Opinion
No. 2 CA-CR 2013-0508
09-23-2014
THE STATE OF ARIZONA, Appellee, v. JUAN CARLOS GIL, Appellant.
COUNSEL Thomas C. Home, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Terry M. Crist III, Assistant Attorney General, Phoenix Counsel for Appellee Harriette P. Levitt, Tucson 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 NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20113750001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Thomas C. Home, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Terry M. Crist III, Assistant Attorney General, Phoenix
Counsel for Appellee
Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge: ¶1 Following a jury trial, Juan Gil was convicted of first-degree murder, armed robbery, aggravated robbery, and theft of means of transportation. The trial court sentenced him to life imprisonment with the possibility of release after twenty-five years on the murder count, and concurrent, presumptive terms of imprisonment on the remaining counts, the longest of which was 15.75 years, all to run consecutive to the life sentence. On appeal, Gil argues the court erred in denying his motion to preclude testimony based upon the clergy-penitent privilege and abused its discretion in denying his motions for new counsel. He also contends his conviction for aggravated robbery is barred by double jeopardy because he was convicted of the greater offense of armed robbery. For the reasons that follow, we affirm Gil's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In September 2011, Gil shot and killed F.G. near the University of Arizona. Gil was arrested in connection with the shooting and was charged as set forth above. ¶3 While in jail awaiting trial, Gil, through his girlfriend C.R., requested that P.G., who practices Santeria, perform a "work" for Gil in connection with his pending prosecution. During trial, Gil moved to preclude P.G.'s testimony regarding her communications with Gil and C.R. based on the clergy-penitent privilege. Stating that it was not sure a privilege existed, the trial court found that both Gil and C.R. had waived the privilege by disclosing the conversations to third persons. The court therefore denied the motion to preclude P.G.'s testimony. ¶4 Before trial, Gil filed several motions asking the trial court to appoint new counsel. Gil withdrew the first motion, and the trial court denied the others. ¶5 The jury found Gil guilty of all charges, and the court sentenced him as described above. Gil timely appealed.
Clergy/Penitent Privilege
¶6 Gil first argues the trial court committed reversible error in denying his motion to preclude P.G. from testifying based upon the clergy-penitent privilege. We review de novo whether an evidentiary privilege exists and whether a party has waived it. State v. Archibeque, 223 Ariz. 231, ¶ 5, 221 P.3d 1045, 1048 (App. 2009). "We apply an abuse of discretion standard when we review any necessary fact finding conducted by the trial court in order to resolve these issues." Id. ¶7 While in jail awaiting trial, Gil made several telephone calls to C.R. The calls were recorded in accordance with the jail's policy to record all non-privileged telephone calls. This policy was spelled out in the inmate handbook and on a placard next to the jail telephone. Inmates had the opportunity to provide names and telephone numbers for attorneys and clergymen, and after the jail staff verified the identities of the individuals listed, the telephone numbers were added to the privileged telephone list. Telephone calls to those numbers were not recorded. None of the telephone calls Gil made were to a number belonging to a person Gil had indicated was a clergyperson. ¶8 During one of the calls, Gil told C.R. he had left some keys in her garage and instructed her to give the keys to P.G. C.R. worked for P.G. at a beauty salon, and P.G. also knew Gil. P.G. practices Santeria and is a "senior santera" who has gone through processes to become a santera and to become qualified to sacrifice animals. P.G. performs "cleansings and works" for people who are having issues with love, money, or the police. ¶9 C.R. took the keys to P.G. and told her the keys belonged to someone who had been killed at the university. C.R. told P.G. she "had their lives in [her] hands" and asked P.G. to perform a work "so that they couldn't find the keys and so that they . . . wouldn't find anyone guilty." P.G. hid the keys under a "conga," a life-size doll P.G. used in performing her "works." Some time later, Gil called C.R., who was with P.G. C.R. handed the phone to P.G., and Gil briefly spoke to P.G. Neither Gil nor P.G. mentioned F.G.'s murder or the keys. P.G. told Gil she was "telling [C.R.] what she needs to give you so that you do some praying." P.G. also stated, "I will be doing something for you so you can get out soon" and told Gil to "[l]ook for the prayer, fairness for men." ¶10 On the third day of trial, Gil moved to preclude P.G.'s testimony regarding the communications between Gil and P.G. and between C.R. and P.G. Gil argued that both sets of communications were privileged under the clergy-penitent privilege because P.G. "plays the role of a spiritual advisor, of a clergyman." Gil claimed C.R. approached P.G. "seeking spiritual help and guidance in her faith and said certain things that were necessary in order to obtain that service." He asserted that C.R. was the conduit through which Gil could communicate with P.G., so the privilege was not waived. ¶11 The prosecutor responded that Gil could not assert C.R.'s privilege, and Gil waived the privilege when he "brought