State v. Rivera

Annotate this Case

Download PDF

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. FRANCISCO JAVIER RIVERA, JR., Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03-18-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-1043 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-129201-001 DT The Honorable Julie P. Newell, Commissioner AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Julie A. Done, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Karen M. Noble, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 Francisco Javier Rivera ( Rivera ) appeals his conviction and sentence for one count of aggravated assault, a class-three felony. Rivera raises only one issue on appeal. He argues that the trial court erred by failing to have him make an on-the-record waiver of his right to testify. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On May 19, 2008, the State filed an indictment charging Rivera with one count of aggravated assault, a classthree dangerous felony. The State alleged that Rivera, while carrying a pocketknife, intentionally placed B.L. in reasonable apprehension of imminent physical injury. ¶3 The record reveals the following facts, which we view, along with all reasonable inferences therefrom, in the light most favorable to upholding the verdict. See State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶4 In early August 2008, Rivera prepared a handwritten motion for change of counsel. He stated in his motion that he and his appointed counsel have very different opinions on [his] case. He asserted that his attorney discounted his suggestions on how to defend his case, dismissed his ability to testify with prior convictions, failed to investigate as promised, and urged him to resolve the case by entering a plea agreement despite his 2 declared innocence. ¶5 On August conference. 18, 2008, the court held a settlement During the settlement conference, Rivera told the court that he was not satisfied with his court-appointed counsel because he did not believe that she was fighting for him. Rivera also told the court that he and his counsel disagreed on whether Rivera should testify at trial. Rivera s counsel had advised Rivera prior to the settlement conference that it would be in his best interest not to testify because if he testifies, the State could impeach him with a prior felony conviction. The judge at the settlement conference explained to Rivera on two different occasions that he has an absolute right to testify. The judge also explained to Rivera that he could file a request for a new attorney with the assigned trial judge at the pretrial conference. ¶6 Two days later at the pre-trial conference, Rivera filed the handwritten motion for change of counsel that he had prepared in early August. The trial judge denied the motion and informed Rivera that his attorney has an obligation to give [him] a fair and honest opinion of how she thinks the case is going to go once it gets to the trial stage. ¶7 On September 18, 2008, the court conducted a trial- management conference. During the conference, Rivera told the court that he had not seen his attorney in over a month and that 3 he did know what was going on in his case. advised the relationship court [was] that she believed irretrievably broken Rivera s counsel the and [Rivera s] benefit to appoint new counsel. attorney-client it would be to The court informed Rivera that it would be willing to grant his motion for change of counsel, but by doing so, it would delay the start date of the trial. Rivera informed the court that he no longer wanted a new attorney because he did not want to delay the trial any further. ¶8 Prior to the start of trial, Rivera s counsel disclosed to the State that Rivera may be called as a witness. ¶9 argued At some point after the trial had begun, the State that testified, if it either should be Rivera or permitted defense to witness, impeach them recorded phone conversation between Rivera and C.M. Rivera s girlfriend, and in the recorded C.M., with a C.M. was conversation Rivera told C.M. to memorize a letter that he had written to her, so that she would know what to say and not to say when she testified. The recorded conversation took place on September 22, 2008, while Rivera was in jail. ¶10 counsel At the beginning of the third day of trial, defense stated, without the jury being present, that [i]n chambers the Court indicated that if [C.M.] or [Rivera] took the stand, that they would be allowed to be impeached by the use of 4 that jail call. For that reason, Your Honor, I m not going to call [C.M.], and [Rivera] has decided not to take the stand. Rivera was present in the court and did not object when his attorney informed the court that Rivera would not be testifying. ¶11 On September 29, 2008, the jury found Rivera guilty of one count of aggravated assault. The jury further found that the offense was a dangerous offense because it involved the threatened use of a pocketknife. ¶12 At the sentencing hearing, the judge ordered Rivera to serve a mitigated prison term of six years. The judge also imposed a consecutive term of community supervision equal to one seventh of his prison term. The judge properly awarded Rivera 198 days of pre-sentence incarceration credit. ¶13 have Rivera timely appeals his conviction and sentence. jurisdiction pursuant to Article 6, Section 9, We of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2001), and -4033(A)(1) (Supp. 2009). DISCUSSION ¶14 Rivera argues that the trial court erred by failing to have him make an on-the-record waiver of his right to testify. Rivera asked contends him testify to for that make the an the trial judge on-the-record following reasons: 5 should waiver (1) the have of his court personally right knew to that Rivera intended to testify, (2) the court knew that Rivera s relationship with his attorney was on shaky ground, and (3) there were no witnesses to the assault, so Rivera s testimony was critical to his defense. Because no objection was made at trial, Rivera must demonstrate prejudicial, fundamental error or structural error to obtain a reversal. