Opinion
No. 1 CA-CR 14-0537
10-29-2015
STATE OF ARIZONA, Appellee, v. JAMAR DONTAE ROPER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Carlos Daniel Carrion Counsel for Appellant Jamar Dontae Roper, Yuma 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2009-169360-001
The Honorable Cynthia Bailey, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
Jamar Dontae Roper, Yuma
Appellant
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Donn Kessler joined. WINTHROP, Presiding Judge:
¶1 Jamar Dontae Roper ("Roper") appeals his convictions and sentences for two counts of aggravated assault. Roper's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Roper's counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). We allowed Roper to file a supplemental brief in propria persona, and he has done so, raising two issues that we address.
¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (Supp. 2015), 13-4031 (Supp. 2015), and 13-4033(A) (Supp. 2015). Finding no reversible error, we affirm.
We cite the current version of the applicable statutes unless revisions material to this decision have occurred since the dates of the offenses.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
¶3 In 2009, a grand jury indicted Roper, charging him with two counts of aggravated assault—a class 2 felony, and one count of misconduct involving weapons—a class 1 misdemeanor. See A.R.S. §§ 13-1203(A)(2) (Supp. 2015), -1204(A)(8)(a) (Supp. 2009), -3102(A)(2) (Supp. 2009). The State also alleged the two offenses were dangerous and the sentences for the aggravated assault offenses could not be less than the presumptive sentences and could only be in flat time because the offenses were committed against on-duty peace officers. See A.R.S. §§ 13-105(13) (Supp. 2015), -709.01 (Supp. 2009); State v. Woodall, 155 Ariz. 1, 7, 744 P.2d 732, 738 (App. 1987) (stating an automobile constitutes a dangerous instrument if used to commit an offense).
This statute was amended in 2015 to include another scenario of aggravated assault resulting from the victim as a peace officer. 2015 Ariz. Sess. Laws, ch. 95, § 1.
This statute was narrowed in 2010 to be applicable to persons under twenty-one years of age. 2010 Ariz. Sess. Laws, ch. 59, § 2.
Policemen of cities are peace officers. A.R.S. § 1-215 (Supp. 2015).
This statute became effective on Jan. 1, 2009, but was repealed in 2011. 2011 Ariz. Sess. Laws, ch. 90, § 3; 2008 Ariz. Sess. Laws, ch. 301, § 119.
¶4 At trial, the State presented the following evidence: At approximately 11:40 a.m. on October 30, 2009, during a routine patrol, Officer Huptich and Officer Elfritz with the Phoenix Police Department—traveling in a fully-marked police vehicle and dressed in clearly-marked uniforms—noticed a gold Ford Taurus backed in a parking slot of a motel parking lot with V.J. in the driver's seat and Roper in the front passenger's seat. The motel was known as a high-crime property, and stolen vehicles are often parked in that manner to hide the license plate from the view of patrolling officers. While the officers were approaching the car to check whether the occupants of the car were staying at the motel, they noticed movements from Roper that looked like he was tucking something between the console and his seat. Officer Huptich went to the driver's side and Officer Elfritz went to the passenger's side. Once the officers started to converse with the occupants, Roper immediately yelled at V.J. to roll up the window and reached over to lock the doors.
The officer changed his last name from Harris after the incident.
¶5 Officer Huptich commanded both to exit the car. V.J. eventually came out of the car, leaving the driver's side door open and handing the officers her driver's license and Roper's identification card. Once V.J. exited, Roper moved into the driver's seat. To better see what Roper was doing, Officer Elfritz walked to the front of the car. At that moment, Roper drove the car forward, almost hitting Officer Elfritz. The officer had to jump out of the way to avoid being struck by the vehicle. To block Roper from driving away, Officer Huptich ran to the patrol car and backed it close to the Taurus. As Officer Huptich was walking back to the Taurus, Roper drove the car forward again, forcing Officer Huptich to jump out of the way to avoid injury.
¶6 Both officers then stood next to the driver's side, keeping the door open, and commanded Roper to exit the car. Roper did not do so, and in a further attempt to stop Roper, Officer Huptich used pepper spray, but to no avail. Roper managed to slam the door shut—almost hitting Officer Huptich—and rammed the Taurus into the patrol car. The Taurus stalled as a result; Roper restarted it, backed it up quickly, and then moved it forward while turning right and scraping the rear driver's side of the patrol car. He then drove out of the parking lot. Officer Huptich radioed a description of Roper to the police dispatcher.
