State v. Robinson ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ALLEN JAMES ROBINSON, Appellant.
No. 1 CA-CR 13-0784
FILED 12-30-14
Appeal from the Superior Court in Maricopa County
No. CR2012-006890-002
The Honorable Jeanne M. Garcia, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant
Allen James Robinson, Florence
Appellant
STATE v. ROBINSON
Decision of the Court
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), following Allen James Robinson's convictions of first-degree
murder, a Class 1 dangerous felony; drive-by shooting, a Class 2 dangerous
felony; and aggravated assault, a Class 3 dangerous felony. Robinson's
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders,
386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel
now asks this court to search the record for fundamental error. Robinson
has filed a supplemental brief identifying various issues. After reviewing
the entire record, we affirm Robinson's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 From the passenger seat of a moving car late one evening in
2012, Robinson fired several gunshots at two men, killing one and injuring
the other.1 A jury convicted Robinson of first-degree felony murder (Count
1); drive-by shooting (Count 2); and aggravated assault (Count 3). The
court sentenced Robinson to 25 years to life for Count 1; 10.5 years for Count
2; and 7.5 years for Count 3. The sentences for Counts 1 and 2 were
concurrent, and the sentence for Count 3 was consecutive.
¶3 Robinson 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 (2014).2
1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Robinson.
State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
2 Absent material revisions after the date of an alleged offense, we cite
a statute's current version.
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STATE v. ROBINSON
Decision of the Court
DISCUSSION
A. Issues Raised in Supplemental Brief.
¶4 Robinson lists several issues in the opening page of his
supplemental brief, but offers argument on only a handful of those issues.
We limit our review to the issues he actually argues.
¶5 First, Robinson argues his prosecution runs afoul of Article 2,
Section 30, of the Arizona Constitution, because he did not have a
preliminary hearing and was "never given the grand jury transcripts."
Because Robinson was indicted by a grand jury, however, a preliminary
hearing was not required. See State v. Meeker, 143 Ariz. 256, 265, 693 P.2d
911, 920 (1984) ("Either indictment by a grand jury or information after a
preliminary hearing is a constitutionally proper method of bringing an
accused felon to trial."). Robinson did not request the grand jury transcripts
prior to his convictions and so has waived any right he might have had to
them. See State v. Casey, 10 Ariz. App. 516, 518, 460 P.2d 52, 54 (1969) ("grand
jury testimony must be made available to a defendant when a request therefor
is made during the course of trial") (emphasis added).
¶6 Robinson next challenges the adequacy of a search warrant,
alleging that "even if [the State] had one it contained insufficient facts to
justify probable cause." Robinson does not specify which search warrant
he believes was defective, however, and presents no argument as to why
the facts supporting that warrant were not sufficient. See State v. Crowley,
202 Ariz. 80, 83, ¶ 7, 41 P.3d 618, 621 (App. 2002) ("A reviewing court must
presume a search warrant is valid; it is the defendant's burden to prove
otherwise.").
¶7 Robinson contends the prosecutor engaged in misconduct by
knowingly using "false evidence and argument to obtain a criminal
conviction" and by collaborating with witnesses to aid "the perjury." He
points to inconsistencies in the testimony of certain witnesses as evidence
they lied and also argues that some witnesses were confused and did not
tell the truth. But inconsistent testimony is not necessarily false or perjured;
the credibility of a witness is for the jury to determine. See State v. Ferrari,
112 Ariz. 324, 334, 541 P.2d 921, 931 (1975). In any event, Robinson has not
established that the prosecutor knowingly used any alleged false testimony.
See id.
¶8 Robinson also argues the prosecution improperly coerced his
girlfriend to testify against him by offering her a plea bargain that would
allow her to re-establish contact with her children. His argument fails
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STATE v. ROBINSON
Decision of the Court
because the State may offer a witness a favorable plea deal in exchange for
testimony. See State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193
(1989) ("[N]o prosecutorial misconduct occurs where the prosecutor merely
arranges a favorable plea agreement with one of the several witnesses
testifying against the defendant . . . ."), disapproved on other grounds by State
v. King, 225 Ariz. 87, 235 P.3d 240 (2010).
