Opinion
No. 1 CA-CR 14-0091
06-30-2015
STATE OF ARIZONA, Appellee, v. JOSEPH EMMANUEL JARVIS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee Castillo Law, P.L.L.C., Phoenix By Cindy Castillo Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 2011-007599-001
The Honorable Virginia L. Richter, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee
Castillo Law, P.L.L.C., Phoenix
By Cindy Castillo
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined. THOMPSON, Judge :
¶1 Joseph Emmanuel Jarvis (Jarvis) appeals his convictions and sentences for one count of aggravated assault and two counts of endangerment. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the trial evidence in the light most favorable to sustaining the jury's verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007). --------
¶2 At about 8 p.m. on June 11, 2011, Jarvis was driving his van northbound on 75th Avenue near Bethany Home Road in Glendale when he suddenly swerved into the southbound lanes and crashed head-on into a Nissan Versa occupied by a family of three, seriously injuring one person. Jarvis had a blood alcohol concentration of .231 about two and one-half hours after the collision, consistent with having drunk 10.6 shots of whiskey or its equivalent.
¶3 Jarvis testified that he had not knowingly consumed any alcohol that day, and he believed that a young man at the house Jarvis was rewiring for cable service had spiked and/or drugged two twenty-ounce cups of Kool-Aid he gave Jarvis. Jarvis testified that he recalled becoming disoriented and scared about ten minutes after drinking, but did not remember anything until he "woke up in the accident."
¶4 The jury convicted Jarvis of the charged crimes, and found them to be dangerous offenses. The superior court sentenced Jarvis to concurrent terms, the longest of which was five years. Jarvis filed a timely notice of appeal, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A) (2010).
DISCUSSION
A. Independent Test of Blood Draw
¶5 Jarvis argues that the superior court violated his due process rights to access exculpatory evidence, to present a complete defense, and to self-representation by denying his motion to allow independent blood testing and his motion to dismiss the charges or preclude evidence of the results of the state's blood test. We review evidentiary rulings that implicate a defendant's constitutional rights de novo. State v. Ellison, 213 Ariz. 116, 120, ¶ 42, 140 P.3d 899, 903 (2006). We generally review a trial court's denial of a motion to dismiss for abuse of discretion, but review constitutional issues de novo. State v. Williamson, 236 Ariz. 550, 555, ¶ 8, 353 P.3d 1, 6 (App. 2015).
¶6 At a hearing on July 23, 2013, the superior court granted Jarvis's motion to represent himself and to appoint his attorney, Ray Kimble, as advisory counsel. Three weeks later, on August 14, Jarvis filed a motion to release a sample of blood drawn after his arrest to allow independent testing for DNA and "any drugs that may have been involuntarily introduced by another person." The prosecutor responded that Attorney Kimble had requested release of the second tube of blood for independent testing on May 15; Kimble had designated the laboratory of his choice on July 23; and the laboratory had picked up the tube for testing on August 22. On August 29, Kimble moved to withdraw as advisory counsel because Jarvis had accused him of misconduct (apparently in relation to the selection of the laboratory), and although he did not agree with Jarvis's accusation, he was "not at liberty to discuss the allegations as they involve[d] confidential matters related to Defendant's case." At a hearing on September 13, Jarvis told the court that "[t]he lab that the sample was sent to was not of my choosing and it was also done without my knowledge." The court concluded that Jarvis's motion to allow independent testing was moot, and did not take any action on it.
¶7 A week later, Jarvis filed a motion to preclude admission of the results of the state's blood test and a motion to dismiss the charges, arguing that the prosecutor and/or his advisory counsel had engaged in misconduct by releasing the second tube to a laboratory that he had not personally approved. Jarvis claimed that his advisory counsel had told him he was going to submit the blood sample to a laboratory they had agreed upon, but instead, after consulting with the prosecutor, submitted it to another laboratory that was not qualified to test for DNA or drugs.
¶8 The prosecutor argued that Jarvis's claim that the state engaged in misconduct by releasing the second blood tube to the laboratory designated by advisory counsel was unsubstantiated, and noted that because testing uses only a small amount of the blood, enough should be available in the tube remaining in police custody and/or in the tube released to the independent laboratory "[s]o it would be possible presumably if the defendant wanted to have a third crime lab [test] for either DNA or drugs [he] could do that and we're not standing in the way of his doing that." Jarvis did not seek to obtain a third test; he argued that the chain of custody had been broken and he was unable to eliminate the possibility of tampering. The superior court denied Jarvis's motions to dismiss and to preclude the blood evidence, noting that "if you have issues with what prior counsel did or did not do then certainly, as I said, there's a remedy for that."
