State v. Shelley

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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. WILLIAM EUGENE SHELLEY, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/31/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-1012 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2010-00027 The Honorable Steven F. Conn, Judge AFFIRMED IN PART; VACATED IN PART Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant J O H N S E N, Judge Kingman ¶1 leaving William the Eugene scene resulting sentence. of Shelley an appeals accident his involving conviction death and of the We affirm the conviction and sentence, but vacate the restitution order. FACTS AND PROCEDURAL BACKGROUND ¶2 A light blue flatbed truck turned left in front of an oncoming motorcycle, fatally injuring the motorcyclist. 1 driver of the truck fled before police arrived. The Detective James Todd Foster received an anonymous tip linking a blue flatbed to Shelley s residence in a rural area outside Kingman. Aerial surveillance of his residence revealed two blue flatbed trucks parked in a carport and a third blue flatbed parked behind a partially dismantled trailer near the rear. ¶3 Foster, Detective Sergeant Bob Fisk, Detective Gabe Otero and another detective, all in plain clothes with badges and guns holstered on their hips, went to Shelley s property. In unmarked vehicles, they drove through the gate, which was then unlocked and open, and parked in front of the residence. Foster knocked on the front door; when there was no response, Fisk walked around the residence and knocked on the back door. 1 Upon review, we view the facts in the light most favorable to sustaining the verdict and resolve all inferences against Shelley. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). Similarly, we view evidence elicited at a suppression hearing in the light most favorable to affirming the court s decision. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). 2 Shelley then approached Fisk from behind a vehicle carport attached to the back of the residence. in the Fisk identified himself and informed Shelley they were investigating a traffic accident in Kingman. Foster then came around from the front door, introduced himself and asked Shelley if it was okay to look at these trucks responded, Go ahead. that are on your property. Shelley Foster determined the flatbed behind the partially dismantled trailer was the vehicle involved in the accident. ¶4 Shelley was accident involving charged death with in leaving violation of the scene Arizona of an Revised Statutes ( A.R.S. ) section 28-661(B) (2012), a Class 2 felony. 2 He filed two motions to suppress evidence, one alleging the officers entry onto and search of his property violated the Fourth Amendment and a second alleging a violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). 3 ¶5 The court heard evidence motion over the course of three days. on the Fourth Amendment At the conclusion of the third day of testimony, the court denied the motion, ruling that Shelley did in fact consent to a search of the property [and] 2 Absent material revisions after the date of an offense, we cite to a statute s current Westlaw version. 3 alleged The court granted the Miranda motion in part and denied it in part. Shelley has not appealed from the court s ruling on that motion. 3 that there was no search of the property until after he had consented. Ten days after the second day of testimony but before the scheduled third day of the proceedings, Shelley moved for a change of judge for cause, alleging several statements and rulings at the hearing demonstrated that the assigned superior court judge was biased. Another judge denied the motion without hearing. ¶6 At a subsequent trial management conference, the parties submitted a written Stipulation to Waive Jury Trial and Submit Case to Court on Agreed Record signed by Shelley and both attorneys. After a colloquy, the court found Shelley had knowingly, intelligently and voluntarily agreed to waive a jury trial and to submit the case to the court on an agreed record. ¶7 Three days later, the court issued an order finding Shelley guilty as charged. It sentenced him to a mitigated term of four years incarceration and ordered him to pay restitution of $9,922, representing the motorcyclist s medical bills and damage to the motorcycle. ¶8 Shelley timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-120.21(A)(1), 13-4031 and -4033 (2012). 4 DISCUSSION A. Motion to Suppress. 