Counts 1 and 2, there is sufficient evidence to support the jury's finding that the defendant drove or was in actual physical control of the vehicle. Officer C. testified that he observed a balding white man driving the SUV and a woman with dark hair seated in the passenger's seat. Officer L. testified that after he told P.P. that he was citing her for lying to a police officer, she admitted that she had switched positions with Appellant after he told her to "hop over." While there was conflicting evidence at trial, issues of credibility are left to the factfinder. State v. Jensen, 217 Ariz. 345, 348, ¶ 5, 173 P.3d 1046, 1049 (App. 2008). ¶19 In regard to the second and third elements of Count 1, there is sufficient evidence that Appellant was under the influence of intoxicating liquor and impaired to the slightest degree. Officer C. noted that Appellant had bloodshot, watery eyes and detected the "odor of intoxicants" emanating from the vehicle. Officer C. testified that after he administered standard field sobriety tests on Appellant, he detected seven of eight possible clues of impairment. ¶20 In regard to the second and third elements of Count 2, there is sufficient evidence to support the finding that Appellant had an alcohol concentration of 0.08 or more within two hours of driving, and the alcohol concentration resulted from alcohol consumed either before or while driving or being in actual physical control of the vehicle. Officer C. testified that Appellant admitted that he had been drinking earlier that evening. Appellant's breath test revealed 0.096 percent blood alcohol at 9:50 p.m. and 0.092 blood alcohol at 9:57 p.m. Appellant also submitted to a blood test after his arrest, which registered 0.112 percent ethanol alcohol. Officer C. testified that he first saw the red SUV a few minutes after 8:55 p.m. and Appellant was arrested at approximately 9:12 p.m. ¶21 Finally, the jury could find the fourth element of both Counts 1 and 2, that Appellant's driver's license was suspended. Officer C. testified that when asked for his driver's license, Appellant presented an Arizona ID card, and acknowledged that his driver's license was suspended. At trial, the State admitted into evidence Appellant's DMV record, which showed that Appellant's driver's license was on suspension on November 13. ¶22 "A conviction must be based on substantial evidence, which is proof that reasonable persons could find sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Johnson, 215 Ariz. 28, 29, ¶ 2, 156 P.3d 445, 446 (App. 2007) (citations and internal quotation marks omitted). In comparing the evidence in the record to the elements listed in the statutes, there was sufficient evidence to support the jury's convictions of Appellant.
To the extent that Appellant requests that we review the record for fundamental error with respect to actual innocence, we construe it as a challenge to the sufficiency of the evidence and address the two issues together. See Ariz. R. Crim. P. 32.1(h). If, however, Appellant intended to challenge his conviction based on actual innocence he must do so in a petition for post-conviction relief. See Ariz. R. Crim. P. 32.2(b).
II. ISSUES RAISED IN SUPPLEMENTAL BRIEF
A. Jury Tampering ¶23 Appellant asserts that Officer C. admitted to "talking to the jury" in the restroom and the lobby outside the courtroom, thereby committing the offense of jury tampering. ¶24 "A person commits jury tampering if, with the intent to influence a juror's vote, opinion, decision, or other action in a case, such person directly or indirectly, communicates with a juror other than as part of the normal proceedings of the case." A.R.S. § 13-2807(A) (2010). "[P]rivate communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial . . . ." Remmer v. United States, 347 U.S. 227, 229 (1954). ¶25 At the sentencing hearing, Appellant's counsel asserted that she had been advised of improper contact between Officer C. and one of the jurors. However, an investigation produced no evidence to substantiate the claim. The State offered that Officer C.'s contact with the jurors outside the courtroom occurred in the restroom, and "no words were exchanged at that time." As no indirect or direct communication between Officer C. and jurors was established, we find Appellant's allegation to be without merit.
B. Sufficiency of the Evidence and Claim of Actual Innocence ¶26 For the same reasons discussed in the "Sufficiency of the Evidence" section above, the court did not abuse its discretion in denying Appellant's motion pursuant to Arizona Rule of Criminal Procedure 20.
