Opinion
No. 1 CA-CR 11-0690
05-09-2013
STATE OF ARIZONA, Appellee, v. MALIK AUSTIN, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Linley Wilson, Assistant Attorney General Attorneys for Appellee Michael James Wicks Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-005539-001
The Honorable Joseph C. Kreamer, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Section
Linley Wilson, Assistant Attorney General
Attorneys for Appellee
Phoenix Michael James Wicks
Attorney for Appellant
Phoenix GOULD, Judge ¶1 Malik Austin appeals his convictions and sentences on two counts of threatening or intimidating, each a class 3 felony; one count of assisting a criminal street gang, a class 3 felony; and four counts of threatening or intimidating, each a class 1 misdemeanor. Austin argues that the trial court erred by denying his motion to dismiss and by finding he was competent to represent himself. He additionally asserts that the evidence was insufficient to support his convictions. For reasons that follow, we affirm.
BACKGROUND
¶2 On March 24, 2010, Austin was indicted under Maricopa County Superior Court Cause No. CR2010-131365-001 on one count of assisting a criminal street gang, a class 3 felony; and two counts of threatening or intimidating, each a class 6 felony. The offenses stemmed from Austin's conduct in regards to a police officer who lived across the street from him. One week before the scheduled trial date, the trial court granted a motion by the State to dismiss the charges without prejudice. In granting the motion, the trial court stated that Austin could litigate the propriety of the dismissal without prejudice if the charges were refiled. ¶3 On February 14, 2011, Austin was re-indicted under Superior Court Cause No. CR2011-005539-001 on two counts of threatening or intimidating to promote, further or assist a criminal street gang, each a class 3 felony; one count of assisting a street gang, a class 3 felony; and four counts of threatening or intimidating, each a class 6 felony. These charges were based on the same conduct by Austin toward the victim officer alleged in Cause No. CR2010-131365-001 as well as his conduct in regards to other police officers when taken into custody. The State additionally alleged that aggravating circumstances existed, that Austin was a repetitive offender, and that he committed the offenses with intent to promote, further or assist a criminal street gang. ¶4 Prior to trial, Austin moved to dismiss the second indictment, arguing that the dismissal of the first indictment was sought by the State to gain a tactical advantage. In his motion, Austin asserted that he was ready to proceed to trial on the first indictment and that the State moved to dismiss because the trial court ordered the victim officer's wife and son to appear at a hearing. Austin further claimed he was prejudiced by the dismissal in that the new indictment made it easier for the State to obtain a conviction, increased his exposure to prison time if convicted, and resulted in more pretrial detention. In opposing the motion, the prosecutor explained that the first indictment was dismissed to allow a new indictment adding additional officers as victims and to clarify the predicate felony for the charge of assisting a criminal street gang. Finding that the State's action was not done in bad faith and that there was no prejudice to Austin, the trial court denied the motion to dismiss. ¶5 Following the denial of the motion to dismiss, Austin moved to change counsel and represent himself. After discussing the motion at length with Austin, the trial court granted the request for self-representation and appointed new counsel to serve as advisory counsel. ¶6 Austin waived his right to a jury and stipulated to a bench trial. At the conclusion of trial, the trial court found Austin guilty as charged on the two counts of threatening or intimidating to promote, further or assist a criminal street gang and the count of assisting a street gang, a class three felony. The trial court further acquitted Austin on the four additional counts of felony threatening or intimidating but found him guilty of the lesser-included charge of misdemeanor threatening or intimidating on each of these counts. ¶7 The trial court sentenced Austin as a repetitive offender to concurrent mitigated prison terms of five and one-half years on the three felony convictions and to six months in jail on the four misdemeanor convictions. Austin timely appealed.
