State v. Johnson

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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, v. ROBERT JESSE JOHNSON, ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) DIVISION ONE FILED: 05/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 10-0959 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-171141-001SE The Honorable Carolyn K. Passamonte, Judge Pro Tem 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 W I N T H R O P, Chief Judge ¶1 Robert Jesse Johnson ( Appellant ) appeals his convictions and sentences for two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs ( DUI ) and one count of unlawful flight from a law enforcement vehicle. Appellant s counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Appellant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2012), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. I. ¶3 On FACTS AND PROCEDURAL HISTORY 2 February 18, 2010, a grand jury issued an indictment, charging Appellant with Counts I and III, aggravated 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have since occurred. 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 2 DUI, each a class four felony, in violation of A.R.S. §§ 281381(A)(1)-(2) and 28-1383(A)(1), and Count II, unlawful flight from a pursuing law enforcement vehicle, a class five felony, in violation of A.R.S. § 28-622.01. that Appellant had driven The State alleged in Count I while under the influence of intoxicating liquor and while his Arizona driver s license was suspended. The State alleged in Count III that Appellant had driven while he had an alcohol concentration of 0.08 or higher in his body within two hours of the time of driving and while his Arizona driver s license was suspended. alleged that Appellant had four The State later historical prior felony convictions and a pending misdemeanor charge for DUI. ¶4 At trial, the State presented the following evidence: At approximately 8:13 p.m. on November 9, 2009, Deputy Thompson of the Maricopa County Sheriff s Office ( MCSO ) was driving in a fully vehicle marked being patrol driven vehicle with in only Mesa one when working she observed headlight. a The deputy conducted a traffic stop of the vehicle, which pulled into a gas station and parked. vehicle, approached the his other The deputy exited her patrol vehicle, license, and asked registration, and the driver (Appellant) for proof of insurance. Appellant provided his registration and proof of insurance, but he did not have his Arizona driver s license with him. In the meantime, MCSO Deputy Follett, who was also driving 3 a fully marked sheriff s vehicle, arrived at the gas station to act as backup. ¶5 While speaking with Appellant, Deputy Thompson detected the odor of alcohol and noticed that Appellant s eyes were bloodshot. night. Appellant admitted he had been drinking that Deputy Thompson also noticed that Appellant had a bottle between his legs, and after Appellant admitted it was a bottle of beer, she advised him that it was illegal to have an open container of alcohol in the car with him. When Deputy Thompson returned to her vehicle to conduct a background check, Appellant started his vehicle and drove away, even though he had not been informed that he was free to leave. ¶6 Deputy Follett activated his vehicle s lights siren and followed Appellant as he left the gas station. and Deputy Thompson activated her vehicle s lights and siren and followed Deputy Follett. During the pursuit, Appellant s vehicle s speed reached approximately seventy miles per hour, which occurred in a residential twenty-five mile-per-hour speed zone. Deputy Thompson estimated that the pursuit lasted approximately three minutes and covered roughly one and one-half miles, and in her opinion, Appellant could have safely pulled his vehicle to the side of the road along the route. vehicle through a cinder block wall. 4 Instead, Appellant drove his ¶7 After the deputies stopped their vehicles, Deputy Follett ran toward the driver s side of Appellant s vehicle, and Deputy Thompson approached the passenger s side. Appellant, who did not appear to be injured, had begun drinking a beer when the deputies arrived. The deputies arrested Appellant, handcuffed him, in and Thompson put him transported Deputy him Thompson s to a nearby patrol car. sheriff s Deputy substation. Appellant drank no alcohol after approximately 8:20 p.m. ¶8 At the substation, Deputy Thompson advised Appellant of his rights pursuant to Miranda, 3 and Appellant agreed to speak to her. After the deputy read the admin per se, however, Appellant refused to voluntarily submit to a blood test, stating you and I both know I m already drunk. Appellant further stated that he had not eaten for approximately three days and had begun drinking that day at approximately 6:00 a.m. He also admitted drinking two forty-ounce beers in the hour before the traffic stop and declared he had consumed more [alcohol] than the law allows. ¶9 Deputy Thompson obtained a search warrant in order to have Appellant s blood drawn, and she was present when a trained phlebotomist from ( DPS ) Appellant s 3 drew the Arizona blood Department at 12:37 of a.m. See Miranda v. Arizona, 384 U.S. 436 (1966). 