Opinion
No. 1 CA-CR 12-0794
01-14-2014
STATE OF ARIZONA, Appellee, v. DAMON WILLIAMS, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Cory Engle Counsel for Appellant Damon Williams, Tucson Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR 2011-131806-001 DT
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant
Damon Williams, Tucson
Appellant
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
DOWNIE, Judge:
¶1 Damon Williams timely appeals his convictions for discharge of a firearm at a structure, aggravated assault, endangerment, criminal damage, and unlawful discharge of a firearm within city limits in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1201, -1204, -1211, -1602, and -3107. Defense counsel has searched the record, found no arguable question of law, and asked that we review the record for reversible error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant filed a supplemental brief in propria persona.
FACTS AND PROCEDURAL HISTORY
¶2 Williams and victim D.J. argued one evening over the phone about their relationship. Williams wanted D.J. to talk to him in the front yard of the home where she lived with her parents and siblings, but D.J. refused. Around 2:30 a.m., officers responded to a call about a loud argument near D.J.'s house. D.J. told Officer Bujold "she was having an argument with her boyfriend because she wouldn't come outside and talk to him so he got angry and went around the corner, started bashing his car and took off." Williams later called D.J. and threatened to go inside her house to kill "everybody" and then kill himself in the front yard. Five minutes later, D.J. and her mother heard gunshots and "dropped to the floor"; D.J. called the police. D.J.'s father, sister, and brother were awakened by the gunshots.
¶3 Officers found D.J. and her mother outside "screaming and yelling . . . that their house ha[d] been shot up." Officers saw a "vehicle park[ed] outside that appeared to have been shot, and the house had been shot up." They interviewed the family members and photographed the scene, documenting, inter alia, bullet strikes on the house and two vehicles, as well as shattered windshields on the vehicles. Officers also collected 40-caliber Smith & Wesson shell casings fired from a semi-automatic weapon and bullet fragments from inside one of the cars and the house.
D.J. showed officers text messages she had received from Williams about their relationship. Officers contacted Williams by phone. Williams was loud and belligerent and gave "a couple [of] false locations" where he was.
¶4 Officer Richey went to Williams' residence, where a Dodge Magnum was parked in the driveway. The officer hid in an alley and watched the Dodge leave and then stop, whereupon a passenger emerged and placed something on the ground before the vehicle drove off. Officer Richey noted the location of the "suspicious" activity by the passenger.
¶5 About 4:30 a.m., Williams' mother called and told officers that Williams was with her at a gas station. Williams and his mother arrived at their residence a short time later, and Williams was arrested. At the site of the suspicious activity by the Dodge passenger, Officer Richey found a 40-caliber Smith & Wesson semi-automatic handgun under a burlap bag. Officers conducted gunshot residue ("GSR") tests on Williams and his mother.
¶6 Williams was charged with discharge of a firearm at a structure, a class 2 dangerous felony; aggravated assault (D.J.), a class 3 dangerous felony and a domestic violence offense; aggravated assault (D.J.'s mother), a class 3 dangerous felony; three counts of endangerment (D.J.'s father and siblings), class 6 dangerous felonies; one count of criminal damage, a class 1 misdemeanor (damage to residence and vehicles); and one count of unlawful discharge of a firearm within city limits, a class 6 felony.
¶7 D.J., her mother, father, and two siblings testified at trial. Jurors heard recorded 9-1-1 calls from two neighbors who reported shots fired and from D.J., who identified Williams as the shooter. Jurors also heard a taped telephone call Williams made from jail in which he discussed the shooting. A forensic scientist testified that the GSR tests for Williams showed lead particles indicative of gunshot residue, meaning Williams may have discharged a firearm, may have been in the vicinity of a firearm when it was discharged, or may have touched something with GSR on it. The test for his mother showed particles "highly specific to gunshot residue," meaning she had fired a weapon, was in the vicinity of a firearm when it was discharged, or actually touched an item with GSR on it. A crime lab firearms examiner testified that the bullet casings found at the scene came from the gun found under the burlap bag.
¶8 Williams' mother testified that she owned a Dodge Magnum, that she was at a casino around midnight on the night of the incident, and that Williams called to say he was out of gas. On her way to the gas station, she drove past her house and saw police officers there. When she met Williams at the gas station, she told him to go home and talk to the officers. She denied ever touching a gun.
