Opinion
2 CA-CR 2011-0208
11-15-2012
THE STATE OF ARIZONA, Appellee, v. KENNETH L. FLUELLEN, Appellant.
Thomas C. Horne, Arizona Attorney General Kent E. Cattani, Joseph T. Maziarz, and Matthew H. Binford Attorneys for Appellee Isabel G. Garcia, Pima County Legal Defender Scott A. Martin 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Not for Publication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. CR20101946001
Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz, and
Matthew H. Binford
Phoenix
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin
Tucson
Attorneys for Appellant
ECKERSTROM, Presiding Judge. ¶1 After a jury trial, Kenneth Fluellen was convicted of one count of sale of a narcotic drug, one count of sale or transfer of a narcotic drug, one count of sale or transfer of a dangerous drug, two counts of possession of a narcotic drug for sale, one count of possession of a dangerous drug for sale, one count of possession of marijuana, one count of possession of a deadly weapon by a prohibited possessor, and two counts of attempted possession of a deadly weapon by a prohibited possessor. On appeal, Fluellen contends the trial court abused its discretion when it found him competent to stand trial and denied his request for a further competency evaluation pursuant to Rule 11, Ariz. R. Crim. P.; erred in instructing the jury in accordance with State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), arguing the instruction relieved the state of its burden to prove the elements of the charged offenses beyond a reasonable doubt; and erred when it admitted, over his hearsay and authentication objections, certain documents introduced by the state to prove its allegation that Fluellen had a historical prior felony conviction. We affirm for the reasons stated below. ¶2 Before trial, Fluellen's attorney filed a motion pursuant to Rule 11, requesting that Fluellen be examined to determine whether he was competent to stand trial. Granting the motion, the trial court appointed two doctors, one "a Ph.D. and one an M.D.," to be chosen from a "rotating competency evaluator list" to examine Fluellen "regarding [his] mental condition as it applies to Rule 11 proceedings." Sergio Martinez, Ph.D., a psychologist, and Bradley Johnson, M.D., a medical doctor, were appointed and submitted their evaluations. Dr. Martinez found Fluellen "to have made a conscious and strong effort to feign psychopathology and competency-based impairment." Martinez diagnosed Fluellen with polysubstance dependence disorder, mood disorder not otherwise specified, malingering, and antisocial personality disorder, but found Fluellen competent to stand trial. ¶3 Johnson reported his ability to evaluate Fluellen thoroughly had been impeded by Fluellen's behavior. Johnson stated in his report that the interview had to be terminated prematurely, after about twenty minutes, because Fluellen "became agitated, uncooperative, and quite threatening in his mannerisms and voice." Nevertheless, Johnson noted Fluellen seemed to be malingering and probably suffered from mood and antisocial personality disorders. Although Johnson stated he was "unable to reach a certain conclusion as to whether the defendant is competent to stand trial or not," he added, "it is my opinion that there was nothing presented to me in the evaluation that would lead me to conclude that he was not competent to stand trial, although this is based on limited information." Conceding his ability to evaluate Fluellen fully had been curtailed, Johnson stated that, although Fluellen was "angry and agitated" and might be suffering from some form of mental illness, he did not believe any such illness "would likely affect his ability to work with an attorney or to understand the workings of the court," adding, "If he is unable to work with an attorney, it is likely secondary to his purposeful anger and behavior, and not because of a severe mental illness." ¶4 At the competency hearing, the trial court asked, "You saw the records?" Defense counsel responded that he had seen the reports. The court then asked, "You stipulate?" Defense counsel responded, "Yes, Your Honor." The court then stated, "Based on the reports o[f] Drs. Martinez and Johnson, parties stipulate that Mr. Fluellen is competent to proceed . . . ." At the beginning of the first day of trial, Fluellen complained to the court about his attorney's performance. With respect to the competency proceedings, Fluellen told the court his Rule 11 evaluation had not been finished because "one of the doctors didn't like my attitude," and Fluellen faulted trial counsel for not arranging for further evaluation on his own and for rejecting Fluellen's request to schedule another evaluation. When the court asked counsel about Fluellen's complaints, counsel explained, with regard to the Rule 11 issue, that he did not believe there was any ground for requesting another Rule 11 evaluation, given the two examinations that had been conducted. ¶5 Responding to Fluellen's complaints, the trial court stated that although Johnson had been unable to complete the evaluation because Fluellen had been "uncooperative and aggressive," both Johnson and Martinez