Opinion
No. 1 CA-CR 14-0715
11-24-2015
STATE OF ARIZONA, Appellee, v. ALBERTO CHRISTOBAL MENDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee The Heath Law Firm, PLLC, Mesa By Mark Heath 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 2013-453619-001 DT
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
The Heath Law Firm, PLLC, Mesa
By Mark Heath
Counsel for Appellant
MEMORANDUM DECISION Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kent E. Cattani and Judge John C. Gemmill joined. JOHNSEN, Judge:
¶1 Alberto Christobal Mendez appeals from his convictions and resulting sentences for disorderly conduct, a Class 6 felony, and criminal damage, a Class 2 misdemeanor. Mendez argues the superior court erred by denying his motion to continue the trial and by refusing to permit a non-disclosed witness to testify. For reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mendez lived in a house owned by his father. The father also rented a room in the house to Mendez's uncle. One evening, Mendez kicked in the locked door to his uncle's bedroom as his uncle was watching television. Mendez was holding a rifle and repeatedly screamed at his uncle to "get the fuck out." Fearing for his safety, the uncle called 911 to report that Mendez was threatening him with a rifle. After the police responded and had both men leave the house, the police conducted a protective sweep of the house and found a rifle under the couch in the living room. The police thereafter spoke with the uncle and had him sign a consent to search. In the subsequent search of the house, police recovered a number of items of evidence including the rifle and six live rounds that had been ejected from the rifle.
¶3 Mendez was charged with disorderly conduct, a dangerous felony and domestic violence offense; and criminal damage, a misdemeanor and domestic violence offense. Appointed counsel initially represented Mendez. On June 30, 2014, the superior court granted Mendez's request to represent himself. The court also appointed advisory counsel to assist Mendez in preparation and trial of the case and set the trial for July 23, 2014.
¶4 At a pretrial hearing on July 16, upon motion by the State, the court continued the trial to August 12 due to witness unavailability. At that same hearing, the court revoked Mendez's pretrial release status because he had violated his release conditions. At a status conference on August 7, both parties announced they were ready to proceed to trial. On August 12, the day set for trial, the court granted Mendez a continuance to allow him more time to prepare for trial and reset the trial to August 25.
¶5 On the first day of trial, Mendez moved for another continuance, which the superior court denied. A jury convicted Mendez on both counts as charged. The jury further found both counts to be domestic violence offenses and the count of disorderly conduct to be a dangerous offense. The court sentenced Mendez to a mitigated two-year prison term on the conviction for disorderly conduct, with credit for 123 days of presentence incarceration, and to time served on the conviction for criminal damage. Mendez timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) (2015), 13-4031 (2015) and -4033(A)(1) (2015).
Absent material revision after the date of an alleged offense, we cite a statute's current version. --------
DISCUSSION
A. Denial of Motion for Continuance.
¶6 Mendez argues the superior court violated his constitutional rights to due process and meaningful access to the courts by denying his motion to continue the trial. The superior court shall grant a continuance of a trial date "only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Ariz. R. Crim. P. 8.5(b). "Whether denying a continuance violates a defendant's constitutional rights depends on the facts and circumstances of a particular case." State v. Lamar, 205 Ariz. 431, 437, ¶ 28 (2003). We review the denial of a motion to continue for an abuse of discretion, "which we will find only if the defendant demonstrates prejudice." State v. Forde, 233 Ariz. 543, 555, ¶ 18 (2014) (citations omitted).
¶7 Although the superior court had granted Mendez a continuance of the original trial date to allow him additional time for trial preparation, during a pretrial conference on the day set for trial, Mendez made an oral motion for an additional continuance. Mendez argued he needed the continuance to obtain proof that his uncle had a felony DUI conviction. The court denied the motion based on the prosecutor's statements that a record check revealed that the uncle had a felony conviction, but that it was over ten years old and therefore could not be used for impeachment purposes. Mendez later reurged his motion for a continuance, stating:
I didn't get to do any legal research in the facility. I'm going to need a continuance so that way I can get up to par on everything that I haven't got, the electronic discovery, and I need to get the proof that my uncle is a felon, and I need that proof before I can move on. I can't - this is just not - I need to make sure I defend myself proper and I get my fair trial.The court again denied the motion, noting, "[W]e've already discussed that situation, and tomorrow is your trial." Sometime later in the hearing, Mendez again repeated his request for a continuance, and it was again denied. In response to Mendez's repeated requests for a continuance to obtain proof of his uncle's felony convictions, the prosecutor stated he would re-run the uncle's criminal history to ensure that he had no felony convictions that could be used for impeachment purposes.
¶8 While cross-examining his uncle, Mendez once again raised the issue of not being able to present proof of his uncle's alcohol dependency. Mendez asserted that because he was unable to obtain a criminal history or background check on his uncle while in jail, he was being deprived of a fair trial. After the court rejected this argument, Mendez then sought to raise an issue about the validity of the police search of the house and claimed he did not have the time or resources to file a motion to suppress. Based on matters presented by the prosecutor regarding the circumstances of the search, the court ruled that it was not persuaded that the search was improper and that Mendez should have raised any issue regarding it before trial.
