Opinion
No. 2 CA-CR 2016-0337
02-06-2018
THE STATE OF ARIZONA, Appellee, v. FREDRICK GONZALES NUNEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Flores & Clark, PC, Globe By Daisy Flores Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201000907
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Flores & Clark, PC, Globe
By Daisy Flores
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Fredrick Nunez was convicted of first-degree murder and sentenced to natural life in prison. On appeal, he challenges the admission of and instruction on other-act evidence on several grounds. He also asserts a violation of his speedy-trial rights. For the reasons stated below, we affirm.
Factual and Procedural History
¶2 We view the facts in the light most favorable to sustaining Nunez's conviction. See State v. Musgrove, 223 Ariz. 164, ¶ 2 (App. 2009). In late 2008, Nunez contacted a member of a criminal street gang known as the Arizona Mexican Mafia (hereafter AMM) because he was interested in gaining "good standing" with the group. He confirmed that Daniel Pena was in "bad standing" and indicated he would kill Pena for the AMM.
¶3 In early March 2009, Nunez told his family he was leaving that evening to meet Pena and another friend at Victor Duarte's house. Nunez returned home later that night, wearing Duarte's clothes with no shoes and a "long cut" on his hand.
¶4 Approximately one week later, police received an anonymous tip—later revealed to be from Nunez's sister—that prompted a search for Pena's body. It was found buried in a desert wash less than a mile from Duarte's home. DNA from a swab of blood taken from a shovel near Duarte's house matched Nunez's DNA profile. The medical examiner determined Pena's cause of death was multiple stab wounds.
Deoxyribonucleic acid.
¶5 Shortly after the murder, Nunez attempted to send a coded letter to the same member of the AMM he had previously contacted, confirming that he had killed Pena. Nunez also admitted the killing to his mother and sister.
¶6 The state charged Nunez with first-degree murder. A jury found Nunez guilty, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Nunez was also charged with conspiracy to commit the first-degree murder of Pena. However, the trial court granted the state's motion to dismiss that charge.
Other-Act Evidence
¶7 Nunez raises several arguments related to the admission of and jury instruction on other-act evidence. We review evidentiary rulings for an abuse of discretion. State v. Ellison, 213 Ariz. 116, ¶ 42 (2006). However, to the extent such rulings implicate constitutional concerns, our review is de novo. Id. Likewise, we review jury instructions for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51 (2009).
¶8 Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ariz. R. Evid. 404(b). However, such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Before admitting other-act evidence, the trial court must find: (1) clear-and-convincing evidence that the defendant committed the act; (2) the evidence is offered for a proper purpose under Rule 404(b); (3) the evidence is relevant to prove that purpose; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. State v. Escalante-Orozco, 241 Ariz. 254, ¶ 77 (2017). In addition, "[i]f the court admits the evidence, it must give an appropriate limiting instruction, if requested." Id.
¶9 However, under the intrinsic-evidence doctrine, "certain acts are so closely related to the charged act that they cannot fairly be considered 'other' acts, but rather are part of the charged act itself." State v. Ferrero, 229 Ariz. 239, ¶ 14 (2012). "[E]vidence is intrinsic in Arizona if it (1) directly proves the charged act, or (2) is performed contemporaneously with and directly facilitates commission of the charged act." Id. ¶ 20. Because such evidence is so interrelated with the charged act, the four-part analysis under Rule 404(b) does not apply. State v. Butler, 230 Ariz. 465, ¶ 29 (App. 2012).
¶10 Before trial, the state filed a motion to admit other-act evidence under Rule 404(b). Specifically, it sought to introduce the testimony of Detective Davis, an expert on street gangs generally and the AMM in particular. According to the state, if allowed to testify, Davis would explain that Nunez was a suspected AMM member and that Pena was on an AMM "hit list" recovered by officers with the Arizona Department of Corrections (DOC). In addition, the state wanted to introduce evidence that Nunez had conspired after Pena's murder to kill Duarte, who Nunez believed was "the only person who could convict him."
