State v. Arvizu ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOE LOUIS ARVIZU, JR., Appellant.
No. 1 CA-CR 15-0003
FILED 11-17-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-146720-001
The Honorable Brian Kaiser, Judge Pro Tempore
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
Joe Louis Arvizu, Jr.
Appellant
STATE v. ARVIZU
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Joe Louis Arvizu, Jr., has advised us that she has been unable to discover
any arguable questions of law after searching the entire record, and has
filed a brief requesting us to conduct an Anders review of the record. And
Arvizu has filed a supplemental brief.
FACTS1
¶2 During a routine patrol on September 2, 2012, a police officer
noticed that cars in the curb lane were not proceeding through a green light.
The officer saw a silver Acura stopped at the light, and stopped to help the
driver. When he approached the car, he saw the driver, who he later
identified as Arvizu, fumbling and moving his hand from the gear shift to
the key in the ignition switch. After making contact with Arvizu, the officer
noticed that Arvizu’s eyes were bloodshot and watery; he smelled of
alcohol; his speech was slurred as he spoke; and he explained that his car
was out of gas and he needed to get home. After Arvizu failed all the field
sobriety tests, the officer arrested him on suspicion of impaired driving.
Subsequent blood tests revealed that Arvizu’s blood alcohol content level
was .286.
¶3 Because Arvizu was aware his driving privileges had been
suspended, he was charged with aggravated drunk driving, and
aggravated drunk driving with an alcohol concentration of .08 or more. The
case proceeded to trial and after the State presented its evidence, Arvizu
made an unsuccessful motion for a judgment of acquittal under Arizona
Rule of Criminal Procedure 20. Arvizu was subsequently convicted on both
charges. During the December 2014 sentencing hearing, the court held a
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
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STATE v. ARVIZU
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trial on Arvizu’s priors and found that the State had proven a historical
prior felony conviction by clear and convincing evidence. Arvizu was then
sentenced to concurrent terms of four-and-a-half years in prison, and given
45 days of presentence incarceration credit.
¶4 We have jurisdiction over the appeal 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(A)(1).2
DISCUSSION
¶5 We have read and considered counsel’s brief and Arvizu’s
supplemental brief.3 We have also searched the entire record for reversible
error. See Leon, 104 Ariz. at 300, 451 P.2d at 881.
¶6 In the briefs, Arvizu raises, by asking questions, the following
issues: (1) ineffective assistance counsel; (2) ethical rule violations; (3) due
process violations; (4) jury misconduct; (5) judicial prejudice; (6) a Brady
violation;4 (7) incorrect evidentiary rulings; (8) the court’s denial of various
defense motions; (9) the sufficiency of jury instructions; (10) the sufficiency
of the evidence; (11) the qualifications of the jurors sitting on the jury panel;
(12) inconsistencies in State witness testimony; (13) the timing and form of
the court’s Willits instruction;5 (14) the court’s denial of the defense request
2 We cite the current version of the statute unless otherwise noted.
3 On the last day to file his supplemental brief, Arvizu filed a supplement
to his supplemental brief. We also received a motion to include a CD in the
record along with a CD containing additional evidence from a J. McPherson
on Arvizu’s behalf. We will not consider the CD, which was a video of
some of the court proceedings, but was not designated as part of the record,
and the request to include it was not timely. See Ariz. R. Crim. P. 31.8(a).
Moreover, Arvizu does not contend that the record is incorrect and the CD
would correct the record. Consequently, we will not review the CD. Ariz.
R. Crim. P. 31.8(h); see also State v. Esquer, 26 Ariz. App. 572, 573, 550 P.2d
240, 241 (App. 1976) (“When a question arises as to the correctness of a
record after it has been certified to the Court of Appeals, an appropriate
correction is proper, provided that a timely motion is made.”), disavowed on
other grounds by State v. Lopez, 27 Ariz. App. 626, 630, 557 P.2d 558, 562 (App.
1976).
4 Brady v. Maryland, 373 U.S. 83 (1963).
5 State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
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STATE v. ARVIZU
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to speak to jurors after the trial and clarify their understanding of the jury
instructions; (15) tampering of transcripts;6 (16) whether Arvizu was
afforded a fair trial; and (17) grand jury concerns.
