STATE v. PARKS
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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. EDWARD FAYE PARKS, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 4/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0284 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S815CR201100853 The Honorable Steven F. Conn, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section And William Scott Simon, Assistant Attorney General Attorneys for Appellee The Brewer Law Office By Benjamin M. Brewer Attorney for Appellant D O W N I E, Judge Show Low ¶1 Edward Faye Parks appeals his convictions and sentences for disorderly conduct and aggravated assault of a peace officer. Finding no error, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 A sheriff s deputy stopped Parks after he failed to stop completely at a stop sign. Parks had no Arizona driver s license but stated he had a California license. After running Parks identifying information, the deputy learned that Parks Arizona license was suspended, and his California license was expired. He advised Parks his truck would be impounded and directed him to remove the keys from the ignition. instead reached for the gear shift, the deputy When Parks and Parks passenger both yelled, don t do it . . . it s not worth it. The deputy reached into the cab for the keys, whereupon Parks put the truck in gear, hit the gas, and took off pretty quick. The deputy suffered a brush burn from the elbow to the arm pit and a bruised hip. ¶3 Parks was charged with two counts of aggravated assault of a peace officer, class 2 felonies, and one count of aggravated assault, a class 4 felony. 1 The State alleged Parks 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) (citation omitted). 2 had two prior felony convictions and that he committed present offenses while on parole from a felony offense. the The jury found Parks guilty of disorderly conduct with a weapon, a class 6 felony (Count 1); aggravated assault of a peace officer, a class 2 felony (Count 2); and aggravated assault of a peace officer, a class 4 felony (Count 3). prison terms of 3.75 years, Parks received concurrent 15.75 years, and 10 years respectively. ¶4 Parks timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033. DISCUSSION I. Request to Retain Private Counsel ¶5 Parks was indicted in July 2011. At a January 3, 2012 hearing, he requested new counsel because he was unhappy with appointed counsel s handling of his case and because she was allegedly married to a deputy sheriff. proved to be untrue. The latter statement The court denied Parks request. Over the State s objection, though, the court continued trial to February 14 so defense counsel could complete interviews. ¶6 counsel At the advised January that 30 pretrial interviews defense was ready for trial. were management complete conference, and that the She also stated that Parks had 3 just three informed to her four he week medical issues. was very continuance ill. so Counsel Parks could requested resolve a his The State objected and requested substantiation of the medical condition. The court continued the management conference advised to information, February and 6, cautioned him to Parks to assume provide that your medical case is going to trial [in] two weeks. ¶7 On February 6, defense counsel withdrew the motion to continue based on Parks medical condition. She stated that Parks had informed her that day he was looking into hiring private counsel, and . . . would like to proceed to trial with private counsel ; she provided the name of an attorney with whom Parks had spoken. The State objected, arguing Parks had had ample time to retain counsel and that it was a one-witness trial. Defense counsel responded that the trial had not been continued many times and that Parks was saving money for private counsel. ¶8 The court stated that Parks had had adequate time to hire an attorney. The court also voiced concern that if it did not try the case as scheduled, it did not know when its calendar could accommodate a trial. The court denied the continuance request, but stated: My denying the request to continue does not preclude you from hiring your own attorney. Now, whether [Ms. C.], or anyone else for 4 that matter, would be willing to take a case and go to trial with one week s notice, that would be up to them; and it may be that this case is simple enough that there s no reason that she or some other attorney wouldn t be able to do that. So you can still, between now and next week, do whatever you would need to do to try to hire an attorney to represent you; but you just need to understand that if you hire a new attorney, that new attorney, before they can even enter a notice of appearance in this case has to certify that they are aware of the trial date and will be prepared to try this case. ¶9 Trial began as scheduled appointed counsel representing Parks. abused its discretion by on February 14, with Parks contends the court denying a continuance, which effectively prevented him from retaining counsel, in violation of his Sixth Amendment rights. ¶10 It is axiomatic that an accused enjoys the right to assistance of counsel for his defense. State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983) (citation omitted). It is also axiomatic that a motion for a continuance is directed to the discretion of the trial court, and that court s ruling will not be disturbed absent (citation omitted). discretion because inconvenience witnesses of and a a clear abuse of discretion. Id. The trial court is accorded substantial it in a continuance to to is determine 5 position the to judge litigants, whether the counsel, extraordinary circumstances indispensible warrant to the the continuance interests of and whether justice. quotation marks omitted) (citations omitted). delay Id. is (internal Consequently the right to a choice of counsel is not absolute, but is subject to the requirements of sound judicial administration. 674 P.2d at 1367 (citation omitted). consider include: whether other Id. at 369, Factors a court should continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience of the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory. Id. (citation omitted). ¶11 We find no abuse of discretion. pending since July 2011. Parks made no The charges had been mention of seeking private counsel until eight days before trial -- in February 2012. Even then, he merely conveyed that he was looking into hiring counsel and saving money to do so. He had not yet retained counsel and gave no indication that he had the current financial wherewithal to do so. 2 Although the trial had not been continued numerous times, the court was clearly concerned that a 2 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), and State v. Aragon, 221 Ariz. 88, 210 P.3d 1259 (App. 2009), do not assist Parks. Those cases involved defendants who had actually hired private counsel and were seeking substitution. 