State v. Billie ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GARRISON BILLIE, Appellant.
No. 1 CA-CR 20-0237
FILED 8-31-2021
Appeal from the Superior Court in Maricopa County
No. CR2017-147167-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. BILLIE
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.
W I L L I A M S, Judge:
¶1 Garrison Billie appeals his convictions and sentences for two
counts of aggravated driving under the influence. Billie’s counsel filed a
brief per Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz.
297 (1969) advising us there are no meritorious grounds for reversal. Billie
filed a supplemental brief in propria persona. Our obligation is to review the
entire record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App.
1999), viewing the evidence in the light most favorable to sustaining the
conviction and resolving all reasonable inferences against Billie, see State v.
Guerra, 161 Ariz. 289, 293 (1989). After reviewing the record, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 On May 20, 2017, at approximately 2:00 A.M., F.T. was exiting
off of Loop 101 onto northbound I-17 when he encountered a pickup truck
crashed against the exit ramp wall. F.T. watched the driver attempt to move
the vehicle and crash into the other side of the ramp. When the driver exited
the vehicle and began walking away, F.T. informed the driver that he
should remain at the scene. The driver ignored F.T. and left the scene of the
accident. F.T. called the police and provided a description of the driver.
Shortly after, police apprehended a suspect matching the description and
requested F.T. identify the suspect. F.T. identified Billie as the driver of the
vehicle.
¶3 Billie was arrested after a horizontal gaze nystagmus test
indicated evidence of intoxication. Pursuant to a search warrant, Billie’s
blood was drawn at 4:35 A.M. The blood draw revealed a blood alcohol
concentration (“BAC”) of .223%.
¶4 The State charged Billie with aggravated driving while under
the influence of intoxicating liquor (impaired to the slightest degree)
(“Count One”) and aggravated driving while under the influence of
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STATE v. BILLIE
Decision of the Court
intoxicating liquor (BAC of 0.08% or more) (“Count Two”), both Class four
felonies.
¶5 Billie moved unsuccessfully under Arizona Rule of Criminal
Procedure 20 for a judgment of acquittal and the jury convicted Billie as
charged. After an aggravation hearing, the jury found the State had proved
beyond a reasonable doubt that Billie lied to the police to hinder their
investigation, left the scene of the crime, and was previously convicted of a
felony within ten years immediately preceding the offense.
¶6 The trial court found Billie had committed two prior non-
dangerous felony offenses and sentenced him to slightly mitigated terms of
nine years on each count, to be served concurrently. The court also gave
Billie credit for 227 days of presentence incarceration. Billie 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(A)(1).
DISCUSSION
I. Ineffective Assistance of Counsel
¶7 Billie contends that his right to counsel was denied because
his counsel provided ineffective assistance. This court does not consider
ineffective assistance of counsel claims on a direct appeal because the issue
must be raised in a Rule 32 post-conviction relief proceeding. State v. Spreitz,
202 Ariz. 1, 2, ¶ 4 (2002).
II. Pre-Trial Discovery and Prosecutorial Misconduct
¶8 Billie also contends the State failed to provide defense counsel
with F.T.’s full name and address. Arizona Rule of Criminal Procedure
15.1(b)(1) requires that, as part of pretrial discovery, the State must provide
defendant with the names and addresses of all persons the prosecutor
intends to call as witnesses in the State’s case-in-chief. The purpose of the
rule is “to give full notification of each side’s case-in-chief so as to avoid
unnecessary delay and surprise at trial.” State v. Dodds, 112 Ariz. 100, 102
(1975). While the record is not clear whether the State ever provided F.T.’s
full name or address, Billie cannot claim surprise or prejudice as defense
counsel interviewed F.T. prior to trial. Billie further contends the State
prevented counsel from conducting a thorough interview of F.T. However,
when defense counsel expressed a need for an additional interview with
F.T., the court granted her request. On this record, Billie has shown no error
nor any prejudice.
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STATE v. BILLIE
Decision of the Court
¶9 Lastly, Billie has failed to point to any meaningful evidence in
support of his assertion of prosecutorial misconduct. Citation to a single
comment made by the prosecutor during the direct examination of F.T.
