State v. Blackshire
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.
)
)
RAYNON JERMAINE BLACKSHIRE,
)
)
Appellant. )
__________________________________)
No.
DIVISION ONE
FILED: 09/27/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0174
DEPARTMENT B
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause Nos. CR2008-147550-001 SE
The Honorable Robert L. Gottsfield, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And
Myles A. Braccio, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By
Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix
S W A N N, Judge
¶1
Raynon Jermaine Blackshire (“Defendant”) appeals from
his convictions and sentences for aggravated assault, a class 3
dangerous
felony;
misconduct
involving
weapons,
a
class
4
felony;
and
Defendant
unlawful
contends
flight
that
the
from
police,
trial
court
a
class
committed
5
felony.
reversible
error because it (1) did not adhere to the protocol of Boykin1
and Ariz. R. Crim. P. Rule 17.6 (before finding that he was on
probation at the time of the offenses, and (2) “impermissibly
burdened” his due process right to testify on his own behalf by
allowing the state to establish his prior felony convictions
through Rule 609 impeachment and his admissions at trial.
For
reasons recited below, we affirm.
FACTS2 AND PROCEDURAL HISTORY
On July 28, 2008, Defendant and the victim, N.M.,3
¶2
spent
a
good
part
of
the
day
together
driving
around
in
Defendant’s Lexus SUV, going by mutual friends’ homes, stopping
at
Defendant’s
mother’s
or
grandmother’s
house,
eating
at
a
fast-food restaurant and generally “hanging out” as they had
done many times before.
told
N.M.
that
he
was
As they were driving around, Defendant
having
financial
problems
and
N.M.
confided that he himself was “going through the same thing, like
1
Boykin v. Alabama, 395 U.S. 238 (1969).
2
We view the evidence in the light most favorable to sustaining
the convictions and resolve all reasonable inferences against
defendant.
State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110
P.3d 1026, 1027 (App. 2005).
3
We use the victim’s initials to protect his privacy as a
victim. State v. Maldonado, 206 Ariz. 339, 341, ¶ 2 n.1, 78
P.3d 1060, 1062 n.1 (App. 2003).
2
everybody else.”
That is why, when Defendant dropped N.M. off
outside the entrance to his gated apartment complex in Chandler,
N.M. offered Defendant $100 to defray the cost of the gasoline
they had used driving around in the SUV that day.
¶3
When
N.M.
handed
Defendant
the
gas
money,
he
Defendant reach over toward the driver’s side of the SUV.
saw
N.M.
turned to get out; when he turned back to say good-bye, he saw a
gun pointed at his face.
N.M. said, “no,” pushed the SUV door
open, and started to run.
him in the back.
As he fled the car, Defendant shot
N.M. knew that he had been shot because he
could see blood and because he felt “very, very weak.”
¶4
While they were parked outside the entrance, another
vehicle activated the electronic gate, and the gate remained
open.
N.M. ran from the car through the open gate and into the
apartment
complex.
through the gate.
N.M
then
saw
Defendant
drive
his
SUV
Defendant began chasing N.M. through the
apartment complex.
¶5
N.M. cut through areas of the complex that he knew
Defendant could not traverse in his SUV and began knocking on
apartment
doors
asking
for
help.
Some
residents
who
were
barbecuing on their back patio eventually took him in and called
the police.
¶6
Minutes after the shooting, a Chandler police officer
stopped Defendant’s SUV when he observed the vehicle speeding
3
out of the apartment complex.
police
officer,
nearby mall.
both
tires
Defendant
After initially stopping for the
sped
off
in
his
vehicle
toward
a
In the process, Defendant hit a curb and blew out
on
the
passenger
side
of
his
vehicle.
Chandler
police officers arrested him as he attempted to walk away from
the vehicle.
¶7
Defendant
detectives
on
the
was
night
interviewed
of
the
by
crime.
two
Chandler
Defendant
police
admitted
fleeing from the police officer who initially stopped him, but
attributed it to the fact that he had become frightened when he
saw the officer had drawn his gun.
