Opinion
No. 1 CA-CR 14-0188
02-12-2015
STATE OF ARIZONA, Appellee, v. MARY L. LARCK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Legal Advocate's Office, Phoenix By Consuelo M. Ohanesian 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-135863-001
The Honorable Robert L. Gottsfield, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Advocate's Office, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined. THUMMA, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant Mary L. Larck has advised the court that, after searching the entire record, she has found no arguable question of law and asks this court to conduct an Anders review of the record. Larck was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and has found no reversible error. Accordingly, Larck's conviction and resulting probation grant are affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts "in the light most favorable to sustaining the verdict, and resolve[s] all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997) (citation omitted).
¶2 In early July 2012, a Maricopa County Sherriff's Deputy saw a silver Jeep going much faster than the applicable 30 miles-per-hour speed limit. The Deputy, who was driving a fully-marked police truck, gave chase and activated his lights and siren. The Jeep did not stop. The Deputy called for assistance and other officers set up a road block, putting traffic cones in the road. The Jeep drove through the cones and did not stop, causing the officers who set up the road block to move behind their trucks for safety. The Jeep then drove over a tire-disabling device and, nearly a mile later, came to a stop.
¶3 When officers approached the Jeep, they saw Larck sitting behind the wheel. After the officers pounded on the driver's window and tried to break it with a baton, Larck unlocked the door. The officers then removed Larck from the Jeep. When the officers asked why she did not stop, Larck replied she did not know. Larck was arrested and transported to a police facility where she was interrogated after being advised of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). During questioning, Larck stated that she had no control over the Jeep and was not able to stop.
¶4 The State charged Larck by Complaint, later by Information, with one count of unlawful flight from a law enforcement vehicle, a Class 5 felony, and two counts of endangerment, Class 6 dangerous felonies. At the request of Larck's attorney in a written motion, the superior court found probable cause existed based on the departmental report from the police and ordered a competency evaluation pursuant to Arizona Rule of Criminal Procedure (Rule) 11 (2015). After considering the opinions of three conflicting mental health experts, and upon stipulation for the court to determine competency based on their reports, the court found Larck was competent.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶5 Larck filed various pretrial motions, including a motion to dismiss the case for lack of a preliminary hearing, which the court denied. Larck also requested a voluntariness hearing and moved to suppress her pretrial statements. After a hearing, the court found Larck's pre-Miranda statements voluntary but taken in violation of her Miranda rights and her post-Miranda statements admissible. Larck unsuccessfully moved to disqualify the prosecutor and call him as a witness. Larck also unsuccessfully moved in limine to exclude testimony from the State's accident reconstruction expert based on untimely disclosure and under Arizona Rules of Evidence 702 and 703.
¶6 The State extended plea offers to Larck, under which she would plead guilty to a Class 6 designated felony and a stipulation to unsupervised probation. After being informed of her rights and potential consequences pursuant to State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000), Larck rejected the plea offers.
¶7 Larck's first trial ended in a mistrial. At a second, five-day jury trial, the State called as witnesses the officers involved and the State's accident reconstruction expert. At the close of the State's case in chief, Larck moved for a judgment of acquittal under Rule 20, arguing there was no substantial evidence to support a conviction, which the superior court denied.
¶8 Larck then elected to testify, stating that the right side of her body stopped working and she physically could not stop the Jeep and had to steer with her left elbow. Larck testified that she did not see the officers, stating she could only see out the windshield, and could not hear the siren because she was listening to the radio at a loud volume. Larck testified that she was relieved when her tires were disabled causing the Jeep to stop.
¶9 After final instructions, closing arguments and deliberations, the jury found Larck guilty of unlawful flight from a law enforcement vehicle, but not guilty on the two endangerment counts. At sentencing, the superior court placed Larck on unsupervised probation for 18 months, including 50 hours of community restitution. The superior court found that Larck had served 56 days of presentence incarceration and the court imposed 56 days of jail time with credit for time served. The court also dismissed the endangerment counts given the jury verdict.
Although the sentencing minute entry states 50 days of incarceration and 50 days of presentence credit, the oral pronouncement controls. State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989).