a third party into it." The prosecutor further contended that Gil waived any privilege when he spoke to C.R. and P.G. from a jail telephone knowing the calls would be recorded. Gil's attorney responded that, although Gil was aware the call to P.G. was recorded, he had no way of communicating with her directly. He added that "Gil was not on notice about what to do in the event he wanted [that] communication not to be recorded." ¶12 The trial court stated, "the Court isn't even clear whether there is a privilege" because "there is nothing that [the Court has] heard thus far that would indicate that [C.R.], when speaking with [P.G.]," was seeking "spiritual counsel." The court also found that if there was a privilege, it was waived by both C.R. and P.G. when they spoke about it to third persons. ¶13 Section 13-4062(3), A.R.S., provides that a clergyman or priest "shall not be examined as a witness . . . without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs." In Archibeque, we stated,
A determination of whether the clergy-penitent privilege applies involves a three-step inquiry: (1) Is the person who received the confession a "clergyman or priest"? (2) Was the confession made while the clergyman or priest was acting in his professional capacity? (3) Was the confession made in the course of discipline enjoined by the church to which the clergyman or priest belongs? If the answer to all three inquiries is affirmative, then the clergy-penitent privilege under § 13-4062(3) applies, unless the privilege is waived.223 Ariz. 231, ¶ 7, 221 P.3d at 1048. The state "does not question [P.G.'s] credentials or that she performed her services in her official capacity as a santera." Instead, the state argues that "nothing in [Gil's] recorded statement could be construed as a 'confession' that would give rise to the privilege." It further contends Gil waived any privilege he had in the conversation with P.G. Because we conclude that Gil waived any privilege, we need not decide whether the conversation constituted a "confession." ¶14 The clergy-penitent privilege belongs to the communicant, Waters v. O'Connor, 209 Ariz. 380, ¶ 12, 103 P.3d 292, 295 (App. 2004), and the communicant may waive the privilege through a "'course of conduct inconsistent with observance of the privilege.'" Archibeque, 223 Ariz. 231, ¶ 18, 221 P.3d at 1050, quoting Bain v. Superior Court, 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986). The privilege is not waived by the presence of a third party if the communicant "believed the communication would remain private and such belief is reasonable." Id. ¶ 16. ¶15 Here, C.R. voluntarily waived any privilege she had with respect to her conversations with P.G. by testifying about them at trial. Cf. Bain, 148 Ariz. at 334, 714 P.2d at 827 (in physician-patient context, where privilege holder "offers himself as a witness and voluntarily testifies with reference to privileged communications," the privilege "will be deemed waived"). With respect to Gil's privilege, Arizona courts have long concluded that a privilege is waived when a defendant knew or should have known that a third party could see or overhear the otherwise privileged communication. In De Leon v. Territory, the defendant wrote a letter to his wife while in jail, "under a rule that required that his letter should be opened and examined by the jailer." 9 Ariz. 161, 169, 80 P. 348, 351 (1905). Our supreme court stated that, because the defendant wrote the letter "under circumstances that fully advised him that it would be subject to the scrutiny and perusal of others than his wife, he cannot now be heard to claim that it was a privileged and sacred communication between husband and wife, that could not be used against him." Id. ¶16 Similarly, in State v. Summerlin, our supreme court stated that the anti-marital fact privilege "does not apply to conversations between husband and wife that are overheard by a third party." 138 Ariz. 426, 434, 675 P.2d 686, 694 (1983). The court noted that Summerlin "was warned by the police officers that he could not meet privately with his wife. Since the officers stood in the same room with defendant and his wife, defendant should have known that he risked the officers hearing part or all of his conversation." Id. In State v. Sucharew, we stated that "[t]he presence of a third person will usually defeat the [attorney-client] privilege on the ground that confidentiality could not be intended with respect to communications that the speaker knowingly allowed to be overheard by others foreign to the confidential relationship." 205 Ariz. 16, ¶ 11, 66 P.3d 59, 65 (App. 2003), quoting Morris K. Udall, et al., Law of Evidence § 71, at 128 (3d ed. 1991) (first alteration in Sucharew). ¶17 Here, although Gil did not invite a particular third party into his conversation with P.G., he knew the call was being recorded, and he risked third parties hearing the conversation. The jail's policy of recording telephone calls was made known to inmates through the inmate handbook and through the placard that was posted near the jail telephones. In addition, Gil had the opportunity to identify P.G. as a clergyperson, which would have permitted him to make a non-recorded call to her. Because he failed to do so, his conduct was "'inconsistent with observance of the privilege.'" Archibeque, 223 Ariz. 231, ¶ 18, 221 P.3d at 1050, quoting Bain, 148 Ariz. at 334, 714 P.2d at 827. We conclude that Gil waived any clergy-penitent privilege he had in his conversation with P.G., and the court did not err in denying his motion to preclude P.G.'s testimony.
