State v. Wilson ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DANIEL RAE WILSON, Appellant.
No. 1 CA-CR 21-0251
FILED 4-21-2022
Appeal from the Superior Court in Mohave County
No. S8015CR202001339
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. WILSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
C R U Z, Judge:
¶1 Daniel Rae Wilson appeals from his convictions and
corresponding sentences on two counts of aggravated assault on a peace
officer and one count each of resisting arrest, possession of dangerous
drugs, possession of drug paraphernalia, criminal damage, and disorderly
conduct. Because he has shown no reversible error, we affirm.
FACTUAL1 AND PROCEDURAL HISTORY
¶2 One evening in November 2020, Wilson spent the night at a
home in Bullhead City, Arizona. The next morning, a visibly intoxicated
Wilson was “yelling and screaming,” trashing the house, including
breaking a door, smashing a television, damaging a bedroom wall, kicking
a garage door, and damaging lattice on the porch. Wilson also threatened
Chris, who was at the home, and challenged him to a fight.
¶3 Chris called 911, but Wilson left before the police arrived.
When law enforcement located Wilson, he disobeyed the officer’s repeated
orders to stop. The officer used his Taser to stun Wilson, but Wilson ran
away.
¶4 After police ordered him to stop at gunpoint and sprayed him
with pepper spray, Wilson appeared to comply. But after the officer placed
a handcuff on one of his hands, Wilson began fighting with the officer and
pinned the officer against a trailer.
¶5 After another officer arrived, they tased Wilson again,
causing him to go “limp for maybe a half a second” before again fighting
the officers. The officers were finally able to cuff Wilson when one of the
officers laid on top of Wilson’s chest. In a search incident to arrest, officers
1 We view the facts in the light most favorable to sustaining the
verdicts, resolving all reasonable inferences against Wilson. See State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1 n.1 (App. 2019).
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Decision of the Court
found about 2.5 grams of methamphetamine and a syringe in Wilson’s front
pockets. From the encounter with Wilson, one officer suffered a “boxer
sprain” to his wrist, elbow, and shoulder. Another officer sustained
abrasions on her arm and knees and an injury to her finger.
¶6 A grand jury indicted Wilson on two counts of aggravated
assault on a peace officer, class four felonies (counts 1 and 2); resisting
arrest, a class six felony (count 3); possession of dangerous drugs, a class
four felony (count 4); possession of drug paraphernalia, a class six felony
(count 5); criminal damage, a class two misdemeanor (count 6); and
disorderly conduct, a class 1 misdemeanor (count 7).
¶7 Counsel was initially appointed to represent Wilson, but soon
thereafter he moved to represent himself. After receiving a signed Form 8
and conducting a thorough colloquy, the court granted Wilson’s motion
and assigned his attorney to serve as advisory counsel. After Wilson
repeatedly complained about advisory counsel’s performance, another
attorney substituted in as advisory counsel, soon replaced by a third
attorney. Wilson then filed another motion requesting new advisory
counsel, claiming he had not received sufficient communication from the
assigned attorneys. At a hearing held a week before trial, Wilson explained
his general displeasure with advisory counsel’s lack of assistance but
concluded that he was prepared to proceed to trial. The third advisory
counsel then assisted Wilson throughout trial.
¶8 The court also denied Wilson’s motion to appoint (1) an
investigator “to conduct interviews to prove character” and (2) an expert to
opine on “what drinking a fifth of [liquor] can do to you if you are not a
drinker.” The State then moved to preclude witnesses Wilson disclosed
late, including purported “character” witnesses. At a hearing on the
motion, Wilson withdrew all but one of his requested character witnesses:
his fiancée, Melissa. After considering Arizona Rule of Criminal Procedure
(“Rule”) 15.7(c), the court precluded Melissa’s testimony. The court
rejected Wilson’s later attempt to add another character witness.
¶9 In Wilson’s opening statement, he explained that his defense
was that “[n]one of [his] actions were done with the intention of committing
a crime” because they resulted from a “pathologically intoxicated” state.