1. Restriction of cross-examination of police witnesses. ¶9 Shelley first argues the court erred by restricting his examination of police witnesses at the suppression hearing. We generally examination review for limitations abuse of on the discretion, scope but of review crossde novo evidentiary rulings implicating the Confrontation Clause. State v. Ellison, 213 Ariz. 116, 129, 131-32, ¶¶ 42, 52, 140 P.3d 899, 912, 914-15 (2006). ¶10 The constitutional right to confrontation encompasses cross-examination of a witness to expose bias or motive. Davis v. Alaska, 415 U.S. 308, 315-18 (1974). See However, [t]rial judges retain wide latitude insofar as the Confrontation Clause is concerned examination to impose based on reasonable concerns limits about, on among such other crossthings, harassment, prejudice, confusion of the issues, the witness [s] safety, or interrogation that is repetitive or only marginally relevant. State v. Canez, 202 Ariz. 133, 153, ¶ 62, 42 P.3d 564, 584 (2002) (quotations omitted). on cross-examination whether evidence the defendant relevant credibility. Id. to on was a The case-by-case denied issues We evaluate limitations in the the touchstone 5 basis to opportunity case is or to the whether determine present witness s the cross- examination as limited leaves the fact-finder in possession of sufficient information to assess the bias and motives of the witness. State v. Bracy, 145 Ariz. 520, 533, 703 P.2d 464, 477 (1985). ¶11 At the hearing on the motion to suppress, Shelley sought to offer evidence of police policies on obtaining and recording a suspect s consent to search in an effort to impeach Fisk s and search. of Foster s testimony that Shelley consented to the The court sustained the State s objections on the basis relevance. impeaching the The court, officers however, credibility heard ample evidence on whether Shelley consented to the search and explicitly recognized that it is obviously very damaging to [the officers ] credibility that [consent] is a critical issue that was not included in a police report and took into consideration the officers failure to note in their report that Shelley consented to the search. see no error when, as here, the court heard We sufficient information to assess the bias and motives of the witness[es] and explicitly did so. See Bracy, 145 Ariz. at 533, 703 P.2d at 477. ¶12 Shelley also sought to show that Kingman police had failed to obtain consent from a neighboring landowner before they observed Shelley s residence from the neighboring parcel; the court sustained the State s 6 objection on grounds of relevance. The court did disallowing such evidence. party s property does 488, 490, Illinois, 642 P.2d concluding 439 U.S. that the abuse its discretion in A warrantless entry onto a third not constitutional rights. not implicate the defendant s own See, e.g., State v. Harris, 131 Ariz. 485, 128 487 (App. (1978)). evidence 1982) Nor would did be (citing the Rakas court irrelevant to err v. in whether officers violated Shelley s Fourth Amendment rights when they came onto his property. We do not agree that one assertedly illegal entry provides a motive for or bears on the propriety of another. 2. Restriction of defense expert s testimony. ¶13 Shelley next contends the court erred by improperly limiting the scope of a defense expert s opinion testimony at the suppression hearing. expert opinion knowledge will testimony assist the Arizona Rule of Evidence 702 allows [i]f [the trier of expert s] fact evidence or to determine a fact in issue. to specialized understand the Ariz. R. Evid. 702. 4 The law does not permit expert testimony on how the [factfinder] should decide the case. State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986). Whether the proffered opinion appropriately will assist the fact-finder 4 rests within the We cite to the version of Rule 702 in effect at the time of the hearing. 7 superior court s sound discretion, and we will reverse only upon a clear abuse of that discretion. State v. Mincey, 141 Ariz. 425, 441, 687 P.2d 1180, 1196 (1984). ¶14 The court precluded Shelley s expert from testifying on the existence of probable cause to search, the availability of a search warrant and whether and when Shelley was in custody. But probable cause to search and the possibility of obtaining a search warrant were irrelevant to Shelley s motion to suppress, given that the officers testified, and the court found, that Shelley consented to the search. See, e.g., State v. Guillen, 223 Ariz. 314, 317, ¶ 11, 223 P.3d 658, 661 (2010) (consent as exception to Fourth Amendment warrant requirement). To the extent the issue of whether Shelley was in custody could be relevant to the voluntariness of his consent, expert opinion testimony is not admissible unless it may assist the trier of fact. Ariz. R. Evid. 704 & cmt. The superior court is presumed to know the law, see State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887 (1997), and we fail to see how the court abused its discretion in precluding expert opinion on the issue of consent. 