Gil acknowledges he "did not re-urge this issue once he had established that the parties involved believed that [P.G.] was practicing a religion and that they had consulted with her for spiritual guidance and assistance." He therefore asks this court to review the issue for fundamental error. The state, however, does not assert that the issue was waived, and we conclude that Gil properly preserved the issue for appeal. See State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985) ("[W]here a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial.").
Motions for New Counsel
¶18 Gil next argues the trial court abused its discretion in denying his motions for new counsel. "A trial court's decision to deny [a] request for new counsel will not be disturbed absent an abuse of discretion." State v. Cromwell, 211 Ariz. 181, ¶ 27, 119 P.3d 448, 453 (2005). Although "[a] criminal defendant has a Sixth Amendment right to representation by competent counsel," he or she is not "entitled to counsel of choice or to a meaningful relationship with his or her attorney." Id. ¶ 28, citing U.S. Const. amend. VI. In deciding a motion for new counsel, courts consider
whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confrontedState v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987). "[T]he presence of a genuine irreconcilable conflict requires the appointment of new counsel." State v. Henry, 189 Ariz. 542, 547, 944 P.2d 57, 62 (1997) (emphasis omitted). A conflict that is not irreconcilable "is only one factor for a court to consider in deciding whether to appoint substitute counsel." Cromwell, 211 Ariz. 181, ¶ 29, 119 P.3d at 453. "A single allegation of lost confidence in counsel does not require the appointment of new counsel, and disagreements over defense strategies do not constitute an irreconcilable conflict." Id. To be colorable, "a defendant's allegations must go beyond personality conflicts or disagreements with counsel over trial strategy; a defendant must allege facts sufficient to support a belief that an irreconcilable conflict exists warranting the appointment of new counsel in order to avoid the clear prospect of an unfair trial." Id. ¶ 30. ¶19 Gil first moved for new counsel in June 2012 but subsequently withdrew that motion. In February 2013, he filed another motion for new counsel, stating he had "no faith" in his attorney and believed she had been "ineffective by her failure to file motions on his behalf" and "failed to maintain adequate contact with him at the jail." At the hearing on the February motion, Gil stated he "didn't get to go over a defense or strategy or any of that stuff." He repeatedly stated that he did not trust his attorney. The court stated it did not "see any reason not to proceed with the trial." The trial court found "there is no prejudice to [Gil]," "counsel is ready to proceed," and Gil "will be effectively assisted by counsel." After the hearing, Gil filed a pro per "Motion for Appointment of New Counsel," in which he stated he disagreed with his attorney about his defense and strategy. He requested new counsel from outside of the Pima County Legal Defender's Office. ¶20 Gil filed another motion seeking new counsel in May 2013. In that motion, Gil stated he had "continuously voiced his dissatisfaction with counsel," he "believe[d] Counsel [was] working in opposition to his best interests," and "he has expressed a lack of trust in counsel and the Legal Defender[']s Office." In June 2013, he submitted two pro per motions for appointment of new counsel. The first one simply reasserted the motion he made after the February hearing. In the second, Gil stated that "[a] genuine irreconcilable conflict exist[s] between Defendant and Counsel," that Gil "[did] not trust counsel," that "counsel has not discussed [the] case or defen[s]e sufficiently with defendant," and "counsel has denied request[s] and has fail[ed] to submit motions." ¶21 At the hearing on the May and June motions, another attorney filled in for Gil's attorney. That attorney informed the trial court that Gil's attorney was very ill and Gil "probably [wouldn't] see her for a month or so." The court stated that Gil's attorney had "done everything that any defense attorney would have done on [his] behalf. She has filed appropriate motions. She has argued them effectively." The court also noted that it had given Gil "a couple of continuances" because he "[was] thinking she wasn't doing things well enough." The court found there was "no basis upon which to require [Gil's attorney] to withdraw." ¶22 Gil contends the trial court "did not conduct any meaningful inquiry into [his] claims, but simply discounted them." "A trial court abuses its discretion if it fails to inquire into the basis for the defendant's dissatisfaction with counsel or fails to conduct a hearing on the defendant's complaint after being presented with specific factual allegations in support of the request for new counsel." State v. Paris-Sheldon, 214 Ariz. 500, ¶ 8, 154 P.3d 1046, 1050 (App. 2007). In State v. Gomez, our supreme court stated,
with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel.