¶11 At an evidentiary hearing on the state's motion, Davis testified that DOC officers discovered letters in 2007 from an AMM member identifying "individuals who were on a hit list and to be killed per directives." Pena's name was on that list. Officers had approached Pena with this information, and Pena subsequently participated in a "free talk," which Davis testified would have further contributed to his "bad standing" with the gang if leaked. Davis also described a letter that officers had recovered from Nunez's computer discussing Pena's standing in the AMM and indicating he could arrange a "meeting" with Pena. Davis explained that someone like Nunez would need "permission," which is often sought in written or electronic communications, from "the ruling council of the [AMM]" to murder Pena. Davis opined that Pena was in bad standing with the AMM in March 2009 and that "the hierarchy of the Mafia ordered him killed."
¶12 Davis also testified about a 2011 letter that experts had determined was written by Nunez, in which Nunez sought "a hit" on Duarte. In addition, Davis testified about a "free talk" between another investigator and Kacey Fisher, who was an inmate at the same prison as Nunez in early 2014. In that talk, Fisher—who Nunez believed was a good-standing member of the Aryan Brotherhood, which "sometimes work[s] together" with the AMM—reported that Nunez had asked him to "eliminate a witness" against him. "[B]ased on [his] review of the case," Davis opined that Nunez was planning to kill Duarte in both 2011 and 2014.
¶13 In arguing the Rule 404(b) motion, the state characterized the proposed evidence as twofold: (1) Nunez's conduct at the time of Pena's murder, including his ties to and communications with the AMM, showed Nunez's motive in the murder, and (2) Nunez's subsequent conspiracy to murder Duarte, which the state argued was relevant to Nunez's identity. The state also asserted that Nunez's AMM connections and communications constituted intrinsic evidence because they showed his premeditation. The trial court granted the state's motion.
Hearsay Evidence
¶14 On appeal, Nunez first contends the trial court erred by allowing hearsay testimony at the evidentiary hearing. He maintains Davis testified about what Fisher told another investigator and that the state "did not articulate a hearsay exception for the presentation of such evidence."
In his opening brief, Nunez suggests we should review this issue for fundamental error. However, as the state points out, Nunez raised a hearsay objection to Davis's testimony at the evidentiary hearing. Accordingly, we review for harmless error. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005).
¶15 Hearsay is "a statement, other than one made by the declarant while testifying at the instant trial or hearing, offered in evidence to prove the truth of the matter asserted." State v. Escalante, 242 Ariz. 375, ¶ 55 (App. 2017); see Ariz. R. Evid. 801(c). Such statements are generally inadmissible. See Ariz. R. Evid. 802. However, a trial court "must decide any preliminary question about whether . . . evidence is admissible," and, "[i]n so deciding, the court is not bound by evidence rules, except those on privilege." Ariz. R. Evid. 104(a). Thus, "[i]n deciding preliminary questions involving the admissibility of evidence, the hearsay rules do not apply." State v. Edwards, 136 Ariz. 177, 183 (1983).
¶16 At the evidentiary hearing, Davis testified about what Fisher had told another investigator concerning Nunez's request for assistance in murdering Duarte. The purpose of the hearing was to determine the admissibility of the state's proposed Rule 404(b) evidence at trial. Accordingly, the hearsay rules did not apply, see id., and the trial court did not err in considering Davis's testimony, see Ellison, 213 Ariz. 116, ¶ 42.
¶17 Nunez also argues that Davis's statements about what Fisher said "violated the Confrontation Clause" because he did not have "an opportunity . . . to cross-examine [Fisher]." Because Nunez did not raise this argument below, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005); see also State v. Bolton, 182 Ariz. 290, 297 (1995) (fundamental-error review applies to alleged constitutional issues, as well as non-constitutional issues).
¶18 "Fundamental error is limited to 'those rare cases that involve error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Valverde, 220 Ariz. 582, ¶ 12 (2009), quoting Henderson, 210 Ariz. 561, ¶ 19. Additionally, "[b]ecause fundamental error review is a fact-intensive inquiry, the showing necessary to demonstrate prejudice will vary on a case-by-case basis." Id.
¶19 The "Confrontation Clause bars the admission of 'testimonial hearsay.'" Escalante, 242 Ariz. 375, ¶ 55, quoting Crawford v. Washington, 541 U.S. 36, 53 (2004); see U.S. Const. amend. VI. "The right of confrontation is generally satisfied where the defense is given a full and fair opportunity to probe and expose such infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." State v. Anaya, 165 Ariz. 535, 541 (App. 1990).
