State v. Small ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JAMES ROBERT SMALL, Appellant.
No. 1 CA-CR 16-0906
FILED 2-8-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-118717-002
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
James Robert Small, Eloy
Appellant
STATE v. SMALL
Decision of the Court
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell
joined.
T H U M M A, Chief Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant James Robert
Small has advised the court that, after searching the entire record, he has
found no arguable question of law, and asks this court to conduct an Anders
review of the record. Small was given the opportunity to file a supplemental
brief pro se, and has done so. This court has reviewed the record and has
found no reversible error. Accordingly, Small’s convictions and resulting
sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 Early on April 20, 2016, Phoenix police responded to a call
regarding three suspicious individuals, each wearing a backpack, in
Phoenix. Officers went to the scene and, at approximately 4:00 a.m.,
contacted two males and a female. One of the three was Small, who also
was wearing gloves. The officer who had contact with Small determined
Small had an outstanding warrant and arrested him. A search of Small’s
backpack incident to arrest revealed bolt cutters, a drill, batteries and a
charger, screwdrivers, flashlights and a case with multiple identification
cards and checks that did not contain Small’s name. The backpack also
contained a bag with two containers, each containing a crystalline
substance.
¶3 The arresting officer testified that, while removing these items
from the backpack, Small indicated he wanted to cooperate. After reading
Small his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Small
1This court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89 (1997) (citation omitted). The facts
are based on the trial testimony as summarized in the briefs on appeal.
2
STATE v. SMALL
Decision of the Court
agreed to point out the locations of some burglaries. Small said that, while
walking down various streets, the two other individuals removed property
from cars and placed the property in Small’s backpack. Small then led
officers to various locations, including the cars of F.L. and P.B.
¶4 F.L. testified that he was contacted by police on the morning
of April 20, 2016 and saw that the glove compartment of his car was open
and papers were “scattered around.” F.L. testified that a checkbook and
garage door opener were missing and he had not given Small permission
to take those items. F.L. identified as his property a checkbook and the
garage door opener found in Small’s backpack.
¶5 P.B. testified that he was contacted by police on the morning
of April 20, 2016. P.B. testified that a drill, batteries and a battery charger
had been taken from his car, and that the glove compartment had been
“messed up a little bit.” P.B. identified as his property a drill and batteries
that had been recovered by police, adding he never gave Small permission
to possess the items.
¶6 N.B. testified that her car had been broken into in early
February 2016 and her tax return and other items were taken. In April 2016,
she learned that the police had recovered a tax return containing her name,
social security number and other information. No one other than the
Internal Revenue Service had permission to possess the tax return, which
was found in the backpack Small was wearing.
¶7 Another trial witness, M.D., testified her car was broken into
in early February 2016 and “pretty much everything” was taken. In April
2016, she learned a check with her name and other information had been
recovered by police. She testified that a trial exhibit was a check containing
her identifying information, although she was not sure if the check had
been in the car in early February 2016. She testified she did not know Small
and knew of no reason why he would be in possession of a check containing
her identifying information.
¶8 An employee of the Phoenix Police Crime Laboratory testified
that she tested the crystalline substance in the two containers, which was
methamphetamine. Both contained more than one gram, but less than two
grams, of the drug.
3
STATE v. SMALL
Decision of the Court
¶9 The State charged Small with two counts of burglary in the
third degree, each Class 4 felonies; possession of burglary tools, a Class 6
felony; aggravated taking of the identity of another, a Class 3 felony and
possession or use of a dangerous drug, a Class 4 felony.
¶10 Small timely requested a voluntariness hearing. After an
evidentiary hearing, the court found his statements were not the result of
force, threats or coercion and were not involuntary and that his statements
were admissible at trial. The State timely alleged aggravating
circumstances; historical prior felony convictions and prior felony
convictions constituting multiple offenses not committed on the same
occasion and offenses committed while released from confinement.