DISCUSSION
A. Denial of Motion to Dismiss ¶8 Austin contends the trial court erred in denying his motion to dismiss the re-filed indictment with prejudice because the State's motion to dismiss the original indictment was made to gain a tactical advantage and resulted in prejudice to him. We review a trial court's ruling as whether a dismissal of a prosecution should be with prejudice for abuse of discretion. State v. Huffman, 222 Ariz. 416, 419, ¶ 5, 215 P.3d 390, 393 (App. 2009). ¶9 The dismissal of prosecutions is governed by Arizona Rule of Criminal Procedure 16.6. This rule requires dismissal without prejudice to commencement of another prosecution, unless the trial court finds that "the interests of justice require that the dismissal be with prejudice." Ariz. R. Crim. P. 16.6(d); see also State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040 (App. 1978) (holding that, although the trial court "has the inherent power to dismiss a prosecution," it may not dismiss an indictment with prejudice absent a finding that "the interests of justice" require it). ¶10 The most important consideration in deciding whether a dismissal should be "with prejudice" is whether delay in the prosecution will prejudice the defendant. State v. Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App. 1991). A dismissal with prejudice must be based on "a particularized finding that to do otherwise would result in some articulable harm to the defendant." State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993). This harm cannot be mere annoyance or inconvenience from the delay but must actually impair the defendant's ability to defend against the charge. Gilbert, 172 Ariz. at 405, 837 P.2d at 1140; see also In re Arnulfo G., 205 Ariz. 389, 391, ¶ 9, 71 P.3d 916, 918 (App. 2003) ("The type of harm that will justify dismissal with prejudice is a harm that would actually impair the accused's ability to defend against the charges."). ¶11 Here, there was no showing by Austin that dismissal of the first indictment would prejudice his ability to defend against the refiled charges. Moreover, the trial court found that the State did not act in bad faith, but rather sought dismissal of the original indictment to provide better notice of charges and to include additional victims to avoid piecemeal litigation. Given the factual finding that the dismissal was not sought to gain a tactical advantage or to harass Austin, there was no abuse of discretion by the trial court in denying the motion to dismiss with prejudice. Gilbert, 172 Ariz. at 405, 837 P.2d at 1140.
B. Motion for Self-Representation ¶12 Austin contends the trial court erred in granting his motion for self-representation by using an improper standard in ruling that he was competent to represent himself. Because Austin failed to object to the manner in which the trial court ruled on his request to represent himself, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). To prevail under this standard of review, Austin must establish both that fundamental error occurred and that the error prejudiced him. Id. at 568, ¶ 22, 115 P.3d at 608. ¶13 We note that Austin does not argue on appeal that he was incompetent to represent himself; rather, he argues the trial court used the wrong standard in accepting his waiver of counsel. Austin contends the trial court erroneously employed a standard of competency for waiving counsel that was lower than the standard for determining competency to stand trial under Rule 11. Austin bases his argument on the following statement by the trial court in granting the request: "I think under the circumstances[,] because it's a fairly lenient standard in terms of representing yourself, that you should be permitted to represent yourself." According to Austin, the reference to a "fairly lenient standard" indicates the trial court was of the belief that the level of competency for self-representation is less than that required to stand trial. Based on our review of the record, we disagree. ¶14 Under the Due Process Clause of the Fourteenth Amendment, the competency standard for waiving the right to counsel and the competency standard for standing trial are the same. State v. Gunches, 225 Ariz. 22, 24, ¶ 9, 234 P.3d 590, 592 (2010). "A defendant is competent to stand trial if he has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and a 'rational as well as factual understanding of the proceedings against him.'" Id. at ¶ 9, 234 P.3d at 592 (quoting Dusky v. U.S., 362 U.S. 402, 402 (1960)). ¶15 Although the trial court indicated it had some concerns regarding Austin's "lingering mental health issues," after engaging in a colloquy with Austin regarding his request for self-representation, the trial court made an unambiguous finding that there was no Rule 11 competency issue and that Austin was fully competent to represent himself. When viewed in context, the reference to a "fairly lenient standard" was simply the trial court acknowledging that a defendant has the right to self-representation even if doing so might be detrimental. See Faretta v. Cal., 422 U.S. 806, 834-36 (1975) (recognizing constitutional right to self-representation irrespective of legal ability). In short, there is nothing in the record supporting Austin's claim that the trial court applied an incorrect standard in determining that he was competent to represent himself. ¶16 Furthermore, even if the trial court used the incorrect standard for determining competency to waive counsel, the record clearly shows that Austin was competent to represent himself. The record reflects that Austin had a full understanding of the nature of the proceedings and, as the trial court observed at sentencing, he handled his defense "better than a lot of lawyers would put on your case." Absent some showing that he was not competent to represent himself, Austin fails to meet his burden under fundamental error review of establishing any prejudice from the claimed error.
C. Sufficiency of Evidence ¶17 Finally, Austin argues that the trial court erred in denying his Rule 20 motion for judgment of acquittal and in finding him guilty, claiming the evidence was insufficient to support his convictions. Specifically, relying on In re Kyle M., 200 Ariz. 447, 27 P.3d 804 (App. 2001), Austin contends his words and conduct in regards to the victim officers did not permit a finding that he made "true threats." We review claims of insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶18 "A judgment of acquittal is appropriate when 'no substantial evidence [exists] to warrant a conviction.'" State v. Nunez, 167 Ariz. 272, 278, 806 P.2d 861, 867 (1991) (quoting State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984)); see also Ariz. R. Crim. P. 20(A). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶19 Austin was charged with threatening or intimidating in violation of A.R.S. § 13-1202 (West 2013), which provides, in relevant part:
A. A person commits threatening or intimidating if the person threatens or intimidates by word or conduct:¶20 In Kyle M., after reviewing the legislative history and case law regarding the criminal offense of threatening or intimidating, this court held that in enacting A.R.S. § 13-1202(A) "the legislature intended only to criminalize genuine expressions of intent to either inflict bodily harm or seriously damage property of another." 200 Ariz. at 451, ¶ 18, 27 P.3d at 808. Consistent with this holding, this court further adopted the "true threat" doctrine developed in federal case law for distinguishing between constitutionally protected speech and words or conduct that are subject to criminal sanction under A.R.S. § 13-1202(A). Id. at ¶ 22, 27 P.3d at 808. The "true threat" doctrine requires that
1. To cause physical injury to another person or serious damage to the property of another; or
. . . .
