Opinion
2 CA-CR 2011-0399
10-29-2013
THE STATE OF ARIZONA, Appellee, v. JOSEPH EDWARD CAMARGO, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Alan L. Amann Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller 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Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20102732001
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Alan L. Amann
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller
Tucson
Attorneys for Appellant
ESPINOSA, Judge.
¶1 After a jury trial, Joseph Camargo was convicted of possession of a deadly weapon by a prohibited possessor. The trial court found he had three prior felony convictions and sentenced him to a presumptive ten-year prison term. On appeal, Camargo argues the court abused its discretion by denying his motion to continue the trial date and fundamentally erred in failing to instruct the jury on the state's burden of disproving his justification defense. He also contends the state presented insufficient evidence to disprove that defense. For the following reasons, we affirm in part and vacate in part.
Factual Background and Procedural History
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). One morning in July 2010, police officers responded to a 9-1-1 call reporting shots fired near a local park. The first officer to arrive at the park saw four individuals, including Camargo, congregated in the parking lot next to a blue sedan. Because of the shots fired-report, he directed Camargo to "get on the ground" and put his hands up. Instead, Camargo turned his back, prompting the officer to wrestle him to the ground, revealing a handgun in the waistband of Camargo's pants. After the officer removed the gun and placed it on the ground, Camargo said "[you] didn't find the gun on [me] . . . it was l[y]ing on the ground." Later, while he was being transported to the station, Camargo asked the officer "how come [you] couldn't just say [you] found the gun lying on the ground?"
¶3 After Camargo's prior felony convictions were discovered, he was charged with prohibited possession of a deadly weapon. He was convicted and sentenced as set forth above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion for Substitution of Counsel
¶4 Camargo first argues the trial court erred by denying his morning-of-trial requests to substitute counsel and continue the trial to allow his newly retained attorney time to prepare. His trial, initially set for June 2011, had been reset to August 9 on the state's motion. When the August 9 trial date was affirmed at a May 23 hearing, Camargo did not indicate any desire or plans to change counsel. The morning of trial, however, he filed a notice stating that the Roach Law Firm, LLC, would be replacing the Pima County Legal Defender as his counsel. This notice was accompanied by a request for a continuance of the trial date "to allow counsel to prepare for trial." After a brief hearing, the court denied the motion for substitution and corresponding motion to continue.
¶5 Because the attorney Camargo had retained was unprepared to go forward with the trial as scheduled, Camargo's request for new counsel was inextricably linked to his motion to continue the trial. Thus, while this argument may implicate his constitutional right to counsel, it is premised on the court's decision to deny the motion for a continuance, which will not be reversed absent an abuse of discretion. See State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983) (applying abuse of discretion standard where defendant requested new representation on morning of trial); State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (abuse of discretion standard applied to denial of continuance that implicated constitutional right to counsel).
¶6 "'[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel . . . .'" State v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App. 2009), quoting Robinson v. Hotham, 211 Ariz. 165, ¶ 16, 118 P.3d 1129, 1133 (App. 2005) (alterations in Aragon). Nevertheless, this right "is not absolute, but is subject to the requirements of sound judicial administration." Hein, 138 Ariz. at 369, 674 P.2d at 1367. Consequently, "[a] trial court has 'wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.'" Aragon, 221 Ariz. 88, ¶ 5, 210 P.3d at 1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). In weighing these competing interests, courts consider
whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory.Hein, 138 Ariz. at 369, 674 P.2d at 1367.
¶7 The trial court evaluated the Hein factors on the record and concluded that a continuance was not warranted under the circumstances. Specifically, the court briefly recited the case history, identifying prior continuances, and then stated:
Subpoenas have gone out, writs have been issued and the jury is ready down in the jury room waiting for the trial and I don't have any reason to continue this trial.Camargo takes issue with the court's analysis, arguing it accorded undue weight to the second factor of the Hein analysis based on an erroneous interpretation of this court's decision in Aragon. 221 Ariz. 88, ¶ 6, 210 P.3d at 1261-62. We disagree, however, with Camargo's assertion that the trial court viewed the availability of counsel as "the controlling factor in Aragon." To the contrary, it appears the court mentioned Aragon during its discussion of the relevant factors because it was referring directly to Camargo's motion to continue, which spelled out the Hein criteria but cited Aragon as authority for their application. Accordingly, the court's reference to Aragon does not demonstrate undue emphasis on a single factor but rather, suggests that all applicable factors were properly identified and weighed.
