State v. Wade

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
WILLIAM EARL WADE, JR., Appellant.
No. 1 CA-CR 20-0095
FILED 2-23-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-158411-001
The Honorable Ronee Korbin Steiner, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee
Gurion Legal, Phoenix
By Omer Gurion
Counsel for Appellant
STATE v. WADE
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
C R U Z, Judge:
¶1 William Earl Wade Jr. appeals his convictions and sentences
for possession of methamphetamine and possession of drug paraphernalia.
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In December 2018, Phoenix police officers encountered Wade
at a transient camp. Wade consented to a search of his person, and an
officer found a baggie containing 1.1005 grams of methamphetamine and a
glass pipe in Wade’s front left pants pocket. Officers searched Wade’s
backpack and found empty baggies.
¶3 The State charged Wade with one count of possession of
dangerous drug (methamphetamine), a class 4 felony (count 1), and one
count of possession of drug paraphernalia (pipe), a class 6 felony (count 2).
A jury convicted Wade as charged, and the superior court sentenced him to
twelve years in prison for count 1 and to a concurrent term of 5.75 years in
prison for count 2. Wade timely appealed, and we have jurisdiction
pursuant to Arizona Constitution article VI, § 9, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, -4033(A)(1).
DISCUSSION
I. Alternate Juror
¶4 Wade first argues the superior court erred by allowing an
alternate juror to deliberate after not being present for supplemental closing
arguments made to the originally constituted jury. He concedes he did not
object to the alternate juror deliberating without being privy to
supplemental arguments made by counsel when the original jury was at an
impasse, but argues the alleged error was structural or fundamental.
¶5 After closing arguments were presented, jurors 4 and 6 were
randomly selected as alternate jurors. The next day, the jury informed the
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STATE v. WADE
Decision of the Court
court that the jurors could not reach an agreement. The court read them the
impasse instruction and allowed both sides to present additional argument.
As the bailiff brought the jury back to the jury room for more deliberations,
juror 1 had an emotional breakdown. The court spoke to juror 1, and she
told the court she could not continue deliberating. Without objection, the
court excused juror 1 and replaced her with juror 6 pursuant to Arizona
Rule of Criminal Procedure 18.5(h)(3). The court instructed the jury not to
deliberate again until juror 6 arrived to deliberate.
¶6 After juror 6 arrived at court, and before the court further
instructed the jury, the State raised the issue of the “five-minute . . .
argument we made after there was an impasse with the jury, and I don’t
know . . . whether or not [juror 6] needs to watch the FTR clip or be made
aware of that, I know it is not evidence because it is argument, but I just
wanted to raise that.” The court responded that the supplemental
arguments “wouldn’t matter,” because the court would be instructing the
jurors to disregard all of their previous deliberations. Defense counsel
agreed that juror 6 did not need to hear the supplemental arguments. The
court then gave the jury the instruction for reconstituted juries, which
directed jurors to start deliberations anew and not to “consider any part of
your prior deliberations and/or discussions.”
¶7 “[T]he relatively few instances in which we . . . regard error
as structural all involve errors that deprive defendants of basic protections
and infect the entire trial process from beginning to end, and include errors
such as a biased trial judge [and the] complete denial of criminal defense
counsel.” State v. Bush, 244 Ariz. 575, 591, ¶ 66 (2018) (internal quotations
omitted). And “[a] defendant establishes fundamental error by showing
that (1) the error went to the foundation of the case, (2) the error took from
the defendant a right essential to his defense, or (3) the error was so
egregious that he could not possibly have received a fair trial.” State v.
Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). The first step in fundamental error
or structural error review is determining whether trial error exists. See id.¶8 Wade argues he did not receive a fair trial because “7 of the 8
jurors deliberating were armed with additional argument than that
provided to the new juror.” He cites no caselaw to support his argument
that permitting an alternate juror to deliberate as part of a reconstituted
jury, without having heard supplemental closing arguments presented to
the original jury while at an impasse, constitutes fundamental or structural
error.