I. Waiver and Issues Not Appropriate for Appellate Review
¶7 Although Arvizu itemizes the issues in the form of questions,
he did not properly raise and argue the issues as required by Arizona Rule
of Criminal Procedure 31.13. For example, he did not present the issue,
point to facts in the record, and provide legal authority for each argument.
As a result, he has waived the issues on appeal. See Ariz. R. Crim. P. 31.13
(stating that argument on appeal “shall contain the contentions of the
appellant with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes and parts of the record relied on.”);
State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004)
(“Merely mentioning an argument is not enough . . . opening briefs must
present significant arguments, supported by authority, setting forth an
appellant’s position on the issues raised. Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”) (citation omitted).
¶8 Moreover, there are some issues that we will not address on
appeal. For example, we cannot review any challenges to the grand jury
process because they should have been raised by motion for a new finding
of probable cause before the trial began.7 Ariz. R. Crim. P. 12.9(a), (b); State
v. Merolle, 227 Ariz. 51, 53, ¶ 10, 251 P.3d 430, 432 (App. 2011). Similarly,
Arvizu can only pursue any ineffective assistance of counsel claim in a Rule
32 post-conviction proceeding and we cannot consider these claims on
appeal. See State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 20, 153 P.3d 1040
(2007) (stating “a defendant may bring ineffective assistance of counsel
claims only in a Rule 32 post-conviction proceeding — not . . . on direct
review”). And, we will not address his claim that two jurors should not
have been seated because they had family members in law enforcement
because he did not raise any objection at the time the jurors were questioned
and selected to be seated to hear the evidence. See Moody, 208 Ariz. at 452,
6 Although Arvizu alleges the transcripts are imperfect, the transcripts are
sufficiently complete and more than adequate to permit a full review of the
record for fundamental error. See State v. Schackart, 175 Ariz. 494, 499, 858
P.2d 639, 644 (1993) (citation omitted).
7 We further note that “insufficiency of the evidence is not a valid ground
for [a] challenge to the finding of the grand jury.” State ex rel. Collins v.
Kamin, 151 Ariz. 70, 72, 725 P.2d 1104, 1106 (1986).
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STATE v. ARVIZU
Decision of the Court
¶ 98, 94 P.3d at 1147 (“a defendant who believes a trial court’s voir dire to
be deficient cannot sit on his rights and bypass the opportunity to cure the
error by questioning jurors about those subjects that he feels were
inadequately addressed when offered the opportunity to do so”).
Moreover, the record demonstrates that all jurors on the panel were
qualified to serve as members of the jury, being 18 years or older, United
States citizens, residents of Maricopa county, and having not been
convicted of a felony unless their civil rights had been restored.
II. Sufficiency of the Evidence and Inconsistent Witness Testimony
¶9 Arvizu also contends that the evidence was insufficient to
sustain the convictions. We disagree. In order for Arvizu to be convicted
of aggravated driving or actual physical control while under the influence
while his privilege to drive was suspended under A.R.S. §§ 28-1381(A)(1)
and 28-1383(A)(1), or aggravated driving or actual physical control with an
alcohol concentration of 0.08 while his privilege to drive was suspended
under A.R.S. §§ 28-1381(A)(2) and 28-1383(A)(1), the State needed to prove
the elements of each crime beyond a reasonable doubt. And the State met
its burden.
¶10 Although Arvizu contends witnesses gave inconsistent
testimony, which undermines the verdicts, his concerns go to the weight,
and not the admissibility of the testimony. And because “[t]he credibility
of a witness’ testimony and the weight it should be given are issues
particularly within the province of the jury,” see Kuhnke v. Textron, Inc., 140
Ariz. 587, 591, 684 P.2d 159, 163 (App. 1984), the jurors were entitled to
either reject or accept the officers’ testimony and we will not re-weigh the
evidence on appeal, see State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217
(1997).