had found Fluellen was malingering and exaggerating his symptoms. The court stated it had considered both reports at the Rule 11 hearing and had found Fluellen competent. The court added, "If the Court had been asked to order another evaluation it would have denied it. The Court's information was sufficient for the Court to make its determination, which it did." Fluellen contends on appeal that the court abused its discretion in finding him competent, claiming the decision was based "solely on the non-medical doctor's evaluation, in violation of Rule 11.3(a)'s clear directive." He also contends the court violated his due process rights and the court's continuing duty to inquire into a defendant's competency by not ordering additional evaluation when Fluellen challenged Johnson's Rule 11 examination before trial began. ¶6 We review the trial court's initial determination that Fluellen was competent for an abuse of discretion, see State v. Berger, 171 Ariz. 117, 120, 828 P.2d 1258, 1261 (App. 1992), and will not disturb that ruling if it is supported by reasonable evidence, viewed in the light most favorable to upholding the court's determination. See State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d 1193, 1204 (2005). At the outset, by admitting, through counsel, that he was competent after the reports of Johnson and Martinez were submitted at the Rule 11 hearing, Fluellen waived the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). And it is Fluellen's burden to establish on appeal that error occurred and that this error was both fundamental and prejudicial. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 16, 185 P.3d 135, 140 (App. 2008). He has not sustained that burden. The record establishes the court did not violate Rule 11.3(a); it appointed two experts as required, one of whom was a medical doctor, the other a psychologist. ¶7 Nor did the fact that Fluellen's aggressive, disruptive behavior impeded the medical doctor's ability to conduct a more extensive, thorough evaluation amount to a violation of the rule. As we noted above, Johnson admitted in his report that he had terminated the evaluation prematurely, and his conclusions were qualified accordingly. Nevertheless, Johnson, a medical doctor, did conduct an evaluation and did formulate an opinion that, notwithstanding the possibility Fluellen was mentally ill and despite his issues with anger and aggression, Fluellen did appear to be competent. Thus, the trial court based its determination that Fluellen was competent on the parties' stipulation; a psychologist's conclusion, following a thorough, complete evaluation; and a medical doctor's opinion, albeit one formed after a less than complete interview. The court also was free to rely on its "own observations of the defendant." Bishop v. Superior Court, 150 Ariz. 404, 409, 724 P.2d 23, 28 (1986). Presumably, it relied on its own observations of and interactions with Fluellen, and nothing it observed caused it to question Martinez's and Johnson's conclusions that Fluellen was competent. The record contains reasonable evidence to support the court's decision; therefore, the court did not abuse its discretion. See Glassel, 211 Ariz. 33, ¶ 28, 116 P.3d at 1204. ¶8 Similarly, Fluellen has failed to establish the trial court abused its discretion by not ordering further examinations conducted after Fluellen complained to the court on the first day of his trial. Like the initial finding of competency, the decision whether to order further testing of a defendant is left to the sound discretion of the court. See State v. Hansen, 156 Ariz. 291, 296, 751 P.2d 951, 956 (1988). In deciding whether there are reasonable grounds for additional examination, the court may rely on its previous determination that the defendant was competent unless new facts raise a good faith concern about the defendant's competency. State v. Moody, 208 Ariz. 424, ¶ 48, 94 P.3d 1119, 1138 (2004); State v. Cornell, 179 Ariz. 314, 322-23, 878 P.2d 1352, 1360-61 (1994). Here, the court was well aware that Johnson had been unable to complete the evaluation, having made that clear in his report. As the court's comments on the first day of trial reflected, it saw no reason to order further evaluation. Nothing had changed since Fluellen had been evaluated. Again, the court had been able to engage with Fluellen and observe his demeanor. Thus, the court's own observations and the reports which it had been provided were sufficient bases for determining whether further evaluations were warranted. Fluellen is correct that trial judges are "under a continuing duty to inquire into defendant's competency, and to order a rule 11 examination sua sponte if reasonable grounds exist" to question it. State v. Amaya-Ruiz, 166 Ariz. 152, 162, 800 P.2d 1260, 1270 (1990). But, "[t]he trial court is vested with broad discretion in determining whether reasonable grounds exist for an examination [of competence], and unless there has been a manifest abuse of that discretion, the trial court's decision will be upheld." State v. Druke, 143 Ariz. 314, 316, 693 P.2d 969, 971 (App. 1984). We have no basis for disturbing the court's ruling here. ¶9 Fluellen next