STATE v. YOUNG, JR

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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. DERICK ROY YOUNG, JR., Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 9/10/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0455 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-142249-002 The Honorable Cynthia Bailey, Judge AFFIRMED Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Alice Jones, Assistant Attorney General Attorney for Appellee Phoenix Benjamin P. Taylor, II By Benjamin Taylor Attorney for Appellant Phoenix C A T T A N I, Judge ¶1 Derick Roy Young, second-degree burglary Young the argues and superior Jr., the appeals resulting court (1) his conviction term of erroneously of probation. denied his Batson 1 challenge to the State s peremptory strike of an AfricanAmerican potential juror and (2) improperly restricted his trial testimony. For reasons that follow, we disagree and therefore affirm. FACTS AND PROCEDURAL BACKGROUND 2 ¶2 Young was a former tenant of an off-campus apartment complex catering to university students. In August 2011, as tenants were moving into their apartments, Young returned to the complex and entered the victim s apartment, leased to his friend the previous year. which had been Young testified at trial that his friend Dave accompanied him into the victim s room, but that Dave left before him. The victim observed Young leaving then her apartment. The victim realized her laptop computer was missing from her room. ¶3 From her balcony, the victim saw Young rummaging through his car and asked if he had taken the laptop. Before driving away, Young responded, I m not dealing with this but 1 Batson v. Kentucky, 476 U.S. 79 (1986). 2 We view the evidence in the light most favorable to upholding the jury s verdict. State v. Chappell, 225 Ariz. 229, 233 n.1, ¶ 2, 236 P.3d 1176, 1180 n.1 (2010). 2 stated that he would give the laptop back to her. The victim then contacted police. ¶4 Later that evening, Young and Dave drove back to the apartment complex. Instead of returning the laptop, however, the two drove away again, and Young threw the laptop out of the car s window. After Dave retrieved the laptop, the two were pulled over and detained by police. ¶5 Investigating officers the back seat of the car. found the victim s laptop in A detective interviewed Young, who confessed to taking the laptop and stated Dave was not involved. At trial, Young instead claimed Dave had stolen the laptop, explaining the confession as an attempt (1) to protect Dave and (2) simply to tell the detective what he wanted to hear because Young thought it wouldn t be a big deal or anything. ¶6 The State charged Young with second-degree burglary. After a four-day trial, a jury found him guilty as charged. The court suspended sentence and imposed two years probation. ¶7 Young timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and -4033. 3 3 Absent material revision after the relevant date, statutes cited refer to the current version unless otherwise indicated. 3 DISCUSSION I. ¶8 Batson Challenge. Young argues the superior court erred by denying his Batson challenge to the State s peremptory strike of an AfricanAmerican prospective juror. We will uphold the superior court s denial of a Batson challenge unless clearly erroneous. State v. Newell, 212 Ariz. 389, 400, ¶ 52, 132 P.3d 833, 844 (2006). ¶9 Equal protection prohibits the exercise of a peremptory strike to exclude a potential juror solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). A Batson challenge has three stages: first, the opponent of the strike must make a prima facie showing of racial discrimination; second, if such a prima facie showing is made, the striking party must articulate a facially race-neutral explanation for the strike; and third, if such an explanation is articulated, the opponent must show the facially-neutral merely a pretext for purposeful discrimination. explanation is Id. at 93-94; Purkett v. Elem, 514 U.S. 765, 768 (1995); Newell, 212 Ariz. at 401, ¶ 53, 132 P.3d at 845; State v. Henry, 191 Ariz. 283, 285286, 955 P.2d 39, 41-42 (App. 1997). ¶10 Here, Young objected to the State striking Juror 10, pointing out that both Young and Juror 10 were African-American males and arguing there was no indication Juror 10 could not be fair and impartial. In response, the State articulated three 4 reasons for the strike: (1) Juror 10 s demeanor, in that he looked like he didn t really care so much, was not paying attention, was not giving anybody eye contact, and at one point, kind of rolled his eyes, as he was leaving, a little bit. Just kind of like he was a bit irritated or didn t care ; (2) Juror 10 offered very little information and seemed not to have an answer for the court s follow-up inquiry about his employment; 4 and (3) Juror 10 had not attended college, which was arguably relevant because the crime occurred in a university setting. In reply, Young mentioned that four jurors remaining on the panel had only 12 years of schooling. ¶11 The trial judge found the State s explanation to be race neutral and observed that she had noticed some of the same things the State did, including Juror 10 s blank[] answer to the employment disengaged. question Additionally, and the that court he seemed noted that somewhat another African-American male remained on the panel and had not been 4 The following exchange occurred during voir dire: A JUROR: Juror No. 10. Unemployed. Marital status, single. Number of children, four: 11, 10, 9, and 6. Never sat on a jury before. THE COURT: What do you do when you are working? A JUROR: Looking for work. THE COURT: I mean is there a job that you re looking for? Have you ever been employed? A JUROR: Like a warehouse. 