STATE v. PREVOST

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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. ERICH PREVOST, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0437 DIVISION ONE FILED: 07/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006979-001DT The Honorable Barbara L. Spencer, Commissioner AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 sentences Erich Prevost timely appeals from his convictions and for three counts of burglary in the third degree, class 4 felonies, and one count of possession of burglary tools, a class 6 felony. After searching the record on appeal and finding no arguable question of law that was not frivolous, Prevost s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel s motion to allow Prevost to file a supplemental brief in propria persona, but Prevost did not do so. Through counsel, however, Prevost argues the superior court should have stricken the testimony of two police detectives and he was not tried by a jury of his peers. After reviewing the record, we reject both arguments and find no fundamental error. Therefore, we affirm Prevost s convictions and sentences. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 another Early in passenger the morning on July were riding in a car 2, 2010, driven Prevost by J.T. and A Scottsdale patrol officer pulled the car over because it had a broken taillight, and discovered J.T. had an outstanding arrest warrant and a suspended license. While inventorying the car as part of J.T. s arrest, a second patrol officer noticed items in the car including gloves, flashlights, walkie-talkies, . . . screwdrivers, [and] wire crimpers, 1 which the first patrol We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against Prevost. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 officer testified led [him] to believe that they might have been used for some type of . . . burglary. The first patrol officer also found a purse containing a wallet in the car s trunk and another wallet inside the car, and both wallets contained identification cards that did not belong to any of the car s occupants. ¶3 While patrol officers investigated the stop, other officers contacted the owners of the identification cards and one victim reported her car had been broken into, while another reported his car and his son s car had been broken into. All three victims reported they were missing items they had left in their cars; at trial, they identified those items as the same items found in the car with Prevost. ¶4 After explaining to Prevost his Miranda rights, a third patrol officer asked him about the items found in the car. Prevost asserted he had stayed inside the car while J.T. had stopped twice and broken returned with items taken into from three each car. separate cars, Although and Prevost testified at trial he did [a]bsolutely nothing to assist J.T., he also testified that as they drove with J.T., he had a real strong feeling what [J.T.] was going to be up to . . . [and knew] that s what his MO kind 3 of was, was breaking into vehicles. 2 He also testified that as J.T. got out of the car at the second stop he asked Prevost to keep point . . . . Just watch his back, make sure nobody comes up. Further, although he insisted he did not actually act as a lookout (or keep point ), because he was uncomfortable doing so, in a police interview the morning of the stop, he admitted he stood outside the car near the trunk both times J.T. stopped to break into vehicles, and saw everything he did. DISCUSSION I. Prevost s Arguments ¶5 Prevost first argues the superior court should have stricken the testimony of two detectives after they falsely testified that they did not tell [him] his interrogation was not being recorded. the parties Scottsdale We disagree. stipulation, detectives July 2, 2010. At trial, the State, pursuant to played conducted a tape with of an Prevost interview the morning two of The detectives both testified at trial regarding statements Prevost made during the interview. Prevost later testified the detectives told him they were not recording his statements. In response, the State recalled one of the detectives, and she testified they never denied to Prevost they were recording the interview. The court then permitted Prevost 2 The State made it clear it was proceeding under the accomplice liability statute. 4 to impeach this testimony by playing a previously-unplayed portion of the interview in which one detective, in response to Prevost s said it questions was about being recording, recorded? apparently Finally, asked [w]ho the State s during redirect examination, the detective admitted she remembered the other detective making that statement, but testified he did so after she had specifically mentioned to Mr. Prevost that they were recording the interview so that [they] wouldn t have to feverishly take notes. ¶6 Prevost did not, however, object to the detectives testimony or ask the court to strike it. See State v. Hudson, 87 Ariz. 162, 163-64, 348 P.2d 928, 929 (1960) ( Having failed to object to the testimony complained of, waived his right to challenge the matter. ). defendant thereby Nor has he cited any authority requiring the superior court to sua sponte strike testimony on the basis a witness has falsely testified. Further, the court allowed Prevost to impeach the detectives statements, and detectives credibility Rivera, 210 the Ariz. inferences 188, were 194, the ¶ to be jury s 28, 109 drawn to regarding make. P.3d 83, State 89 the v. (2005) (citation omitted) ( Absent a showing that the prosecution was aware of any false testimony, the credibility of witnesses is for the jury to determine. ). Thus, the court did not commit error, much less fundamental prejudicial error, see State v. 5 Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-21, 115 P.3d 601, 607-08 (2005) (citations omitted), by allowing the jury to consider the detectives testimony. ¶7 Second, Prevost argues he was not tried by a jury of his peers as the jury was all female after the only two men on the jury were chosen as alternates. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S. Ct. 1419, 1430, 128 L. Ed. 2d 89 (1994) (applying Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the Equal Protection Clause prohibits gender ). discrimination in jury selection on the basis of Prevost did not, however, object to the composition of the jury at trial, and has waived this argument on appeal. State v. Garza, 216 Ariz. 56, 65, ¶ 31, 163 P.3d 1006, 1015 (2007) (citations omitted) (defendant waives Batson challenges by failing to object at trial). II. Anders Review ¶8 We have reviewed error and find none. 881. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at Prevost received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages. ¶9 The evidence presented at trial was substantial and supports the verdicts. members and the court The jury was properly comprised of eight properly 6 instructed the jury on the elements of the charges, Prevost s presumption of innocence, the State s burden of verdict. The presentence proof, superior report, and the court Prevost necessity received spoke at of and a unanimous considered sentencing, and a his sentences were within the range of acceptable sentences for his offenses. See Ariz. Rev. Stat. § 13-703(B)(2), (I) (2009). CONCLUSION ¶10 We decline to order briefing and affirm Prevost s convictions and sentences. ¶11 After the filing of this decision, defense counsel s obligations pertaining appeal have ended. to Prevost s representation in this Defense counsel need do no more than inform Prevost of the outcome of this appeal and his future options, unless, upon review, counsel finds 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). 7 ¶12 Prevost has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. days On the court s own motion, we also grant Prevost 30 from the date of this decision to file an in propria persona motion for reconsideration. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ LAWRENCE F. WINTHROP, Judge 8

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