The Aragon case that you cited whether a continuance is granted when the defendant has other competent trial counsel, which he does, who is prepared to try the case today. It is inconvenient to the litigants and the witnesses and to the Court. This is not a complex case, nevertheless, I don't see any reason to delay it.
¶8 Camargo next argues the trial court erred in finding inconvenience to the witnesses because the state's witnesses were police officers and his own witnesses all resided within the state. Again citing Aragon, id., he appears to suggest the interests of such witnesses should be disregarded absent specific evidence of inconvenience. But in Aragon, the request for a continuance was made six days before trial, and the impact of any scheduling change could have been alleviated by the "'juggl[ing of] calendars'" alluded to in that decision. Id. ¶¶ 2, 6. Here, the request was made the morning trial was set to begin, when at least two witnesses were already standing by to testify. Because this distinction has a significant impact on the level of inconvenience posed by the requested continuance, Aragon does not compel a finding that only the interests of out-of-state, non-law enforcement witnesses could be considered by the court.
Aragon is distinguishable in other important respects. There, the trial court failed to apply the Hein factors, 221 Ariz. 88, n.5, 210 P.3d at 1262 n.5, and erroneously relied on the speedy trial limitation contained in Ariz. R. Crim. P. 8 when it denied the defendant's request for a continuance, id. ¶¶ 2, 7.
A police officer and a parole officer had been called to testify on the first day of trial.
¶9 Moreover, Camargo's proposed rule disregards the practical realities of criminal trials, which principally feature testimony from local law enforcement personnel, eyewitnesses to a local crime, and persons related in some way to a resident defendant. If courts only incorporated the interests of non-law enforcement witnesses traveling from out of state, the third factor identified by our supreme court in Hein, 138 Ariz. at 369, 674 P.2d at 1367, would be inoperative in the majority of cases.
¶10 Camargo also contends the trial court improperly discounted his request for new counsel when it stated it saw no reason to grant a continuance. While we acknowledge the importance of the Sixth Amendment right to counsel of one's choice, see Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d at 1261, we also recognize the trial court is better positioned to balance a request for new counsel against concomitant delay and inconvenience because it is "the only unbiased party in a position to observe the proceeding," Hein, 138 Ariz. at 368, 674 P.2d at 1366. Moreover, "'if in the sound discretion of the court, the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the judge may compel a defendant to proceed with designated counsel.'" State v. Miller, 111 Ariz. 321, 322, 529 P.2d 220, 221 (1974), quoting Lofton v. Procunier, 487 F.2d 434, 435 (9th Cir. 1973).
¶11 Contrary to Camargo's assertions, that the court concluded it saw no need for further delay does not suggest it failed to balance all of the interests involved, including Camargo's. And the court was free to tacitly find, based on Camargo's failure to make his request until the morning of trial—and failure to raise the issue at any point earlier, when inconvenience to the court and witnesses could have been greatly reduced—that Camargo's right to counsel of his choice was entitled to less weight as a result of his dilatory conduct. See id.
¶12 We recognize that some of the Hein factors weighed in favor of granting a continuance. 138 Ariz. at 369, 674 P.2d at 1367. Although Camargo had received continuances of various pretrial hearings, apparently to facilitate plea negotiations with the state, he had never requested a continuance of the trial date before making the motion at issue here. And, as the trial court noted, this case is not complex. Nonetheless, we find the court acted within its discretion when it concluded these factors were outweighed by the timing of Camargo's request and the resulting inconvenience posed to the witnesses, jurors, and the court. See In re MH 2003-000240, 206 Ariz. 367, ¶ 10, 78 P.3d 1088, 1090-91 (App. 2003) (no abuse of discretion where court denied continuance request because defendant "did not raise the issue before the hearing" among other factors); see also Morris v. Slappy, 461 U.S. 1, 11 (1983) (noting difficulty for trial court in "assembling the witnesses, lawyers, and jurors at the same place at the same time").
The parties disagree on whether the continuances of the pretrial hearings should be included in the Hein analysis. Although Hein does not expressly exclude continuances that do not affect the trial date, see 138 Ariz. at 369, 674 P.2d at 1367, in the absence of clear authority on this issue, we conclude this factor weighed in favor of Camargo. It does not, however, alter our conclusion about the trial court's analysis.
