State v. Dunbar ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
LANCE DEMETRIUS DUNBAR, Appellant.
No. 1 CA-CR 18-0360
FILED 8-15-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-005638-002
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Poster Law Firm, PLLC, Phoenix
By Rick D. Poster
Counsel for Appellant
STATE v. DUNBAR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.
W I N T H R O P, Judge:
¶1 Lance Demetrius Dunbar (“Appellant”) appeals his
convictions and sentences for two counts of armed robbery and two counts
of kidnapping. This appeal is filed in accordance with Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Appellant’s
counsel has advised this court that he has found no arguable question of
law and asks us to search the record for fundamental error. Appellant was
given an opportunity to file a supplemental brief in propria persona, which
he has done. Finding no error upon reviewing the record, we affirm
Appellant’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining
Appellant’s convictions and resolve all reasonable inferences against
Appellant. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 On April 22, 2015, police impounded a car they suspected was
used during the armed robbery of a liquor store. The car was searched
pursuant to a search warrant, and the search revealed evidence of the
robbery. The next day, Appellant’s wife reported her car stolen, which was
the impounded car. After being confronted about the car’s possible
involvement with the robbery, Appellant’s wife cooperated with the police.
This led to Appellant’s arrest. Appellant and two other men were indicted
on two counts of armed robbery, each a class two felony, and two counts of
kidnapping, each a class two felony.
¶4 Appellant was arraigned in April 2016 where he pled not
guilty. Between June 2016 and February 2018, Appellant’s trial was
continued several times due to: substitution of counsel; severance and re-
joinder of the defendants; scheduling for interviewing witnesses;
scheduling for an expert witness; and both defense counsel becoming ill.
After a nine-day trial in February 2018, Appellant was convicted on all four
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STATE v. DUNBAR
Decision of the Court
counts. The jury found four aggravating factors for count one and three
aggravating factors for counts two, three, and four.
¶5 In May 2018, the court found several prior felony convictions
and sentenced Appellant to aggravated concurrent sentences of twenty-
four years’ imprisonment for each count. Appellant received 780 days of
presentence credit.
¶6 Appellant timely appealed in May 2018, and this court has
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
120.21(A)(1).
ANALYSIS
¶7 We review Appellant’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011).
Many of the issues raised by Appellant are bare assertions and directly
contradicted by the evidence in the record. Therefore, we do not address
every issue, but instead focus on the arguments supported by citations to
the record and legal authority.
I. Issues Raised in Appellant’s Supplemental Brief
A. Grand Jury
¶8 Appellant argues the trial court erred by not allowing him to
challenge the grand jury indictment. Specifically, he alleges that his co-
defendant’s counsel used all the time allotted for presenting argument on
the indictment, and his counsel did not have a chance to offer his own
challenge.
¶9 The record confirms the indictment issued in November 2015.
Appellant was arrested pursuant to a warrant in April 2016 and entered a
not guilty plea at his arraignment. Appellant was represented by a public
defender at his arraignment but subsequently retained private counsel. In
May 2016, Appellant’s newly-acquired counsel moved to extend the time
to challenge the grand jury proceedings. The court denied the motion,
finding it untimely under Arizona Rule of Criminal Procedure (“Rule”)
12.9.
¶10 This court has held a defendant may not challenge on appeal
a pretrial probable cause determination that had no effect on the subsequent
trial. State v. Walton, 133 Ariz. 282, 288 (App. 1982). Instead, to challenge
the sufficiency of a grand jury indictment, “a defendant must seek relief by
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STATE v. DUNBAR
Decision of the Court
way of special action prior to trial.” Id.; see also Pool v. Pima Cty., 139 Ariz.
98, 100, 102 (1984). Appellant’s counsel did not file a special action petition
concerning the court’s denial of the motion, and Appellant cannot now
challenge the propriety of the grand jury indictment in this appeal.
B. Rule 8 Speedy Trial
¶11 Appellant argues the court prevented him from having a
speedy trial in violation of his Sixth Amendment rights and Rule 8. He
asserts that the court unnecessarily delayed his trial by rejoining his case
with that of another defendant after the two cases had already been
severed.1 The record reflects the trial was originally set for July 20, 2016,
but did not begin until February 7, 2018.
¶12 Rule 8.5(b) allows a court to “continue trial only on a showing
that extraordinary circumstances exist and that delay is indispensable to the
interests of justice.” Each time a court continues a trial, “[t]he court must
state specific reasons for continuing trial.” Id. Here, the record confirms
that the court continued the trial several times at the request of the various
parties including Appellant, who requested a continuance on at least four
different occasions.
¶13 After granting each continuance, the court appropriately
excluded the relevant time periods from Appellant’s time in custody
computation in accordance with Rule 8.4(a)(5). The court had the discretion
to continue the trial in “the interests of justice” and each time the court
explained on the record its reasoning for doing so. See Ariz. R. Crim. P.
8.5(b). We find no abuse of the court’s discretion and similarly find no
violation of Appellant’s right to a speedy trial.
