State v. Byrd

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. CHARLIE BYRD, JR. Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 12/03/09 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-1125 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-123436-001 DT The Honorable Cari A. Harrison, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals Section Attorney for Appellee Phoenix Maricopa County Public Defender s Office By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix Charlie Byrd, Jr. Appellant In Propria Persona Phoenix G E M M I L L, Judge ¶1 Charlie Byrd, Jr. appeals his convictions and sentences for possession or use of narcotic drugs, a class four felony, and possession or use of marijuana, a class six felony, committed April 15, 2008. Byrd s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. See Smith v. Robbins, 528 U.S. 259 (2000). Byrd was afforded the opportunity to file a supplemental brief in propria persona and has done so. For the following reasons, after reviewing the record, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶2 In 2008, a Phoenix Police surveillance unit focused its attention on Andre House, a faith-based organization which provides food, shelter, persons in Phoenix. and necessities of life to homeless The purpose of the surveillance was to identify and reduce known criminal behavior in and around the facility. ¶3 On the morning of April 15, police observed Byrd and several others obstructing a sidewalk on the south side of Andre House for about ten minutes in violation of the Phoenix City Code. To walk past the group, pedestrians had to walk from the 1 The applicable standard of appellate review mandates that we view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the jury verdict and any trial court factual findings. See State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). 2 sidewalk onto the street, and back onto the sidewalk. ¶4 During this time, police observed Byrd possessing and using what appeared to be crack cocaine. A police officer in the surveillance vehicle took several pictures of this event with a digital camera. ¶5 Byrd was arrested for obstructing a city sidewalk. A search of Byrd s pants pockets revealed an envelope addressed to him. The envelope contained what was later confirmed to be usable quantities of crack cocaine and marijuana. ¶6 Byrd was charged by information with one count of possession or use of narcotic drugs, a class four felony, in violation of Arizona Revised Statutes ( A.R.S. ) section 13-3408 (Supp. 2008), and possession or use of marijuana, a class six felony, in violation of A.R.S. § 13-3405. trial, he was found guilty as charged. Following a jury The court suspended imposition of prison sentences and imposed concurrent three year probation terms for each count. Byrd was also fined $1000 on count one and $750 on count two. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 134033(A)(3) (Supp. 2008), and Article 6, Section 9, of the Arizona Constitution. DISCUSSION ¶7 Byrd filed a supplemental brief raising three issues: (1) structural error occurred as to the entire trial because, on 3 one day, trial surveillance started officers later than photographs scheduled; of Byrd (2) the constitute an invasion of privacy; and (3) insufficiency of the evidence as to the drug convictions. We review questions of law de novo, Arizona Water Co. v. Arizona Corp. Com n, 217 Ariz. 652, 655, ¶ 10, 177 P.3d 1224, 1227 (App. 2008), and we review evidentiary issues for an abuse of discretion. State v. Blakley, 204 Ariz. 429, 437, ¶ 34, 65 P.3d 77, 85 (2003). I. ¶8 Structural Error as to the Entire Trial Byrd argues that structural error occurred when trial started late on one of the two days of trial and that the delay affected the entire conduct of the trial from beginning to end. The superior court opened proceedings by apologizing for the inconvenience: [L]et me apologize for getting started so much later than we planned. We had something occur on our calendar, including the lights going out. ¶9 Structural error is so serious that it deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function determination of guilt or innocence. as a vehicle for State v. Valverde, 220 Ariz. 582, 584, ¶ 10, 208 P.3d 233, 235 (2009). Structural error is prejudicial per se and requires reversal regardless of whether it was objected to at trial. at 286. 4 Id. at 585, ¶ 10, 208 P.3d ¶10 Our supreme court, citing the United States Supreme Court, has defined relatively few instances in which structural error occurs. See State v. Ring, 204 Ariz. 534, 552, ¶ 46, 65 P.3d 915, 933 (2003). Examples include a biased trial judge, complete denial of criminal defense counsel, denial of selfrepresentation in criminal cases, and exclusion of jurors of the defendant s race. ¶11 case. We Id. disagree that structural error occurred in this It is unclear from the record exactly how late trial began, but it occurred on the scheduled day and neither party was prejudiced by being unable to present all of their evidence. We discern no structural error from the mere fact of starting late on a particular day. II. ¶12 Police Photographs as an Invasion of Privacy Byrd argues the police officers act of taking photographs of him using crack cocaine constitutes an invasion of privacy. ¶13 The Fourth Amendment to the United States Constitution states in pertinent part that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . Its corollary in the Arizona Constitution, Article 2, Section 8, ensures that [n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law. 5 A search under the Fourth Amendment occurs when an expectation of privacy that infringed. society is prepared to consider reasonable is State v. Allen, 216 Ariz. 320, 323, ¶ 13, 166 P.3d 111, 114 (App. 2007) (quoting U.S. v. Jacobsen, 466 U.S. 109, 113 (1984)). person must To have a legitimate expectation of privacy, a show both an actual, subjective expectation of privacy and that the expectation is one society is prepared to recognize as justifiable under the circumstances. Id. (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). ¶14 Here, the photographs were taken while Byrd was socializing with several other people on a public sidewalk at approximately eight o clock in the morning. under the circumstances, Byrd had a We cannot say that, reasonable subjective expectation of privacy that society is prepared to recognize as justifiable. Furthermore, police officers only took photographs after they recognized what appeared to be criminal behavior. And indeed, police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. 486 U.S. 35, 41 (1988). reversible error in California v. Greenwood, We find no invasion of privacy and no regard to the photographs taken by the police. III. ¶15 Byrd Insufficiency of the Evidence argues the evidence 6 does not support his convictions. ¶16 We disagree. Police officers testified that, from their undercover surveillance ordinance vehicle, while they using witnessed crack Byrd cocaine. violating The record a on city appeal contains several color photographs of Byrd taken at that time. When Byrd was arrested, police searched his pockets and found what appeared to them to be crack cocaine and marijuana. A criminalist from the City of Phoenix Crime Lab testified that the substances found in Byrd s pockets tested positive for usable quantities of crack cocaine and marijuana, respectively. Accordingly, the jury had adequate evidence to find Byrd guilty as charged. The jurors were polled following the reading of the verdict and all agreed it was their true verdict. ¶17 Having considered defense counsel s brief and Byrd s supplemental brief, and having examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find permitted none. by conviction. The law, As sentence and far as the the imposed evidence record falls within presented reveals, the range supports Byrd the knowingly, voluntarily, and intelligently waived his right to counsel at trial, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶18 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 7 684 P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Byrd of the disposition 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. Byrd has thirty days from the date of this decision in which to proceed, if he desires, with a pro se motion for reconsideration petition for review. CONCLUSION ¶19 Byrd s convictions and sentences are affirmed. ____/s/_________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/___________________________ PETER B. SWANN, Presiding Judge ___/s/___________________________ DIANE M. JOHNSEN, Judge 8 or

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