State v. Dunn

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRYAN DARNELL DUNN,
Appellant.
No. 1 CA-CR 19-0001
FILED 11-26-2019
Appeal from the Superior Court in Maricopa County
No. CR2017-127817-001
The Honorable Monica S. Garfinkel, 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 Thomas K. Baird
Counsel for Appellant
Bryan Darnell Dunn, Florence
Appellant
STATE v. DUNN
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.
J O H N S E N, Judge:
¶1 Bryan Darnell Dunn filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of misconduct involving weapons, a Class
4 felony. Dunn'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, 284 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Counsel now asks this court to search the record for
fundamental error. Dunn filed a supplemental brief raising various issues.
After reviewing the entire record, we affirm Dunn's conviction and the
resulting sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 While arresting Dunn on an unrelated matter, police twice
had to direct him to raise his hands.1 An officer then tried to restrain Dunn's
hands behind his back, but Dunn resisted. The police struggled for
approximately 30 seconds to get Dunn's right hand away from his
waistband, but eventually succeeded. One officer then searched Dunn and
felt a hard object in Dunn's waistband area; he asked Dunn what the object
was and Dunn replied it was a gun. The police then confiscated the gun
and removed the ammunition inside it. During a later recorded police
interview, Dunn acknowledged he had prior felony convictions.
¶3 The State charged Dunn with one count of misconduct
involving weapons, a Class 4 felony. A.R.S. § 13-3102(A)(4), (M) (2019).2 At
trial, six members of the Phoenix Police Department testified and the
1 Upon review, "[w]e view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against" Dunn. State
v. Gurrola, 219 Ariz. 438, 439, ¶ 2, n.1 (App. 2008).
2 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.
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STATE v. DUNN
Decision of the Court
superior court admitted the confiscated gun. The court also admitted
minute entries showing two prior felony convictions, Dunn's recorded
police interview and documents containing fingerprints taken from Dunn
during this proceeding and from records of his prior convictions. The jury
found Dunn guilty, and, after the court found Dunn had at least four prior
felony convictions, it sentenced him as a category-three repetitive offender
to a presumptive term of 10 years in prison with 335 days of presentence
incarceration credit. Dunn timely appeals. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).
DISCUSSION
A. Dunn's Supplemental Brief.
¶4 In his supplemental brief, Dunn first argues two officers
violated the parties' stipulation and the court's orders precluding evidence
of other "suppressed" cases by implying during their testimony that Dunn
was a violent criminal. Dunn points specifically to one officer's response to
a question about the officer's assignment at the time of trial; the officer
responded that he was "the administrative sergeant for the violent crimes
bureau." When the officer next was asked about his assignment at the time
of Dunn's arrest, however, he stated he was assigned to a "neighborhood
enforcement team." Nothing in that exchange implied that the officer was
involved in Dunn's arrest as a member of the violent-crimes bureau. Dunn
also argues that the officer improperly testified that police "were
investigating [him] on [an] unrelated case." Although Dunn does not cite
the record for that argument, if that comment were made, it would have
been consistent with a stipulation the court read to the jury that on the day
Dunn was arrested, police officers "were looking for [him] to arrest him as
part of an unrelated investigation."
¶5 Dunn argues another officer made two statements in violation
of the court's pretrial orders. He first argues the officer described her work
as a detective in the "domestic violence unit." But this testimony came in
response to a request to "tell the jury a little bit about what a detective does";
the officer never referred to Dunn or this case when describing her work,
there was no mention of domestic violence at any other time, no mention of
a victim at any time and, after seeking the court's guidance, the prosecutor
quickly moved on. Without more, the testimony did not prejudice Dunn.
¶6 Dunn further argues the officer improperly testified Dunn
was transported to a violent-crime bureau after he was arrested. No error
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occurred, however, because Dunn's counsel elicited the testimony and, in
any event, the officer went on to testify that police took Dunn to that
location only for questioning:
[Dunn's counsel]: . . . And [Dunn] was transported to – you
called the VCB 2 in your report?
[Officer]: In the report.
[Dunn's counsel]: What's that mean?
[Officer]: VCB means violent crimes bureau. That's where
people are brought. That's where the interview rooms are
located at police headquarters. And each one of the rooms are
numbered, so he was in room 2.
¶7 Dunn next argues a minute entry admitted as evidence of a
prior conviction of an offense committed on July 29, 2014, was "false." Dunn
contends he was convicted "for two 3-29-14 cases, one 10-30-14 case, and
one 6-7-15 case" but "never for an [sic] 7-29-14 case." At trial, however,
Dunn's counsel did not dispute the validity of any of the four convictions
the State offered in evidence, and Dunn offers no explanation for his
contention. Further, notwithstanding that Dunn concedes he had four prior
felonies, only one felony conviction was necessary to establish that he was
a prohibited possessor at the time of his arrest. Thus, no error occurred.
¶8 Dunn also argues that two witnesses provided inconsistent
statements. But inconsistencies in the evidence are "for the jury's
consideration in making its credibility determinations," and we will not
disturb those determinations. See State v. Buccheri-Bianca, 233 Ariz. 324, 334,
¶ 39 (App. 2013).
¶9 Last, Dunn argues that a witness testified at sentencing about
a matter for which he was not charged. But the witness's testimony was
offered to rebut Dunn's mitigation memorandum – specifically, his
counsel's statements that Dunn did not have a violent history or tendencies
and that Dunn had been kidnapped and assaulted on a prior occasion.
Thus, this testimony was relevant and the court did not abuse its discretion
by admitting it. See State v. Burns, 237 Ariz. 1, 28-29, ¶ 130 (2015). Further,
the court did not abuse its discretion when it imposed the presumptive
sentence; "[a]lthough the court could have shown greater leniency, it was
not required to do so." See State v. Todd, 244 Ariz. 374, 382, ¶ 27 (App. 2018).
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B. Due-Process Review.
¶10 The record reflects Dunn 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 he waived his presence at a
conference during trial to discuss final jury instructions. The court held
appropriate pretrial hearings.
¶11 Dunn requested a voluntariness hearing, arguing the court
should have suppressed his statements to police under Miranda v. Arizona,
384 U.S. 436 (1966), and Missouri v. Seibert, 542 U.S. 600 (2004). Because
police asked Dunn what the object was in his waistband before they read
him his rights, he argued his responses to the entire line of questioning
should have been suppressed. See Seibert, 542 U.S. at 614-17. The superior
court declined to hold a hearing on Dunn's motion because it assumed the
facts in the motion were true, then properly denied the motion because the
statements at issue fell within the public safety exception to Miranda. See
State v. Leteve, 237 Ariz. 516, 524, ¶ 9 (2015) ("statements made in response
to 'questions necessary to secure the officers' own safety or the safety of the
public' are admissible even if Miranda warnings have not been given"
(quoting New York v. Quarles, 467 U.S. 649, 659 (1984))).
¶12 The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. 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 a legal
sentence for the crime of which Dunn was convicted.
CONCLUSION
¶13 We have reviewed the entire record for an arguable issue and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.
¶14 Defense counsel's obligations pertaining to Dunn's
representation in this appeal have ended. Counsel need do no more than
inform Dunn 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 review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Dunn has 30 days from
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the date of this decision to proceed, if he wishes, with a pro per motion for
reconsideration. Dunn has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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