¶20 As explained above, the state offered Davis's testimony at the evidentiary hearing to assist the trial court in determining the admissibility of its proposed Rule 404(b) evidence. The Confrontation Clause does not apply to the same extent at a pretrial hearing as it does at trial. See State v. Riley, 196 Ariz. 40, ¶ 7 (App. 1999); see also Barber v. Page, 390 U.S. 719, 725 (1968) ("The right to confrontation is basically a trial right."). Moreover, Nunez had the opportunity to cross-examine Fisher—and in fact did so extensively—at trial. See Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) ("Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses."). Accordingly, Nunez has not met his burden of establishing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20 (under fundamental error, defendant must establish both error and prejudice).
Clear-and-Convincing Evidence
¶21 Nunez next asserts the trial court erred by failing to strike Fisher's testimony at trial after it became apparent there was not "clear and convincing [evidence] that [Nunez] attempted a conspiracy to commit the murder of . . . Duarte." Because Nunez failed to raise this issue below, he has again forfeited review for all but fundamental, prejudicial error. See id.; see also Valverde, 220 Ariz. 582, ¶ 12.
¶22 As noted above, in order to admit other-act evidence under Rule 404(b), the trial court must first find clear-and-convincing evidence that the defendant committed the other act. Escalante-Orozco, 241 Ariz. 254, ¶ 77. "Clear and convincing evidence creates a high probability that a proposition is true, but need not establish that it is certainly or unambiguously true." State v. Vega, 228 Ariz. 24, n.4 (App. 2011) (internal citations omitted); see also State v. King, 158 Ariz. 419, 424 (1988), quoting In re Neville, 147 Ariz. 106, 111 (1985) ("[C]lear and convincing evidence is evidence that makes the existence of the issue propounded 'highly probable.'").
¶23 Nunez maintains "the trial court had an ongoing . . . duty" throughout trial to ensure the state presented clear-and-convincing evidence that he had conspired to murder Duarte. He further reasons that, after Fisher testified at trial, it became clear there was "insufficient evidence" to meet this requirement. Specifically, Nunez points out that Fisher testified Nunez did not identify Duarte by name and "did not outright ask him to kill anyone." We find these points unpersuasive for several reasons.
¶24 First, Nunez cites no authority—and we are aware of none—for the proposition that the trial court's duty to make the clear-and-convincing-evidence determination regarding other-act evidence is "ongoing," such that it is subject to change based on the evidence ultimately presented at trial. Indeed, our case law makes clear that the trial court must make this determination before other-act evidence may be admitted. See, e.g., Escalante-Orozco, 241 Ariz. 254, ¶ 77; State v. Garcia, 224 Ariz. 1, ¶ 33 (2010); State v. Vigil, 195 Ariz. 189, ¶ 14 (App. 1999). Of course, at trial, the Rule 404(b) evidence, provided it meets the four-part test and is admitted, would still be subject to other evidentiary rules, like the necessity to lay a proper evidentiary foundation and the rule against hearsay. See, e.g., State v. Curiel, 130 Ariz. 176, 182 (App. 1981). But Nunez does not challenge Fisher's trial testimony on other grounds.
¶25 Second, as the state points out, the issue at the evidentiary hearing was "whether clear and convincing evidence existed that [Nunez] had simply made the statements to Fisher that Fisher reported, regardless whether those statements constituted a separately chargeable criminal offense and/or whether [Nunez] actually intended to follow through on the intent evinced in the statements." We agree with the trial court that the state met this burden. See Vega, 228 Ariz. 24, n.4. Davis testified about Fisher's conversation with another investigator based on both that investigator's report and the "free talk" itself. According to Davis, Nunez asked Fisher "[t]o help take care of somebody that was a witness against him," meaning "[t]o kill [the witness]." More specifically, Nunez asked Fisher if he could help him "bond out" Nunez's cousin "so that [he] could take care of the witness" or, alternatively, if Fisher "had any hit men . . . that may help eliminate a witness in [his] case." Davis asserted, in part based on Nunez's 2011 letter soliciting a hit on Duarte, that Duarte was the witness to whom Nunez was referring in his conversations with Fisher.