A trial judge is not required to hold an evidentiary hearing on a motion for change of counsel if the motion fails to allege specific facts suggesting an irreconcilable conflict or a complete breakdown in communication, or if there is no indication231 Ariz. 219, ¶ 29, 293 P.3d 495, 501-02 (2012). "'[T]o prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.'" Paris-Sheldon, 214 Ariz. 500, ¶ 12, 154 P.3d at 1051, quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). In addition, a loss of trust, without more, does not require a court to appoint new counsel. Id. ¶ 14. ¶23 In Paris-Sheldon, the defendant stated in court that she wanted to "fire" her attorney and "have a change of counsel." Id. ¶ 10. The trial court questioned her about the basis for her request, and the defendant stated her attorney had lied to her and failed to investigate the case. Id. She stated her attorney had told her she had a good defense until a recent meeting, when he told her she had no defense. Id. The court questioned the attorney, who stated he was ready for trial and denied having told the defendant she had a good defense. Id. The court denied the defendant's motion, stating her request was not timely and her attorney was prepared to go to trial. Id. ¶24 On appeal, we stated that a trial court is not required to "make explicit findings in support of its decision to deny a motion for substitute counsel." Id. ¶ 11. All that is required is for the court to "'inquire [on the record] as to the basis of a defendant's request,' and, if necessary, conduct a hearing to determine whether substitution is proper." Id., quoting State v. Torres, 208 Ariz. 340, ¶¶ 7-8, 93 P.3d 1056, 1059 (2004) (alteration in Paris-Sheldon). We further stated that the court "explored the basis of Paris-Sheldon's reasons supporting her motion for new counsel, and, albeit informally, conducted a hearing to evaluate those reasons by questioning both her and her attorney." Id. ¶25 Here, in each of his motions, Gil presented his reasons for his dissatisfaction with his attorney, but he did not "'put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.'" Id. ¶ 12, quoting Lott, 310 F.3d at 1249. He offered no "specific factual allegations in support of [his] request for new counsel." Id. ¶ 8. Thus, the trial court was not required to conduct an evidentiary hearing with respect to the motions. Gomez, 231 Ariz. 219, ¶ 29, 293 P.3d at 50102. ¶26 During the hearing on the February motion, the trial court asked Gil to explain what he believed his attorney should have done that had not been done, permitted Gil to explain his reasons for his request for new counsel, allowed Gil's attorney to respond to Gil's statements, and questioned Gil's attorney about her preparedness for trial. The court specifically noted the timing of Gil's request and that it had "heard nothing from [Gil] or his counsel" since he had withdrawn his first motion for new counsel that Gil was "disappointed ... in preparation, performance, contact, anything with the Legal Defender's Office." The court also found that Gil's attorney was ready for trial and would effectively assist him, and Gil would not be prejudiced by the denial of his motion. The court's inquiry was therefore comparable to the inquiry we approved in Paris-Sheldon. 214 Ariz. 500, ¶ 10, 154 P.3d at 1050-51. Moreover, as we stated in Paris-Sheldon, Gil "does not explain what other pertinent evidence or information would have come to light had the court conducted a more formal or extensive hearing." Id. ¶ 11. The inquiry the court undertook with respect to the February motion was sufficient. ¶27 At the hearing on the May and June motions, the trial court stated that Gil's attorney had appropriately filed and effectively argued motions on Gil's behalf. Thus, the court considered Gil's claim of a lack of trust and his belief that his attorney was working against him. Again, in the absence of specific factual allegations, the court was not required to undertake a more extensive inquiry into the basis for Gil's motions. See id. ¶ 8; State v. Gomez, 231 Ariz. 219, ¶ 29, 293 P.3d at 501-02. ¶28 Gil analogizes his case to United States v. Welty, 674 F.2d 185 (3d Cir. 1982), but that case is distinguishable on its facts. There, just before trial, Welty requested an opportunity to secure his own counsel, or to represent himself. Id. at 187. The request was not presented in a written motion but rather was made by his attorney in court. Id. at 189. Neither Welty nor his attorney provided any reasons