Opinion
No. 1 CA-CR 17-0286
06-14-2018
STATE OF ARIZONA, Appellee, v. COLLIE RAY JACKSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-005638-001
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge Peter B. Swann joined. HOWE, Judge:
¶1 Collie Ray Jackson appeals his convictions and sentences for two counts of armed robbery and two counts of kidnapping, all class 2 felonies. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One night in April 2015, Jackson and two other men, Lance Dunbar and Jonathan Barnes, entered a liquor store wearing nylon masks and wielding simulated handguns. While in the store, Jackson ordered an employee down onto the ground and took his wallet and cell phone. After Jackson found no cash in the wallet, he threw both the wallet and the cell phone across the floor. Still holding a simulated gun, Jackson confronted another store employee, ordered him to sit on the floor, and searched his pockets.
¶3 Next, Jackson made his way to the cash registers and tried unsuccessfully to open one of the registers. Dunbar took over for Jackson at the register and opened it. Jackson moved to the other cash register but could not open it. After putting some alcohol and Swisher Sweets cigars into his bag, Jackson ordered the second employee to open the register. Once it was opened, Jackson stashed dollar bills into his pockets. With cash and merchandise in hand, Jackson, Dunbar, and Barnes sought to leave the store.
¶4 Unfortunately for the robbers, Phoenix Police Officer Kaminsky—who had been advising liquor stores about potential robberies—came to the liquor store to talk with the staff. As Officer Kaminsky approached the front door, Dunbar, Barnes, and Jackson exited the door one by one. Officer Kaminsky ordered the men to drop their weapons and get on the ground, but Dunbar and Barnes ran away. Jackson was behind the other two and had already taken off his mask by the time he left the store and was face-to-face with Officer Kaminsky. Jackson said, "I'm not involved in this[]" and ran around the building in the opposite direction that Dunbar and Barnes ran.
¶5 Officer Kaminsky radioed for assistance and then pursued Dunbar and Barnes. While in pursuit, Officer Kaminsky looked east and noticed that Jackson was now running parallel to the others. After a few moments, Officer Kaminsky lost sight of all three men. An off-duty officer about 100 yards from Officer Kaminsky soon radioed that he had detained a potential suspect. When Officer Kaminsky arrived, he recognized Jackson, but noted that Jackson now wore a white tank top instead of a long-sleeved shirt. Jackson's long-sleeved shirt was later found in the location that Officer Kaminsky last spotted Jackson. Another officer searched Jackson and discovered wads of cash sticking out of his pockets.
¶6 Jackson told the off-duty officer who detained him that he was with his girlfriend and that they got in a fight before he left and decided to walk to a hotel in the area. Shortly after this statement, however, a Phoenix police detective interviewed Jackson, who stated that he had gotten drunk and argued with his girlfriend while in her car and that he had gotten out of her car somewhere in the area where he was arrested. Jackson did not name his girlfriend during either interview.
¶7 Back at the liquor store, officers found a bag that contained, among other items, liquor and Swisher Sweets cigars. Officers also found a black nylon stocking mask, made from women's pantyhose, that later DNA testing showed contained Jackson's DNA. Outside the store, near Jackson's escape route, officers discovered a pellet gun. Through further investigation, officers located the car that they believed Jackson, Dunbar, and Barnes drove to get to the liquor store. Inside the car, the officers found Dunbar's wallet and other documents with Dunbar's information, Barnes's ID card, a package of women's nylon pantyhose, and a package for three pairs of gloves. The officers also found a red plastic cup that later DNA testing showed had Jackson's DNA on it. Jackson was subsequently indicted on two counts each of armed robbery and kidnapping, all class 2 felonies.
¶8 Before trial, Jackson filed a supplemental disclosure statement listing his girlfriend, K.S., as a defense witness, but did not provide her contact information. The State did not interview K.S. before trial. At trial, the State presented evidence about Jackson's involvement in the armed robbery, including the liquor store's surveillance video, which recorded the robbery. After the State rested, Jackson stated that he intended to call K.S. as a witness, and the prosecutor and the Phoenix police detective interviewed K.S. over the scheduled lunch break that day.
¶9 After the lunch break and following Jackson's second witness, the prosecutor asked to approach the bench and argued to the judge that Jackson's calling K.S. as a witness would be inappropriate. The prosecutor requested a continuance because K.S.'s personal information was not disclosed and she was not made available for an interview until lunch that same day. The prosecutor stated that he would need time to review jail calls between K.S. and Jackson and to search for any felonies K.S. might have. From the bench, the court found that K.S. had one felony in Maricopa County and the prosecutor stated that he would use the continuance to search for any additional felonies. The prosecutor also stated that he believed that K.S. would perjure herself if she testified and requested that she be appointed counsel. The court ended the day early, to give the State time to "get out whatever else you need for cross-examination."
¶10 The following morning, the State again moved to have K.S. appointed counsel, stating that if K.S. "takes the stand and testifies to what she said during her interview . . . the State has a good faith basis to believe that she will be committing perjury." The State then explained that if K.S. testified it would call three rebuttal witnesses and intended to use K.S. and Jackson's jail calls. After confirming that K.S. was outside the courtroom, the court inquired how quickly counsel could be appointed, and Jackson's counsel stated that appointments could occur at the last minute. While waiting for the appointed counsel, the court—assuming that appointed counsel would advise K.S. not to testify—asked the prosecutor if the State would grant her immunity. The prosecutor responded that the State would not grant immunity.