¶9 Robinson argues the evidence is insufficient to support his
convictions. To the contrary, the evidence was sufficient. For example, the
surviving victim identified Robinson as the person shooting from the car;
two witnesses testified Robinson told them he shot and might have killed
someone; and the doctor who treated the deceased victim testified that the
multiple gunshot wounds were the cause of death. Robinson argues police
failed to take fingerprints from the alleged murder weapon and complains
that the State failed to offer DNA evidence tying him to the gun. He fails
to cite any legal authority, however, for the proposition that the State is
required to offer such evidence when sufficient other evidence exists to
support a conviction.
¶10 Robinson challenges the pretrial identification procedures
and certain of the jury instructions. Because he failed to raise these issues
at trial, we review them only for fundamental error. See State v. Henderson,
210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Robinson offers no
facts or legal argument to support his contention that the pretrial
identification by the victim was improper or the product of unduly
suggestive procedures. Although he argues the superior court erred by
failing to instruct the jury on premeditation, he can show no prejudice from
the absence of such an instruction, given that he was convicted of felony
murder. He offers no facts or reasoning to support his contention that the
court erred by failing to instruct the jury on circumstantial evidence.
¶11 Robinson argues the officer who stopped him in Colorado
wrongfully detained him for an excessive amount of time. But he offers no
facts or legal argument to support that proposition.
¶12 Robinson further argues the prosecutor failed to introduce
evidence that would have proved him innocent, specifically, phone records
supposedly demonstrating he was not present during the shooting. This
argument fails because the State has no obligation to offer exculpatory
evidence at trial.
¶13 Robinson complains that certain exhibits were not furnished
to him before trial, but he does not identify those exhibits. He argues that
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STATE v. ROBINSON
Decision of the Court
the exhibits did not establish the identity of the shooter and that the jury
should have been asked to determine who shot the victims. Because the
jury was properly instructed on accomplice liability, however, it did not
need to determine whether Robinson or the other individual in his vehicle
fired the shots.
¶14 Finally, Robinson argues that when a defendant is convicted
of two crimes based on the same acts, the court is obligated to impose
concurrent sentences. Although Robinson does not elaborate, the superior
court did in fact impose concurrent sentences on the convictions for felony
murder and for drive-by shooting, the predicate felony; the court properly
exercised its discretion to impose a consecutive sentence on the separate
crime of aggravated assault (the victim of the aggravated assault was a
second occupant of the vehicle who survived the shooting). Robinson also
asserts the presentence report was inaccurate, but does not explain how it
was inaccurate or how he was prejudiced by the court's reliance on it.
B. Due Process Review.
¶15 The record reflects Robinson received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages, except when counsel waived his presence. The
court also held appropriate pretrial hearings.
¶16 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
12 members with two alternates. The court properly instructed the jury on
the elements of the charges, the State's burden of proof and the necessity of
a unanimous verdict. The jury returned a unanimous verdict, which was
confirmed by juror polling. The court received and considered a
presentence report, addressed its contents during the sentencing hearing
and imposed legal sentences for the crimes of which Robinson was
convicted.
CONCLUSION
¶17 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶18 After the filing of this decision, defense counsel's obligations
pertaining to Robinson's representation in this appeal have ended. Defense
counsel need do no more than inform Robinson of the outcome of this
appeal and his future options, unless, upon review, counsel finds "an issue
appropriate for submission" to the Arizona Supreme Court by petition for
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STATE v. ROBINSON
Decision of the Court
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). On the court's own motion, Robinson has 30 days from the date of
this decision to proceed, if he wishes, with a pro per motion for
reconsideration. Robinson has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
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