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Rivera argues that the error is both fundamental and structural. ¶15 After reviewing however, we find In Arizona, no the record error -- it not and Rivera s fundamental, arguments, structural, or otherwise. ¶16 is generally required that a defendant make an on-the-record waiver of his right to testify. See State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995) (holding that the defendant was not denied his right to testify and is not entitled to a new trial based on the failure to make an on-the-record waiver). Indeed, Rivera concedes in his brief that an on-the-record waiver of the right to testify is not required under Arizona law. The Arizona Supreme Court has stated, however, that it may be prudent in an appropriate case for a trial court to require a defendant to make an on-therecord waiver of his right to testify. Id. Rivera claims that this is such a case, but we conclude otherwise. ¶17 In State v. Martin, the court reversed the defendant s 6 conviction because the defendant unretreatingly demand[ed] that he be given the opportunity to testify but his counsel in direct contradiction to the defendant s wishes refuse[d] to put him on the stand. 102 Ariz. 142, 147, 426 P.2d 639, 644 (1967). In State v. Tillery, the defendant was indecisive about whether he wanted to testify. 107 Ariz. 34, 36, 481 P.2d 271, 273 (1971). On appeal, the defendant argued that the trial court refused to let him testify. Id. The Arizona Supreme Court explained, [w]ere defendant s desires to testify in his own behalf as strong and unrelentless as he now claims they were, he would not have maintained his silence throughout the entire trial. He might very easily have directed his request to the court or made motion to have his attorney removed. ¶18 Id. at 37. The record in this case reveals that prior to trial, Rivera intended to testify despite his counsel s advice to the contrary. Rivera settlement expressed conference, the his pre-trial motion for change of counsel. after the trial began. desire to testify conference, and at the in his Circumstances changed, however, During trial, the court indicated that the State could impeach Rivera by asking him about the recorded jail phone conversation where he told his girlfriend, C.M., to memorize a letter that he had to written to her. At the beginning of the third day of trial, in the presence of Rivera, Rivera s counsel stated to the 7 court that in light of the court s ruling, [Rivera] has decided not to take the stand. ¶19 If Rivera s desire to testify was as unrelenting as he now claims, he should have objected when his defense attorney told the court stand. that [Rivera] has decided not to take the Furthermore, it is unlikely that Rivera, who had been very outspoken throughout the pre-trial conferences, would have stood idly by if he truly intended to testify. Rivera s failure to object suggests that he ultimately agreed with his defense attorney that testifying would not be in his best interest. The record here does not reveal that the court knew Rivera intended to testify regardless of developments at trial. ¶20 Rivera s argument that the court knew he intended to testify because unavailing. he was noticed as a potential witness is See Gulbrandson, 184 Ariz. at 64-65, 906 P.2d at 597-98 (finding that although the defendant was listed as a potential witness, the defendant did not make his desire to testify known at trial and therefore his constitutional right to testify was not denied). It is not uncommon for a defendant to be listed as a potential witness but ultimately not called to testify. ¶21 Rivera s contention that the trial judge should have personally asked him to make an on-the-record waiver of his right to testify relationship with because his the attorney 8 court was on knew shaky that ground Rivera s is also unpersuasive. The court was willing to grant Rivera s motion for change of counsel, but Rivera made an informed decision to withdraw his request because he did not want to delay the start date of the trial. his decision settlement Moreover, Rivera knew that it was ultimately whether conference to testify told because Rivera on two the judge different at the occasions that he had an absolute right to testify. ¶22 Rivera s contention that his testimony was critical to his defense because there were no witnesses to the assault is one factor that may make it more prudent for a trial judge to personally inquire whether the defendant intends to waive his or her right to testify. P.2d at 598. See Gulbrandson, 184 Ariz. at 65, 906 The fact remains, however, that Arizona law does not require the trial court to engage the defendant in an onthe-record testify. discussion of his or her waiver of the right to Id.; State v. Allie, 147 Ariz. 320, 328, 710 P.2d 430, 438 (1985). ¶23 For these reasons, we conclude that defendant was not denied his right to testify and is not entitled to a new trial based on the failure to make We find no error. 9 an on-the-record waiver. CONCLUSION ¶24 The conviction and sentence are affirmed. ___/s/_______________________________ JOHN C. GEMMILL, Judge CONCURRING: __/s/_______________________________ SHELDON H. WEISBERG, Presiding Judge __/s/_______________________________ PHILIP HALL, Judge 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.