Defendant also admitted
being with N.M. when he was shot, but initially denied knowing
who had shot him.
Later in the interview Defendant told the
detective that N.M. had been “shot by a man named Philly,” but
that he did not know who “Philly” was.4
Defendant also mentioned
that he thought it might have been “a drug deal gone bad.”
¶8
While the interview was in progress, a K9 unit located
a semi-automatic handgun in the strip mall where Defendant was
apprehended.
A cartridge found in the gun appeared to match a
spent cartridge located on the driver’s side floorboard of the
SUV.
When the detective told Defendant during the interview
that N.M. had identified him as the shooter and that the police
4
Testimony at trial established that “Philly” was
nickname and the nickname by which Defendant called him.
4
N.M.’s
had located a weapon at the strip mall, Defendant stated “I’m
stuck.”
The detective asked Defendant what he meant by that,
and Defendant replied, “[W]ell you’ve got me and you’ve got the
gun.”
¶9
Defendant told a second detective who interviewed him
that “Philly” drove around with them in their travels, sitting
in the back seat of the SUV.
He also admitted knowing there was
a gun in the car and that “maybe” he threw it out the window.
Defendant admitted to this detective as well that he fled from
police, but attributed the flight to the fact that he “panicked”
when he noticed the gun on the back seat.
He admitted throwing
the gun out the window.
¶10
Defendant told this detective that N.M. was a “major
drug dealer,”5 that the incident was a “drug deal gone bad,” and
that he was only the “middle man” and had nothing to do with the
shooting.
Defendant subsequently drove with the detective to
the mall and indicated where he had thrown the weapon, which was
the spot where officers had previously located it.
¶11
A hospital report established that N.M. had sustained
a gunshot wound to his back.
The state charged Defendant with
Count 1, attempted murder, a class 2 dangerous felony; Count 2,
5
Based on this information, officers executed search warrants on
N.M.’s house and apartment in the early morning hours following
the shooting.
They found no drugs, weapons or large sums of
money, as Defendant suggested they would, in either location.
5
aggravated assault with a deadly weapon, a class 3 dangerous
felony; Count 3, misconduct involving weapons, while being a
prohibited possessor, a class 4 felony; and Count 4, unlawful
flight from a law enforcement vehicle, a class 5 felony.
¶12
his
At trial, N.M. testified that the bullet remained in
body
and
was
lodged
above
his
liver.
He
identified
Defendant as the shooter and testified that he was completely
“surprised” by the incident because he and Defendant had “never
had an argument . . . everything was fine . . . [they] didn’t
have any beef,” and he did not owe Defendant anything nor did
Defendant owe him anything.
¶13
Defendant testified on his own behalf and maintained
that he had tried to sell N.M. two kilos of cocaine, but that
N.M. had instead robbed him of it at gunpoint.
N.M. was shot by
accident when the two of them wrestled over N.M.’s gun while
they were both inside the SUV.
According to Defendant, after he
was shot, N.M. had “grabbed” the bag containing the cocaine and
run off into the apartment complex.
The only reason he had
driven after N.M. was to try and retrieve the drugs, not to harm
N.M. in any way.
¶14
Defendant explained that he fled from the traffic stop
only when he noticed N.M.’s gun on the floor of the passenger
side of the SUV, where it had dropped.
He stated that he had
“panicked” because he was “a felon” and had never had a gun.
6
He
did not want to get caught by police with N.M.’s gun in his
vehicle because he feared that they might think that the gun was
his and that he had tried to rob N.M.
that
he
had
lied
to
police
about
Defendant also explained
his
role
in
the
incident
because he did not want them to know that he was a drug dealer.
He further lied to them about N.M. being a “big drug dealer”
because he wanted the police to go to N.M.’s apartment and find
the drugs N.M. had stolen from him.
¶15
The jury acquitted Defendant of the attempted murder
offense but found him guilty as charged of all of the other
crimes.
On
February
8,
2010,
the
trial
court
sentenced
Defendant to a aggravated prison term of 11.25 years on the
aggravated assault, a presumptive prison term of 10 years for
misconduct involving weapons, and a presumptive prison term of 5
years for unlawful flight.