¶14 The court originally severed Appellant’s case to preserve his
speedy trial rights under Rule 8. After the severance, however, Appellant
obtained new counsel, and he requested a continuance to allow new
counsel to review the case. The continuance was granted, and the court
subsequently set Appellant’s trial for the same date as the other defendant.
After finding out the trials were scheduled on the same day, the State then
filed a motion to rejoin the cases so that time and resources would not be
wasted trying them separately. Appellant opposed the motion, but the
court granted the motion. On this record, the court did not abuse its
1 The third defendant’s case was severed in 2016 and he was tried
separately.
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STATE v. DUNBAR
Decision of the Court
discretion in overruling that objection or otherwise err in rejoining the
cases.
C. Fair and Impartial Trial
¶15 Appellant asserts the court denied him a fair and impartial
trial because (1) the court abused its discretion by not ordering a mistrial
when a prospective juror stated during voir dire that she overheard a
conversation by Appellant’s co-defendant, and (2) the prosecutor
continuously engaged in misconduct.
1. Voir Dire
¶16 Appellant argues that the court abused its discretion by
denying a mistrial due to alleged impartiality of the jury pool. During voir
dire, the following exchange took place:
MR. ANDERSON: . . . Does anybody else have something that
they think we need to know before we start selecting, that the
Judge or I have not discussed? Yes, ma’am, what number are
you?
THE JUROR: Number 52. I sort of overheard a conversation
between the defendant and one of his family when they were
out in the lobby. And I’m kind of wondering whether they
would want a white person such as me on their jury after
hearing this conversation.
MR. ANDERSON: I don’t know if the -- Judge, may we
approach?
THE COURT: Let’s talk about that privately.
¶17 Counsel for both defendants and the court then heard from
the juror privately, where the juror explained that she overheard
Appellant’s co-defendant make a comment about the lack of African-
Americans in the jury pool. Ultimately, counsel agreed the court should
dismiss the juror for cause.
¶18 A party challenging the impartiality of the jury panel bears
the burden of showing that the remarks of a prospective juror during voir
dire prejudiced the others. State v. Reasoner, 154 Ariz. 377, 384 (App. 1987).
In his supplemental brief, Appellant only alleges that the jury pool was
“tainted” by the prospective juror’s statement. Appellant has not provided,
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STATE v. DUNBAR
Decision of the Court
by citation to the record or otherwise, any “objective indications of jurors’
prejudice, [and] we will not presume its existence.” State v. Tison, 129 Ariz.
526, 535 (1981).
2. Prosecutorial Misconduct
¶19 Appellant argues that the prosecutor improperly requested
trial continuances in order to “stall” the trial.2 In addition, Appellant asserts
that the trial judge and the prosecutor worked together to prejudice his
case.
¶20 Prosecutorial misconduct “is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a
whole, amounts to intentional conduct which the prosecutor knows to be
improper and prejudicial, and which he pursues for any improper purpose
with indifference to a significant resulting danger of mistrial.” Pool, 139
Ariz. at 108-09.
¶21 Appellant argues that the prosecutor “like[d] to play last
minute tactical games with Appellant and [the] court” to try to delay the
trial date, and Appellant asks us to review the November 29, 2016 hearing
transcript where the prosecutor requested a continuance to interview
Appellant’s witnesses. After review of the transcript, it is evident that the
court gave the State and both co-defendants an opportunity to be heard,
and, in the court’s discretion, decided to grant the continuance. Further,
the court gave Appellant an opportunity to submit a written motion to
sever the case instead of continuing the trial, which he subsequently filed,
and the court granted.3 Appellant has not shown that the prosecutor’s
actions amounted to any intentional impropriety consistent with the
definition of prosecutorial misconduct. Therefore, we find no error.
II. No Other Error
¶22 In addition to considering Appellant’s arguments in his
supplemental brief, we have fully reviewed the record for reversible error
and find none. See Leon, 104 Ariz. at 300. All the proceedings were
conducted in compliance with Appellant’s constitutional rights and the
Arizona Rules of Criminal Procedure. Appellant was represented by
2 Appellant also alleges additional misconduct by the prosecutor but
does not cite to the record, and our independent review of the record finds
no support for the allegations.
3 The defendants were later rejoined and stood trial together.
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STATE v. DUNBAR
Decision of the Court
counsel and present at all critical stages of the proceedings. The court
properly instructed the jury on the elements of the charges, the State’s
burden of proof, and the necessity of a unanimous verdict. The State
presented sufficient evidence to allow the jury to convict Appellant, and the
twelve-member jury returned unanimous verdicts, which were confirmed
by juror polling. Appellant had a chance to speak at sentencing, and the
sentences imposed were within the statutory guidelines. See A.R.S. § 13-
703(C), (G), (J).
¶23 Upon the filing of this decision, counsel’s duty to represent
Appellant will end. Counsel need only inform Appellant of the status of
the appeal and his future options unless, upon review, counsel finds an
issue appropriate for petition for review to the Arizona Supreme Court. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant shall have thirty
days from the filing of this decision to proceed with any motion for
reconsideration or petition for review.
CONCLUSION
¶24 For the foregoing reasons, we affirm Appellant’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: JT
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