why Welty was dissatisfied with his attorney. Id. The trial judge told Welty he would not delay the trial, and that Welty would either have to continue with his attorney or represent himself. Id. at 187. Welty elected to represent himself. Id. On the third day of trial, Welty moved for "assistance of effective counsel." Id. The trial court denied that motion as well as Welty's motion for a mistrial. Id. ¶29 On appeal, the Third Circuit stated, "When a defendant requests a substitution of counsel on the eve of trial, the district court must engage in at least some inquiry as to the reason for the defendant's dissatisfaction with his existing attorney." Id. If the reasons for the defendant's complaint about his counsel "'are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client's objection to counsel and should withhold a ruling until reasons are made known.'" Id. at 188, quoting Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959) (en banc) (Burger, J., concurring in part). The court determined that the trial judge had made "no inquiry ... as to the reason for Welty's dissatisfaction with his assigned counsel." Id. at 189. Thus, the court had "no way of knowing whether Welty may have had some valid ground for seeking a substitution of counsel." Id. at 190. ¶30 Unlike Welty, Gil made known the reasons for his dissatisfaction with his attorney. Specifically, he claimed in his February motion that he had "no faith" in his attorney, that she had not filed sufficient motions on his behalf, and that she was not communicating adequately with him. At the hearing on the motion, Gil told the trial court he did not have an opportunity to discuss strategy with his attorney and he did not trust her. In his May and June motions, Gil reiterated that he did not trust his attorney and stated that he believed she was working against his best interests. Thus, the court could assess whether Gil "had some valid ground for seeking a substitution of counsel." See id. at 190. Because Gil made known the reasons for his dissatisfaction with his attorney, the court had no duty to inquire further into the basis for his objection to counsel. The court did not err in denying Gil's motions to substitute counsel.
that a hearing would elicit additional facts beyond those already before the court.
Double Jeopardy
¶31 Gil argues his conviction for aggravated robbery is barred by double jeopardy because he was convicted of the greater offense of armed robbery. He concedes he did not object below to the conviction. Thus, we review only for fundamental error. State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App. 2008). "[A] violation of double jeopardy is fundamental error." Id. ¶32 "The Double Jeopardy Clause [of the United States and Arizona Constitutions] . . . bars multiple punishments for the same offense." State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, 670 (App. 2001). "Distinct statutory provisions constitute the same offense if they are comprised of the same elements." State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App. 2002). The test for whether distinct statutory provisions constitute the same offense "is whether each provision requires proof of an additional fact which the other does not." State v. Anderson, 210 Ariz. 327, ¶ 139, 111 P.3d 369, 399 (2005), quoting Blockburger v. United States, 284 U.S. 299, 304 (1932). "[W]e focus on the elements of each provision and do not 'consider the particular facts of the case.'" Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154, quoting State v. Cook, 185 Ariz. 358, 361, 916 P.2d 1074, 1077 (App. 1995). ¶33 Section 13-1902, A.R.S., provides,
A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.Aggravated robbery requires proof that the defendant was "aided by one or more accomplices actually present," A.R.S. § 13-1903, whereas armed robbery requires proof that the defendant or an accomplice was "armed with a deadly weapon or a simulated deadly weapon" or "[used] or threaten[ed] to use a deadly weapon or dangerous instrument or a simulated deadly weapon." A.R.S. § 13-1904. Each offense requires proof of an additional fact that is not required by the other—either a deadly weapon or a simulated deadly weapon (for armed robbery) or an accomplice who is actually present (for aggravated robbery). Thus, aggravated robbery and armed robbery are not the "same offense," and Gil's convictions on those charges were permissible.
Disposition
¶34 For the foregoing reasons, we affirm Gil's sentences and convictions.