The court ordered all the sentences
to run concurrently.
¶16
Defendant
timely
appeals.
We
have
jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033.
DISCUSSION
I.
FAILURE TO ADHERE TO BOYKIN AND ARIZ. R. CRIM. P. 17.6
¶17
Defendant
contends
that
the
trial
court
committed
reversible error when it accepted without engaging in a full
Boykin and Rule 17.6 colloquy the parties’ “stipulation” that he
was
on
probation
at
the
time
7
he
committed
the
misconduct
involving weapons offense.
Relying on State v. Morales, 215
Ariz.
P.3d
59,
61,
¶
10,
157
479,
481
(2007),
Defendant
maintains that the court’s failure to engage in the Rule 17
colloquy
when
the
prior
was
“established
by
admission”
was
fundamental error.
¶18
Defendant failed to raise this issue before the trial
court.
He has therefore forfeited his right to appellate relief
on this issue unless he can “establish both that fundamental
error
exists
prejudice.”
and
that
the
in
his
case
caused
him
State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20,
115 P.3d 601, 607 (2005).
both.
error
The burden rests with Defendant to do
Id. at 567, ¶ 19, 115 P.3d at 607.
However, before we
engage in fundamental error review on appeal, we must first find
that the trial court committed some error.
State v. Lavers, 168
Ariz. 376, 385, 814 P.2d 333, 342 (1991).
Defendant has proven
no error on the trial court’s part.
¶19
Boykin recognizes that several federal constitutional
rights are waived whenever a defendant enters a plea of guilty
in a criminal case, including the right against compulsory selfincrimination, the right to a trial by jury, and the right to
confront
one’s
accusers.
requires
that
a
trial
395
court
U.S.
at
conduct
243.
an
It
“on
therefore
the
record
examination” of a defendant to assure that the defendant has a
full
understanding
of
what
the
8
plea
connotes
and
of
its
consequences “before accepting a guilty plea.”
nn. 5, 7 (emphasis added).
incorporates
the
Boykin
Id. at 243-44
Rule 17.2 of our Criminal Rules
safeguards
and
requires
that
Arizona
judges advise defendants of their rights and the consequences of
pleading guilty, admitting guilt or submitting on the record,
and
determine
that
they
understand
those
accepting a plea of guilty or no contest.”
17.2.
Rule
admissions
of
17.6
extends
prior
that
felony
rights
Ariz. R. Crim. P.
requirement
convictions
“[b]efore
by
to
defendants’
providing
that,
“[w]henever a prior conviction is charged, an admission thereto
by the defendant shall be accepted only under the provisions of
this rule, unless admitted by the defendant while testifying on
the stand.”
¶20
(Emphasis added.)
Defendant
maintains
that
his
attorney
and
the
prosecutor “stipulated” to the fact that he was on probation
when he committed the misconduct involving weapons offense.
He
contends that therefore the jury never determined whether he was
on probation and that, consequently, the trial court erred when
it accepted the “stipulation” for sentencing purposes without
also
first
conducting
a
Rule
17.6
colloquy.
We
find
this
argument misstates the record.
¶21
Contrary
to
Defendant’s
argument,
the
record
shows
that Defendant clearly admitted that he was on probation and
knew that he could not be in possession of a weapon at the time
9
he committed the present offenses.
Defendant admitted his 2007
felony conviction for possession of marijuana in CR 2007-132666
while on the stand during direct questioning by his attorney.6
During cross-examination the prosecutor asked Defendant whether
he would agree that, at the time of the shooting, he was still
on probation for that offense because probation had been ordered
to
run
“for
two
years
beginning
in
2007.”
When
Defendant
replied that he “thought” that the court had only imposed one
year’s probation, the following exchange took place:
[Prosecutor]: So if this document says that
back on June 18th of 2007 that you were put
on probation for two years, this document is
wrong?
[Defendant]: No, if that’s what it say, I
can’t say it’s wrong.