And in closing argument, Wilson asserted that he had “no criminal intent,”
urging the jurors to consider that he is “not a violent person” although the
charges are “violent in nature.” Addressing the drug charges, Wilson
argued he did not knowingly possess the contraband. He asked the jurors
to infer from “common sense” that if he had known he possessed the items,
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Decision of the Court
he would have simply thrown them away while the police were chasing
him. Wilson did not call any witnesses at trial and he chose not to testify.
¶10 The jury found Wilson guilty as charged. Given his prior
criminal history, the court sentenced Wilson as a category-three repetitive
offender to a combination of concurrent and consecutive prison terms
totaling thirty years. Wilson timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
I. Requests for New Advisory Counsel, an Investigator, and an Expert
Witness
¶11 Wilson argues the superior court violated his constitutional
right to court access by denying his motions for new advisory counsel, an
investigator, and an expert witness, adding he had no access to a law
library. We review those rulings for an abuse of discretion. State v.
Gonzales, 181 Ariz. 502, 510-11 (1995) (advisory counsel and expert
witnesses); State v. Apelt, 176 Ariz. 349, 366 (1993) (investigators). Wilson
did not raise this due process argument in the superior court. Thus, we
review that claim for fundamental error resulting in prejudice. See State v.
Escalante, 245 Ariz. 135, 138, 142, ¶¶ 1, 21 (2018).
A. Advisory Counsel
¶12 When a defendant in custody exercises the right of self-
representation, “the Fifth Amendment guarantee of access to the courts
requires that he or she be provided an adequate law library or assistance
from someone trained in the law.” State v. Henry, 176 Ariz. 569, 584 (1993);
see State v. Murray, 184 Ariz. 8, 28 (1995) (“Because defendants were
provided with either advisory counsel or counsel throughout their
proceedings, their constitutional right to court access was met, regardless
of whether they had personal access to legal materials.”). “Due process
rights are violated only when a defendant is denied all meaningful
opportunity to prepare a defense.” Henry, 176 Ariz. at 584.
¶13 Wilson does not dispute that he had advisory counsel the
entire time he was self-represented. This assistance of advisory counsel
“afforded him the meaningful access required by the constitution.” Id. “An
inmate does not have the right to select his or her preferred means of
access.” Id.4
STATE v. WILSON
Decision of the Court
¶14 The record shows Wilson filed motions citing court rules and
cases, acknowledged he had Westlaw access, sent subpoenas, and was
assisted by legal aide at the jail. Wilson repeatedly informed the court that
he was prepared to proceed to trial as scheduled. Wilson has thus not
shown he was denied meaningful court access denying him due process.
¶15 Wilson complains his relationship with advisory counsel
“was completely and irretrievably broken.” But he cites no authority
suggesting that he was entitled to new advisory counsel based on a
fractured relationship. Cf. State v. Torres, 208 Ariz. 340, 342, ¶ 6 (2004)
(explaining courts are generally compelled to appoint new counsel for
represented defendants “when there is a complete breakdown in
communication or an irreconcilable conflict between a defendant and his
appointed counsel.”). Even for represented defendants, generalized
complaints of failure to communicate or lack of trust, such as those Wilson
asserts here, do not alone require the appointment of new counsel. See State
v. Riley, 248 Ariz. 154, 168, ¶ 13 (2020) (failing to communicate); State v.
Paris-Sheldon, 214 Ariz. 500, 505, ¶ 14 (App. 2007) (losing trust).
¶16 Nor has Wilson shown that others in his advisory counsel’s
office created an impermissible conflict. To the extent a pro se defendant
has a right to conflict-free advisory counsel, there was no impermissible
conflict here. Cf. State v. Sustaita, 183 Ariz. 240, 243 (App. 1995)
(“[S]omething more than a mere showing of prior representation of a victim
is required before the entire public defender’s office is disqualified from
representing a defendant.”). And Wilson has not identified which
witnesses may have posed a conflict or established that an actual conflict of
interest existed, let alone a conflict that compromised advisory counsel’s
assistance. Cf. State v. Moore, 222 Ariz. 1, 16, ¶ 82 (2009) (“To succeed on a
conflict of interest claim, a defendant must prove the existence of an actual
conflict that adversely affected counsel’s representation.”).