C. Perjury ¶27 Appellant argues that Officer C.'s testimony that Appellant was driving the SUV, was balding and wearing a blue jean jacket is consistent with perjury. He also argues that Officer C.'s testimony conflicts with Officer L.'s testimony. ¶28 A conviction obtained by the knowing use of perjured testimony is fundamental error and requires reversal. United States v. Agurs, 427 U.S. 97, 103 (1976). To establish a due process violation based on perjured testimony, however, the defendant must prove that the prosecution knew or should have known that the testimony was actually false. Hayes v. Ayers, 632 F.3d 500, 520 (9th Cir. 2011). Mere inconsistency in testimony by governmental witnesses does not establish the prosecutor knowingly used false testimony. See United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989); see also United States v. Bailey, 123 F.3d 1381, 1396 (11th Cir. 1997) ("[P]erjury [is] not established by the fact that testimony is challenged by another witness or is inconsistent with prior statements." (citation and internal quotation marks omitted)). ¶29 At Appellant's trial, witnesses provided conflicting testimony about the denim jacket allegedly worn by Appellant. Officer C. testified that he observed a balding white man wearing a denim jacket through the windshield of the SUV. P.P. testified that she was wearing a "blue jean jacket" that night. However, when presented with a photograph of Appellant taken the night of November 13, P.P. stated that he appeared to be wearing a "blue dress shirt." This amounts only to conflicting testimony, not knowing use of perjured testimony. ¶30 Appellant argues that Officer C.'s statement that he was balding constitutes perjury. He also argues that the absence of any testimony from Officer L. about the SUV moving from side to side or about Appellant switching positions with P.P. shows that the officers provided "two very different stories" about the events of November 13. Officer C. testified that a photograph of Appellant taken November 13 showed that his hair was "thinning and balding." Officer L. testified that Officer C. was "already up and had made contact on the passenger side [with Appellant] when I pulled up and got out." ¶31 To the extent permitted by the rules of evidence, however, inconsistencies were vigorously explored during cross-examination, allowing the jury to weigh the credibility of witnesses. The trier of fact is in the best position to judge the credibility of witnesses, and as there is no evidence to suggest that any witness knowingly perjured himself or that the State suborned perjury, "we do not presume that the prosecutor used false testimony." Sherlock, 962 F.2d at 1364.
Appellant argues that the police report and the booking slip support his claims of perjury. However, neither the police report nor the booking slip were entered into evidence, and therefore there is no basis for showing contradiction between the police report and booking slip as compared with trial testimony.
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D. Ineffective Assistance of Counsel ¶32 This Court will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).
E. Miranda Violations ¶33 Appellant makes several arguments in relation to Miranda violations. Appellant claims that Officer C. did not state the reason he was arrested nor did Officer C. ever inform him of his Miranda rights. Appellant also claims that Officer C. was required to read Appellant his Miranda rights at the time of arrest. Appellant argues that Officer C. wrote on the "Report Form" that he read Appellant his Miranda rights at 21:35; however, Appellant states that Officer C. wrote in his police report that Appellant's Miranda rights were read at 21:57. Finally, Appellant claims that he was "breath tested, blood tested, breath tested again" and "questioned over and over" in the absence of Miranda warnings. Appellant seems to claim that the results from his breath and blood tests and questioning constitute testimony that should be suppressed because they were made in the absence of Miranda warnings. Appellant's statements that his driver's license was suspended and that he had "had a few Bud Lights" prior to the stop were entered into evidence. ¶34 Voluntariness and Miranda are two separate inquiries. "The necessity of giving Miranda warnings to a suspect relates not to the voluntariness of a confession but to its admissibility." State v. Morse, 127 Ariz. 25, 29, 617 P.2d 1141, 1145 (1980). Unless law enforcement officers advise a defendant in custody of the Miranda rights before questioning him, any statement made by that person in custody in response to questions is inadmissible against him at trial "even though the statement may in fact be wholly voluntary." Michigan v. Mosley, 423 U.S. 96, 100 (1975). ¶35 Officer C. testified that he read Appellant his Miranda rights. Officer C. also testified that Appellant stated he understood those rights, and that Appellant agreed to speak with him. Officer C. testified that Appellant subsequently acknowledged that his driver's license was suspended and that he had "had a few Bud Lights" prior to the stop. "Miranda rights are waived by conduct where . . . the defendant answers questions following Miranda warnings." State v. Canez, 202 Ariz. 133, 153, ¶ 59, 42 P.3d 564, 584 (2002). ¶36 Appellant provides no evidence that he did not understand the Miranda warnings. Moreover, even if there was any question about the Miranda warnings, the admission of evidence in violation of Miranda is subject to harmless error review. State v. Montes, 136 Ariz. 491, 497, 667 P.2d 191, 197 (1983). At trial, the State admitted into evidence Appellant's DMV record, which showed that Appellant's driver's license had been suspended on November 13, and that Appellant had been notified of the suspensions by mailing and service by an officer. The State also introduced evidence of his blood alcohol content, showing the presence of a high amount of alcohol. This independent evidence proved that Appellant knew his license was on suspension as of November 13 and that he had been drinking prior to the incident. ¶37 The documents that Appellant claims provide inconsistent times that Miranda warnings were given, the "Report Form" and the police report, were not entered into evidence. "An appellate court's review is limited to the record before the trial court." GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990). Therefore, Appellant's argument cannot be considered because the documents he referenced were not part of the record on appeal. ¶38 The blood and breath tests that Appellant submitted to were neither testimonial nor involuntary. "A person who operates a motor vehicle in [Arizona] gives consent . . . to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration . . . ." A.R.S. § 28-1321(A) (2012). The Fifth Amendment prohibition against self-incrimination is not violated by the taking of blood or its admission as evidence, because it is not "evidence of a testimonial or communicative nature." Schmerber v. California, 384 U.S. 757, 761 (1966). Therefore, Appellant impliedly consented to the blood and breath tests, and the results of those tests were neither testimonial nor self-incriminatory in nature, and were admissible even in the absence of any Miranda warnings.