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¶10 Larck was allowed to file a delayed appeal, and this court has jurisdiction over Larck's appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1).
DISCUSSION
¶11 This court has reviewed and considered counsel's brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30, 2 P.3d 89, 96 (App. 1999). Searching the record and brief reveals no reversible error. The record shows that Larck was represented by counsel at all stages of the proceedings and counsel was present at all critical stages. The evidence admitted at trial constitutes substantial evidence supporting Larck's conviction. From the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The imposition of probation and other consequences were authorized by statute and within permissible ranges. This review of the record does reveal three issues that merit further discussion. I. The Determination Of Probable Cause Based On The Departmental Report.
¶12 Larck's motion to dismiss claimed that, although the superior court found probable cause based on the departmental report when ordering a Rule 11 evaluation, the court did not afford Larck an opportunity for cross-examination. Seven months earlier, however, Larck's counsel asked the court to make the probable cause determination based on the departmental report in a written motion, and the court granted that motion. In so doing, the court found that probable cause existed based on the departmental report, a finding fully supported by the record. Accordingly, the superior court did not err in denying Larck's subsequent motion to dismiss. II. Testimony From The State's Accident Reconstruction Expert.
¶13 Over Larck's objection, the State's accident reconstruction expert was allowed to testify about injuries that can occur when a vehicle hits a pedestrian at various speeds for the endangerment counts. This witness testified about the possibility of "skin being ripped off," "crushing injur[ies] to the head or chest," compound fractures "where bones are broken and bones begin to start projecting through the skin," limbs being amputated and death. Larck did not request, and the superior court did not give, an instruction limiting the jury's consideration of this testimony to the endangerment counts. The jury, however, found Larck not guilty on the endangerment counts.
¶14 It is not clear how this testimony would be relevant to the unlawful flight count. Similarly, it is not clear how this testimony would taint the jury's verdict for the unlawful flight count, and no such claim is made on appeal. Accordingly, this court cannot say that allowing the testimony without a limiting instruction was improper. See State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013). III. The Pre-Miranda Statements Elicited On Cross-Examination And The State's Statement During Closing Argument.
¶15 The superior court found Larck's pre-Miranda statements were voluntary but in violation of her Miranda rights. After Larck elected to testify, during cross-examination and over her objection, the State was allowed to elicit her pre-Miranda statement that she did not know why she failed stop for purposes of impeachment. Had Larck then requested a limiting instruction that the jury could consider the testimony for impeachment only, that request would appear to have been well-taken. See State v. Routhier, 137 Ariz. 90, 98, 669 P.2d 68, 76 (1983). Given the nature of the statement, however, the record does not show that the failure to sua sponte give such a limiting instruction was fundamental error. See James, 231 Ariz. at 493 ¶¶ 11, 13, 297 P.3d at 185.
¶16 Relatedly, during closing arguments, the State asserted:
And in the moment the police are there, the time where she can tell people my arm, my right leg have not been working, she says nothing. The moment she was looking for, looking for assistance, for help, she thought she was going to die, according to her, because she couldn't stop her car. She says nothing. (Emphasis added.)Larck objected and twice moved for a mistrial, arguing the State improperly commented on evidence that was suppressed in violation of Miranda, and that it stated facts not in evidence. The superior court denied both motions. The court then instructed the jury that what the attorneys say is not evidence. On this record, this issue did not result in fundamental error. See State v. Tucker, 215 Ariz. 298, 319-20 ¶ 89, 160 P.3d 177, 198-99 (2007).
CONCLUSION
¶17 This court has read and considered counsel's brief and has searched the record provided for reversible error and has found none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537 ¶ 30, 2 P.3d at 96. Accordingly, Larck's conviction and resulting probation grant are affirmed.
¶18 Upon filing of this decision, defense counsel is directed to inform Larck of the status of her appeal and of her future options. Defense counsel has no further obligations unless, upon review, counsel identifies 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). Larck shall have 30 days from the date of this decision to proceed, if she desires, with a pro se motion for reconsideration or petition for review.