B. Investigator and Expert Witness
¶17 An indigent defendant is entitled to appointment of
investigators and expert witnesses when “such assistance is reasonably
necessary to adequately present a defense at trial.” Ariz. R. Crim. P. 6.7(a).
See also Jacobson v. Anderson, 203 Ariz. 543, 545, ¶ 5 (App. 2002) (“[D]ue
process requires the appointment of expert witnesses for an indigent
defendant when such testimony is reasonably necessary to present an
adequate defense.”). Determining reasonable necessity is within the court’s
discretion. Jones v. Sterling, 210 Ariz. 308, 315, ¶ 29 (2005). We will not
disturb the court’s refusal to appoint investigators and experts absent
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STATE v. WILSON
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substantial prejudice. State v. Apelt, 176 Ariz. at 366. “Mere undeveloped
assertions that the requested assistance would be beneficial are not
enough.” Id. (citation and internal quotation marks omitted).
¶18 Wilson’s motion did not describe with any particularity the
need for his requests and thus failed to meet the reasonable necessity
threshold. See id. at 365-66. And his expert witness request, on its face, was
based on presenting an impermissible voluntary intoxication defense. See
A.R.S. § 13-503 (barring voluntary intoxication as a defense).2 Thus, the
superior court did not abuse its discretion by denying Wilson’s requests for
an investigator and an expert witness.
II. Preclusion of Character Witnesses
¶19 Wilson next argues the superior court hindered his
constitutional right to present a defense by precluding his late disclosed
character witnesses. He first contends he timely disclosed his witnesses
because he had provided his list seven days before trial, in accordance with
the final disclosure deadline set forth in Rule 15.6. Alternatively, he asserts
preclusion was not warranted as a sanction for any late disclosure.
¶20 Determining “whether a disclosure violation has occurred
and the propriety of sanctions are within the sound discretion of the trial
court.” State v. Trujillo, 227 Ariz. 314, 320, ¶ 25 (App. 2011); see Ariz. R.
Crim. P. 15.7(c) (authorizing courts to sanction parties for disclosure
violations). We review the court’s determination for an abuse of discretion,
granting “considerable deference to the trial court’s perspective and
judgment.” Trujillo, 227 Ariz. at 320, ¶ 25 (citation and internal quotation
marks omitted). Because Wilson raises his due process argument for the
first time on appeal, we apply fundamental error review to that claim. See
Escalante, 245 Ariz. at 138, 142, ¶¶ 1, 21.
¶21 By rule, a defendant must timely disclose an intent to present
a good character defense. Ariz. R. Crim. P. 15.2(b)(1). Defendants must
simultaneously disclose the name and address of any witness, other than
the defendant, who will testify at trial supporting the defense. Ariz. R.
Crim. P. 15.2(b)(1), (2). As applicable here, such disclosures are required by
the earlier of “40 days after arraignment, or 10 days after the State’s
disclosure.” Ariz. R. Crim. P. 15.2(d)(1).
2 Wilson never asserted that he involuntarily consumed alcohol, nor
did he request an involuntary intoxication jury instruction.
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STATE v. WILSON
Decision of the Court
¶22 Wilson delivered his witness list disclosure several months
after the Rule 15.2 deadline had passed. Wilson cannot rely on Rule 15.6(c)
(which addresses final disclosures) in arguing the contrary. Rule 15.6
imposes on the parties a continuing duty to disclose more information as
soon as it is discovered but that duty is only implicated after the parties have
complied with their initial disclosure obligations. See State v. Burns, 237
Ariz. 1, 23, ¶ 93 (2015). Wilson may not circumvent his Rule 15.2 obligations
under the guise of Rule 15.6 compliance; otherwise, Rule 15’s initial
disclosure duties would be rendered meaningless.
¶23 Nor has Wilson shown that preclusion was unduly harsh.
The proposed character evidence was not at all relevant to the drug charges
and thus had no impact on those convictions. For the remaining charges,
Wilson has not shown that the court’s ruling violated the standard in State
v. Smith, 123 Ariz. 243, 252 (1979) (before precluding a witness, courts
consider (1) the witness’ importance to the proponent’s case, (2) whether
the proposed testimony will surprise or prejudice the opposing party, (3)
whether bad faith or willfulness motivated the late disclosure, and (4) any
other relevant circumstances.).3
III. Exclusion of the 911 and Dispatch Calls
¶24 Wilson argues the court erred in excluding the 911 and
dispatch calls. We review evidentiary rulings for an abuse of discretion.
