State v. Mercado

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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 DIVISION ONE FILED: 12/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RAYMOND JAMES MERCADO, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0245 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-125243-001 DT The Honorable Susan M. Brnovich, Judge 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 Eleanor S. Terpstra, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 for Raymond one count James of Mercado first-degree timely appeals burglary and his four conviction counts of kidnapping, Arizona all Revised class 2 Statutes -1501, -1507, and -1508. dangerous felonies, ( A.R.S. ) in sections violation 13-1301, of -1304, Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asks that we review the record for fundamental error. 857 P.2d 388, supplemental See State v. Richardson, 175 Ariz. 336, 339, 391 (App. brief in 1993). propria Mercado did but persona, identified three issues for our review. not file counsel a has We view the evidence in the light most favorable to sustaining the conviction. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 Late in the evening of May 14, 2010, Mercado and his friend Garrett went to a fast food restaurant; while there, Garrett suggested they rob a nearby apartment for marijuana and possibly money. building in Mercado and Garrett drove to the apartment Garrett s vehicle and saw M.B. sitting outside. They asked her where the guy went that works across the street at the gas station. Believing the men knew her next door neighbor, M.B. directed them to his apartment. ¶3 K.B., W.B., L.G., and D.G. were inside when Garrett and Mercado knocked on the apartment door. 2 When K.B. answered, the two men barged in and threw K.B. to the ground. Garrett pointed a gun at the occupants and asked, Where is the money? What do you got here? pockets and apartment. began D.G. chambered a round. Mercado told the four to empty their searching retrieved W.B. his while gun Garrett from behind searched the a and couch When Garrett went into another room, D.G. put the gun to Mercado s head. Mercado grabbed the gun, but D.G. tackled him and pinned him down. D.G. pointed his gun toward the hallway and waited for Garrett to emerge. did, D.G. told Garrett to lower his gun. When he When Garrett instead raised his weapon, D.G. shot twice, and Garrett returned fire. K.B., W.B. and L.G. fled and called 911. ¶4 Officers responded to a shots fired call. scene, officers apartment, using a determined people with someone being public address held system were at still inside gunpoint. announced police At the An the officer presence commanded the occupants to exit with their hands empty. and When Mercado exited, an officer asked questions to figure out what [was] going on, specifically injured people inside. whether there was a weapon or Mercado stated that he and Garrett had attempted to rob the apartment, but when Garrett pulled out [his gun], the homeowner also pulled out a gun and pointed it at Garrett. At that point, Mercado said he closed his eyes and heard gunshots going off. 3 ¶5 Inside the apartment, officers found a handgun on the coffee table, a handgun magazine on the floor nearby, and bullet holes in the walls. Garrett was on the floor in the bedroom with a handgun by his feet; he was pronounced dead at the scene. ¶6 Mercado was taken to the police station. After receiving Miranda warnings, Mercado stated that he and Garrett went to the apartment to possibly buy some marijuana and that he acted as a mediator after Garrett and D.G. pulled out their weapons. When confronted with his on-the-scene comments, though, Mercado admitted he and Garrett planned the burglary, that he went in there with Garrett, Garrett produced a gun, and [Mercado] told everybody . . . to stay down and . . . started searching W.B. s pockets. Officers impounded a vehicle parked near the apartment complex that matched a description Mercado provided. Inside, officers found legal papers belonging to Garrett and a fast food restaurant receipt dated May 14 at 10:46 p.m. ¶7 Mercado was indicted on one count of first-degree burglary (count 1), four counts of kidnapping (counts 2-5), and one count of first-degree murder (count 6). Each count was charged as a dangerous felony because a handgun was used. three-day jury trial ensued. A At the conclusion of the State s case, Mercado moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure. 4 The motion was denied. After deliberation, the jury found Mercado guilty of counts 1-5, which were found to be dangerous felonies; it found him not guilty of count 6. ¶8 The trial court sentenced Mercado to presumptive terms of 10.5 years on counts 1, 2, and 3, running concurrent to each other, but consecutively to counts 4 and 5. Mercado received presumptive terms of On counts 4 and 5, 10.5 years, running concurrent to each other but consecutively to the other counts. Mercado received 324 days pre-sentence incarceration credit for counts 1, 2 and 3. DISCUSSION ¶9 We have read and considered the brief submitted by counsel and have reviewed the entire record. 300, 451 P.2d at 881. Leon, 104 Ariz. at We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was present at all critical phases of the proceedings and was represented by counsel. properly impaneled and instructed. The jury was The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. ¶10 In the opening brief, counsel presents three issues at Mercado s request, which we address in turn. 5 I. Sentencing ¶11 Mercado contends the trial court should have imposed concurrent terms for each count. 1 ¶12 Except as otherwise We disagree. provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences . . . shall run consecutively unless the court expressly directs otherwise . . . [and] set[s] forth on the record the reason for its sentence. Stat. ( A.R.S. ) § 13-711(A). Consecutive Ariz. Rev. sentences cannot, however, be imposed [i]f a defendant s conduct constitutes a single act[.] State v. Stock, 220 Ariz. 507, 509, ¶ 11, 207 P.3d 760, 762 (App. 2009). To determine whether a defendant committed a single act, we subtract the evidence necessary to convict on the most serious charge and consider whether the remaining evidence satisfies the elements of the other crime. Id. (citation omitted). If it does, the defendant committed multiple acts and should receive consecutive sentences. (citation omitted). As we discuss 1 next, the trial Id. evidence Mercado also contends his sentence was excessive, but the sentences imposed fall within the statutory range. We also find no error in the classification of the first-degree burglary conviction as a dangerous offense, even though use of a deadly weapon is an element of first degree burglary. See State v. Rybolt, 133 Ariz. 276, 281, 650 P.2d 1258, 1263 (App. 1982), overruled on other grounds by State v. Diaz, 142 Ariz. 119, 688 P.2d 1011 (1984). 