In its answering brief, the state acknowledges that the trial court must make the clear-and-convincing-evidence determination, but states it also "preserves the argument that a trial court need only determine that a finder of fact could find the other act to have occurred" by the same clear-and-convincing-evidentiary standard. See Ariz. R. Evid. 404(c)(1)(A) (other-act evidence in sexual misconduct cases admissible if "evidence is sufficient to permit the trier of fact to find that the defendant committed the other act"). We conclude the standard was met here under either perspective.
At the evidentiary hearing, the prosecutor explained that Davis was providing this testimony because Fisher was in federal custody in Kentucky. However, the prosecutor avowed that Fisher would be transported to testify at trial.
¶26 Even assuming the trial court had a continuing duty to sua sponte monitor the other-act evidence and testimony presented at trial to ensure it met the clear-and-convincing standard, Nunez has not met his burden of establishing that fundamental, prejudicial error occurred. See Henderson, 210 Ariz. 561, ¶¶ 19-20. He has not offered any argument explaining how he was prejudiced by any such error. See id. ¶ 20. Moreover, based on our review of the record, we conclude Nunez could not have been prejudiced in light of the overwhelming evidence against him. See State v. Ramos, 235 Ariz. 230, ¶ 18 (App. 2014) ("If overwhelming evidence of guilt exists in the record, we may conclude that a defendant has failed to meet his burden of establishing prejudice . . . ."). Of particular note, Nunez attempted to send a coded letter to a member of the AMM confirming he had killed Pena, and he confessed to killing Pena to both his mother and his sister. In addition, in 2011, Nunez wrote a letter requesting "a hit" on Duarte, who was scheduled to testify against him at trial. Thus, any deviation from the clear-and-convincing standard would have been harmless.
Intrinsic Evidence
¶27 Nunez next argues the trial court erred by "failing to properly rule on the 404(b) evidence." He contends the court admitted the state's proposed Rule 404(b) evidence "without any delineation as to what evidence . . . was considered intrinsic and what evidence was true 'other act' evidence." Once again, because Nunez failed to raise this argument below, he has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20. And because Nunez has failed to argue on appeal that such error occurred, we deem the issue waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶28 Even assuming the argument were not waived, however, Nunez has not established fundamental error. Following oral argument from both parties, the trial court explained its ruling:
As it relates to the State's request to introduce as 404(b) evidence, the court will rule as follows: I'm very much aware of [defense counsel's] argument that . . . gang evidence can be unduly prejudicial . . . [a]nd that . . . [evidence that] Nunez is a member of the [AMM] . . . can have a highly inflammatory impact on a jury.Although not a model of clarity, the ruling, when read in conjunction with the oral arguments of counsel, is sufficiently specific. Cf. State v. Marshall, 197 Ariz. 496, 499 (App. 2000) ("[T]rial court's failure to set forth specific findings as required by Rule 404(c) was at most harmless error."). The court essentially agreed with the state's position, finding the AMM evidence relevant to motive and the conspiracy evidence relevant to identity. The court also found the AMM evidence to be intrinsic.
After evaluating the evidence and scrutinizing it pursuant to 403, the court does find that its probative value is not substantially outweighed by the prejudicial effect.
. . . [T]he introduction of this evidence is very probative on the issue of motive and identity. And it will be introduced for those purposes.
Furthermore, the court in the alternative analysis also finds that the evidence is intrinsic to the State's case as it relates to premeditation[,] . . . an element of the crime State must prove beyond a reasonable doubt.
The Court finds the 404(b) evidence has been [established] by clear and convincing evidence for purposes of making a ruling at the time.
¶29 Moreover, Nunez has not established prejudice. As the state points out, the trial court applied the four-part Rule 404(b) test to all of the proposed evidence whether it was intrinsic or not, and Nunez "only benefited from the application of the additional protections to all the evidence." See Butler, 230 Ariz. 465, ¶ 29. Because Nunez did not object below, any argument that defense counsel did not understand the ruling, such that he could not "craft a proper limiting instruction, adequately defend, or request a motion for reconsideration," as Nunez alleges, is pure speculation. See State v. Munninger, 213 Ariz. 393, ¶ 14 (App. 2006) (speculation insufficient to establish prejudice). Accordingly, Nunez has failed to meet his burden of showing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20.
