State v. Hammons

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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. ) ) DEBORAH KIM HAMMONS, ) ) Appellant. ) ) DIVISION ONE FILED: 06-10-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0325 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-143688-001 DT The Honorable Michael W. Kemp, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Law Offices of Robert Gaffney by Robert Gaffney Attorney for Appellant Phoenix Scottsdale W I N T H R O P, Judge ¶1 Deborah Kim Hammons ( Appellant ) appeals from her conviction and sentence for aggravated assault, a class three dangerous felony. Appellant s counsel 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), advising this court that, after a search of the record on appeal, he found no appealable issues. Counsel now asks this court to search the record for fundamental error. 96 See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, (App. 1999) (stating that record for reversible error). this court reviews the entire This court afforded Appellant the opportunity to file a supplemental brief in propria persona, but she did not do so. However, she has raised two issues through counsel, which we address below. After reviewing the entire record, we affirm Appellant s conviction and sentence. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 At trial, the State presented the following evidence: On the night of July 11-12, 2008, Glendale police officer John Doe was dispatched to Appellant s address in response to a call that a gunshot had been fired. Officer Doe arrived shortly thereafter, entered the home, and found the victim still on the phone with the police dispatcher. The victim had a bloody paper towel held to his neck, and he identified himself as Appellant s husband. Officer Doe found no other person in the home, but he 1 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 found a Smith and Wesson .357 revolver in the master bedroom. When he removed the revolver s bullets to make the gun safe, Officer Doe found that one of the six bullets had been fired. Paramedics from the Glendale Fire Department recorded that the victim s chief complaint was neck pain after a gunshot wound and that the victim told them the weapon used had a .357 caliber. ¶3 Glendale police officer Eric Toonstra arrived and was directed to a neighbor s house. the neighbor s bedroom, The officer found Appellant in where he watched directed to transport her to jail. Officer Toonstra and the her until he was While in the bedroom with neighbor, Appellant made numerous unsolicited incriminating statements, including the following: it s bad for me, isn t it? ; I shot him ; I could have killed him, I tried ; this is bad for me, so bad ; I shot him. is bad. Can you imagine me in jail? ; and I m going to jail for a long time. jail, This Officer Appellant. After arresting and transporting Appellant to Toonstra called a female officer to search When the female officer asked Officer Toonstra why Appellant was there, Appellant responded, I tried to kill my husband. ¶4 Appellant testified that she and the victim visited a bar near their home on the evening of July 11, 2008. a disagreement between the couple while returning Following home, the victim told Appellant he was going to spend the night at his 3 mother s home, and he left. for bed, and fell asleep. Appellant returned home, prepared Later, she was awoken and realized there was another person in the house. had a gun, removed the gun from She announced that she the nightstand, turned and pointed the gun toward the hallway, and then heard the gun fire. Appellant testified that it was her intent to shoot the gun at whoever was coming down the hallway. ¶5 Upon realizing that she had shot Appellant retrieved the phone and dialed 911. her neighbor s house, where two Officer Toonstra, later arrived. Appellant admitted making police her husband, She then went to officers, including In her testimony at trial, statements against her interest in Officer Toonstra s presence, but she maintained for the first time that she believed the female officer at the jail was looking at her when the officer asked why she was at the jail the question to which Appellant responded, I tried to kill my husband. ¶6 Appellant was charged by indictment with one count of aggravated assault, a class three dangerous felony. An eight- member jury found Appellant guilty as charged, including finding that the sentenced felony Appellant incarceration credited was her in for a to the 71 dangerous a Arizona days offense. mitigated term Department of 4 The of pre-sentence of trial six court years Corrections and incarceration. Appellant filed a timely notice of appeal, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes sections 12- 120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010). ANALYSIS ¶7 Through counsel, Appellant argues that the trial court erred in not suppressing from evidence the statements against interest she made in Officer Toonstra s presence. argued in the trial court that admission of the Appellant statements violated her constitutional rights under Miranda 2 and that the statements were involuntary. court s rulings discretion. on In general, we review the trial evidentiary matters for an abuse of State v. Lacy, 187 Ariz. 340, 348, 929 P.2d 1288, 1296 (1996). ¶8 We find no abuse of the court s discretion, much less reversible error. Following an evidentiary hearing, the trial court ruled that the statements were admissible because they did not violate Miranda and were voluntary. the pertinent advised of conclusion home were Appellant 2 statements her that of not in rights, Appellant s part and Miranda while made in custody the statements conversations Although Appellant made record inside voluntarily response to Miranda v. Arizona, 384 U.S. 436 (1966). 5 and before being supports the the neighbor s initiated questioning by by law enforcement. See Miranda, 384 U.S. at 444. Further, the State presented testimony that the female police officer s question at the jail was not directed at Appellant, 3 and the record indicates no other actions or words on the part of police that should have been known by them to incriminating response. be reasonably likely to elicit an See Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see also State v. Kemp, 185 Ariz. 52, 58, 912 P.2d 1281, 1287 (1996) (holding that questions concerning dayto-day circumstances of defendant to respond). and find that it incarceration did not obligate the Likewise, we have reviewed the record presents no suggestion that Appellant s statements were coerced, induced by direct or implied promises, or otherwise involuntary. See generally Lacy, 187 Ariz. at 346, 929 P.2d at 1294; State v. Scott, 177 Ariz. 131, 136, 865 P.2d 792, 797 (1993). discretion, much Therefore, we find no abuse of the court s less reversible error, in the admission of Appellant s statements. ¶9 Appellant also argues through counsel that the trial court ordered her to disclose the specific defense she intended to use at trial. Appellant asserts that the court s order went beyond the scope of Arizona Rule of Criminal Procedure ( Rule ) 15, 3 and that she We also note question did not answered. was not required to disclose a specific that, even if directed at Appellant, the require an incriminating response to be 6 defense. We find her assertions unavailing. The trial court ordered the disclosure of Appellant s defense theory in order to make a pretrial determination as to the relevance of proposed testimony regarding Appellant s and the victim s character. And, pursuant to Rule 15.2(b), Appellant was required to provide notice before trial of all defenses for which she intended to introduce evidence at trial. See also Ariz. R. Crim. P. 15.2(g). ¶10 We have reviewed error and find none. the entire record for See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. at verdict. Further, the sentence was within the statutory limits. was opportunity to was substantial represented speak at by and counsel supported The evidence presented Appellant trial reversible the was The sentencing. and jury s allowed proceedings the were conducted in compliance with her constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶11 After the filing of this decision, defense counsel s obligations appeal have pertaining ended. to Appellant s Counsel need do representation no more than in this inform Appellant of the status of the appeal and of her future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). 7 Appellant has thirty days from the date of this decision to proceed, if she desires, with a pro per motion for reconsideration or petition for review. CONCLUSION ¶12 We affirm Appellant s conviction and sentence. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ______________/S/________________ MAURICE PORTLEY, Presiding Judge _____________/S/_________________ MARGARET H. DOWNIE, Judge 8

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