6 clearly demonstrates that Mercado committed separate acts warranting the imposition of consecutive terms. A. Burglary ¶13 A person commits burglary in the first degree if he enters or remains unlawfully in a residence with the intent to commit a theft or any felony therein while the person or accomplice knowingly possesses a dangerous weapon in the course of committing -1508(A). promote a theft or felony. A.R.S. facilitate the commission of an another in planning or committing an offense. rob 13-1507(A), An accomplice is a person who acts with the intent to or ¶14 §§ offense and aids A.R.S. § 13-301. Mercado told officers that he and Garrett planned to the apartment money. to get some marijuana and possibly some K.B. testified she opened the door that night expecting friends, but Mercado and Garrett barged in, threw her to the ground, and searching immediately the house. demanded Mercado money, told and . officers . . started that Garrett produced the gun once they were inside and that Mercado told everybody to stay down. could conclude that From these facts, a reasonable juror Mercado unlawfully entered the apartment with the intent to take drugs and money, and that Garrett was Mercado s accomplice and possessed a deadly weapon. 7 B. Kidnapping ¶15 Mercado was convicted of four counts of kidnapping, each pertaining kidnapping by intent . to reasonable to an individual knowingly . . restraining [p]lace apprehension the of investigation A another victim imminent victim or third person . . . . pre-sentence victim. or person commits person the third a with person in physical injury to the A.R.S. § 13-1304(A)(4). report recounted the The individual losses each victim suffered. ¶16 W.B. testified that Garrett was screaming, telling everyone to get on the ground or he [would] shoot them. The other occupants also testified that Garrett pointed the gun at them, told them to get down on the ground, and that Mercado kept the occupants apartment. as he in the living room Garrett checked the They further testified that Garrett carried the gun went back and forth between apartment and the living room. terrified while and kept her head the other areas in the L.B. testified that she was down while D.G. and Garrett exchanged gunfire because shots were going over [her] head. Even after D.G. restrained Mercado, the occupants stayed in the apartment because they did not know where the other guy with the gun was. Given these facts, reasonable jurors could conclude the four occupants were restrained with the intent to 8 place them injury. II. in reasonable apprehension of imminent physical A.R.S. § 13-1304(A)(4). Statements ¶17 Mercado next contends his statements were involuntary and should not have been admitted. identify the statements he Mercado does not, however, believes were inadmissible. We presume his objection relates to on-the-scene questions posed immediately after he exited the apartment and before Miranda warnings were issued. ¶18 Police officers certain constitutional are required rights to before inform suspects conducting of custodial interrogation, but that requirement is not intended to hamper the traditional crime. function of police officers in investigating Miranda v. Arizona, 384 U.S. 436, 447 (1966) (citation omitted). The record here does not establish that Mercado was subject prevent. P.3d to the of interrogation that Miranda seeks to See State v. Schinzel, 202 Ariz. 375, 380, ¶ 21, 45 1224, warnings type are 1229 (App. meant to 2002) (citations preserve the omitted) privilege ( Miranda against self- incrimination during incommunicado interrogation of individuals in a police-dominated atmosphere because such surroundings create inherently compelling pressures which work to undermine the individual s will to resist and to compel him to speak where he would not otherwise do so freely. ). 9 ¶19 Officers responded to a home invasion/robbery with shots fired. apartment, but uncontroverted They were knew unsure trial that people what evidence was was were still happening that an in inside. officer the The questioned Mercado about weapons and injuries in order for the police to know what [was] going on. This type of on-the-scene questioning is not affected by Miranda because the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. 384 U.S. at 477-78; see also State v. Heath, 122 Ariz. 36, 39, 592 P.2d 1302, 1305 (App. 1979) (Miranda warnings not required in emergency situation where officer s questions are designed to determine what had occurred and to protect those present ). ¶20 Additionally, jurors were instructed not to consider statements Mercado made to officers unless they first determined the statements were voluntarily followed its instructions. made. We presume the jury State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) (citation omitted). III. Ineffective Assistance of Counsel ¶21 Finally, assistance of Mercado counsel. Such claims must will not be addressed 10 by Rules brought of in Any such claims improvidently raised in a direct . Arizona be ineffective Procedure. . 32, of pursuant . Rule claims proceedings appeal to raises appellate Criminal courts regardless of their merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). CONCLUSION ¶22 We affirm Mercado s conviction and sentence. Counsel s obligations pertaining to Mercado s representation in this appeal inform have Mercado ended. of the Counsel status of need the do nothing appeal and more his than future options, unless counsel s review reveals an issue appropriate for submission review. to the Arizona Supreme Court by petition for State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Mercado shall have 30 days from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration petition for review. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 11 or

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