¶7 Approximately half an hour later, the Taurus was located in a parking lot of an apartment building less than two miles away from the motel. Shortly thereafter, Officer Kincannon with the Phoenix Police Department detained Roper at a nearby bus stop. Roper was later identified at the bus stop by both Officers Elfritz and Huptich. Officers Elfritz and Huptich went back to the parking lot of the apartment building, inspected the Taurus, and found a gun inside. At the police station, after being given his Miranda warnings, Roper admitted he owned that gun and that he had purchased it on "the street." When asked why he refused to obey the police and fled, Roper replied he did not want to go to jail.
¶8 During the first trial of this case in 2010, the trial court found it necessary to place Roper in Rule 11 proceedings to determine his competency to stand trial, and declared a mistrial. Over the next three and a half years, Roper went through restoration efforts and a series of Rule 11 hearings. Eventually in 2014, Roper was restored to competency and tried. The jury found Roper guilty as charged, and that his offenses were dangerous, and he had assaulted on-duty peace officers. The court sentenced him to concurrent terms of 10.5 years' imprisonment for the aggravated assault offenses with credit for 193 days of presentence incarceration. Roper timely appealed.
With respect to the misdemeanor count, the court sentenced Roper to 180 days of incarceration; with the pre-incarceration credit applied, the court's disposition terminated this count. --------
ANALYSIS
¶9 We review de novo the trial court's rulings on legal issues and review any findings of fact by the court for abuse of discretion. State v. Blackmore, 186 Ariz. 630, 634, 925 P.2d 1347, 1351 (1996); State v. Malvern, 192 Ariz. 154, 155, ¶ 2, 962 P.2d 228, 229 (App. 1998). If a question is a mixed question of fact and law, we defer to the trial court's factual determination but review the ultimate question de novo. Blackmore, 186 Ariz. at 632, 925 P.2d at 1349.
I. Alleged Prosecutorial Misconduct
¶10 Roper argues his conviction must be reversed because the prosecutor committed misconduct by not disclosing and suppressing evidence favorable to him, allegedly violating Brady v. Maryland, 373 U.S. 83 (1963). Roper contends the trial court abused its discretion in denying his motion to dismiss on these grounds. We disagree.
¶11 "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that '(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.'" State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004). For alleged misconduct to constitute a Brady violation, the evidence must be favorable to the defendant and have been suppressed by the prosecutor, and there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280-81, 296 (1999); Brady, 373 U.S. at 87 (1963).
¶12 After a hearing, the trial court found that the record did not support the allegation of a Brady violation. As he did before the trial court, Roper asserts on appeal that the State suppressed evidence of an interview that allegedly occurred approximately six months after the incident, where V.J. told a prosecutor and four police officers that Roper was not the person in the car with her during the incident. V.J., however, could not pinpoint when the interview took place or identify the prosecutor or the officers who conducted the interview. The defense first learned from V.J. about the alleged interview in April 2014—before the trial but almost four years after the purported interview. At the hearing for the motion, the State called two officers who had delivered a subpoena for V.J. and might be the officers to whom V.J. was referring. Both officers denied any interview had occurred. V.J. also testified at the hearing. Afterwards, the trial court concluded V.J.'s claim of an interview was not credible and, even assuming otherwise, the State was not trying to hide this witness because the State had disclosed V.J. as one of its witnesses back in 2010. Further, even assuming the State had suppressed the evidence of the alleged interview, the result of the proceeding would not have been different because the defense was free to conduct its own investigation or bring the evidence before the jury. We agree. The trial court did not err or abuse its discretion in denying the motion to dismiss based on alleged prosecutorial misconduct.
II. Favorable Evidence
¶13 Roper also argues this court should reverse the conviction and dismiss the case with prejudice because favorable evidence exists on record. The favorable evidence he refers to is the testimony from V.J., claiming Roper was not the person with her in the Taurus during the incident.
¶14 The mere existence of favorable evidence does not warrant a reversal of a conviction or dismissal of a case. The record shows the favorable evidence Roper refers to was presented to, and duly weighed by, the jury. Absent clear error, we defer to the jury's weighing of witness credibility and factual determinations of guilt and aggravating factors. We find no such error here.
III. Other Issues
¶15 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Roper was represented by counsel at all stages of the proceedings and allowed to speak at sentencing. The proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶16 After filing of this decision, defense counsel's obligations pertaining to Roper's representation in this appeal have ended. Counsel need do no more than inform Roper of the status of the appeal and of his future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Roper has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶17 Roper's convictions and sentences are affirmed.