Opinion
1 CA-CR 11-0771
05-16-2013
STATE OF ARIZONA, Appellee, v. ALFREDO FERNANDO DIAZ, Appellant.
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael O'Toole, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Mikel P. Steinfeld, Deputy Public Defender Attorneys 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR1993-008385
The Honorable Edward W. Bassett, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Michael O'Toole, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Mikel P. Steinfeld, Deputy Public Defender
Attorneys for Appellant
Phoenix DOWNIE, Judge ¶1 Alfredo Fernando Diaz ("Defendant") appeals his conviction and sentence for aggravated assault, a class three dangerous felony. He contends he is entitled to a new trial because transcripts from his 1995 trial are unavailable. We disagree and therefore affirm his conviction and sentence.
BACKGROUND
¶2 In September 1993, Defendant was charged with one count of aggravated assault involving use of a deadly weapon. He was released on bond. Defendant failed to appear for the first day of trial in June 1994, and the court issued a bench warrant for his arrest. Defendant was apprehended in October 1994, and a new trial date was set. Defendant was again released on bond. ¶3 Trial commenced on December 12, 1995. Defendant was present for the first three days of trial. He did not appear on the last day, when the jury deliberated and rendered a guilty verdict. The court issued a bench warrant for Defendant's arrest and postponed sentencing until he was apprehended. ¶4 Tempe police picked Defendant up on the warrant on June 26, 2011. Defendant subsequently moved for a new trial, alleging ineffective assistance of trial counsel based on counsel purportedly: (1) advising that he did not need to appear on the fourth day of trial; and (2) not responding to Defendant's repeated attempts at contact. The court denied the motion and sentenced Defendant to six and one-half years' incarceration. Defendant timely appealed. ¶5 In June 2012, Defendant filed a motion in this Court to remand to the superior court for reconstruction of the record. He noted that the trial transcripts were unavailable because, pursuant to the Arizona Code of Judicial Administration ("Code"), the court reporter's notes had been destroyed. See Code § 3-402(C)(2)(a)(1) (permitting destruction of reporter's notes in non-capital cases after ten years). We granted the motion, stayed the appeal, and revested jurisdiction in the superior court for purposes of reconstructing the record. See Ariz. R. Crim. P. 31.8(f), (h). ¶6 The parties submitted statements of evidence to the superior court. The court denied Defendant's request to present witness testimony at an evidentiary hearing. After considering the parties' submissions, the court found the testimony of the victim, witnesses, and investigating officers was consistent with the police reports, reflecting that Defendant and his estranged wife had an argument, and Defendant pointed a handgun at her and threatened to kill her. The court also found that Defendant admitted at trial that he and his estranged wife argued, but testified he did not threaten her and did not have a gun. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, -4033(A).
DISCUSSION
¶7 Defendant contends the lack of trial transcripts deprives him of his due process right to "adequate and effective appellate review," entitling him to a new trial. Alternatively, he argues the court erred by denying his request for an evidentiary hearing to consider witness testimony. ¶8 A criminal defendant has a constitutional right to an appeal. Ariz. Const. art. 2, § 24; Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993). Although the right to appeal includes the right to a complete trial record, the absence of a verbatim record of all proceedings does not automatically require reversal. In re Jorge D., 202 Ariz. 277, 282, ¶ 26, 43 P.3d 605, 610 (App. 2002) (citation omitted); see also Norvell v. Illinois, 373 U.S. 420, 424 (1963) (failure to provide transcripts does not automatically entitle defendant to a new trial). In addressing the effect of a missing trial transcript, our supreme court has stated:
We are not prepared to say that in every case involving a lost or unavailable reporter's transcript the defendant is entitled to a new trial. Absent a showing of reversible error, or at least a credible and unmet allegation of reversible error, we are inclined to hold that the remaining record will suffice to support an affirmation of a verdict and judgment by the trial court. Where, however, through no fault of the defendant the reporter's transcript is unavailable and the defendant has shown prima facie fundamental error, weState v. Masters, 108 Ariz. 189, 192, 494 P.2d 1319, 1322 (1972) (emphasis added). ¶9 Under Masters, two conditions must exist before a defendant is entitled to a new trial based on missing transcripts: (1) the unavailability must be through no fault of the defendant's; and (2) the defendant must make "a credible and unmet allegation of reversible error." Id. In the case at bar, neither condition has been satisfied. ¶10 Administrative policy of the Arizona Supreme Court provides that court reporters' notes must be retained for ten years in non-capital criminal cases, after which they may be destroyed. Code § 3-402(C)(2)(a)(1). If a defendant is tried in absentia or fails to appear for sentencing, "court reporter notes must be transcribed." Code § 3-402(C)(2)(a). However, neither of these circumstances exists here. Defendant was not tried in absentia, though the verdict was read in his absence, and no sentencing date was set until after he was arrested on the bench warrant. ¶11 Because Defendant was a fugitive from justice for over 15 years after his conviction, the court reporter's notes were routinely destroyed. Other jurisdictions have held that absconding defendants may not be permitted to benefit from such voluntary, unlawful conduct. See State v. Brenes, 846 A.2d 1211, 