i. Jarvis's Motions and Access to Blood Samples
¶9 The superior court did not abuse its discretion or violate Jarvis's due process rights by not taking further action on his motion for independent testing, or by denying his motion to exclude and motion to dismiss. The constitutional right to due process guarantees a criminal defendant "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986). Jarvis was entitled to a reasonable opportunity to independently test any blood draw. See Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986) (in breath testing case, reciting general principle that, as a matter of due process, DUI "suspects must be afforded meaningful access to objective scientific evidence of sobriety."); cf. State v. Kemp, 168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991) (holding that police need not advise suspect of right to obtain sample of blood draw, "at least when the sample taken by law enforcement officers will still be available for testing by the defendant at the time of trial."). The state "may not interfere" with a defendant's efforts to obtain a sample of the blood draw for independent testing. See Kemp, 168 Ariz. at 337, n. 4, 813 P.2d 315, 318, n. 4 (1991).
¶10 The record fails to support Jarvis's claim that the prosecutor prevented him from sending the blood to be tested by a laboratory of his choice. The record fails to show that the prosecutor knew before the second tube was released to the laboratory designated by advisory counsel that Jarvis wanted it released to a different laboratory. The record instead shows, at most, a possible miscommunication between Jarvis and his advisory counsel regarding the type of testing that should be conducted, and the laboratory that would be designated to conduct it. Any such miscommunication, however, cannot be raised on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective assistance of counsel claims may not be raised in a direct appeal). The record also reflects that Jarvis failed to take advantage of the opportunity to engage a different independent laboratory to test the remaining available blood for drugs and DNA, as he claimed he wanted. Although the prosecutor initially noted that maintaining the chain of custody of the second tube picked up by the laboratory designated by advisory counsel might be problematic if defendant sent it to another laboratory, the prosecutor later noted that the blood remaining within the vial utilized by the state was available for further testing. Under these circumstances, Jarvis has failed to demonstrate that the state denied him his due process rights to be provided access to potentially exculpatory evidence and to present a complete defense.
ii. Release of Blood Sample to Advisory Counsel
¶11 Nor does the record support Jarvis's claim that the state violated his right to represent himself by releasing the second blood tube to the laboratory designated by his advisory counsel. "[M]ixed questions of law and fact which implicate constitutional rights are reviewed de novo." State v. Soto, 195 Ariz. 429, 430, ¶ 7, 990 P.2d 23, 24 (App. 1999). The pro se defendant has a right "to preserve actual control over the case he chooses to present to the jury," and advisory counsel's interference with "significant tactical decisions" over defendant's objection may erode that right. McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). This right, however, is not infringed when advisory counsel "assists the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete." McKaskle, 465 US. at 183. In this case, insofar as the record reflects, Jarvis had approved his advisory counsel sending the blood tube for independent testing, but believed Kimball had agreed to submit it to a laboratory that could test for DNA and drugs. It was only after the tube was sent to another laboratory, and it was too late to stop the testing, that Jarvis informed the court of the purported mistake. Even at that juncture, however, Jarvis still had the opportunity to have the remaining blood tested by a laboratory of his choice. On this record, the state did not interfere with his right to represent himself.
iii. State's Late Responses
¶12 Jarvis also argues that the trial court violated Rule 16.1 of the Arizona Rules of Criminal Procedure by permitting the state to file late responses to his motions. We disagree. The trial court has the inherent power to extend the deadline for filing responses and to consider the motions on their merits. See State v. Colvin, 231 Ariz. 269, 271, ¶ 7, 293 P.3d 545, 547 (App. 2013) ("Trial courts have discretion to extend the time for filing motions and, implicitly, to hear untimely motions."); State v. Alvarez, 228 Ariz. 579, 582, ¶ 11, 269 P.3d 1203, 1206 (App. 2012) ("[A] trial court has discretion to hear an untimely motion.") The trial court did not abuse its discretion by allowing the state to file untimely responses.
iv. Destruction of Blood Samples
¶13 Jarvis finally argues that the state violated Rule 28.2 of the Arizona Rules of Criminal Procedure by allowing police to destroy the blood tubes after he had filed a notice of appeal. For this argument, appellant's counsel does not cite to any portion of the record forwarded to this court on appeal. Instead, counsel notes only that "[a]fter being retained, Counsel for Appellant contacted the police department who indicated that the blood tubes had been destroyed." Because this argument has no support in the record, it fails.
