State v. Blackshire

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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. ) ) 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No. DIVISION ONE FILED: 09/27/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0174 DEPARTMENT B MEMORANDUM DECISION (Not for Publication – Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos.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

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