3. To cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a
criminal street gang, a criminal syndicate or a racketeering enterprise.
B. Threatening or intimidating pursuant to subsection A, paragraph 1 or 2 is a class 1 misdemeanor, except that it is a class 6 felony if:
. . . .
2. The person is a criminal street gang member.
C. Threatening or intimidating pursuant to subsection A, paragraph 3 is a class 3 felony.
in order for the government to establish a "true threat" it must demonstrate that the defendant made a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those toId. at ¶ 21, 27 P.3d at 808 (citations omitted). ¶21 The evidence presented at trial was sufficient to permit the trial court to find Austin made "true threats" to the victims in violation of A.R.S. § 13-1202(A)(1). The statements on which the State based the charges consisted of two written notes to an officer who lived across the street from him; Austin's statements when confronting this officer at a police precinct; and his statements to four other officers when he was arrested. In the notes, Austin proclaimed he was "Blood" -- indicating membership in the Bloods street gang. In one note, he further made reference to being an enemy and warned the officer to "heed [his] words." In the other, Austin quoted scripture including that there was "A time to B born and a time 2 die," which the officer understood to mean that "there's going to be a time for [the officer] to die." During his confrontation with this officer at the police precinct, Austin called the officer "a white devil" and a "fearful coward" and further told the officer that he was "a Blood from L.A." and that "where I'm from, we kill cops." ¶22 When subsequently taken into custody in connection with the threats made to the officer, Austin again proclaimed to the arresting officers that he was "Blood," and further stated that he was "a fucking gangster from California," and "[w]here I come from, we kill people." He additionally told the officers that he was not afraid of the police and that when he gets his chance he could possibly retaliate. Considered together with expert testimony proffered regarding the rivalry between the Bloods and the police, the manner in which Austin's dress and exhibition of gang signs was indicative of gang membership, and how gang members seek to instill fear by invoking the gang's name to intimidate, the notes and the victim officers' testimony of the statements made by Austin were sufficient to support a finding that a reasonable person would foresee that they would be interpreted by the officers as serious expressions of intention to cause physical injury. ¶23 We reject Austin's argument that his words and conduct should not be considered true threats because the victims are all veteran police officers and that his conduct should be viewed as something that "comes with the territory." The fact that an officer's occupation involves exposure to danger does not absolve a person of criminal liability for committing an offense against the officer. In re Julio L., 197 Ariz. 1, 3 P.3d 383 (2000), cited by Austin, is readily distinguishable. In Julio L., our supreme court held that the evidence was insufficient to establish disorderly conduct because there was no showing that the teacher's peace was actually disturbed, not that the student was free to commit such an offense against the teacher because her job involved dealing with disciplinary matters. Id. at ¶ 9, 3 P.3d at 385. As discussed above, the evidence in the instant case was sufficient to establish that Austin's words and conduct constituted violations of A.R.S. § 13-1202(A) as they expressed "true threats" against the victim officers. ¶24 Austin's challenge to the sufficiency of the evidence based on his assertion that it is "beyond belief to imagine that these officers truly felt threatened or intimidated by him" is likewise devoid of merit. Each of the victim officers testified that he felt threatened or intimidated by Austin. The credibility of witnesses is an issue for the trier of fact. State v. Hunter, 112 Ariz. 128, 129, 539 P.2d 885, 886 (1975). Furthermore, the State is not required to prove that a victim actually felt threatened to establish a violation of A.R.S. § 13-1202(A)(1). See In re Ryan A., 202 Ariz. 19, 22, ¶ 11, 39 P.2d 543, 546 (App. 2002) (holding test for a "true threat" is an objective one that "does not require subjective analysis of the belief of the particular person to whom the threat is made"). ¶25 Given the record before us, there was no error by the trial court in denying Austin's Rule 20 motion for judgment of acquittal or in ultimately finding him guilty.
whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [a person].
CONCLUSION
¶26 For the reasons stated, we affirm Austin's convictions and sentences.
____________
ANDREW W. GOULD, Judge
CONCURRING: ________________________
PATRICIA K. NORRIS, Presiding Judge
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RANDALL M. HOWE, Judge