B. Preclusion of Untimely Disclosed Witnesses
¶14 Jarvis next argues that the superior court violated his due process right to present a complete defense by precluding him from supplementing his list of witnesses in September 2013 to respond to the state's untimely disclosure of its list of witnesses in August 2013, which the court had allowed. The state filed an initial Rule 15.1 disclosure statement in October 2011, one month after the grand jury indicted Jarvis, including as witnesses Phoenix police officers, but not the Glendale police officers who investigated the Glendale incident. In August 2013, one week before the trial was then set to begin, the state corrected its list of witnesses to reflect the Glendale officers who had investigated the incident, and explained that the "hard copy in the prosecutor's file" had the correct list, but the state had just that day discovered that the "e-filed" version contained a list of witnesses for another case. The court later continued the trial to October 2013 for unrelated reasons. Over Jarvis's objection, the court allowed the state's supplemental disclosure, reasoning that the clerical error was understandable, and Jarvis "should have realized the obvious error of the wrong list of witnesses" once he received the file from former counsel in July 2013.
¶15 Jarvis, in turn, asked to supplement his list of witnesses to include witnesses from the civil case arising from the underlying accident, whom he had known about for nearly two years and who were expected to testify that he had not been drinking alcohol on the day of the incident. He told the court that he had been unsuccessfully asking former defense counsel to add them to the witness list since October 2011. The list did not include the person he claimed had slipped something in his drink that day.
¶16 The court denied Jarvis's motion to supplement his witness list, reasoning:
Defendant has known of the existence of witnesses from his civil case since the beginning of this case. (He asked his first attorney to file the list in October, 2011). Defendant should have filed the list himself once he became his own attorney on July 23, 2013.
Defendant's request to file a new list of witnesses whom he has been aware of for two years is not the same as the State correcting the error of the wrong list of witnesses being filed.
¶17 We review a trial court's rulings on discovery issues for abuse of discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6, 161 P.3d 596, 600 (App. 2007). "To the extent [d]efendant sets forth a constitutional claim in which he asserts that the information is necessary to his defense, however, we will conduct a de novo review." Id. A court may impose any remedy or sanction for nondisclosure that it finds just under the circumstances. Ariz. R. Crim. P. 15.7(a). In selecting the appropriate sanction, the trial court "should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible, since the Rules of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases." State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979).
¶18 Preclusion is rarely an appropriate sanction for a discovery violation. State v. Naranjo, 234 Ariz. 233, 242, ¶ 30, 321 P.3d 398, 407 (2014).
Before precluding a witness under Rule 15.7, the trial court must examine the surrounding circumstances, specifically considering the following factors: 1) how vital the precluded witness is to the proponent's case; 2) whether the witness's testimony will surprise or prejudice the opposing party; 3) whether bad faith or willfulness motivated the discovery violation; and 4) any other relevant circumstances.Id. (citations and related internal punctuation omitted). We will not find an abuse of discretion unless "no reasonable judge would have reached the same result under the circumstances." Id. at 242, ¶ 29, 321 P.3d at 407.
¶19 The court did not abuse its discretion or deprive Jarvis of his due process right to a complete defense in allowing the state's untimely disclosure but precluding Jarvis's late disclosure. The state's late disclosure was the result of clerical error that had just been discovered by the state, and did not deprive Jarvis of adequate notice of the actual witnesses to this incident - the victims; the Glendale police officers who responded to the scene, arrested Jarvis, and drew his blood; and the criminalist who tested his blood.
¶20 Jarvis asked to supplement his witness list a month before trial, on the other hand, with an unknown number of unidentified witnesses about whom he had known for at least two years. Although Jarvis blamed his prior counsel for failing to disclose these witnesses over a two-year period, Jarvis himself failed to request permission to disclose these new witnesses for four months after he began representing himself, and even then did not specifically identify them. This lack of diligence could reasonably be construed as supporting preclusion. See Naranjo, 234 Ariz. at 242, ¶ 29, 321 P.3d at 407 (judge did not abuse his discretion by precluding defense expert as sanction for late disclosure, reasoning that defense counsel's failure over a number of years to exercise due diligence in locating the witness "could reasonably be construed as 'willful misconduct.'").
¶21 Moreover, the minimal significance of the proffered testimony also supports preclusion. Insofar as the record reveals, Jarvis's proposed witnesses were longtime acquaintances and work associates, witnesses in the civil case arising from this incident, who were offered to testify that Jarvis had not consumed alcohol on the day in question. In light of the absence of any indication of the source of these witnesses' knowledge or the exact nature of their proffered testimony, there was no reasonable basis for the superior court to conclude that their testimony was vital to Jarvis's defense -- that someone had spiked and/or drugged Jarvis's drink while he was on a job. Finally, in light of Jarvis's insistence at this juncture on his speedy trial rights, a continuance to allow Jarvis the time necessary to actually disclose the witnesses by name, to locate those witnesses with whom he had lost contact, and allow time for the state to interview them, submit any substantive motions addressing the admissibility of their testimony, and identify rebuttal witnesses, would not have been an appropriate remedy for Jarvis's late disclosure. Under these circumstances, we conclude that the superior court neither abused its discretion nor denied Jarvis the opportunity to present a complete defense by precluding these witnesses.
