State v. Biggs
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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. PETER ROY BIGGS, Appellant. 1 CA-CR 10-0868 DIVISION ONE FILED: 04/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-119711-001 DT The Honorable Lisa Daniel Flores, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Katia Méhu, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 and Defendant Peter Roy Biggs appeals from his convictions sentences influence on ( DUI ). two counts He of argues aggravated the driving superior court under the committed fundamental error by conducting an incomplete colloquy pursuant to Arizona Rule stipulation by of Biggs Criminal and Procedure allowing it 17 before in accepting evidence. He a also contends the court erred by failing to grant a mistrial because the prosecutor testify. improperly commented on his decision not to For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Police pulled Biggs over they saw him driving erratically. 1 early one morning because He admitted he had drunk too much alcohol and shouldn t [have] been driving. A blood test revealed his blood alcohol concentration was 0.20 approximately one hour after he was stopped. Biggs had two prior DUI convictions stemming from incidents that occurred on August 15, 2002 and September 6, 2003. ¶3 The State charged Biggs with two counts of aggravated DUI in violation of Arizona Revised Statutes ( A.R.S. ) sections 28-1381(A)(1), (2), -1383(A)(2) (West 2012). 2 After a jury found him guilty, the court imposed concurrent three-year terms of probation with a condition of four months incarceration. 1 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Biggs. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 Absent material revision after the date offense, we cite a statute s current version. 2 of an alleged ¶4 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 134031 and -4033(A)(1) (West 2012). DISCUSSION A. Biggs s Stipulation to Prior Convictions. ¶5 Midway through the State s case at trial, the parties informed the court that Biggs would stipulate to two prior DUI convictions. As Biggs concedes on appeal, his decision to enter into the stipulation was strategic. He chose to stipulate to the two prior DUI convictions so that, if the jury convicted him of the charged offense, he would be eligible for a term of incarceration 1383(D)(2). prior DUI of only four months pursuant to A.R.S. § 28- By contrast, if the jury found he had only one conviction and found him guilty in the latest incident, he would be subject to serve 180 days in jail pursuant to A.R.S. § 28-1382(E)(1). As his counsel commented in a settlement conference prior to trial, if the jury found only one prior conviction you can actually lose for winning because the mandatory minimum second offense is six months rather than four months. ¶6 Before accepting the stipulation, the superior court engaged in a colloquy with Biggs, after which the court found he had knowingly, intelligently and voluntarily waived his right to have the State prove the two prior convictions. 3 Having failed to object to the court s finding at the time, on appeal Biggs argues the court committed fundamental error by failing under Arizona Rule of Criminal Procedure 17 to inform him that the minimum four-month term of incarceration imposed pursuant to § 28-1383 would be served in prison, not in jail. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). But during the settlement conference, the superior court made clear to Biggs that the mandatory sentence imposed under § 281383 is in the Department of [C]orrections. As the court expressly warned Biggs, There is no way to avoid that four months in DOC. ¶7 him Biggs also argues the court erred by failing to warn that one convicted under § 28-1383 incarceration for up to three years. is subject to But the court sentenced Biggs only to the four-month term that he was hoping to receive when he entered into the stipulation. See generally State v. Soliz, 223 Ariz. 116, 119, ¶ 12, 219 P.3d 1045, 1048 (2009) (no error when materialize). harm threatened by asserted error did not Biggs also argues that the court erred by failing to inform him that the 180 days incarceration that might have been imposed upon the finding of a single prior DUI pursuant to § 28-1382 would be served in jail, where he might enjoy work release or work furlough. But Rule 17 does not require the court to inform a defendant of collateral consequences such as 4 these before accepting an admission or stipulation to a prior conviction. See State v. Pac, 165 Ariz. 294, 295-96, 798 P.2d 1303, 1304-05 (1990) (failure to inform defendant he would not be eligible for early release credit); State v. Lee, 160 Ariz. 489, 491-94, 774 P.2d 228, 230-33 (App. 1989) (same). ¶8 We need not decide whether, as Biggs argues, Rule 17 requires a colloquy when, as here, a defendant stipulates to a prior conviction as an element of a charged offense. As demonstrated above, even assuming Rule 17 applied, Biggs cannot show he suffered any prejudice by the error he argues occurred. B. Alleged Prosecutorial Misconduct. ¶9 During stopped slurred. Biggs cross-examination, testified he noticed the police that officer Biggs s who speech was Defense counsel then elicited that the officer had not met Biggs before the traffic stop and therefore can t tell us how he speaks without any alcohol in him. During arguments, the prosecutor said: And symptoms have an eyes. balance. what else do we have? Signs and that he was drinking alcohol. We odor of alcohol, bloodshot, watery We have slurred [speech], poor . . . Now, defense counsel may get up here and say, well, a lot of people have that. Slurred [speech]. We haven t heard the defendant talk. Fumbling with papers, yeah, but often times, the simplest answer is the right answer. 5 closing (Emphasis added.) ¶10 Biggs did not object to the prosecutor s statement until after closing arguments ended and the jury was excused for the day, when he moved for a mistrial on this basis. The court denied the mistrial motion, but at Biggs s request, the court repeated to the jury the standard instruction regarding a defendant s right not to testify. 3 ¶11 On appeal, Biggs argues the emphasized language amounts to an improper reference to his decision to exercise his right not to testify. 634 P.2d 7, defendant s 9 (App. failure to See State v. Martinez, 130 Ariz. 80, 82, 1981) (a present prosecutor s evidence is comment on objectionable a if such reference is calculated or intended to direct the jury s attention to the fact that a defendant has chosen to exercise his fifth amendment privilege ). ¶12 Because the superior court is in the best position to determine the effect of a prosecutor s comments on the jury, we 3 The court instructed: The State must prove guilt beyond a reasonable doubt based on the evidence. You must not conclude that the Defendant is likely to be guilty because the Defendant did not testify. The Defendant is not required to testify. The decision on whether or not to testify is left to the Defendant, acting with the advice of an attorney. You must not let this choice affect your deliberations in any way. 6 will not disturb its ruling absent a clear abuse of discretion. State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997); State v. Blackman, 201 Ariz. 527, 545, ¶ 76, 38 P.3d 1192, 1210 (App. 2002). When considering a motion for a mistrial based on alleged prosecutorial misconduct, a court should first consider whether the prosecutor s statements called jurors attention to matters the jury was not justified in considering, consider the effect those statements had on the jury. then Lee, 189 Ariz. at 616, 944 P.2d at 1230. ¶13 The superior court in this case characterized prosecutor s remark as a poor choice of words. the Nevertheless, it declined to grant a mistrial because it found the comment was not something [the prosecutor] stressed. . . . It wasn t like a key point of his argument. ¶14 The record supports the court s determination that the prosecutor s testify. argument did not focus on Biggs s failure to Further, given the overwhelming evidence satisfying the elements of the charges, we cannot conclude that the brief comment affected the verdicts or otherwise was so egregious as to deprive Biggs of a fair trial. Ariz. 301, 307, 823 P.2d 1309, See State v. Hernandez, 170 1315 (App. 1991); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (to prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the 7 trial with unfairness as to make the resulting conviction a denial of due process ). ¶15 Finally, the court s curative and other instructions dispelled presume any jurors prejudice follow a resulting court s from the comment, instructions. See and we State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). CONCLUSION ¶16 For the reasons stated above, we affirm Biggs s convictions and sentences. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ MICHAEL J. BROWN, Judge 8
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