contends the trial court erred when it gave the jury the reasonable doubt instruction approved by our supreme court in Portillo, over trial counsel's objection that the instruction unconstitutionally shifted the burden of proof. Although Fluellen acknowledges our supreme court repeatedly has confirmed the propriety of the Portillo instruction, see, e.g., State v. Dann, 220 Ariz. 351, ¶ 65, 207 P.3d 604, 618 (2009); State v. Garza, 216 Ariz. 56, ¶ 45, 163 P.3d 1006, 1016-17 (2007); State v. Ellison, 213 Ariz. 116, ¶ 63, 140 P.3d 899, 916 (2006); and that we are bound to follow the decisions of our supreme court, see City of Phx. v. Leroy's Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993), he raises the issue nevertheless in order to preserve it for further review. And, he argues, the appellate courts of this state should adopt the reasoning of the Hawaii Court of Appeals in State v. Perez, 976 P.2d 427 (Haw. App. 1998), rev'd in part, 976 P.2d 379 (Haw. 1999). Bound as we are by supreme court precedent, however, we need not address this issue further. We conclude the court did not err by giving the jury a reasonable doubt instruction based on Portillo. ¶10 Fluellen's final argument is that the trial court erroneously admitted the Arizona Department of Corrections (ADOC) "pen-pack" over his hearsay and authentication objections and that there was insufficient properly admitted evidence establishing one of his two historical prior felony convictions for sentence-enhancement purposes. See A.R.S § 13-105(22)(c). The authentication objection was based on the fact that the certification seal was only on the back of one, but not every, sheet that comprised the exhibit. At his prior-conviction trial, Fluellen had objected when the exhibit was introduced and again when the parole officer who had supervised Fluellen began to testify about the contents of the pen-pack. But the court already had admitted the document and responded that it could find the very same information from the document. Fluellen had argued that his conviction in CR-20042757, for a class six felony, could not be used as a historical prior felony conviction because it had been committed more than five years before the instant offenses. See A.R.S. § 13-105(22)(c). But the prosecutor had responded that the ADOC pen-pack showed Fluellen had been incarcerated one year, seven months and twenty-three days, which was to be excluded from the five-year calculation. See id. ¶11 On appeal, Fluellen contends the pen-pack was not authenticated properly for purposes of Rule 902(2), Ariz. R. Evid., because a notary public had certified only the authenticity of the signature of the ADOC employee who had signed the document entitled "In-State Exemplification," but the notary had not and could not have certified that the signer was authorized to certify the authenticity of ADOC records. As Rule 902(2)(B) states, a certification is only complete if "another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine." Consequently, Fluellen argues, the trial court should have sustained his objection and the pen-pack should not have been admitted. Without that exhibit, he contends, there was insufficient evidence to establish a period of incarceration to be "excluded in calculating" whether his class six felony had been committed within the five years preceding the instant offenses and so could serve as a historical prior felony conviction. § 13-105(22)(c). ¶12 We agree with the state that the argument Fluellen raises on appeal is different from the argument and objection he had raised in the trial court. Consequently, he has forfeited the right to seek relief for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Again, the burden is on Fluellen to establish error occurred, it was fundamental in nature, and he was prejudiced. See Moreno-Medrano, 218 Ariz. 349, ¶ 16, 185 P.3d at 140. He has not sustained that burden. We see no error, much less error that could be characterized as fundamental, prejudicial error. ¶13 The pen-pack was admitted properly pursuant to Rule 902(1) because the certification seal—which, as the "in-state exemplification" made clear, related to the entire pen-pack—caused the documents to be self-authenticating records of ADOC, a department of the State of Arizona. See A.R.S. § 41-1602 (ADOC a department of state); see also State v. Gillies, 142 Ariz. 564, 572, 691 P.2d 655, 663 (1984) (finding pen-pack of defendant's prison records properly admitted under public-records rule even though divided into three parts with only one certification for all three parts). As the state points out, the documents were further certified by an accompanying letter, which also contained a certification seal. Also, the certification was signed by an ADOC employee in the Offender Information Unit, further certifying the authenticity of the pen-pack. ¶14 The convictions are affirmed, as are the sentences.
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PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ______________________________
JOSEPH W. HOWARD, Chief Judge
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J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012.