1213 (N.H. 2004) ("[C]ourts generally agree that when the records of a defendant's trial have been lost or destroyed while he was a fugitive from justice, neither a new trial nor vacatur of the conviction is warranted."); State v. Verikokides, 925 P.2d 1255, 1256-58 (Utah 1996) (defendant not entitled to new trial where seven-year absence as fugitive resulted in loss of transcript, trial evidence, and exhibits); Bellows v. State, 871 P.2d 340, 343 (Nev. 1994) ("Because appellant's absence led to the loss of his trial transcripts, he may not benefit from his attempt to elude the law."); State v. Brown, 866 P.2d 1172, 1174-75 (N.M. Ct. App. 1993) (upholding denial of new trial where defendant not blameless for lack of transcript when he was fugitive for 13 years); Commonwealth v. Johnson, 764 A.2d 1094, 1099 (Pa. Super. Ct. 2000) (defendant not entitled to new trial based on missing transcript because the law does not allow a fugitive to take advantage of his own wrongdoing); cf. State v. Brabham, 21 A.3d 800, 806 (Conn. 2011) (to permit appeal "of a formerly fugitive defendant who has been restored to custody would wholly undermine the efficiency and dignity of the appellate court," especially where that defendant "fled for an extended period, during which time the record or exhibits from his original trial have become damaged or lost"). ¶12 We agree with the rationale underlying these decisions. Granting a new trial under these circumstances would inappropriately reward the act of absconding and encourage similar unlawful conduct by other defendants. ¶13 Based on Defendant's failure to establish that the trial transcripts are unavailable through no fault of his own, we are not required to resolve whether he made a sufficient allegation of reversible error -- the second prong required under Masters. See also State v. Schackart, 175 Ariz. 494, 499, 858 P.2d 639, 644 (1993) (citing Masters, 108 Ariz. at 192, 494 P.2d at 1322, for the proposition that "when a transcript is lost or unavailable, the court will assume that the record supports the judgment unless there is at least a credible and unmet allegation of reversible error"). Out of an abundance of caution, though, we briefly address Defendant's substantive claims. ¶14 Defendant suggests that evidence may have been introduced at trial in violation of a pretrial order prohibiting such evidence, pursuant to Arizona Rule of Evidence 404(b). But he concedes "there is no definitive answer to whether the information was actually elicited at trial." We do not address arguments based on sheer speculation, especially where nothing in the record supports the uncorroborated suggestion that the State could have violated the pretrial order prohibiting such evidence. ¶15 Defendant also argues that the record does not support the determination that his statements during the police interview were voluntary. We disagree. Defendant requested a pretrial hearing to determine the "voluntariness" of his statements to police officers. However, the stated basis for Defendant's request was to determine whether the officer advised him of his Miranda rights in Spanish. The trial court conducted an evidentiary hearing and thereafter ruled "that the statements made by the Defendant were not the result of promises, force, threats or coercion; that the Defendant was duly advised of his Miranda rights; that the Defendant made the statements knowingly, intelligently and voluntarily." A card explaining Miranda rights in English and Spanish was introduced into evidence at the evidentiary hearing, and police records stated that the officer read Defendant his rights in Spanish, after which he stated that he understood those rights. ¶16 Defendant makes additional arguments regarding ineffective assistance of counsel, but these claims may not be raised on direct appeal. Ineffective assistance of counsel claims must be brought in proceedings pursuant to Rule 32, Arizona Rules of Criminal Procedure. "Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of merit." State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). ¶17 Finally, the trial court's refusal to hear witness testimony for purposes of reconstructing the record does not constitute reversible error. The court reconstructed the record by directing the parties to file affidavits from witnesses or anyone else with knowledge of the case regarding their recollections of the trial proceedings. Defendant did not offer any witness affidavits and failed to make an offer of proof as to the testimony he planned to elicit at the requested evidentiary hearing. "Offers of proof serve the dual function of enabling the trial court to appreciate the context and consequences of an evidentiary ruling and enabling the appellate court to determine whether any error was harmful." Molloy v. Molloy, 158 Ariz. 64, 68, 761 P.2d 138, 142 (App. 1988). Without an offer of proof, we cannot ascertain whether the proposed testimony was relevant and otherwise admissible or whether its absence prejudiced Defendant in any manner.
feel that a new trial should be granted.
The record on remand indicates the superior court contacted the court reporter, but was unable to obtain her notes. The trial judge, the Honorable Michael O'Melia, is deceased.
Moreover, the evidentiary support for Defendant's claims against counsel would come from Defendant himself, not trial transcripts.
CONCLUSION
Neither party has cited A.R.S. § 13-4033(C) (defendant may not appeal final judgment of conviction or order denying motion for new trial "if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary"). We therefore do not consider the statute's application, if any, to the facts of this case.
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¶18 Defendant's conviction and sentence are affirmed.
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MARGARET H. DOWNIE, Judge
CONCURRING: __________
JON W. THOMPSON, Presiding Judge
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PHILIP HALL, Judge