F. Judicial Misconduct ¶39 Appellant argues that the trial court engaged in judicial misconduct when it did not call a mistrial, while "fully knowing of the perjury and the jury tampering." Appellant seems to be arguing that the admitted testimony was prejudicial and constituted reversible error. "The credibility of witnesses is a question for the trier of fact whose determination will not usually be disturbed on appeal." State v. Pike, 113 Ariz. 511, 514, 557 P.2d 1068, 1071 (1976). The court properly instructed the jury to evaluate the credibility of witness testimony. We find Appellant's claims unpersuasive. ¶40 As noted above, Appellant's counsel investigated and could find no evidence to substantiate the jury tampering claim. We find Appellant's claim without merit.
G. Error in Grand Jury Proceedings ¶41 Appellant argues that the State did not properly document his offenses and therefore his indictment was invalid. Appellant claims that the grand jury could not have indicted him in the absence of a "ticket or a police complaint form to show cause or proof the crime was committed." "The function of the grand jury is to investigate whether there is probable cause to believe that a crime was committed and whether the person under investigation committed the crime." State v. Superior Court, 186 Ariz. 143, 144, 920 P.2d 23, 24 (App. 1996). In a criminal prosecution, a defendant has the right to "demand the nature and cause of the accusation against him, [and] to have a copy thereof." Ariz. Const. art. 2, § 24. ¶42 Appellant alleges that the State did not document his offenses. "[I]t is the defendant's duty to prepare the record in such a manner as to enable an appellate court to pass upon the questions sought to be raised in the appeal." State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990). "Where matters are not included in the record on appeal, the missing portion of the record will be presumed to support the decision of the trial court." Id. The Maricopa County Attorney's Office filed a direct complaint on March 25, 2010 charging Appellant with two counts of driving while intoxicated. A grand jury subsequently indicted Appellant, although the grand jury transcript was not entered into evidence. Appellant had a duty to enter the grand jury transcript into evidence if he wished to challenge its proceedings. Therefore Appellant's claim is without merit.
H. Failure to Timely Allege Prior Convictions ¶43 Appellant claims that prosecutors failed to timely allege his three prior felony convictions. On September 9, 2010, the State filed two amendments to the indictment, alleging that Appellant had three prior felony convictions. At the initial pretrial conference on October 5, 2010, the court set the trial date for January 19, 2011. In a post-conviction priors hearing, the court found that Appellant had three prior felony convictions, and that one was a historical prior conviction for sentencing enhancement.
The court shall allow the allegation of a prior conviction at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the person was in fact prejudiced by the untimely filing and states the reasons for these findings.A.R.S. § 13-703(N). The allegations of Appellant's prior felony convictions were filed more than twenty days before the case was actually tried. Therefore, the allegations were timely filed, and Appellant's claim is without merit.
CONCLUSION
¶44 For the foregoing reasons, we affirm Appellant's convictions and sentences. Upon the filing of this decision, defense counsel shall inform Appellant of the status of his appeal and his future appellate options. Defense 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, 684 P.2d 154, 156-57 (1984). Upon the Court's own motion, Appellant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.
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DONN KESSLER, Judge
CONCURRING: ______________
PATRICIA K. NORRIS, Presiding Judge
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LAWRENCE F. WINTHROP, Judge