State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). Because Wilson raises his
constitutional claim for the first time on appeal, our review is limited to
reviewing for fundamental error. Escalante, 245 Ariz. at 138, 142, ¶¶ 1, 21.
¶25 The State argues any error in excluding the calls was harmless
because they “would have only further corroborated the State’s case” or
“would have been cumulative of the other evidence adduced at trial—
evidence which Wilson did not actually contest.” Wilson asserts the error
was “not harmless” but fails to address the inculpatory nature of the
3 Wilson argues, and the State agrees, the superior court erroneously
concluded that the proposed good character evidence was inadmissible
absent an initial attack on Wilson’s character. We concur with the parties.
See Ariz. R. Evid. 404(a)(1); State v. Rhodes, 219 Ariz. 476, 478-79, ¶ 10 (App.
2008). The court’s error notwithstanding, for the reasons we discuss above,
the record supports the preclusion sanction. See State v. Wassenaar, 215 Ariz.
565, 577, ¶ 50 (App. 2007) (“We may affirm on any basis supported by the
record.”).
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Decision of the Court
evidence, or to explain how any of the excluded statements would have
benefitted the defense.
¶26 Admitting the calls would have bolstered the evidence
supporting Wilson’s guilt. In the first 911 call, the caller described Wilson’s
damaging the house and hearing Charity tell Wilson not to hurt her. The
second and third 911 calls, a few minutes later, had the caller again
describing Wilson’s damaging the house and, in the third, asking why the
police had not yet arrived. The dispatch recordings included statements
like “physical domestic,” that Wilson had been “beating his girlfriend in the
bedroom” and damaging the house. An officer reported that she found an
empty holster at the residence, and other officers noted that Wilson may be
armed.
¶27 Wilson suggests the evidence would have shown the
dispatcher incorrectly conveyed that “he had reportedly been violent with
his girlfriend,” leading to the “police overreacting with excessive physical
force against him.” But Chris had reported that he heard Charity tell
Wilson not to hurt her and that Wilson had been threatening the residents.
In any event, Wilson did not present an excessive force justification defense,
nor did he request an excessive force jury instruction under § 13-3881(B).
See A.R.S. § 13-404(B)(2) (resisting arrest may be justified when an officer
uses excessive force); State v. Matthews, 245 Ariz. 281, 286, ¶ 17 (App. 2018)
(“[E]xcessive force instruction under § 13-3881(B) is appropriate only when
the defendant claims his resistance was justified by an officer’s excessive
use of force.”).
IV. Judicial Bias
¶28 Wilson further claims the trial judge was biased against him,
causing structural error mandating reversal. Along with citing rulings
adverse to him, including those discussed above, Wilson claims the judge
was “rude and repeatedly expressed impatience.” Wilson has shown no
structural error. See State v. Granados, 235 Ariz. 321, 325, ¶ 11 (App. 2014)
(to show structural error based on a judicial bias claim, a defendant “must
allege a type of bias that would implicate his due process rights, such as
bias based on a direct, personal, substantial pecuniary interest”) (citation
and internal quotation marks omitted).
¶29 A defendant has the constitutional right to a fair and impartial
judge. Ellison, 213 Ariz. at 128, ¶ 35. “A trial judge is presumed to be free
of bias and prejudice.” State v. Hurley, 197 Ariz. 400, 404, ¶ 24 (App. 2000)
(citation and internal quotation marks omitted). “To rebut this
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presumption, a party must set forth a specific basis for the claim of partiality
and prove by a preponderance of the evidence that the judge is biased or
prejudiced.” State v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999). Judicial rulings
alone rarely support a finding of bias or partiality absent proof of an
“extrajudicial source of bias or any deep-seated favoritism.” Ellison, 213
Ariz. at 129, ¶ 40 (citation and internal quotation marks omitted).
¶30 Wilson concedes in his reply brief that he identified “no
extreme examples of rudeness or impatience on behalf of the court.” Nor
does Wilson’s argument that the trial judge was impatient with him show
judicial bias. See State v. Bible, 175 Ariz. 549, 595 (1993). Thus, he has not
shown error.
