Opinion
No. 1 CA-CR 18-0734
04-21-2020
STATE OF ARIZONA, Appellee, v. RICHARD REID, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Ortega & Ortega, PLLC, Phoenix By Alane M. Ortega 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-001630-001
The Honorable Stephen M. Hopkins, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee Ortega & Ortega, PLLC, Phoenix
By Alane M. Ortega
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined. THUMMA, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Richard Reid has advised the court that, after searching the entire record, counsel is unable to discover any arguable questions of law and filed a brief requesting this court conduct an Anders review of the record. Reid was given the opportunity to file a supplemental brief pro se but has not done so. This court has reviewed the record and finds no reversible error. Accordingly, Reid's conviction and resulting sentence are affirmed as modified.
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 (1997) (citation omitted).
¶2 One July 2014 evening, Reid went to have drinks with a friend. On the way, he bought three 1.75-liter bottles of vodka. After having drinks with his friend, Reid drove home in his BMW. It was dark when he drove. Instead of taking his usual route on surface streets, Reid took Interstate 17. However, Reid did not use the entrance ramp. Instead, he took the exit ramp, heading north in the southbound lanes.
¶3 Driving the wrong way, as Reid gained speed and moved to the lane farthest to his right (the fast lane for southbound traffic), oncoming drivers were forced to swerve out of the way. Drivers honked and called 911 to report a wrong way driver. A truck driver headed south in the right-hand lanes of the I-17 called 911, blew his air horn and flashed his lights as Reid drove past. Drivers in the northbound lane noticed his car and called 911. Reid, however, continued his journey driving north in the southbound fast lane on I-17.
¶4 Department of Public Safety (DPS) officers responded and tried to stop Reid. The first attempt resulted in Reid slowing down to about five miles per hour, squeezing between the officer's truck and the barrier and then speeding away. Another DPS officer started a traffic break (moving from right to left repeatedly across all lanes of traffic with his lights and siren on) to stop southbound traffic. The officer then unsuccessfully attempted to ram Reid's car to get it to stop. The officer testified Reid flashed his headlights repeatably as he approached before accelerating past the officer.
¶5 At around 10 p.m., a couple was driving in the southbound fast lane when they realized in shock that a car was headed straight towards them. Reid's car sideswiped them, causing them to crash into the barrier wall and the couple were seriously injured. Reid however, managed to keep going.
¶6 Soon after, another driver was heading south on I-17. When merging into the fast lane, the driver saw oncoming headlights, but before she could stop or swerve out of the way, the car hit her head on. She was seriously injured, and both vehicles were heavily damaged.
¶7 Sergeant Jacobs arrived and found Reid slumped forward, unconscious at the bent steering wheel of a totaled BMW. After medical personnel arrived and Reid regained consciousness, Sergeant Jacobs tried to ask him some questions, but Reid was confused and disoriented. Sergeant Jacobs testified Reid was swaying in his seat, his eyes were bloodshot and watery, his pupils were restricted, his speech was thick and slurred and Sergeant Jacobs could smell the faint odor of an intoxicating beverage coming off of his breath. Although Sergeant Jacobs testified these were symptoms of impaired driving, he conceded that the head-on collision combined with Reid's loss of consciousness and constricted pupils and other observations could be due to a head injury and a result of Reid's other serious physical injures, which included a fractured pelvis and a broken jaw. While Sergeant Jacobs was at the scene, one of the firefighter captains told him that "Mr. Reid admitted drinking spirituous liquor before driving." And a subsequent vehicle inventory showed a receipt for three 1.75-liter bottles of vodka purchased earlier that evening, although no bottles were found.
¶8 After the crash, Reid was transferred to a nearby hospital for treatment. Hospital staff drew blood from Reid for treatment purposes at around 11 p.m. Sergeant Jacobs then secured a warrant to conduct a blood draw. Before obtaining the warrant, Sergeant Jacobs asked for and received a blood sample the hospital staff had obtained and learned the blood alcohol concentration (BAC) was 0.191. Shortly after midnight, Sergeant Jacobs drew two additional blood samples pursuant to the warrant. Later tested at the DPS crime lab, those samples revealed a BAC of 0.131.
¶9 The State charged Reid with one count of aggravated assault, a Class 3 dangerous felony, and seven counts of endangerment, Class 6 dangerous felonies. The State alleged Reid had one prior aggravated DUI conviction, a Class 4 felony, and four prior misdemeanor DUI convictions. Reid moved to suppress the blood samples and test results and his statements to emergency personnel about his alcohol consumption. After an evidentiary hearing, the court granted Reid's motion to suppress with respect to the blood sample drawn by the hospital staff (and related test result), but denied the motion with respect to the blood samples drawn pursuant to the warrant (and the related test result) and statements Reid made to emergency and hospital personnel.