Jury Instruction on Justification
Failure to State Burden of Proof
¶13 Camargo next argues the trial court committed fundamental error by failing to instruct the jury that the state bore the burden of disproving, beyond a reasonable doubt, Camargo's justification defense of necessity. See A.R.S. § 13-205(A). The court's instruction did not misstate the burden of persuasion but rather, omitted any mention of it:
Conduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person's own conduct.A trial court's failure to instruct the jury on the state's burden of disproving a justification defense amounts to fundamental error, even where the jury was properly instructed on the state's general burden of proving its case beyond a reasonable doubt. See State v. Hunter, 142 Ariz. 88, 89-90, 688 P.2d 980, 981-82 (1984). Accordingly, we agree with Camargo that the court's failure to so instruct the jury in this case constituted fundamental error.
An accused person may not assert this defense if the person intentionally, knowingly or recklessly placed himself/herself in the situation in which it was probable that the person would have to engage in the proscribed conduct.
¶14 The state responds that Camargo invited any error by requesting the instruction above, and is therefore precluded from seeking reversal on this ground. See State v. Logan, 200 Ariz. 564, ¶ 8, 30 P.3d 631, 632 (2001) (when party requests erroneous instruction, party invites error and waives right to challenge instruction on appeal). The invited error doctrine applies where an appellant "affirmatively and independently initiated the error," as opposed to having "merely acquiesced in the error proposed by another." State v. Lucero, 223 Ariz. 129, ¶ 31, 220 P.3d 249, 258 (App. 2009). Courts must, however, exercise "extreme caution" when evaluating invited error, id. ¶ 18, and when it is unclear from the record which party was the source of the error, the doctrine will not be applied, id. ¶¶ 18, 22; see also State v. Thues, 203 Ariz. 339, n.2, 54 P.3d 368, 369 n.2 (App. 2002) (refusing to find invited error where record failed to reveal which party proposed stipulation to admit evidence challenged on appeal).
¶15 To support its argument that Camargo invited the trial court's erroneous instruction, the state relies on a brief exchange between the court and Camargo's counsel on the second day of trial:
THE COURT: This is the one you want, Eric, which is the necessity.Although this exchange might suggest that Camargo had requested the erroneous instruction, it is far from conclusive. Our review of the record supports Camargo's assertion that he did not provide any proposed jury instructions. Therefore, it is more likely Camargo was simply asking the court to provide a standard jury instruction on necessity, which he contends he reasonably assumed would accurately describe the state's burden. See State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 4.17 (2011). In the absence of any evidence that Camargo provided or specifically requested the erroneous instruction, we cannot conclude that he invited the court's error. See Lucero, 223 Ariz. 129, ¶ 18, 220 P.3d at 255.
[COUNSEL]: Yes.
¶16 Although Camargo has demonstrated fundamental error, to merit reversal on this ground it is also necessary that he establish prejudice. See State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005) (to prevail under fundamental error standard, defendant "must establish both that fundamental error exists and that the error in his case caused him prejudice"). When reviewing the adequacy of jury instructions, we may consider the closing arguments of counsel. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). Camargo acknowledges this point but contends the statements made in closing were too confusing to clarify the state's burden on Camargo's necessity defense. We disagree.
¶17 In his closing argument, defense counsel discussed the state's burden and distinctly identified the standard to be applied to Camargo's justification defense, stating,
[T]he other thing they have to do is show beyond a reasonable doubt that this was not a necessary event that took place here. . . . [I]s it reasonable to believe that taking the gun away from somebody who had threatened somebody else with it, alleviated the prospect of imminent injury? If it is reasonable to believe that doing that accomplished a goal of safety[,] this instruction says [you have] to find him not guilty.The prosecutor echoed this charge in her first words to the jury on rebuttal, stating, "Ladies and Gentlemen, I do have the burden of proving to you beyond a reasonable doubt that the defendant . . . did not act with justification, that there was no necessity, as defined by . . . the law, for him to take that gun." She went on to recite the state's burden of proof correctly two more times in her rebuttal argument. In light of the unambiguous directives provided by counsel for both Camargo and the state, Camargo has not established he was prejudiced by the error, and it is unnecessary to reverse his conviction and sentence on the basis of the court's faulty jury instruction.
Camargo claims the prosecutor's statement that "the law a[ls]o recognizes that you have to jump through some hoops in order to have the privilege of using this defense" implied that he bore the burden of proving necessity. When viewed in context, however, this statement plainly refers to the factual conditions governing the availability of a necessity defense and does nothing to alter the clear meaning of the prosecutor's prior statements regarding the state's burden.