Limiting Instruction
¶30 Nunez also contends the trial court erred by giving an "insufficient limiting instruction to the jury." Specifically, he maintains the court's instruction for the other-act evidence failed to "instruct the jurors to not consider any evidence of an attempted homicide on . . . Duarte as conclusory evidence of the homicide of . . . Pena." However, as the state points out, because Nunez requested and provided the limiting instruction that was given, he invited any error.
¶31 "[W]hen a party requests an erroneous instruction, any resulting error is invited and the party waives his right to challenge the instruction on appeal." State v. Logan, 200 Ariz. 564, ¶ 8 (2001). The doctrine of invited error prevents a party "from 'inject[ing] error in the record and then profit[ing] from it on appeal.'" Id. ¶ 11, quoting State v. Tassler, 159 Ariz. 183, 185 (App. 1988) (alterations in Logan).
¶32 Nunez requested the following limiting instruction:
Evidence will be received during the trial which purports to show other act or acts purportedly related to the Defendant and the crime charged herein. This evidence is presented by the State solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed, and/or that the Defendant had a motive for the commission of the crime
charged. If you believe some or all of this evidence, you may consider it, but only for the limited purpose for which it was received.The trial court granted Nunez's request, making only minor grammatical changes and adding the words "plan or preparation" to the second sentence. The final instruction provided to the jury was as follows:
Evidence has been presented during trial which purports to show other act or acts purportedly related to the Defendant and the crime charged herein. This evidence was presented by the State solely for the purpose of showing the identity of the person who committed the crime charged in this case, if it was committed, and/or that the Defendant had motive, plan or preparation for the commission of the crime charged. If you believe some or all of this evidence, you may consider it, but only for the limited purpose for which it was received.
¶33 Although the trial court made one slight substantive change—adding "plan or preparation"—to Nunez's requested instruction, that is not the subject of Nunez's complaint on appeal. Accordingly, we conclude that Nunez, who requested the instruction, invited any error regarding the specificity of the other-act evidence to which it referred. Cf. Musgrove, 223 Ariz. 164, ¶ 9 (where defendant expressly requested no lesser-included offense instruction, any error in failing to give instruction invited); State v. Fish, 222 Ariz. 109, ¶ 80 (App. 2009) (same). We therefore "will not consider it as a ground of error." Logan, 200 Ariz. 564, ¶ 15.
Speedy-Trial Rights
¶34 Nunez argues the trial court "fail[ed] to observe [his] [r]ight to a [s]peedy [t]rial" and to dismiss the case under Rule 8, Ariz. R. Crim. P. "We review a trial court's Rule 8 rulings for abuse of discretion." State v. Hunter, 227 Ariz. 542, ¶ 4 (App. 2011). "A trial court's ruling regarding Rule 8 will be upheld unless a defendant shows both an abuse of discretion and prejudice." State v. Wassenaar, 215 Ariz. 565, ¶ 16 (App. 2007).
¶35 Rule 8.2(a)(3) provides that defendants in complex cases shall be tried no later than 270 days after arraignment. However, "[d]efense counsel must advise the court of an impending expiration of time limits." Ariz. R. Crim. P. 8.1(d). A defendant's failure to timely notify the court of an expiring time limit is relevant in determining whether to dismiss an action with prejudice. Id. "Thus, a defendant may waive speedy trial rights by not objecting to the denial of speedy trial in a timely manner." State v. Spreitz, 190 Ariz. 129, 138 (1997). The purpose of this waiver rule is "predicated in substantial part on the concern that defendants may 'wait until after the [Rule 8.2 time limit] has expired and then claim a Rule 8 violation after it is too late for the trial court to prevent the violation.'" Id., quoting State v. Swensrud, 168 Ariz. 21, 23 (1991).
At Nunez's request, the trial court designated this a complex case.