5 Public and Safety sealed the vials. The vials were placed in sealed boxes, which were stored in a refrigerator in a locked evidence room. ¶10 Subsequent alcohol content criminalist testing ( BAC ) testified indicated was that, that approximately based on a Appellant s 0.211. retrograde blood A DPS analysis, Appellant s BAC within two hours of the traffic stop would have been between 0.233 and 0.279. ¶11 A custodian of records for the Arizona Motor Vehicle Department ( MVD ) testified that MVD s records showed that, at the time of the charged offenses, Appellant s Arizona driving privileges were suspended. Notice of the suspension had been mailed to Appellant s current address by first-class mail on November 4, 2008. ¶12 Appellant Appellant guilty chose of all not to three testify. counts as The jury charged. found After determining that the State had proven the existence of at least two historical prior felony convictions, the trial court sentenced Appellant to concurrent, partially mitigated (minimum) terms of eight years imprisonment in the Arizona Department of Corrections for Count I, four years imprisonment for Count II, and eight years imprisonment for Count III. The court also credited Appellant for 311 days of presentence incarceration. ¶13 court In a minute entry filed November 10, 2010, the trial granted Appellant s petition 6 for post-conviction relief requesting that he be allowed to file a delayed notice of appeal, and Appellant filed a timely delayed notice of appeal on November 30, 2010. See Ariz. R. Crim. P. 31.3(b), 32.1(f). II. ¶14 but ANALYSIS At the beginning of trial (after the jury was selected before presentation of the evidence), the court granted Appellant s oral motion to amend the reading of the indictment to eliminate the phrase in violation reading the charges to the jury. charged counts to the jury, of Arizona object, but he advises however, this when When reading each of the the clerk language that the court had agreed to eliminate. not law court on included the Appellant did appeal that the incident occurred. ¶15 We find no reversible error as a result of the reading of the indictment. As read, the indictment simply informed the jury of the allegations made by the State, and the jury was also instructed that it must decide the facts only from the evidence presented in court, that the charges made in the indictment are not evidence against the defendant, and that it must not think the defendant is guilty just because of the charge. presume the jury followed the court s instructions. We See State v. Prince, 204 Ariz. 156, 158, ¶ 9, 61 P.3d 450, 452 (2003). Further, Appellant prejudiced him. makes no argument that the incident Although the clerk s reading of the indictment 7 did not conform to the reading agreed to by the court when it granted Appellant s motion, we find no error, much less fundamental, prejudicial error in the reading of the indictment. ¶16 Appellant also notes that, near the end of the second day of trial, juror number three informed the court that earlier that day, State s during the witnesses discussing the case. 4 lunch (Deputy break, he Thompson overheard and two Deputy of the Follett) When questioned by the court outside the presence of the other jurors and with both counsel present, the juror stated that he overheard Deputy Thompson telling [Deputy Follett] before he came in about the questions that they were asking about, if he knew how much extensive training have you had for DUI s and things like that. The juror further stated that he had then walked in a different direction and heard no more of prosecutor the conversation. declined the Both opportunity defense to counsel further and the question the juror, and the court admonished the juror not to discuss the incident with any other jurors. 4 Defense counsel had previously invoked the rule of exclusion of witnesses, and the prosecutor had designated Deputy Thompson as the State s case agent. See Ariz. R. Evid. 615 (stating that, if requested by a party, the court must order witnesses excluded so they cannot hear the testimony of other witnesses). Deputy Thompson was the State s first witness, and the lunch break occurred during the State s direct examination of her. 8 ¶17 The court stated that it found the incident very troubling ; however, defense counsel indicated that he wanted the trial to proceed. Counsel noted that although he had invoked the rule of exclusion, he would not take issue with the conversation due to the circumstances, and he explained as follows: Your Honor, Defense doesn t take issue to what has supposedly occurred. Defense is the one that invoked the rule. Defense does not have a problem with what took place, and the juror s explanation prior to the lunch break the State was still in there [sic] direct examination of the officer. I m sure the State has talked to both officers about the questions that were going to be elicited and the answers that the officers would give. Defense has not yet begun cross-examination. I think this would be more egregious if the officers were talking about, well, here s what the Defense counsel asked. Here s how you should answer that. Or here s what to expect. We didn t get to that point yet, and if Defense doesn t have an objection to just proceeding with trial with that juror still on the panel, I don t see why the State would have an issue. ¶18 The prosecutor stated that, given the lack of a motion by defense counsel, he would decline to take a position at this time, and the court proceeded with the trial. On the last day of trial, the court asked juror number three if anything he overheard would make it difficult for him impartial, and he replied that it would not. to be fair and Later that day, juror number three was picked by lot to be the alternate and did not take part in deliberations. 9 ¶19 Appellant makes no argument that this incident prejudiced him in any way, and given the timing of the incident, we agree with the analysis provided by defense counsel. Although the court and both counsel should have taken a more active role to ensure that future discussions between witnesses did not take place, the record provides no indication that any such discussions occurred, and we find no error, much less fundamental, reversible error, in the court s handling of the issue. ¶20 We have reviewed error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the filing of this Arizona Rules of Criminal Procedure. ¶21 After obligations appeal have pertaining ended. to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals 10 an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. III. ¶22 CONCLUSION Appellant s convictions and sentences are affirmed. _____________/S/_________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ______________/S/__________________ PATRICIA K. NORRIS, Presiding Judge ______________/S/__________________ MARGARET H. DOWNIE, Judge 11

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