¶9 On appeal, Mendez argues that because the court denied his motion for a continuance, he was unable to research and file a motion to suppress the rifle police located during the protective sweep of the house. But Mendez did not raise any issue concerning the legality of search until the second day of trial. The motion for continuance he made at the beginning of trial was based solely on his inability to obtain proof of the existence of the uncle's prior felony convictions. In any event, there is no merit to Mendez's argument that the denial of the continuance violated his rights to due process and meaningful access to the courts; he has not established that limited access to legal materials while in jail prevented him from moving to suppress the rifle.
¶10 First, Mendez has not shown that such a motion would have been successful. Mendez himself told the police about the rifle under the couch when he first left the house before the police entered to make the protective sweep. The protective sweep merely confirmed the presence of the rifle where Mendez had said it would be, and that the rifle presented no further risk to officers or civilians inside the house. Thus, the fact that police saw the rifle under the couch during the protective sweep before the uncle gave formal consent to search provides no legal basis for suppressing the rifle. See State v. Greene, 162 Ariz. 431, 432-33 (1989) (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979)) (police may make protective sweep without warrant when "substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained"). Furthermore, unrestricted entry by the police into the house prior to the formal signed consent also was justified under an implied consent theory based on the uncle's 911 call for assistance. Id. at 433 n.1.
¶11 Second, Mendez had the opportunity to research and file any such motion after he first elected to represent himself before his release status was revoked and he was taken back into custody. By the time his release status was revoked, the deadline for filing pretrial motions had expired, and the superior court acted well within its discretion in finding that Mendez did not timely raise the issue. See Ariz. R. Crim. P. 16.1(b) (requiring motions to be filed 20 days before trial); State v. Torres-Mercado, 191 Ariz. 279, 281 (App. 1997) (recognizing requirement of Rule 16.1(b)). Thus, even accepting as true Mendez's assertion that he had difficulty accessing the jail law library, he cannot show prejudice because the deadline for raising the suppression issue had passed.
¶12 Third, and most significantly, when Mendez elected to represent himself, his appointed counsel was assigned as advisory counsel to assist him with preparation and trial. Our supreme court has held that library access "is only one permissible means of affording" access to the courts and the right of meaningful self-representation. State v. Henry, 176 Ariz. 569, 584 (1993). Accordingly, even if Mendez was not provided library access of the type he wanted while in jail before trial, his advisory counsel "afforded him the meaningful access required by the constitution." Id.; see also State v. Murray, 184 Ariz. 9, 28 (1995) ("Because defendants were provided with either advisory counsel or counsel throughout their proceedings, their constitutional right to court access was met, regardless of whether they had personal access to legal materials."). On this record, the superior court did not abuse its discretion in denying Mendez's motion to continue the trial.
B. Refusal to Permit Testimony by Non-Disclosed Witness.
¶13 Mendez also argues the superior court erred by refusing to allow a non-disclosed witness to offer character evidence regarding his uncle. Mendez did not move to call the non-disclosed witness until the middle of the trial. After hearing Mendez's offer of proof on the witness's proposed testimony, the court denied the request, but indicated that it was willing to reconsider the decision depending on what happened later at trial. Once the State rested, Mendez decided against testifying and reurged his request to call the non-disclosed witness. After hearing another offer of proof from Mendez, the court again denied the request, ruling that because there was no evidence presented to establish a self-defense claim, any evidence of the uncle's character at any other time was not relevant, and that Mendez's failure to disclose the witness before the trial unfairly surprised the State.
¶14 Arizona Rule of Criminal Procedure 15 requires that, as part of pretrial discovery, each party shall supply to the opposing party the names and relevant written or recorded statements of all persons whom they will call as witnesses at trial. Ariz. R. Crim. P. 15.1(b)(1), 15.2(c)(1). The purpose of this rule is "to give full notification of each side's case-in-chief so as to avoid unnecessary delay and surprise at trial." State v. Dodds, 112 Ariz. 100, 102 (1975). If a party fails to comply with this disclosure provision, the superior court may impose any remedy or sanction it finds just under the circumstances, including but not limited to precluding a party from calling the witness. Ariz. R. Crim. P. 15.7(a)(1).
¶15 We review a ruling on a discovery issue for abuse of discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007). In considering whether to preclude a non-disclosed witness, the superior court should consider: "(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." State v. Naranjo, 234 Ariz. 233, 242, ¶ 30 (2014).
¶16 Here, the non-disclosed witness had no first-hand knowledge of the events giving rise to the charges against Mendez. According to Mendez's offer of proof, the witness would testify about the uncle's character, specifically his alleged aggressive nature and use of alcohol and drugs. A victim's specific acts of violence, known to the defendant, are admissible to prove the defendant's state of mind, "but only if such state of mind is relevant." State v. Santanna, 153 Ariz. 147, 149 (1987). When, as in this case, there is no evidence establishing a self-defense claim, testimony regarding a victim's aggressive conduct on other occasions is not relevant and "such character trait evidence is not admissible." Id. Such evidence, as well as evidence regarding the uncle's alcohol and drug usage, is likewise not admissible to prove the uncle's character for truthfulness or untruthfulness. See Ariz. R. Evid. 608(b) ("[E]xtrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness."). Because the non-disclosed witness's proposed testimony was not admissible for any proper purpose, the court did not abuse its discretion in precluding the witness.
CONCLUSION
¶17 For the foregoing reasons, we affirm Mendez's convictions and resulting sentences.