3. Denial of motion to suppress. ¶15 We review the superior court s denial of a motion to suppress for abuse of discretion, but consider de conclusions on constitutional or purely legal issues. novo its State v. Blakley, 226 Ariz. 25, 27, ¶ 5, 243 P.3d 628, 630 (App. 2010). 8 We consider only evidence presented at the suppression hearing, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), and view this evidence in the light most favorable to sustaining the court s decision. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). ¶16 [S]ubject only to a few specifically established and well-delineated exceptions, a warrantless unreasonable under the Fourth Amendment. 389 U.S. 347, 357 (1967). Consent search is presumed Katz v. United States, is one such exception. Guillen, 223 Ariz. at 317, ¶ 11, 223 P.3d at 661. ¶17 On appeal, Shelley does not contest the superior court s conclusion that he consented to the search. He argues, however, motion that the court should have granted his to suppress because the officer s [sic] entry onto [his] property at the location in the carport where they encountered him, and where they began the search of the vehicle prior to obtaining consent was illegal. ¶18 Consent is invalid constitutional violation. P.3d at 661. The if tainted by a prior Guillen, 223 Ariz. at 317, ¶ 13, 223 question . . . is whether, granting establishment of the primary illegality, the evidence to which instant objection [has been] made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 9 Blakley, 226 Ariz. at 31, ¶ 20, 243 P.3d at 634 (alteration in original) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). ¶19 We consent. discern The four no circumstances officers invalidating legitimately entered Shelley s Shelley s property through the open front gate, as Foster testified, to make contact with [Shelley] and ask permission to look at the vehicle. [N]o Fourth Amendment violation occurs when an officer, without a warrant, crosses the curtilage to knock on the front door to ask questions of the resident. State v. Olm, 223 Ariz. 429, 433, ¶ 13, 224 P.3d 245, 249 (App. 2010) (citing United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001)). Although Shelley argues Fisk improperly proceeded to the rear of his residence as sometimes move attempting to Foster away contact from the was at the the front occupants of front, door a officers when they residence, as may are by proceeding to a back door also accessible to the general public. United States v. Garcia, 997 F.2d 1273, 1279 (9th Cir. 1993) (collecting cases); see also Blakley, 226 Ariz. at 30, ¶ 17, 243 P.3d at 633 (constitutional violation may occur where officer exceed[ed] the boundaries of the area commonly accessed visitors, with no intent to locate an occupant ). by Shelley s testimony that visitors generally would park near his back door evidenced his belief that the accessible to the general public. 10 area near the back door was ¶20 Shelley further argues Otero was illegally inspecting the flatbed truck before Fisk and Foster obtained his consent and that this constitutional violation tainted the consent. We need not determine whether Otero s conduct violated the Fourth Amendment, however, because Shelley conceded at the hearing that as he was talking to Foster and Fisk in his carport, he could not see whether other officers had already gone back to look at the truck at the rear of his property. As a result, Shelley may not argue that his consent was tainted by the knowledge that officers already had discovered the flatbed truck or were about to do so. See Wong Sun, 371 U.S. at 488; Guillen, 223 Ariz. at 317, ¶ 13, 223 P.3d at 661. To the contrary, evidence at the hearing supports the superior court s conclusion that the search did not occur until after Shelley had given his consent. ¶21 coerced Nor do the circumstances suggest Shelley s consent was in approached visible. any way. Shelley. Their Only They guns, two were while officers, in plain visible, Fisk clothes remained and with Foster, badges holstered. Neither Fisk nor Foster physically restrained Shelley in any way while seeking consent. Under these circumstances, the court did not err in concluding that Shelley voluntarily gave consent to search before any search commenced. 