Sufficiency of Evidence Disproving Justification
¶18 Camargo lastly argues the state failed to present sufficient evidence to meet its burden of disproving his justification defense. See § 13-205(A). The sufficiency of the state's evidence is a legal question we review de novo. State v. West, 226 Ariz. 559, ¶¶ 15-16, 250 P.3d 1188, 1191 (2011). A jury's verdict will be set aside for insufficient evidence only if it "clearly appear[s] that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). "Thus, if reasonable minds could differ as to whether the evidence and all the inferences therefrom prove the offense, a motion for acquittal should not be granted." State v. Fischer, 219 Ariz. 408, ¶ 39, 199 P.3d 663, 673 (App. 2008), citing State v. Mathers, 165 Ariz. 64, 66-67, 796 P.2d 866, 868-69 (1990).
¶19 At trial, Camargo maintained that his possession of the gun was necessary, and therefore, justified, to prevent the escalation of a conflict involving one of his friends. To meet its burden of disproving this defense, the state was required to present substantial evidence that either (1) Camargo was not compelled to possess the gun "to avoid imminent public or private injury greater than the injury that might reasonably result" from that possession, A.R.S. § 13-417(A), or (2) he "intentionally, knowingly or recklessly placed himself in the situation in which it was probable" that he would have to possess a gun, A.R.S. § 13-417(B). Such evidence could be direct or circumstantial. State v. Lopez, 230 Ariz. 15, ¶ 3, 279 P.3d 640, 642 (App. 2012).
¶20 The evidence at trial showed that after an all-night party, Camargo, his friend Gordo, and several others drove to a park to meet someone. Camargo's witnesses testified that, once at the park, Camargo and Gordo approached the occupants of a gray vehicle already parked there. One of the vehicle's occupants then pointed a BB gun at Camargo, and Gordo in turn aimed a handgun into the backseat of the gray car. At Camargo's urging, however, Gordo eventually handed the gun to Camargo, who proceeded to tuck it into his waistband. The gray vehicle left, and police arrived shortly thereafter.
¶21 The record does not reflect "'a complete absence of probative facts'" to support the jury's conclusion that Camargo's actions were not justified. See Lopez, 230 Ariz. 15, ¶ 7, 279 P.3d at 642, quoting State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000). As an initial matter, the jury could reasonably have found Camargo's witnesses to lack credibility and discredited their account of how he came to possess the gun. See State v. Clemons, 110 Ariz. 555, 557, 521 P.2d 987, 989 (1974) (noting jury is not compelled to accept defendant's story or believe his testimony). Alternatively, the evidence that Camargo sought out the individuals involved in the altercation could have caused the jury to find that Camargo had "intentionally, knowingly or recklessly placed himself in the situation," thereby foreclosing him from asserting a necessity defense under § 13-417(B). But even assuming the jury accepted Camargo's version of events and found his possession of the gun initially justified, that he retained possession after the gray vehicle drove away supports a conclusion that his possession was no longer justified by the time police arrived at the park. Moreover, the evidence that Camargo twice asked the arresting officer to report that he found the weapon on the ground indicates Camargo was aware his possession was unlawful and provided additional support for the jury to find his possession lacked justification. See, e.g., State v. Fillmore, 187 Ariz. 174, 179, 927 P.2d 1303, 1308 (App. 1996) (statements indicating defendant's consciousness of guilt relevant to determination of criminal liability).
Although the state did not conclusively establish how much time had passed between Camargo's taking possession of the firearm and the arrival of the police, it is clear from the record that some period of time had passed between these two events, during which the gray vehicle had departed, the alleged danger had ceased, and Camargo had failed to relinquish possession of the weapon.
Criminal Restitution Order
¶22 Finally, although the issue is not raised on appeal, we find fundamental error with regard to the trial court's reduction of "all fines, fees, and/or assessments" imposed during sentencing to a Criminal Restitution Order (CRO). See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (appellate court will not ignore fundamental error if apparent). Notwithstanding that the court ordered "no interest, penalties or collection fees [are] to accrue while [Camargo] is in the Department of Corrections," the imposition of such a CRO before a defendant's sentence has expired nonetheless "'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).
A.R.S. § 13-805 has been amended since the date of the offense. See 2012 Ariz. Sess. Laws, ch. 269, § 1. The changes may now permit entry of a CRO at sentencing but are not material here.
--------
Disposition
¶23 For the foregoing reasons, we vacate the CRO entered at sentencing; Camargo's conviction and sentence in all other respects are affirmed.
_____________
PHILIP G. ESPINOSA, Judge
CONCURRING: _____________
VIRGINIA C. KELLY, Presiding Judge
_____________
PETER J. ECKERSTROM, Judge