¶10 After various other motion practice and continuances, a nine-day trial was held in August and September 2018. Along with several experts, witnesses and victims, Reid elected to testify. When four alleged victims did not testify, the State agreed to dismiss the four corresponding endangerment charges before they were submitted to the jury. After deliberation, the jury found Reid guilty as to the remaining four counts. The jury also found aggravating circumstances for each of the four counts. Reid moved for a new trial, which the court denied.
¶11 At sentencing, after receiving evidence and hearing argument, the court sentenced Reid to presumptive, concurrent prison terms. The resulting sentencing order stated the court sentenced Reid to a "[p]resumptive [prison] term of 7.5 years" on the aggravated assault conviction, a Class 3 felony, listed as a "Non Dangerous - Non Repetitive" offense, and to concurrent, presumptive prison terms of 2.25 years on the endangerment convictions, each Class 6 felony convictions, listed as "Dangerous - Non Repetitive" offenses, all with appropriate presentence incarceration credit.
¶12 This court has jurisdiction over Reid's timely 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) (2020).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. --------
DISCUSSION
¶13 The court has reviewed and considered defense counsel's brief and has searched the entire record for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999) (providing guidelines for briefs when counsel has determined no arguable issues to appeal). Searching the record and briefing reveals no reversible error. The record shows Reid was represented by counsel at all stages of the proceedings and counsel was present at all critical stages. For the record, all proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Neither counsel nor Reid raised any issues on appeal. Two issues, however, merit discussion here.
¶14 Reid unsuccessfully requested a mistake-of-fact instruction pursuant to A.R.S. § 13-204, because "Mr. Reid's traveling the wrong way on the freeway was a mistake of fact." Although a defendant is "entitled to a jury instruction on any theory reasonably supported by the evidence" at trial, State v. Trostle, 191 Ariz. 4, 15 (1997), the court is not required to give an instruction that is adequately covered by other instructions, State v. Hoskins, 199 Ariz. 127, 145 ¶ 75 (2000). Closing arguments of counsel may also be considered when assessing the adequacy of jury instructions. State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989).
¶15 The superior court did not err in denying a mistake-of-fact jury instruction because the issue was adequately covered by the other instructions and Reid's closing argument focused primarily on the distinction between recklessness and factual mistake. The jury was instructed on "knowingly," "intentionally," and "recklessly." Recklessly was defined as
a defendant is aware of and consciously disregards a substantial and a justifiable risk that will occur or that the circumstances exist. The risk must be of such . . . that disregarding it is a gross deviation from what a reasonable person would do in a situation. It is no defense that a person who created such a risk was unaware of it solely because of voluntary intoxication.And in closing argument, Reid's focus was lack of necessary intent:
The battle in this case, if you want to have it, the fight, is about what was the intent required of
the statutes and whether or not the State proved beyond a reasonable doubt my client had that criminal intent when this happened. . . . So for both of the different crimes charged, endangerment and aggravated assault, reckless behavior is the issue.The jury instructions given, coupled with Reid's closing argument theory regarding lack of intent, adequately and properly instructed jurors as to aggravated assault and endangerment and the relevant mental states.
. . .
But in our case the evidence really doesn't show that Mr. Reid was consciously aware of a risk of driving the wrong way on the freeway and disregarded it. The evidence really points to the fact that he had no idea when he got on the freeway he was driving the wrong way.
¶16 Second, the sentencing order states Reid was sentenced to a presumptive prison term of 7.5 years for the aggravated assault conviction, a Class 3 felony, non-dangerous, non-repetitive offense. That offense, however, was charged as (and the jury found him guilty of) a dangerous offense. Moreover, 7.5 years in prison is the presumptive term for a Class 3 dangerous, non-repetitive offense. A.R.S. § 13-704(A). Accordingly, the sentencing order is in error. Given that issue, this court requested additional briefing, and Reid conceded the conviction and sentence for the aggravated assault was for a dangerous offense. Therefore, the sentencing order is modified to reflect that the conviction and sentence for aggravated assault was for a Class 3 felony, a dangerous but non-repetitive offense. In all other respects, and recognizing no similar error applies to the other convictions and sentences, Reid's convictions and sentences are affirmed.
CONCLUSION
¶17 This court has read and considered counsel's brief and has searched the record provided for reversible error. Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537 ¶ 30. From the court's review, the record reveals no reversible error. Accordingly, Reid's convictions and resulting sentences are affirmed as modified.
¶18 Upon filing of this decision, defense counsel is directed to inform Reid of the status of his appeal and of his future 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 (1984). Reid shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review.