6 continuance would create rescheduling the trial. was not complex at all. calendar issues in terms of And as Parks acknowledges, [t]he case The State presented one witness, and Parks was the only defense witness. ¶12 The court did not prevent Parks from hiring private counsel for trial on February 14 and did not abuse its discretion in denying a continuance for that purpose, especially when Parks gave no indication he was capable of retaining counsel presently or in the near future. II. ¶13 Hearsay Objection The deputy testified at trial that, as Parks reached for the gear shift, both he and the passenger began yelling don t do it and it s not worth it. The court overruled Parks hearsay objection and also permitted the prosecutor to elicit the passenger s follow up statement: It s only a driving on suspended. ¶14 Parks The passenger did not testify at trial. contends the court evidence because it was hearsay. erred by admitting this He also argues the testimony violated his right to confront witnesses, though he admits we review this claim for fundamental error only because he did not object on this basis below. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). ¶15 We review a ruling on a hearsay objection for an abuse of discretion. State v. Chavez, 225 Ariz. 442, 443, ¶ 5, 239 7 P.3d 761, 762 (App. 2010) (citation omitted). Before engaging in fundamental error review, we must first find that the court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) (citations omitted). ¶16 The court ruled that the statements were not being offered for the truth of the matters asserted. See Ariz. R. Evid. ( Rule ) 801(c)(1), (2) (a statement is hearsay if offered for the truth of the matter asserted ). We agree. The statements were not offered to prove that it was not worth it to flee or to establish that Parks in fact was driving on a suspended license - a point that was conceded at trial. As the State notes, [t]he significance of the words was that they were said and how they affected [Parks], not the truth of what was said. 3 Finally, because the statements were neither testimonial nor hearsay, they did not implicate the Confrontation Clause. III. Citation ¶17 Parks testified that what the deputy told the jury at trial did not happen. stop sign and also He admitted being stopped for running a admitted being told his license was suspended, but he claimed the deputy said he was not going to 3 Even if the statements were hearsay, the State correctly argues that the record would support admitting them under the excited utterance exception. See Rule 803(2); see also State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987) (appellate court may affirm on any basis supported by the record). 8 cite him, so he drove home. never reached through According to Parks, the officer the window called the and was not struck by the vehicle. ¶18 The State deputy in rebuttal, asking whether he had in fact advised Parks he was not going to give him a citation. The officer denied such a statement, testifying he had written out a citation while in his patrol car after running Parks information. The only reason he did not give it to Parks was because Parks left the scene. Over objection, the officer produced the citation, which was admitted into evidence. ¶19 Parks argues the court erred in admitting the citation because it had not been disclosed. We review a ruling on the admissibility of evidence for an abuse of discretion. Aguilar, 209 Ariz. 40, (citation omitted). 49, ¶ 29, 97 P.3d 865, State v. 874 (2004) Rule 15.7(a), Arizona Rules of Criminal Procedure ( Criminal Rule ), permits the court to impose any sanction it finds appropriate unless the failure to disclose was harmless or that the information could not have been disclosed earlier even disclosed with due immediately diligence upon its and the discovery. information We also was review claims that a court imposed insufficient sanctions for an abuse of discretion. State v. Cota, 229 Ariz. 136, 148, ¶ 48, 272 P.3d 1027, 1039 (2012) (citation omitted). the trial court s ruling [regarding 9 We do not disturb sanctions] unless the defendant can show prejudice and an abuse of discretion. v. Jackson, 186 Ariz. 20, 24, 918 P.2d State 1038, 1042 (1996) that neither (citation omitted). ¶20 It is clear from the record the prosecutor nor defense counsel had seen the citation prior to trial. It is also clear that the citation s existence was not relevant until Parks testified. ¶21 Criminal Rule 15.1(h) states that [u]pon receipt of the notice of defenses required from the defendant, the State must disclose the names and addresses of all persons the State intends to relevant call as rebuttal witnesses, together written or recorded statements. with Parks their notice of defenses listed generic defenses such as, General Denial, Lack of Specific Intent and Insufficiency of State s Evidence. The record supports the trial court s finding that the State could not have known anticipated how that Parks the would fact that testify the citation [was] going to be relevant. its discretion in admitting the and officer could wrote not out have the The court did not abuse citation. Cf. State v. Sullivan, 130 Ariz. 213, 216-17, 635 P.2d 501, 504-05 (1981) ( It is obviously unreasonable to require the State to list in advance of trial and prior to the presentation of the defendant s case the names of all potential rebuttal witnesses, since the prosecution can rarely 10 anticipate what course the defense will pursue. ); State v. Binford, 120 Ariz. 86, 89, 584 P.2d 67, 70 (App. 1978) (rejecting challenge to undisclosed prosecution rebuttal witnesses who were called to rebut certain testimony of the appellant which was the product of his last minute decision to take the stand ). ¶22 Finally, citation, Parks even has if the not court erred demonstrated any in admitting the non-speculative prejudice or explained how his defense would have differed had the citation been disclosed. During cross-examination, defense counsel got the deputy to admit he had never shown the citation to anyone and did not attach a copy of it to the report he wrote about the incident or attempt to serve Parks with it after the fact. CONCLUSION ¶23 Parks convictions and sentences are affirmed. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ PHILIP HALL, Judge 11
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