III. State Failure to Produce Tow Sheet
¶11 Arvizu questions whether the missing tow sheet resulted in a
Brady violation. Specifically, he suggests that the report was exculpatory
because it would have noted any damage to Arvizu’s vehicle, even though
the report would not have demonstrated whether the car contained
gasoline, and may not have contained any other evidence to undermine the
officer’s testimony that Arvizu was in the driver’s seat or the reason the
officer did not sit in the driver’s seat to determine if there was gas. (This,
however, ignores the fact that the car had to be driven to the intersection
before the police contacted Arvizu.) The police, however, had the log
numbers and provided them, but the tow company did not maintain the
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STATE v. ARVIZU
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record after losing its contract with the police department. As a result, and
out of an abundance of caution, the trial court gave a Willits instruction and
allowed the jury to determine whether the absence of the report
undermined the State’s evidence. See Arizona v. Youngblood, 488 U.S. 51, 58
(1988) (“unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law”); State v. Rivera, 152 Ariz. 507, 511, 733 P.2d
1090, 1094 (1987) (holding where evidence is “no longer available because
the State has destroyed the evidence or failed in its duty to preserve the
evidence,” a Willits instruction will cure the error and protect the
defendant’s due process rights). Thus, any possible prejudice to Arvizu
was cured by the instruction.
IV. Denial of Defense Request to Speak to Jurors After Trial
¶12 After trial, the defense filed a motion for new trial, requesting
that the court release the juror names and contact information so counsel
could clarify whether the jurors understood and followed the instructions
during deliberations. The court held oral argument and subsequently
denied the motion because the motion did not allege any specific
misconduct listed in Rule 24.1 and the defense was not permitted to look
into the jurors’ thoughts and deliberative processes.
¶13 Here, the jury was instructed at the outset of the trial, and, at
the close of evidence, given final jury instructions. The final jury
instructions were appropriate based on the charges and evidence. Jurors
are presumed to follow their instructions. See State v. Nelson, 229 Ariz. 180,
190, ¶ 45, 273 P.3d 632, 642 (2012) (citation omitted). And under the Lord
Mansfield rule, “a juror’s testimony is not admissible to impeach the
verdict.” Id. at 191, ¶ 48, 273 P.3d at 643 (internal citations and quotation
marks omitted).
¶14 Moreover, after the verdicts were announced, the defense
requested that the jury be polled, and the court asked each juror if the
verdicts were their verdicts. Each juror answered affirmatively and there
were no dissents. The verdicts were final. See State v. Kiper, 181 Ariz. 62,
68-69, 887 P.2d 592, 598-99 (App. 1994). As a result, the defense was not
entitled to question the jurors’ thoughts and deliberative processes in an
effort to attempt to impeach the verdicts. See Ariz. R. Crim. P. 24.1(d)
(prohibiting inquiry into “the subjective motives or mental processes which
led a juror to assent or dissent from the verdict”). Consequently, the court
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STATE v. ARVIZU
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did not err in denying the defense request to inquire into the jurors’ mental
processes.
V. Reversible Error
¶15 Having reviewed the briefs and searched the entire record for
reversible error, we find none. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. The record, as
presented, reveals that Arvizu was represented by counsel at all stages of
the proceedings,8 and the sentences imposed were within the statutory
limits.
¶16 After this decision is filed, counsel’s obligation to represent
Arvizu in this appeal has ended. Counsel must only inform Arvizu of the
status of the appeal and Arvizu’s future options, unless counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984). Arvizu may, if desired, file a motion for reconsideration or
petition for review pursuant to the Arizona Rules of Criminal Procedure.
8 Although Arvizu questions the denial of his motion to change his third
attorney, the trial court did not find that Arvizu proved “a genuine
irreconcilable difference with trial counsel or that there was a total
breakdown in communication.” See State v. Peralta, 221 Ariz. 359, 361, ¶ 5,
212 P.3d 51, 53 (App. 2009) (citations omitted). Because we review the
ruling for an abuse of discretion, id. at 361, ¶ 3, 212 P.3d at 53, the court did
not abuse its discretion by denying the motion after finding that Arvizu had
repeatedly filed motions to continue the trial and to replace counsel, which
indicated a pattern of behavior, and not a genuine concern about the
attorney-client relationship.
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STATE v. ARVIZU
Decision of the Court
CONCLUSION
¶17 Accordingly, we affirm Arvizu’s convictions and sentences.
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