5 struck by the State. In light of the State s overall explanation and the court s observations, the court allowed the strike. ¶12 Young argues the State s Juror 10 was itself discriminatory. the strike, unrelated history however, to or education. mode of Juror answering striking The State s explanation for three 10 s for considerations demeanor questions, and and facially attitude, lack of work college None of these considerations are inherently racially discriminatory. ( Unless race: involved explanation a prosecutor[ ]s See Newell, 212 Ariz. at 401, 132 P.3d at 845 discriminatory explanation, intent this is burden inherent is in satisfied the by a facially valid explanation for the peremptory strike. (citation omitted)); see also State v. Hernandez, 170 Ariz. 301, 305, 823 P.3d 1309, 1313 (App. 1991) ( mode of answering questions and factors which reflect attitude are permissible bases for peremptory strike). ¶13 Young also contends the State s excuse for striking the juror was obviously pre-textual, but the superior court verified the State s observations about Juror 10 s manner of answering the employment question and confirmed that Juror 10 seemed somewhat disengaged. 54, 132 P.3d at 845 See Newell, 212 Ariz. at 401, ¶ (superior court s findings are due substantial deference because of the court s unique position to 6 assess credibility); Hernandez, 170 Ariz. at 305, 823 P.3d at 1313 (noting that the superior court s findings are owed deference because of the superior court s unique position to observe matters that cannot be captured by a written appellate record ). Moreover, as the court noted, the State did not strike all African-American jurors, which, although not alone dispositive, is indicative of a nondiscriminatory motive. State v. Roque, 213 Ariz. 193, 204, ¶ 15, 141 P.3d 368, 379 (2006). Given this record, the court did not err by crediting the State s race-neutral explanation and allowing the State to strike Juror 10. II. Prohibiting Testimony. ¶14 Young also argues the superior court improperly compromised his defense by prohibiting him from testifying about how his anxiety medication affected him when speaking with the police about the incident. Contrary to Young s argument, the superior court did not prohibit such testimony. the State moved in limine to preclude Before trial, evidence of Young s anxiety disorder and anxiety medication as irrelevant and unduly prejudicial, and because diminished defense to the crime charge. capacity would not be a Young agreed that the preexisting anxiety disorder would not be relevant, but suggested that his actual state of mind at the time he was questioned by police would be admissible. The State did not object to testimony 7 about Young s state of mind at the time he was questioned, and the court ruled that it would allow state of mind testimony but not reference to the anxiety disorder. ¶15 Young s counsel then suggested that evidence regarding Young s anxiety medication and how it affected his train of thought, his state of mind when he was answering the officer s question would be important. medication Young. issue, instead The court did not rule on the inviting further explanation from The following day, defense counsel informed the court that I ve instructed [him] not to talk about any type of mental health condition and/or any type of medication he was on at the time. I do believe that him describing how he felt at the different times would be sufficient. probably satisfy the State. I believe that would In so doing, the medication issue became moot with Young affirmatively proposing the course of action he now alleges as error on appeal. ¶16 Because the superior court did not preclude the testimony at issue, Young s claim of error necessarily fails. To the Young extent invited Young any now challenges alleged error by a perceived prohibition, affirmatively proposing restricted testimony, and he is thus barred from claiming such error on appeal. See State v. Parker, 231 Ariz. 391, 405, ¶¶ 58, 61, 296 P.3d 54, 68 (2013) (invited error doctrine applies to defense stipulation to admit recorded interviews at trial, 8 even after pretrial challenge to admissibility); see also State v. Lucero, 223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. 2009) (invited error doctrine bars source of error -- party that affirmatively and independently initiated the error -- from raising the error on appeal). ¶17 Even assuming the alleged error was not invited, because Young agreed to restrict his own testimony, we review only for fundamental, Henderson, 210 Ariz. prejudicial 561, 567, ¶¶ error. 19-20, See 115 P.3d State v. 601, 607 (2005). Young testified that when talking to police officers, he anxious, felt worried, nervous, scared, afraid, disengaged, a little out of it, not in the right state of mind, with his head spinning around, not really focused or on [his] feet, per se. Thus, he was able to explain his state of mind, albeit without reference to medication. Accordingly, the perceived restriction on Young s testimony is not grounds for reversal. 9 CONCLUSION ¶18 For the foregoing reasons, we affirm conviction and sentence of probation. /S/ KENT E. CATTANI, Judge CONCURRING: /S/ SAMUEL A. THUMMA, Presiding Judge /S/ JON W. THOMPSON, Judge 10 Young s

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