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STATE v. WADE
Decision of the Court
¶9 We find no error, structural, fundamental, or otherwise. First,
when the State suggested juror 6 should watch a video recording of the
supplement arguments, or otherwise be made aware of them, the court
asked defense counsel whether that process needed to take place. Defense
counsel said juror 6 did not need to see the video. Assuming arguendo that
failure to show juror 6 a recording of the supplemental argument was error;
Wade invited any such error when he agreed it was unnecessary to do so
and he waived the argument on appeal. State v. Logan, 200 Ariz. 564, 565-
66, ¶ 9 (2001) (appellate courts “will not find reversible error when the party
complaining of it invited the error”).
¶10 Second, we presume jurors follow the superior court’s
instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). The
supplemental arguments occurred during the originally constituted jury’s
deliberations, and the court instructed the jurors to begin deliberations
anew and not to consider its previous deliberations. We therefore will
presume that the reconstituted jury only considered the parties’ closing
arguments and not the supplemental arguments. Juror 6 was present for
all of the evidence and for the parties’ closing arguments. Juror 6 did not
“miss[] large portions of the trial,” or miss “testimony [that] was
particularly critical.” See State v. Prince, 226 Ariz. 516, 533, ¶¶ 55-58 (2011)
(no error, fundamental or otherwise, occurred when the court permitted a
juror to deliberate after the juror slept through testimony that was not
particularly critical) (internal quotation omitted). We cannot conclude that
Wade was deprived of a fair trial because juror 6 did not hear the
supplemental arguments.
II. Testimony About the Baggies
¶11 Wade next argues the superior court violated Arizona Rule of
Evidence (“Rule”) 404(b) by permitting the State to introduce testimony
about the baggies police found in his backpack. At trial, Officer Nevarez
testified, without objection, that he found “a ton” of “small clear baggies”
in Wade’s backpack. The baggies were then admitted into evidence
without objection. On appeal, Wade argues the superior court erred by
“admitting character evidence against [him] for the sole purpose of making
him appear to be a habitual drug user,” and that he was deprived of a fair
trial.
¶12 Normally we review a court’s admission of evidence for an
abuse of discretion. State v. Vigil, 195 Ariz. 189, 191, ¶ 13 (App. 1999).
However, because Wade did not object to the testimony, we review for
fundamental error. See Escalante, 245 Ariz. at 138, ¶ 1.
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STATE v. WADE
Decision of the Court
¶13 Rule 404(b)(1) precludes evidence of “other crimes, wrongs,
or acts” to prove the character of a defendant “in order to show action in
conformity therewith.” Such evidence “may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b)(2). “In all these situations the bad acts shed some light on the crime
charged and not merely on the defendant’s criminal propensity.” State v.
Rose, 121 Ariz. 131, 136 (1978). “The list of ‘other purposes’ in rule 404(b)
. . . is not exclusive; if evidence is relevant for any purpose other than that
of showing the defendant’s criminal propensities, it is admissible . . . .” State
v. Jeffers, 135 Ariz. 404, 417 (1983).
¶14 Here, even if the testimony about the baggies constituted
other acts character evidence it was nonetheless admissible under Rule
404(b) for a non-propensity purpose because the testimony served to rebut
Wade’s defense and testimony that he did not knowingly possess
methamphetamine. See State v. Williams, 183 Ariz. 368, 376 (1995)
(“Evidence which tests, sustains, or impeaches the credibility or character
of a witness is generally admissible, even if it refers to a defendant’s prior
bad acts.”) (internal quotation omitted).
¶15 Wade further argues the superior court erred by failing to sua
sponte hold a hearing or make a determination about the relevance of the
evidence versus its prejudicial effect pursuant to Rule 403. Evidence is
relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence.” Ariz. R. Evid. 401(A). The superior court
did not perform the Rule 403 analysis it would have been required to
perform had Wade objected to the testimony at trial. But the court would
have been within its discretion to admit the evidence of additional baggies
because the danger of unfair prejudice from admitting it did not
substantially outweigh its probative value in establishing that Wade knew
he was in possession of methamphetamine. No error, much less
fundamental error, occurred.
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STATE v. WADE
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm Wade’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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