¶9 At the conclusion of the State's case-in-chief, Williams moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure. The motion was denied. The jury found Williams guilty of all eight counts. Williams stipulated to dangerousness as to counts 1 through 6 in exchange for the State's agreement not to proceed with a separate hearing on aggravators. Williams also stipulated that count 2 was a domestic violence offense. After a colloquy with Williams, the court found that his admissions were knowingly, intelligently, and voluntarily made, that counts 1 through 6 were dangerous offenses, and that count 2 was a domestic violence offense.
¶10 Prior to sentencing, Williams moved for a new trial, alleging juror misconduct because a juror relayed a message to counsel after the verdict was read "that he felt the police did a good investigation on this case, because had it not been for that you would not have had a case to present." Williams contended this statement showed that the juror was biased in favor of law enforcement, had predetermined that police conducted a good investigation, and believed Williams "must have done something wrong because of the simple fact that we 'had a case to present.'" Williams further asserted it was "abundantly clear" the juror "was less than honest and forthcoming" during voir dire and "may" have tainted other jurors. The State opposed the motion. The court found no juror misconduct and denied Williams' motion.
¶11 Williams was sentenced to minimum, concurrent sentences of 7 years on count 1; 5 years each on counts 2 and 3; 1.5 years each on counts 4-6; 180 days (time served) on count 7; and a 1 year presumptive sentence on count 8; he received 517 days' pre-sentence incarceration credit.
DISCUSSION
¶12 We have read and considered the briefs submitted by Williams and his counsel and have reviewed the entire record. State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969). We find no reversible error. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure, and the sentences imposed were within the statutory range. Defendant was present at all critical phases of the proceedings and was represented by counsel. The jury was properly impaneled and instructed. The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process.
¶13 Williams presents three issues in his supplemental brief: (1) ineffective assistance of trial and appellate counsel; (2) trial court error in denying his request to change counsel; and (3) malicious prosecution/prosecutorial misconduct.
I. Ineffective Assistance of Counsel
¶14 Ineffective assistance of counsel claims must be brought in proceedings pursuant to Rule 32. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). "Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of [their] merit." Id.
II. Change of Counsel
¶15 Williams made two pretrial requests to change counsel. His first request was granted. Two months after new counsel was appointed, Williams filed a second request to change counsel, offering no reason for the change. During a status conference, the court asked why Williams wanted to change counsel, and he responded that his attorney did not visit him and had not sent an investigator to speak with him. Defense counsel explained that he had been assigned to the complex case for "a little over two months" and anticipated that the investigator would visit Williams by the "beginning of next week." The court denied the motion, but told Williams to let it know at the next conference whether the investigator had visited him, explaining it "would be something that would give [the court] a really good reason to change Counsel" if that did not occur. Williams indicated that he understood.
¶16 A trial court has no obligation to act on a motion to change counsel unless the defendant proffers specific facts supporting the motion. See State v. Paris-Sheldon, 214 Ariz. 500, 504, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). In the case at bar, the court did not err by inquiring into Williams' request, which it rightfully could have denied outright because the motion lacked any grounds whatsoever for changing counsel. Nor did the court
err by denying the motion. Our review of the record does not suggest that Williams ever asked the court to revisit his request based on continuing problems with counsel, and Williams cites nothing in the record to the contrary.
III. Malicious Prosecution
¶17 Williams claims the State proceeded to trial "regardless" of his constitutional right to a fair trial, as evidenced by statements the prosecutor made during a settlement conference that appeared to disregard Williams' version of events. These statements, though, were not made to the jury and did not affect the fairness of the trial. In fact, the court explained the purpose of the settlement conference - to "resolve the case short of trial, if that's possible" - and stated that any statements made therein would not affect Williams' "trial in the slightest."
¶18 Williams also claims error because the State's case was based on disputed evidence and circumstantial evidence. But a "conviction may be sustained on circumstantial evidence alone." State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981) (citation omitted). To the extent Williams challenges the credibility and sufficiency of the State's evidence, our review of the record demonstrates that substantial evidence supports the verdicts. See State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994) ("When a defendant challenges the sufficiency of the evidence, the court will affirm the conviction if there is 'substantial evidence' to support the guilty verdict."). We decline Williams' invitation to re-weigh the evidence, which is the role of the jury. See State v. Money, 110 Ariz. 18, 25, 514 P.2d 1014, 1021 (1973) (jury weighs evidence as a whole, resolves inconsistencies, and determines existence of reasonable doubt).
CONCLUSION
¶19 We affirm Williams' convictions and sentences. Counsel's obligations pertaining to Williams' representation in this appeal have ended. Counsel need do nothing more than inform Williams of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court's own motion, Williams shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review.