—that F.T.’s answers were “brief and succinct”—without a demonstration
of how such comment “so infected the trial with unfairness as to make the
resulting conviction a denial of due process,” is insufficient to prevail on a
claim for prosecutorial misconduct. State v. Hughes, 193 Ariz. 72, 79, ¶ 26
(1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Similarly, the comment did not address, let alone misstate, the
reasonable-doubt standard of proof. See State v. Murray, 250 Ariz. 543,
553-54, ¶¶ 37, 40 (2021) (defendant’s due process rights were violated, and
his conviction overturned, where prosecutor misstated the
reasonable-doubt standard).
III. Sufficiency of the Evidence
¶10 Billie alleges the evidence was insufficient to sustain his
convictions. “Reversible error based on insufficiency of the evidence occurs
only where there is a complete absence of probative facts to support the
conviction.” State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004) (quoting
State v. Soto-Fong, 187 Ariz. 186, 200 (1996)).
¶11 A person is guilty of aggravated driving while under the
influence of intoxicating liquor if the person drives or is in actual physical
control of a vehicle while the person’s privilege to drive is revoked and
while the person is impaired to the slightest degree or has a BAC of .08% or
more within two hours of driving or being in actual physical control of the
vehicle. A.R.S. § 28-1383(A)(1).
¶12 The State presented sufficient evidence to support the jury’s
guilty verdict on both counts. The State introduced evidence that Billie was
the driver of the vehicle, that he was aware his license was suspended at
the time of the accident, that he was intoxicated, and that, based on a
retrograde extrapolation, his BAC would have been above .08% within two
hours following the accident. On this record, the jury reasonably concluded
that Billie was guilty of both counts of aggravated driving under the
influence.
IV. Fairness of the Proceedings
¶13 All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Billie was
represented by counsel at all stages of the proceedings. See State v. Conner,
163 Ariz. 97, 104 (1990) (right to counsel at critical stages) (citations
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STATE v. BILLIE
Decision of the Court
omitted). Billie was present for jury selection and trial but absconded
during jury deliberations and was not present for delivery of the verdict,
the aggravation phase, or the trial on priors. The trial court record of jury
selection does not demonstrate the empanelment of any biased jurors. 1 The
jury was properly comprised of eight jurors, and the record shows no
evidence of jury misconduct. See A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a).
The trial court properly instructed the jury on the elements of the charged
offenses, the State’s burden of proof, and Billie’s presumption of innocence.
¶14 Billie was present and in custody for sentencing. See Ariz. R.
Crim. P. 26.9. At sentencing, Billie was given an opportunity to speak, and
the court stated on the record the evidence, materials, and factors it
considered in imposing the sentences. Ariz. R. Crim. P. 26.10. Although
Billie contests the admission of certain evidence presented by the State, the
court did not err in admitting and considering the evidence. See State v.
Martinez, 210 Ariz. 578, 585, ¶ 26 (2005) (“[O]nce a jury finds or a defendant
admits a single aggravating factor, the Sixth Amendment permits the
sentencing judge to find and consider additional factors relevant to the
imposition of a sentence up to the maximum prescribed in that statute.”).
¶15 Additionally, while Billie is correct that the court mistakenly
noted the existence of four prior felony convictions rather than three, Billie
was not prejudiced by this error as he was appropriately sentenced as a
category three repeat offender, see A.R.S. § 13-703(C), and received a
slightly mitigated term of imprisonment within the statutory limits, see
A.R.S. §§ 13-701 through -709 (as applicable).
¶16 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”).
CONCLUSION
¶17 We have reviewed the entire record for reversible error and
find none; therefore, we affirm Billie’s convictions and sentences.
¶18 Defense counsel’s obligations pertaining to Billie’s
representation in this appeal have ended. Counsel need do no more than
inform Billie of the outcome of this appeal and his future options, unless,
1The defense exercised a peremptory challenge as to juror seven. The state
challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986) and the
court, finding a non-racial reason for the peremptory challenge, struck juror
seven. Billie does not allege the court erred in striking juror seven.
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STATE v. BILLIE
Decision of the Court
upon review, counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984). On this court’s motion, Billie has 30 days from the
date of this decision to proceed, if he wishes, with an in propria persona
motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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