[Prosecutor]:
So then you would agree with
me that on the date of this offense you were
in fact in probation?
[Defendant]: Yes, I guess so. Yes.
[Prosecutor]: And you knew that you did not
have -- you could not be in the vicinity of
any type of weapon, right?
[Defendant]: Yes.
¶22
This testimony by Defendant, given while on the stand
under oath, was a sufficient and unambiguous admission that he
6
In fact, the record shows that Defendant admitted two felony
convictions while on the stand, one the possession of marijuana
conviction and the other a federal conviction for conspiracy to
distribute a controlled substance/cocaine for which he was
sentenced on April 11, 2002.
10
was on probation at the time of the shooting.
Under these
circumstances, therefore, the trial court did not err in not
performing a Rule 17.6 colloquy.
¶23
That his testimony was sufficient is further borne out
by the jury’s guilty verdict concerning the misconduct involving
weapons charge.
this
charge,
“prohibited
As part of its final instruction concerning
the
trial
possessor”
court
meant
instructed
any
person
the
jury
who:
“A,
that
has
a
been
convicted of a felony and whose civil rights to possess or carry
a gun or firearm has not been restored; or B, who is at the time
of
possession
serving
conviction
for
Defendant’s
arguments
rendering
its
a
a
term
felony
guilty
on
of
probation
offense.”
appeal,
verdict,
the
the
pursuant
Again,
record
jury
to
contrary
shows
that,
specifically
a
to
in
found
“beyond a reasonable doubt” that “[Defendant] at the time of
possessing the gun or firearm was serving a term of probation
pursuant to a conviction for a felony offense.”
¶24
The
“stipulation”
to
which
Defendant
refers
in
his
argument appears to derive from a statement that the trial judge
made in a conversation with counsel concerning the aggravation
phase of the proceedings as they awaited the jury’s verdicts.
It was not a trial “stipulation” as that term is normally used.7
7
In a trial stipulation, “[p]arties routinely stipulate to
easily proven facts . . . ‘to narrow issues and to promote
11
During his conversation with counsel, the trial judge noted that
the “appellate courts” wanted juries to decide the issue of
probation, not judges, and that the “exception” to that rule was
“if the defendant admits on the stand.”
that,
in
his
view,
Defendant
counsel agreed with him.
“did
The judge then stated
admit
that”
and
asked
if
He stated that if both counsel would
“stipulate” to that fact, he would inform the jury that it need
not
concern
itself
with
the
probation
part
during
the
aggravation hearing.
Both counsel agreed that Defendant had
admitted,
trial
and
the
judge
concluded
“[t]hats
the
stipulation, so we’re just going to talk about the three alleged
aggravators.”
Shortly thereafter the jury entered the courtroom
to render its verdicts, including the special verdict on the
misconduct charge.
¶25
The trial judge’s use of the word “stipulate” in this
context was intended to signify “agreement” that Defendant had
admitted while testifying on the stand that he was on probation
judicial economy.’” State v. Allen, 223 Ariz. 125, 127, ¶ 11,
220 P.3d 245, 247 (2009) (citation omitted).
“Although
stipulations may bind the parties and relieve them of the burden
of establishing the stipulated facts, stipulations do not bind
the jury.” Id. (citing State v. Virgo, 190 Ariz. 349, 353, 947
P.2d 923, 927 (App. 1997)).
12
at
the
time
including
of
the
the
offenses.
trial
judge,
Since
all
“agreed”
of
that
the
parties,8
Defendant
had
“admitted,” and since the record supports this as well, it is
clear that the trial court did not rely on any “stipulation”
concerning Defendant’s probation status.
the
trial
court
done
so,
the
jury’s
Furthermore, even had
verdict
regarding
misconduct offense would render any error moot.
the
Defendant’s
argument is, at best, misguided.
¶26
in
Defendant’s reliance on our supreme court’s decision
Morales
is likewise unavailing.
