State v. Petty ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTIEN MARSHAI PETTY, Appellant.
No. 1 CA-CR 18-0062
FILED 3-7-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-111701-003
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL
Bain & Lauritano, Glendale
By Amy E. Bain
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
STATE v. PETTY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
M O R S E, Judge:
¶1 Christien Marshai Petty timely appeals his second-degree
burglary conviction and the resulting sentence. After searching the entire
record, Petty's defense counsel identified no non-frivolous, arguable
question of law, and in accordance with Anders v. California, 386 U.S. 738(1967), and State v. Leon, 104 Ariz. 297 (1969), asked this Court to search the
record for fundamental error. Petty filed a supplemental brief in propria
persona, arguing among other things that the superior court violated his
right of confrontation. Because the question of Petty's right of confrontation
was an arguable issue for review, we requested that the State and defense
counsel address this question in supplemental briefs to this Court. See
Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (requiring representation on appeal
when reviewing court determined that the record supported arguable
claims). Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On March 11, 2015, residents in Ahwatukee called 911 and
reported that they saw three suspicious individuals in their neighborhood.
These residents would later testify that they observed three men in their 20s
drive up in a gray Dodge Charger, retrieve and don high-visibility safety
vests from the trunk of the Charger, cross a nature preserve, and run
through backyards, jumping over fences. One resident saw that one of the
individuals started to return to the Charger carrying a pillowcase. Upon
responding, police observed the gray Dodge Charger and individuals who
matched the 911 callers' descriptions in safety vests, who fled the scene on
foot after seeing the police. Police also observed that an alarm was going
off in one of the houses, and they saw that the back door had been smashed
open. Inside the targeted home, officers saw that most of the house was
very clean, but the master bedroom looked like it had been "ransacked."
Responding officers also found a hand towel, a sock, and a safety vest
nearby, apparently left by the suspects. The owners of the house—the
witness ("Witness") and her husband—were not at home at the time, but
they drove in soon afterwards and walked through the house with the
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STATE v. PETTY
Decision of the Court
police. Witness saw that jewelry was missing from her and her husband's
dressers.
¶3 Upon searching the Charger, police officers found two
drivers’ licenses, one of which belonged to Petty, and some fingerprints on
the trunk that matched Petty's. Police officers arrested Petty and two other
suspects later that day, and they found that Petty had jewelry and a key to
a Dodge vehicle. Witness later identified this jewelry as belonging to her
and her husband.
¶4 Before trial, Witness and her husband moved out of Arizona,
and the State requested that she be allowed to testify by videoconferencing
because she needed to care for her husband, who suffered from dementia
and other ailments. Defendant opposed this motion, but the court allowed
Witness to testify via videoconference. At trial, her testimony established
that jewelry was missing from her home, and she identified as hers jewelry
that police officers found on Petty and others.
¶5 Petty was convicted of burglary in the second degree, a class
3 felony, and sentenced to the presumptive term of 6.5 years in prison. Petty
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections
12-120.21(A)(1), 13-4031, and -4033.
DISCUSSION
I. Right of Confrontation
¶6 The Confrontation Clause of the Sixth Amendment
guarantees defendants the right to a face-to-face confrontation with
witnesses at trial. Maryland v. Craig, 497 U.S. 836, 844 (1990). The
requirement for a physical, face-to-face confrontation can be done away
with "only where denial of such confrontation is necessary to further an
important public policy and only where the reliability of the testimony is
otherwise assured." Id. at 850 (allowing one-way closed-circuit television
to "protect[] child witnesses from the trauma of testifying in a child abuse
case").
¶7 In this case we need not decide whether the superior court
erred by denying Petty the opportunity to physically confront Witness
because any alleged error was harmless. See State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005) ("Reviewing courts consider alleged trial error under
the harmless error standard when a defendant objects . . . ."). Under a
harmless error review, the State has the burden "to prove beyond a
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STATE v. PETTY
Decision of the Court
reasonable doubt that the error did not contribute to or affect the verdict."