¶11 Trial lasted four days. The State called numerous witnesses
and various exhibits were received in evidence. After the State rested, Small
moved for a judgment of acquittal, which was denied. As was his right,
Small elected not to testify or to offer any affirmative evidence. After final
instructions and argument, the jury deliberated and found Small guilty as
charged. In the aggravation phase, among other things, the jury found the
State proved Small was on probation for a felony offense at the time of each
offense. At Small’s request, the jurors were polled and confirmed the
verdicts.
¶12 At a December 2016 sentencing, after hearing testimony,
receiving evidence and hearing argument, the court found Small had three
historical prior felony convictions. After considering a presentence report
and argument, and Small’s statements, the court sentenced him as a non-
dangerous but repetitive (category three) offender to concurrent,
presumptive prison terms, the longest of which was for 11.25 years, with 34
days presentence incarceration credit. This court has jurisdiction over
Small’s timely appeal 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(A)(1) (2018).2
2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
4
STATE v. SMALL
Decision of the Court
DISCUSSION
¶13 This court has reviewed and considered counsel’s brief and
appellant’s pro se supplemental brief, and has searched the entire record
for reversible error. See State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).
Searching the record and briefs reveals no reversible error. The evidence
admitted at trial constitutes substantial evidence supporting Small’s
convictions. From the record, all proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure, and the
consequences imposed were within the statutory limits and permissible
range.
¶14 Small’s supplemental brief asserts that his statements to
police were not voluntary and that the grand and petit jury proceedings
were “so compromised as to render the proceedings fundamentally unfair.”
The court addresses these arguments in turn.
¶15 Small’s voluntariness argument is based on a claim that he
made statements while in custody but before being advised of his Miranda
rights. Small, however, points to no inculpatory statements he made during
that time. Indeed, as the superior court concluded at the voluntariness
hearing, the record shows his inculpatory statements were made after he
was advised of his Miranda rights, waived those rights and decided to
cooperate with law enforcement. Although complaining that those
statements were not recorded, Small cites no authority requiring that they
be recorded. Nor has he shown that the superior court erred in its findings
on the point. On this record, Small has shown no error.3
¶16 Small’s grand and petit jury argument alleges that the jurors
selected to serve in those two different roles were not selected from a fair
cross-section of the population. Small, however, did not timely press such
arguments with the superior court, meaning they are waived on appeal. See
Padilla, 238 Ariz. at 564 ¶ 15. Furthermore, Small offers no record evidence
supporting his arguments, other than pointing to the “name or surname”
of the grand and petit jurors who were selected. Indeed, Small concedes
3 The court rejects Small’s assertion on appeal about what he “would have
testified” to at the suppression hearing or at trial, given that he elected not
to testify and he was not prevented from testifying. See State ex. rel.
Montgomery v. Padilla, 238 Ariz. 560, 564 ¶ 15 (App. 2015) (“’[A]bsent
extraordinary circumstances, errors not raised in the trial court cannot be
raised on appeal.’”) (citation omitted).
5
STATE v. SMALL
Decision of the Court
that, of the individuals who participated in voir dire, “the record is void of
the ‘nationality’ of the impaneled-eligible members called” and there is no
evidence suggesting the panel was not a fair cross-section. Nor has Small
shown how Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247(2013) shows error in this case. On this record, Small has shown no error
regarding the grand and petit jury in this case.
CONCLUSION
¶17 This court has read and considered counsel’s brief and Small’s
pro se supplemental brief, and has searched the record provided for
reversible error and has found none. Leon, 104 Ariz. at 300; Clark, 196 Ariz.
at 537 ¶ 30. Accordingly, Small’s convictions and resulting sentences are
affirmed.
¶18 Upon the filing of this decision, defense counsel is directed to
inform Small of the status of the appeal and of his future options. Defense
counsel has no further obligations unless, upon review, counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Small
shall have 30 days from the date of this decision to proceed, if he desires,
with a pro se motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
6