In
Morales, the supreme
court held that even a defense counsel’s “stipulation” to the
fact
of
a
prior
conviction
for
sentence-enhancement
requires a Rule 17.6 “plea-type colloquy.”
purposes
215 Ariz. at 61, ¶¶
8-9, 157 P.3d at 481.
Here, Defense counsel did not stipulate
either
prior
to
Defendant’s
convictions
or
probation
instead Defendant admitted them while on the stand.
status;
Morales
acknowledged that when the defendant makes this admission on the
stand, a Rule 17.6 colloquy is not required.
Id. at 61, ¶ 7,
157 P.3d at 481.
¶27
Defendant
has
failed
to
show
that
the
trial
court
committed any error, let alone fundamental error, by failing to
8
Defense counsel’s closing argument regarding the misconduct
charge also reflects the fact that he considered that Defendant
had admitted being on probation.
13
conduct the Rule 17.6 colloquy.
Lavers, 168 Ariz. at 385, 814
P.2d at 342.
II.
THE BURDEN ON DEFENDANT’S DUE PROCESS RIGHT TO TESTIFY
¶28
Defendant next argues that, by permitting the state to
establish his prior convictions via his admissions while on the
stand,
the
trial
court
violated
testify on his own behalf.
Evid.
609,
which
permits
his
constitutional
right
to
Defendant contends that Ariz. R.
the
state
to
impeach
a
testifying
defendant with his prior felonies, and Ariz. R. Crim. P. 17.6
and
19.1,
established
which
if
provide
the
that
defendant
a
prior
admits
it
conviction
from
the
may
be
stand,
are
constitutionally infirm because they alleviate the prosecution’s
burden of proving prior convictions and, concomitantly, “chill”
a defendant’s right to testify on his own behalf by forcing him
to give up the right to have the state prove his priors if he
does so.
¶29
Defendant has waived all but fundamental error on this
issue, first, because he failed to raise it before the trial
court
and,
second,
because
he
preserving his objection at trial.
¶ 19, 115 P.3d at 607.
chose
to
testify
without
Henderson, 210 Ariz. at 567,
The trial court in this case did not
commit any error, let alone fundamental error, by permitting the
state to establish the prior convictions through the applicable
rules. Lavers, 168 Ariz. at 385, 814 P.2d at 342.
14
¶30
Furthermore,
as
entitled
to
jury
convictions
have
the
beyond
a
the
state
find
reasonable
notes,
the
Defendant
existence
doubt.
See
of
was
his
Apprendi
not
prior
v.
New
Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to the jury, and proved beyond a reasonable doubt.”).
See also
State v. Fell, 210 Ariz. 554, 557, ¶ 8, 115 P.3d 594, 597
(2005).
Nor is the state’s burden of proving a prior conviction
“alleviated” when a defendant takes the stand; it is simply the
manner of proving it that changes.
still
be
prepared
to
elicit
Thus, the prosecutor must
and
present
the
required
information, particularly where, as here, the defendant may not
recall all of the pertinent information regarding the prior.
Moreover, the prosecutor must also have proven the prior to the
court and passed the scrutiny of a 609 hearing before he or she
will be permitted to elicit any statements regarding the prior
from the defendant.
¶31
Defendant’s reliance on Simmons v. United States, 390
U.S. 377 (1968), to support his argument is flawed.
not analogous.
Simmons is
Simmons holds that a defendant’s testimony at a
suppression hearing may not be “admitted against him at trial on
the issue of guilt unless he makes no objection” because to do
otherwise would oblige the defendant to give up a “valid Fourth
15
Amendment claim or . . . waive his Fifth Amendment privilege
against self-incrimination.”
390 U.S. at 394.
A defendant’s
admissions at trial regarding prior felony convictions are not
and cannot be admitted as evidence against him on the issue of
guilt.
CONCLUSION
¶32
For
the
foregoing
reasons,
we
affirm
Defendant’s
convictions and sentences.
/s/
___________________________________
PETER B. SWANN, Judge
CONCURRING:
/s/
_____________________________________
LAWRENCE F. WINTHROP, Presiding Judge
/s/
_____________________________________
MICHAEL J. BROWN, Judge
16
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.