11 B. Motion for Change of Judge. ¶22 Shelley also contends the court erred by failing to hold a hearing on his motion for change of judge and by denying that motion. We review the superior court s ruling on a motion for change of judge for cause for an abuse of discretion. State v. Ramsey, 211 Ariz. 529, 541, ¶ 37, 124 P.3d 756, 768 (App. 2005). ¶23 A criminal defendant is before a fair and impartial judge. 687 P.2d at 1197. entitled to a fair trial Mincey, 141 Ariz. at 442, To preserve this right, a defendant may move for a change of judge if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge. ¶24 shall Ariz. R. Crim. P. 10.1(a). Although Rule 10.1(c) states that the presiding judge provide for a hearing upon a defendant s motion for change of judge for cause, a hearing is required only if the defendant presents a colorable claim of bias, alleg[ing] facts which, if taken as true, would entitle the defendant to relief. State v. Eastlack, 180 Ariz. 243, 255, 883 P.2d 999, 1011 (1994); see also State v. Neil, 102 Ariz. 110, 114, 425 P.2d 842, 846 (1967) ( If the facts are not such as would warrant the affiant as a reasonable person in honestly believing that the questioned judge is biased . . . , the application should be denied as a matter of law. ). [M]ere speculation, suspicion, 12 apprehension, or imagination hearing requirement. is insufficient to trigger the Ellison, 213 Ariz. at 128, ¶ 37, 140 P.3d at 911 (quoting State v. Rossi, 154 Ariz. 245, 248, 741 P.2d 1223, 1226 (1987)). ¶25 Judges are presumed to be impartial, and the party moving for change of judge must prove a judge s prejudice by a preponderance of the evidence. bias or State v. Smith, 203 Ariz. 75, 79, ¶ 13, 50 P.3d 825, 829 (2002). Moreover, adverse if judicial rulings, by themselves, rarely, ever, provide a sufficient basis for a change of judge for cause, absent a showing of an extrajudicial source of bias [] or any deep-seated favoritism. Ellison, 213 Ariz. at 129, ¶ 40, 140 P.3d at 912 (alteration in original) (quotations omitted). ¶26 Shelley filed accompanying affidavit suppression hearing, his ten motion days citing for after the change the of second judge s judge day conceded of and the personal knowledge of Fisk, his rulings limiting the defense expert s testimony and his ruling limiting defense examination and crossexamination of witnesses. ¶27 the The judge to whom the motion was referred dismissed motion, allegations concluding did not it was constitute untimely grounds and for that change Shelley s of judge. Assuming Shelley s Rule 10.1 motion was timely, it failed to present a colorable claim of the judge s bias, so the court did 13 not err by denying the motion without a hearing. 180 Ariz. at 255, 883 P.2d at 1011. See Eastlack, At one point during the second day of the hearing, defense counsel asked Fisk to stand beside Shelley to demonstrate their relative sizes to show that Fisk s mere presence could intimidate Shelley; the judge then stated he had been around Fisk on numerous occasions and was well aware of his size, concluding that Fisk would dominate Mr. Shelley in every sense of the word. The judge s personal knowledge of Fisk s height, however, does not suggest the court was biased against the defense or favored the witness or the State. The second and third grounds Shelley offers essentially mirror his evidentiary arguments on appeal. adverse judicial rulings, without support a change of judge for cause. ¶ 40, 140 P.3d at 912. more, We reiterate that will almost never Ellison, 213 Ariz. at 129, Furthermore, as we have explained supra, the rulings on which Shelley bases his claim of bias were not erroneous and therefore are not evidence that the judge was biased against Shelley. 