¶11 At this time, Jackson's counsel asked the prosecutor whether he would still have a rebuttal case if Jackson decided not to call K.S., and the prosecutor said no. The court recessed so that K.S.'s newly appointed counsel could discuss the potential perjury issue with the State and advise K.S. accordingly. When the court returned on the record, K.S.'s counsel informed the court that the State refused "to disclose what evidence [it had] to refute or rebut or to show that my client is lying. So, you know, I can't advise her . . . and [the State does not] plan on disclosing it until such time that my client actually takes the stand." The court responded that this "effectively means that the State is depriving the Defendant with a witness he wants to call in alibi." The court then revoked K.S.'s counsel's appointment because he could not effectively advise her and stated that she could testify if she wanted.
¶12 The prosecutor responded that he believed that K.S. should still have appointed counsel available so that counsel could explain her potential liability if she committed perjury. The court remarked that the "State's concern for this witness's criminal liability is indeed touching but has gone beyond concern to intimidation. So [appointed counsel] is relieved. If the witness wants to testify, [Jackson] can call her in." Jackson and his counsel conferred and subsequently decided that "in light of the new information and the State's intention with [K.S.], we are not going to call her." Jackson rested and the State confirmed that it would not introduce any rebuttal evidence.
¶13 After deliberations, the jury found that Jackson was guilty on all counts. The jury also found that the State had proved three aggravating circumstances for all four counts: (1) the offenses involved the infliction or threatened infliction of serious physical injury; (2) the offenses involved the presence of an accomplice; and (3) the defendant committed the offenses as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. The trial court found that the State had proved Jackson had four serious felony convictions and sentenced Jackson to four concurrent life imprisonment sentences without the possibility of early release for 25 years. Jackson timely appealed.
DISCUSSION
¶14 Jackson argues that the court erred by not sua sponte declaring a mistrial after the State "substantially interfered" with his fundamental right to present witnesses in his defense. We review constitutional issues de novo. State v. Wein, 242 Ariz. 372, 374 ¶ 7 (App. 2017). Jackson failed to raise this issue below, however, so we review this claim for only fundamental error. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22 (2005). On fundamental error review, the defendant has the burden of proving that the court erred, that the error was fundamental, and that he was prejudiced. Id. at 567 ¶ 20. Because Jackson did not call K.S. to testify and K.S. did not refuse to testify, no error occurred.
Jackson also argues that the court should have granted K.S. immunity for her testimony. But as the State notes, the court has no authority to grant immunity; that authority lies with the State. A.R.S. § 13-4064; see also State v. Jeffers, 135 Ariz. 404, 424 (1983) (holding that the statute "explicitly provides that immunity is to be granted at the prosecuting attorney's request and does not authorize the court to grant immunity on its own motion"). --------
¶15 "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor[.]" U.S. Const. amend VI. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense . . . . This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). Due process is violated when the government actor substantially interferes "with a defense witness's free and unhampered choice to testify[.]" State v. Sanchez-Equihua, 235 Ariz. 54, 57 ¶ 8 (App. 2014). Substantial interference occurs when the governmental actor "actively discourages a witness from testifying through threats of prosecution, intimidation, or coercive badgering." United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir. 2005).
¶16 The prosecutor's actions here did not substantially interfere with Jackson's right to present a defense in violation of due process. Jackson contends that "the State substantially interfered with [his] right to present a complete defense to the jury when it used intimidation and threats of arrest to coerce [K.S.] into declining to testify." Jackson is incorrect. Even assuming that the State intimidated K.S. by twice requesting she be appointed counsel to discuss the repercussions of committing perjury and its decision to withhold from K.S.'s counsel what evidence it had to rebut or show that K.S. would lie in her testimony, these actions did not "coerce" K.S. into declining to testify. To the contrary, the record shows that K.S. never invoked her Fifth Amendment privilege or declined to testify. Instead, after the court stated that K.S. could testify if she wanted and that Jackson could call her in, Jackson decided not to call her to testify.
¶17 Contrary to Jackson's assertion, at that point during the trial, the court had no reason to declare a mistrial. The court had no way of knowing whether Jackson's decision not to call K.S. was a strategic one. Jackson might have believed that faced with a potential perjury charge, K.S. would no longer testify in his favor or that the jury might not find K.S. credible if the State impeached her with her prior felony. Additionally, Jackson did not object below and K.S. was never called to testify. Jackson has cited no authority, and we know of none, for the proposition that a prosecutor's alleged intimidation amounts to a due process violation when the defendant chooses not to call the witness or the witness never actually refused to testify. K.S. was available to testify, but without Jackson calling her, the court had no way of knowing whether she would refuse to testify. On this record, we cannot say that the trial court erred by failing to sua sponte declare a mistrial. See State v. Russell, 175 Ariz. 529, 535 (App. 1993) (holding no denial of right to compulsory process where the defendant "never invoked the powers of the court to compel [the witness's] testimony[]"). Therefore, Jackson cannot satisfy his burden of proving that fundamental error occurred.
CONCLUSION
¶18 For the foregoing reasons, we affirm.