State v. Stewart
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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. RAMON DARNELL STEWART, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0618 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. 2008-115465-001 SE The Honorable Connie Contes, Judge CONVICTION AND SENTENCE AFFIRMED Terry Goddard, 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 Peg Green, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 on April conviction murder. (1969), 2, following 2009 of Ramon one Darnell count of Stewart s second-degree Stewart s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Stewart was given the opportunity to file a supplemental brief but did not do so. Stewart requested his counsel raise three issues, which we address below. Counsel asks this court to search the record error. for fundamental After reviewing the entire record, we affirm Stewart s convictions and sentences. FACTUAL AND PROCEDURAL HISTORY ¶2 2006.1 J.L. was shot and killed in Mesa one night in July While he was driving, someone waived at him from the median to pull over, and he did. J.L. s fiancé was following J.L. in her car until he pulled off the road. After J.L. pulled over to talk to the man, he called his fiancé and spoke to her briefly. When he did not arrive home, J.L. s fiancé attempted to call him three times but received no answer. return to where he had pulled off the road. She decided to There she found J.L. lying unresponsive in front of his car. 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Stewart. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 ¶3 A pizza delivery driver who was driving by the location at which J.L. had pulled over testified he heard two bangs and saw the victim fall to the ground. The police found no evidence that J.L. had any weapons with him at the time or that anyone had been in his car with him. The last outgoing call from J.L. s cell phone was to 9-1-1. ¶4 Police received an involved in the shooting. anonymous tip that Stewart was They found a phone number in J.L. s cell phone under the name Ramon ; the number was identical to Stewart s phone transposed. number except the last two numbers were A police detective testified Stewart lived less than one mile from the crime scene. Police interviewed Stewart for the first time in August 2006, and he admitted knowing J.L. In April 2007, police interviewed Stewart s friend Norberto R., who, in exchange for the police dropping drug charges against him, provided information regarding the murder weapon and discussions he had with Stewart about the shooting. ¶5 Police interviewed Stewart again in March 2008. A detective testified that the interview began with police reading a Miranda2 warning to Stewart. The detective testified Stewart said he could not admit killing J.L. because if he did, he would not be able to avoid punishment. 2 A video of the interview was Miranda v. Arizona, 384 U.S. 436 (1966). 3 played for the jury. In addition, the booking officer at the jail testified that as he was processing Stewart into detention, Stewart spontaneously confessed to the shooting. ¶6 Norberto R. testified Stewart had told him about the murder and indirectly told him he was the shooter. He further testified he had returned the murder weapon to Stewart about two weeks prior to the shooting and that Stewart asked him questions about whether they would find prints on the gun if he had wiped it down a certain way. Stewart testified and admitted being present at the shooting. He also testified he felt a little responsible could because he have prevented the whole situation. ¶7 Stewart was convicted of one count of second-degree murder, and the jury found that it was a dangerous offense. was sentenced imprisonment. to the maximum allowable Stewart timely appealed. term of 22 He years We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033 (2010). DISCUSSION A. ¶8 Issues Raised by Stewart. Stewart requested his attorney raise the following issues: (1) he did not have a jury of his peers because there 4 were no African-Americans on the jury; (2) he never told the police he committed the crime, there is no witness to the crime, and he told the police someone else committed the crime (we take these arguments together as a contention that the verdict was not supported by the evidence); and (3) the court should have allowed evidence of J.L. s blood alcohol level. We address each issue in turn. 1. ¶9 Jury of peers. A criminal defendant has the right to a public trial by an impartial jury of the county in which the offense is alleged to have been committed. The State may not Ariz. Const. art. 2, § 24. intentionally preclude defendant s race from being on a jury. members of the Batson v. Kentucky, 476 U.S. 79, 85 (1986). ¶10 Stewart did not object to the composition of the jury at trial, so we review only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). The constitution composition. does not guarantee a jury of any specific State v. Doerr, 193 Ariz. 56, 65, ¶ 40, 969 P.2d 1168, 1177 (1998). underrepresented on Mere observation that a particular group is a particular constitutional challenge. panel does not support a State v. Lee, 114 Ariz. 101, 103, 559 P.2d 657, 659 (1976). 5 ¶11 Stewart does not argue the venire panel was not a fair cross-section of the community, nor does he argue the State intentionally precluded African-Americans from the jury panel. Our review of the record discloses no evidence of the race of any member of the venire panel or the jury. Therefore, we find no error. 2. Sufficiency of the evidence. ¶12 There was sufficient circumstantial evidence for the jury to convict Stewart. Arizona law makes no distinction between circumstantial and direct evidence. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). ¶13 Although Stewart did not directly admit that he shot J.L., he stated during his interview with the police that there was only one other person with him at the time of the shooting, and that person did not shoot J.L. little responsible witnessed it. for the He testified that he felt a whole thing because I actually Further, Norberto R. testified that the gun belonged to Stewart, and Stewart admitted handing the gun to the other person occurred. present Stewart at the shooting indirectly told after Norberto the that shooting he had committed the murder and admitted to the booking officer that he had committed the crime. This evidence, with other evidence 6 recounted above, constituted sufficient evidence for the jury to convict Stewart. 3. Evidence of J.L. s blood-alcohol level. ¶14 The court denied Stewart s request to offer evidence of J.L. s blood-alcohol level because it concluded the evidence was not relevant and might mislead the jury. decisions admitting discretion. or excluding We review trial court evidence for abuse of State v. Hampton, 213 Ariz. 167, 178, ¶ 45, 140 P.3d 950, 961 (2006). ¶15 not All relevant evidence is admissible so long as it is specifically excluded Ariz. R. Evid. 402. admissible. tendency to Id. make by statute, rule or constitution. Evidence which is not relevant is not Relevant evidence is evidence having any the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ariz. R. Evid. 401. ¶16 Neither on appeal nor in the superior court has Stewart explained how J.L. s blood-alcohol level might be relevant to whether Stewart shot J.L. Therefore, we conclude that the superior court did not err by refusing to admit this evidence. 7 B. Fundamental Error Review. ¶17 The record reflects Stewart received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. held appropriate pretrial hearings. Evidence 609, the court held a The court Pursuant to Arizona Rule of hearing on Stewart s prior convictions and sanitized his prior felony conviction. ¶18 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of eight members with 2 alternates. The court the properly charge, the instructed State s the burden jury of proof on the and elements the of necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed considered a by polling. presentence report The and court addressed received its and contents during the sentencing hearing and imposed a legal sentence on the charges arising out of the crimes of which Stewart was convicted. CONCLUSION ¶19 We have reviewed the entire record for reversible error and find none. ¶20 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to Stewart s 8 representation in this appeal have ended. Defense counsel need do no more than inform Stewart 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). On the court s own motion, Stewart has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Stewart has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/__________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 9
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