5 5 On appeal, Shelley raises the judge s comments at the sentencing hearing as evidence of deep seated antagonism and unfavorable predisposition amounting to bias. At sentencing, the judge remarked that after viewing a video of Shelley s confession, he found Shelley an unpleasant individual, but the judge went on to say that he would try[] to rise above that. The judge also noted the fact that I wouldn t invite him to my Rotary Club, or to a house of worship . . . does not [a]ffect the decision that I have to make in this case. 14 C. Avila Colloquy. ¶28 Shelley next argues the court erred by failing to advise him of certain constitutional rights before accepting his agreement to submit the case on an agreed record. Avila, 127 Ariz. 21, 617 P.2d 1137 (1980). See State v. Shelley maintains the court failed to warn him that he was giving up his right to representation by counsel at trial and failed to tell him that the court s decision would be based solely on the agreed record. ¶29 Because Shelley did not object to the court s Avila colloquy at fundamental trial, error. he has State forfeited v. appellate Henderson, 210 relief Ariz. absent 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Bunting, 226 Ariz. 572, 574-75, ¶ 5, 250 P.3d 1201, 1203-04 (App. 2011). ¶30 A defendant submitting the issue of guilt to the court on an agreed record is entitled to be advised by the court, inter alia, that he has [t]he right to a trial by jury where he may have representation of counsel and [t]he right to have the issue of guilt or innocence decided by the judge based solely A judge s opinion formed on the basis of evidence introduced in the course of trial generally does not demonstrate bias or prejudice, unless so extreme as to display a deepseated favoritism or antagonism that would make fair judgment impossible. Ellison, 213 Ariz. at 129, ¶ 38, 140 P.3d at 912 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here, the judge s statements expressing an opinion formed on the basis of evidence presented that Shelley is an unpolished, unpleasant, co[a]rse individual with whom the judge had little desire to socialize - do not evidence a fundamental antagonism that would call into question the judge s impartiality. 15 upon the record submitted. 1140. Avila, 127 Ariz. at 24, 317 P.2d at As Shelley correctly notes, the court advised him that submission of the case would waive his right to a trial by jury. Although the court did not also expressly tell Shelley he was giving up the right to be represented by counsel at a jury trial, the court stated, The jury will not decide your guilt or innocence; we will not have any hearing at which the attorneys try to convince me what decision I should make; I will make that decision based upon the reports and nothing else. ¶31 We conclude Shelley was adequately informed of his right to counsel. Not only did the court let Shelley know that attorneys not would be present to argue his case, Shelley plainly knew of his right to counsel; he was represented by an attorney during submission. the three-day suppression hearing prior to No fundamental error occurred when the court failed to expressly warn Shelley of his right to counsel at a jury trial. ¶32 Likewise, the fact that the court did not use the word solely when describing the record it would consider does not amount to fundamental error. The parties submitted the case on an of agreed evidence record consisting presented during the defendant s motion to suppress. 16 certain police evidentiary reports hearing on and the During the colloquy, the court effectively advised Shelley that it would decide the case based on the police reports and evidence from the suppression hearing. D. Restitution. ¶33 Finally, Shelley argues the court erred by ordering restitution because his crime leaving the scene after the accident did not cause or aggravate any injury suffered by the victim. The State concedes the restitution order was in error, and we agree. ¶34 Restitution is proper only where the defendant s criminal conduct directly cause[s] the victim s economic loss. State v. Wilkinson, 202 Ariz. 27, 28-29, ¶¶ 6-7, 39 P.3d 1131, 1132-33 (2002). The superior court found that the financial impact on the family is not so much from [Shelley] leaving the scene of the accident as causing the accident itself and that [t]he victim in this case was going to have died from the accident no matter what Mr. Shelley did. While the court noted that emotional the Shelley victim s leaving the family scene, has suffered restitution economic loss, not purely emotional loss. is loss proper only from for See id. at 29, ¶ 7, 39 P.3d at 1133; see also A.R.S. § 13-105(16) (2012). Because the victims economic loss was caused solely by the underlying accident and not by Shelley s leaving the scene, we vacate the court s order imposing restitution. 17 CONCLUSION ¶35 For the foregoing reasons, we affirm the judgment and sentence imposed, but vacate the restitution order. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ LAWRENCE F. WINTHROP, Judge 18

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