¶36 Nunez asserted his speedy-trial rights under Rule 8 in June 2013. According to his calculation, December 6, 2013, was the last day to try him. In August 2013, upon stipulation of counsel, trial was set for December 4, 2013. Approximately one week prior to that date, however, trial was continued to January 21, 2014, again upon stipulation between Nunez and the prosecutor. The state then filed a special action with this court in January 2014, and the trial was stayed. After we declined to accept special-action jurisdiction, trial was reset for April 29, 2014. Following a series of additional delays—requested, stipulated, or unobjected to by Nunez—trial ultimately began on May 9, 2016.
¶37 On appeal, Nunez maintains that "[t]he time under which the Special Action was being considered should be held against the State in calculating Rule 8 time." He suggests the trial should have been set for February 24, 2014, four days after this court declined special-action jurisdiction, because the state filed its special action four days before the January trial date. Nunez characterizes February 24, 2014, as "the Rule 8 expiration."
Nunez also contends "[t]he trial court did not obtain a waiver from [him] to set the trial date past the expiration of the Rule 8 time." As explained above, however, it was his burden to object. See Ariz. R. Crim. P. 8.1(d); Spreitz, 190 Ariz. at 138.
¶38 However, Nunez seems to overlook his argument below that the Rule 8 time limit expired on December 6, 2013, and that he stipulated to continue the timely trial date until January 21, 2014, which was already outside that time limit. Moreover, based on the record before us, it does not appear that Nunez objected to the April 29, 2014 trial date until April 23, 2014, when he filed a motion to dismiss, asserting "[t]he Rule 8 time issues between January 21, 2014 and April 29, 2014 were never waived." Nunez thus waived his speedy-trial rights under Rule 8. See Swensrud, 168 Ariz. at 23 (defendant required to object before speedy-trial time expired to avoid waiver of Rule 8 violation).
¶39 Even assuming Nunez had not waived his right to a speedy trial, however, he has not demonstrated prejudice. See Wassenaar, 215 Ariz. 565, ¶ 16. In order to establish prejudice sufficient to warrant reversal, a defendant must show "that his defense was harmed or that he was deprived of a fair trial." Hunter, 227 Ariz. 542, ¶ 10. Nunez has not argued—nor does the record reveal—that either occurred in this case. Indeed, as the state points out, Nunez requested additional continuances after April 2014.
¶40 Nunez additionally contends that "the sheer length of time it took to reach a trial was a violation of [his] right to a speedy trial under the Sixth Amendment." Because Nunez did not raise this constitutional argument before the trial court, he has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20; see also Bolton, 182 Ariz. at 297. And because Nunez does not argue fundamental error on appeal, the argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17.
¶41 Even assuming the argument were not waived, however, Nunez has not met his burden of showing fundamental, prejudicial error. The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." However, it does not give a specific time within which a trial must be held. Indeed, "[t]he Rule 8 speedy trial right is more restrictive of the state than the Sixth Amendment." State v. Tucker, 133 Ariz. 304, 308 (1982). Under the Sixth Amendment, we look at four factors to determine whether the delay is sufficient to constitute a violation of one's right to a speedy trial: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant demanded a speedy trial; and (4) whether the defendant suffered any prejudice from the delay. Barker v. Wingo, 407 U.S. 514, 530-32 (1972); accord Spreitz, 190 Ariz. at 139. "In weighing these factors, the length of the delay is the least important, while the prejudice to defendant is the most significant." Spreitz, 190 Ariz. at 139-40.
¶42 Here, Nunez contends the delay between arraignment and trial was nearly six years, which he claims was largely due to the fault of the state. We recognize that a six-year delay is significant. See Barker, 407 U.S. at 533 (describing five-year delay as "extraordinary"); see also Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (post-accusation delay of one year "presumptively prejudicial"). But, as described above, Nunez agreed to and requested various continuances himself, particularly during the two-year period following the April 2014 trial date. See Spreitz, 190 Ariz. at 140 (reason for delay weighed against defendant where he initially waived speedy-trial rights). In addition, as to the most important factor, Nunez has not asserted that he suffered any prejudice from the delay. See State v. Leslie, 147 Ariz. 38, 45 (1985) ("A defendant is entitled to a fair trial, not a perfect one."). Accordingly, we cannot say that Nunez's Sixth Amendment right to a speedy trial was violated.
Disposition
¶43 For the reasons stated above, we affirm Nunez's conviction and sentence.