State v. Reaves
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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. JOHN REAVES, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/01/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 10-0266 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR-2008-147289-001 DT The Honorable Steven P. Lynch, Commissioner AFFIRMED ________________________________________________________________ Thomas C. Horne, 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 Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix John Reaves In Propria Persona Tempe ________________________________________________________________ H A L L, Judge ¶1 Defendant appeals from his conviction and the sentence imposed. For the reasons set forth below, we affirm. ¶2 Defendant s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. The brief also advised that defendant asked the court to consider issues on appeal. This court granted defendant supplemental brief, which he did. an opportunity to file a See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). He raises two issues: (1) unconstitutional racial composition of the jury; and (2) prosecutorial misconduct. ¶3 to We review for fundamental error, which is error going the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quotation omitted). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Alvarado, 219 Ariz. 540, 541, ¶ 2, 200 P.3d 1037, 1038 (App. 2008). ¶4 Defendant was Finding no reversible error, we affirm. indicted for one count of criminal trespass in the first degree, a class six felony. ¶5 The following evidence was presented at trial. On July 26, 2008, M.B. and her friends were at M.B. s apartment 2 celebrating her 21st birthday. At approximately midnight, M.B. and her friends left the apartment, locking the doors behind them. ¶6 Approximately three-and-a-half hours later, M.B. and her friends returned to the apartment and found the garage door open. Initially, M.B. assumed that her roommate was home and had left the garage door open for them. ¶7 M.B. entered the apartment and found defendant in the kitchen. She asked him who he was and why he was standing in my kitchen. Defendant responded that he came because I heard you were having a party, and the door was locked, but I know security so I came in the back. When M.B. asked him to leave, defendant opened the refrigerator to take his bag with his beers out, and he finally left through the door and stood outside the front door, banging his head against the wall. ¶8 M.B. noticed that defendant had cleaned up the kitchen. The cups were stacked, bottles were taken out of the wine rack and different bottles put in, the glasses were moved in a circle and it was very meticulously laid out. found a note on her bed. M.B. also The note listed her best friend s name and driver license number, her brother s godmother s name, and another friend s name and driver license number. The note referred to them as lucky ladies and stated: Hope you all are doing great. I knocked on your door to say hello; knowing a 3 thing or two about security, I thought I might try your back. Luckily I m honest. I m an honest guy. Just to let you guys know, I got your back, not the laptop and other stuff. ¶9 M.B. reported the incident to the police and Officer R.C. of the Tempe Police Department responded to the call. The officer observed defendant standing outside the residence with Officer N.W. ¶10 The officers placed defendant under arrest. Defendant testified that, on the evening of July 26, 2008, he had been at the apartment complex pool with an old acquaintance and three other females. He stated that he was invited to a party at M.B. s apartment and he left the pool area and went to his father s apartment to get two beers to bring to the party. Defendant testified that he knocked on M.B. s door and it was open. home? He went inside and said [h]ello, is anyone Defendant searched the apartment, along with the outside patio and found no one home. He remained inside the apartment and decided to clean up. ¶11 After a three-day trial, the jury found defendant guilty of one count of criminal trespass in the first degree. The trial court sentenced defendant to three years probation. ¶12 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). 4 ¶13 Defendant asserts that he was not tried by a jury of his peers because the jury was stacked with white jurors. Defendant does not claim that any prospective minority jurors were improperly dismissed; rather, he argues that the jury selection process is unfair and did not include a sufficient number of minorities in the jury selection pool. ¶14 [T]o establish a prima facie violation of the fair- cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 the U.S. 357, 363-64 (1979). In Duren, United States Supreme Court applied this test and concluded that the defendant proved through statistical evidence that Missouri s statute permitting women to opt-out of jury service resulted in the systematic exclusion of women from jury panels. ¶15 Unlike Duren, however, defendant Id. at 364-66. here has made no prima facie showing of an infringement of his constitutional right to community. a jury drawn Id. at 368. from a fair cross section of the Indeed, although defendant claims the court system . . . stack[s] white jurors, he has provided no 5 evidence that the representation of minorities in venires drawn from Maricopa County is not fair and reasonable to the number of such persons in the community or identified any manner in which minorities are systematically excluded. Moreover, defendant has not attempted to demonstrate that the actual jurors who served on the panel were unfair or impartial, other than a general claim of implicit latent racial prejudice, and our review of the record does not reflect any impropriety in the jury selection process or evidence that the impaneled jurors were not fair and impartial. State v. Morris, 215 Ariz. 324, 334-35, ¶ 213-14 43, 160 P.3d 203, (2007) (explaining a verdict is reversed for errors in selecting the jury only if the defendant can show actual prejudice, i.e., that the jurors who actually served were not fair and impartial ). Therefore, defendant s claim is without merit. ¶16 Defendant next prosecutorial misconduct. has vengefully cases. stalked contends that the State engaged in First, he claims that the prosecutor and pursued him in three separate Defendant has failed to identify any evidence in the record that would support such a claim, and our review of the record reveals prosecutor none. engaged in Second, defendant prosecutorial argues misconduct that the during its closing argument by presenting a coded . . . emotional appeal to an entrenched racial bias. 6 ¶17 To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process, State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)), and was so pronounced and persistent that it permeate[d] the entire atmosphere of the trial. State v. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002) (quoting State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997)). Prosecutorial misconduct constitutes reversible error only if (1) misconduct exists and misconduct (2) could a have reasonable affected likelihood exists the verdict, denying defendant a fair trial. jury s that the thereby State v. Anderson, 210 Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005) (citation omitted). ¶18 Defendant claims that the prosecutor s references to the feminine nature of the victim s apartment played to the jurors fears of a black man . . . in a condo of two white girls. Our review of the record reveals, however, that the prosecutor s comments relating to the feminine décor of the victim s apartment was in direct response to defendant s trial testimony that he mistakenly believed that he was in a male friend s apartment. We discern 7 no inappropriate, racial comments and defendant s claim of prosecutorial misconduct is without merit. ¶19 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offense for which he was convicted. ¶20 After obligations appeal have the pertaining ended. filing to of this defendant s Counsel need do decision, counsel s representation no more than in this inform defendant of the status of the appeal and his future options, unless counsel s review reveals 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). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. 8 CONCLUSION ¶21 For the foregoing reasons, we affirm defendant s conviction and sentence. _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/_______________________________ JON W. THOMPSON, Judge _/s/_______________________________ LAWRENCE F. WINTHROP, Judge 9
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