Id.¶8 At trial, the State was required to prove the elements of
burglary in the second degree, i.e., that Petty "enter[ed] or remain[ed]
unlawfully in or on a residential structure with the intent to commit any
theft or any felony therein." A.R.S. § 13-1507(A). The main contested issue
at trial was identification: i.e., whether Petty was one of the men who
burglarized the house. The testimony provided by Witness did not address
identification and she explicitly stated that she did not know who broke
into her home. Instead, although no witnesses specifically identified Petty
as one of the suspects they saw on scene, the prosecution proved that Petty
was involved in the burglary through circumstantial evidence. For
example, evidence matched Petty to the description of the suspects at the
scene, his fingerprints were found on the trunk of the Dodge, his drivers’
license was in the vehicle, and when he was later apprehended by the
police, he had jewelry and a Dodge vehicle key in his possession.
Moreover, a police officer testified that Petty stated that he was "hanging"
with a friend near the house and that Petty acknowledged that he ran from
the area, but denied breaking into the house.
¶9 The jury also heard testimony that the back door had been
broken and forced open. See State v. Kindred, 232 Ariz. 611, 614, ¶ 11 (App.
2013) ("[A] defendant's forced entry into a structure permits a jury to infer
that defendant had the requisite specific intent for burglary.") (citing State
v. Malloy, 131 Ariz. 125, 130 (1981)). Officers saw that while the house was
clean and in order, the bedroom looked like it had been ransacked. Officers
also found a sock and a towel, and police testified at trial that those items
could be used by burglars as a glove or to break windows.
¶10 The only material testimony offered by Witness was the
identification of the jewelry that was recovered and her statement that she
had not given anyone permission to enter the home. Because burglary does
not require a completed theft and is committed by an unlawful entry with
intent, her identification of the jewelry only indirectly related to an element
of the offense.1 Those elements were overwhelmingly proven by other
1 A police officer also testified, without objection, that the jewelry
recovered from Petty belonged to Witness. Although this testimony was
based on Witness's identification of the property, Petty did not object below
and has not challenged the admission of this testimony on appeal. Because
the identification of the property was only indirectly related to an element
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STATE v. PETTY
Decision of the Court
evidence of the circumstances of the offense (the safety vests, jumping
fences, alarm going off, back door smashed open, fleeing suspects, and a
ransacked bedroom). This circumstantial evidence established unlawful
entry and the requisite intent to commit a theft. See id.¶11 Accordingly, even without Witness's testimony,
overwhelming evidence showed Petty had committed each of the elements
of the charged burglary. Accordingly, we hold that any error in allowing
Witness to testify remotely was harmless.
II. Fourth Amendment Claim
¶12 Petty also claims that the police violated his Fourth
Amendment rights by illegally searching the Dodge Charger. Under the
"automobile exception," officers may search a vehicle if they have probable
cause to do so, even without a warrant. Collins v. Virginia, 138 S. Ct. 1663,
1669-70 (2018). At the time the police searched the vehicle, they had
evidence that the Charger had been used by burglary suspects: an officer
saw one of the suspects walk toward the Charger and then flee on foot when
he saw the officer, and a neighbor who called 911 pointed out the Charger
to the police. Thus, the officers had probable cause to search the vehicle
and did not violate Petty's Fourth Amendment rights.
III. Ineffective Assistance of Counsel
¶13 Petty also claims his counsel's performance was deficient.
This Court will not consider claims of ineffective assistance of counsel on
direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002). Such claims must
be first presented to the trial court in a petition for post-conviction relief.
Id.IV. Anders Review
¶14 In addition to the arguments presented in Petty's brief, we
have searched the entire record and have not found fundamental error.
of the offense, and Petty's defense was based on whether Petty was one of
the men who had entered the house, the admission of the officer's statement
was not fundamental error. See Henderson, 210 Ariz. at 567, ¶¶ 19-20 (noting
that defendant bears the burden of persuasion in fundamental error to
show an error that goes to the foundation of the case and denied defendant
a right essential to his defense) (citations omitted).
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STATE v. PETTY
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CONCLUSION
¶15 Petty's conviction and sentence are affirmed. Defense counsel
shall inform Petty of the status of the appeal and of his future options.
Counsel has no further obligations unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶16 Petty has thirty days from the date of this decision to proceed,
if he wishes, with an in propria persona motion for reconsideration or
petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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