V. Asserted Improper Opinion Testimony
¶31 Wilson argues unobjected-to testimony on redirect
examination of an officer constituted fundamental error resulting in
prejudice. Specifically, he contends the State elicited improper opinion
testimony “going to the ultimate issue of whether or not the officers use of
force was excessive or appropriate.” The testimony he cites was of an
arresting officer on cross-examination, when he was trying to show the
officer had used the taser unnecessarily:
Q. I’m just going according to the police report. You guys
were both off of me. I’m facing away from you. And you
shock me in the back with a taser [six] seconds. Is that correct?
A. I don’t know how long it was. [The taser] was
ineffective. My department did an investigation, like they
always do [when we] use force, and they found that I used the
proper force for what the arrest was.
¶32 Wilson did not object or move to strike the answer about the
investigation. On redirect, the State asked the officer:
Q. Okay. And you also mentioned that this case was
reviewed by somebody in your department?
A. Anytime [sic] we use force, the supervisor reads the
report. He follows up with a memo. He looks at the policy.
And he sees if we use the proper level of force for the
resistance that we’re getting from a suspect.
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STATE v. WILSON
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Q. And your supervisor looked at this report and said you
used the proper use of level of force in this case?
A. Yes.
¶33 Wilson asserts the State’s redirect improperly provided
opinion testimony. But he elicited the same information on cross-
examination and made no objection on redirect, thus waiving the issue. See
State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually
constitutes abandonment and waiver of that claim.”). And because the
redirect testimony was cumulative, Wilson has shown no prejudice. See
Escalante, 245 Ariz. at 142, ¶ 21; cf. Granados, 235 Ariz. at 329, ¶ 35 (admitting
cumulative evidence constitutes harmless error). And to the extent there
was any error in the redirect, Wilson’s cross-examination invited that error
during cross-examination. State v. Kemp, 185 Ariz. 52, 60-61 (1996) (“[T]he
open door or invited error doctrine means that a party cannot complain
about a result he caused.”) (citation and internal quotation marks omitted).
VI. Prosecutorial Error Claim
¶34 Wilson claims several instances of alleged prosecutorial error
cumulatively deprived him of a fair trial. He cites: (1) eliciting opinion
testimony that an officer had not used excessive force when arresting
Wilson; (2) not disclosing information that the police conducted a use of
force review in Wilson’s case; and (3) improperly objecting when Wilson
introduced the 911 calls and a photograph contrary to pretrial stipulations.
To successfully show prosecutorial error, Wilson must show “the
prosecutor’s [error] so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” State v. Murray, 250 Ariz. 543,
548, ¶ 13 (2021) (citation and internal quotation marks omitted). Put
differently, he must show “a reasonable likelihood exists that the
[prosecutorial error] could have affected the jury’s verdict, thereby denying
defendant a fair trial.” Id. (citation and internal quotation marks omitted).
¶35 As noted above, the prosecutor committed no error in
eliciting the officer’s cumulative testimony on redirect examination. Nor
has Wilson shown any disclosure errors. Contrary to Wilson’s contention
that the officer “admitted that his supervisor had investigated the matter
for discipline,” the officer testified only that the police department
reviewed his use of force against Wilson as a matter of routine policy; he
never stated that a disciplinary investigation had begun. And Wilson does
not explain how a use of force review concluding the officer had used an
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appropriate level of force constitutes favorable evidence the State needed
to disclose.
¶36 Wilson is correct that the prosecutor objected, contrary to his
earlier stipulations, when Wilson introduced the 911 calls and a
photograph. But those objections did not cause an unfair trial. As
discussed above, excluding the 911 and dispatch calls could not have
affected the verdicts. Likewise, rejecting the photograph (of Wilson
handcuffed following his arrest) did not impinge on the fairness of his trial.
Several similar photographs were admitted depicting Wilson in restraints.
For these reasons, Wilson has not carried his burden to show cumulative
fundamental error. See State v. Vargas, 249 Ariz. 186, 188, ¶ 1 (2020).
CONCLUSION
¶37 For these reasons, we affirm Wilson’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: JT
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