C. Speedy Trial Rights
¶22 Jarvis argues that the trial court erred by denying his May 2013 motion to dismiss for violation of his right to a speedy trial under Rule 8 of the Arizona Rules of Criminal Procedure, the Sixth Amendment to the United States Constitution, and Article 2 Section 24 of the Arizona Constitution. The court denied the motion on the ground that the delays requested by Jarvis's counsel in each case were indispensable to the interests of justice. Jarvis argues that the state's conduct delayed trial for several weeks, and that speedy trial rights are "individual" and not subject to waiver by his own counsel.
¶23 We will affirm a trial court's ruling on a defendant's motion to dismiss for violation of Rule 8 speedy trial rights unless a defendant demonstrates that the judge abused his discretion and prejudice resulted. State v. Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, 1267 (1997). Under Rule 8.2(a) of the Arizona Rules of Criminal Procedure, a defendant released from custody must be tried within 180 days of arraignment, subject to the time exclusions enumerated in Rule 8.4. Delays caused by defense motions for continuances are considered delays occasioned "by or on behalf of defendant," and are excludable time under Rule 8. Ariz. R. Crim. Pro. 8.4(a); Spreitz, 190 Ariz. at 136, 945 P.2d at 1267.
¶24 Jarvis was arraigned on September 28, 2011. His trial started on October 30, 2013, 763 days later. Jarvis's Rule 8 claim fails, however, because the bulk of the delay was sought by, attributable to, or agreed upon by Jarvis or his own counsel. "[D]elays agreed to by defense counsel are binding on a defendant, even if made without the defendant's consent." Spreitz, 190 Ariz. at 139, 945 P.2d at 1270; State v. Adair, 106 Ariz. 58, 60-61, 470 P.2d 671, 673-74 (1970) (delays sought by defense counsel are attributable to defendant). On this record, all but approximately twenty-one days of the delays were attributable to or waived by defendant, well within the 180 days required by the rule.
¶25 Jarvis's argument that the violation of his rights under Rule 8 requires reversal also fails because he has not shown that he was actually prejudiced by the claimed violation. Jarvis's only claim of prejudice from the delay is that "he had lost touch with some of the witnesses and one had passed away." Jarvis, however, does not identify these witnesses, detail the unique nature of the testimony they might have given, or explain whether he attempted to memorialize the testimony before they disappeared or died. Under these circumstances, Jarvis has failed to demonstrate the necessary actual prejudice for reversal.
¶26 The United States Constitution and the Arizona Constitution also guarantee the right to a speedy trial. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. However, neither provision requires that the trial take place within a specific time period. Spreitz, 190 Ariz. at 139, 945 P.2d at 1270. In determining whether the delay is sufficient to constitute a violation of one's constitutional right to a speedy trial, we look at the length of the delay, the reason for the delay, whether defendant demanded a speedy trial, and whether he suffered any prejudice from the delay. Barker v. Wingo, 407 U.S. 514, 530-32 (1972). In weighing the factors, the most important is prejudice to the defendant, while the least important is the length of delay. Spreitz, 190 Ariz. at 139-40, 945 P.2d at 1270-71.
¶27 In applying the four factors to the pretrial delay in this case, we conclude the delay of nearly two years in trying Jarvis was lengthy. Defense counsel, however, was responsible for most of the delay, by repeatedly seeking continuances. These delays are attributable to defendant, even though he may not have expressly consented to them. See Spreitz, 190 Ariz. at 139, 945 P.2d at 127; Adair, 106 Ariz. at 60-61, 470 P.2d at 673-74. Jarvis first demanded a speedy trial in May 2013, more than one and a half years after he was arraigned on the charges, and he filed numerous substantive motions afterward as well as two more motions to continue, weighing against his speedy trial claim. Finally, for the reasons outlined above, Jarvis also has failed to establish that he suffered specific prejudice from the delay. Under these circumstances, we conclude that his constitutional rights to a speedy trial were not violated.
D. Bias of Jury Foreperson
¶28 Jarvis finally argues that "the jury foreperson was biased, due to his statement that he could not be fair and impartial because he was a victim of crime, and reserves this argument specifically for Rule 32 PCR purposes." Jarvis has failed to present any authority or citations to the record on which he relies for this argument, and accordingly has waived this issue for purposes of this appeal. See State v. Moody, 208 Ariz. 424, 452 n. 9, ¶ 100, 94 P.3d 1119, 1147 n. 9 (2004); Ariz. R. Crim. P. 31.13(c)(1)(vi) ("The appellant's brief shall include . . . [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.")
CONCLUSION
¶29 For the foregoing reasons, we affirm Jarvis's convictions and sentences.