State v. Leker ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRADLEY STEPHEN LEKER, Appellant.
No. 1 CA-CR 14-0085
FILED 7-23-2015
Appeal from the Superior Court in Maricopa County
No. CR2011-008197-001
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
Bradley Stephen Leker
Appellant
STATE v. LEKER
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
P O R T L E Y, Judge:
¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant
Bradley Leker has advised us that after searching the entire record, he has
been unable to discover any arguable questions of law, and has filed a brief
requesting us to conduct an Anders review of the record. Leker has filed a
supplemental brief.
FACTS1
¶1 Officer Kurtz responded to a disturbance call on January 22,
2011, at a Mesa apartment complex. As Officer Kurtz arrived, he saw a
person who matched the description he received from dispatch get into a
van, but then get out and quickly enter an apartment. When Officer Kurtz
started walking towards the apartment, a person, who was later identified
as the tenant of the apartment, started talking to Officer Kurtz. During that
discussion, the man came out of the apartment. He was subsequently
identified as Leker.
¶2 Officer Kurtz tried to ask Leker questions in the parking lot,
as Officer Cash arrived. Leker was speaking over Officer Kurtz, and began
to raise his voice. Leker then took out his cell phone and tried to make a
call. Both officers told Leker to put his phone away, and when he refused,
Officer Cash put out her hand and asked Leker to give her the phone. Leker
pulled his hand away and tried to move away from the officers. When the
officers tried to grab Leker’s phone, he began swinging his arms at the
officers.
1We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
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STATE v. LEKER
Decision of the Court
¶3 Both officers grabbed Leker to arrest him, but he shoved,
flailed, and hit both officers as they wrestled him against his van. Leker
kicked Officer Kurtz in the groin and leg. The officers wrestled Leker to the
ground. And after Leker tried to grab Officer Cash’s gun, she tased him
three times before the officers were able to subdue him.
¶4 Leker was originally indicted on two counts of aggravated
assault, class 5 felonies, and one count of resisting arrest, a class 6 felony.
Eleven months later, the State successfully moved to dismiss the charges
without prejudice. The State then re-indicted Leker on two counts of
aggravated assault, class 5 felonies, one count of resisting arrest, a class 6
felony, and one count of aggravated assault, a class 3 felony. Leker twice
asked for an examination under Arizona Rule of Criminal Procedure 11,
and both times, after examination, he was found competent to stand trial.
¶5 Leker filed a motion to dismiss the charges with prejudice for
prosecutorial vindictiveness. He argued the State only dismissed the
original charges after he turned down its plea offer and then the State re-
indicted him adding a new, more serious charge. After a hearing, the court
denied Leker’s motion because the State left the original plea offer open for
two weeks after filing its motion to dismiss. The court, as a result, found
that his re-indictment was not a punishment for turning down the plea.
¶6 At trial, the jury found Leker guilty of all four counts, and he
was subsequently sentenced to three years of probation, with the condition
that he would spend six months in jail and receive a mental health
evaluation before being released. The court also gave Leker credit for four
days of presentence incarceration.
¶7 Leker appealed. We have jurisdiction over this appeal
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(A)(1).2
2We cite the current version of the applicable statutes absent changes
material to this decision.
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STATE v. LEKER
Decision of the Court
DISCUSSION
¶8 In his supplemental brief,3 Leker argues that the trial court
erred by failing to address prosecutorial misconduct, admitting improper
evidence, and failing to admit proper evidence. Leker also alleges several
other general complaints regarding the trial.4
(A) Discovery Claims
¶9 Leker first contends that the State engaged in prosecutorial
misconduct by refusing to answer several discovery requests. Specifically,
Leker points to unanswered discovery requests for the full Mesa Police
Department internal affairs investigation report of both officers, any camera
footage or reports surrounding the deployment of Officer Cash’s taser,
patrol camera footage, and all responding officers’ names and records.
¶10 Leker did not raise the discovery issue with the trial court, so
we will only review it for fundamental error. See State v. Dixon, 226 Ariz.
545, 549, ¶ 7, 250 P.3d 1174, 1178 (2011) (stating that “[b]ecause [there was]
no claim of prosecutorial misconduct below, we review for fundamental
error”). “To prevail on a claim of prosecutorial misconduct, a defendant
must demonstrate that the prosecutor’s misconduct so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (citation
and internal quotation marks omitted).
¶11 Here, Leker only requested the full internal affairs
investigation report, taser reports, and taser camera footage. Leker did not
request the patrol camera footage or the names and records of all of the
responding officers. Moreover, the requested information was not required
to be produced during initial disclosure under the Arizona Rules of
Criminal Procedure. See Ariz. R. Crim. P. 15.1(b)(1) (requiring State to
3 Although Leker cites the record, he does not point to any legal authority
supporting any of his contentions. See Ariz. R. Crim. P. 31.13(c)(1)(vi)
(argument shall contain “citations to the authorities, statutes and parts of
the record relied on”); see also ARCAP 13(a)(7)(B) (“For each contention,
references to . . . the applicable standard of appellate review with citation
to supporting legal authority.”). We, however, will address the issues.
4 Leker also alleges that recordings of the trial have been tampered with but
has not substantiated his allegations. Moreover, we have found no
discrepancy between the recording and the transcript to support his
allegation. Consequently, we will not address this argument.
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STATE v. LEKER
Decision of the Court
disclose only the names and addresses of all witnesses it intends to call at
trial); 15.1(b)(9) (requiring the State to disclose whether electronic
surveillance of defendant’s conversations had occurred); see also State v.
Kelley, 110 Ariz. 196, 198, 516 P.2d 569, 571 (1973) (finding that defendant
was not entitled to discovery of certain evidence when defendant did not
request it with discovery procedures). If Leker wanted the additional
information and the State was tardy or refused to produce it, he was free to
move to compel disclosure under Rule 15.7, and seek sanctions, if
appropriate. See Ariz. R. Crim. P. 15.7(a). As a result, the failure of the State
to timely respond to the request is not prosecutorial misconduct.
¶12 Leker also asserts that the State engaged in misconduct by
only disclosing the results of the internal affairs report instead of disclosing
the entire report. Again, although the State gave Leker the required results
of the internal affairs investigation, he did not request the entire report at
that time or later, and did not ask the court to compel discovery. See Ariz.
R. Crim. P. 15.7 (establishing a process to compel discovery and sanctions).
Because Leker received what was requested, there was no prosecutorial
misconduct. See Pima Cnty. v. Harte, 131 Ariz. 68, 69, 638 P.2d 735, 736 (App.
1981) (finding defendants are not entitled to “carte blanche” access to
internal affairs records, but are allowed records of prior complaints about
an officer’s past violent tendencies).
(B) Exclusion of Evidence
¶13 Leker also contends that the court erred by excluding
evidence about the landlord-tenant dispute that resulted in the police being
called to the apartments. He, however, does not explain the relevance of
the dispute to whether he committed the acts that resulted in his conviction.
We review a “trial court’s decision to exclude evidence for [an] abuse of
discretion.” State v. Villalobos, 225 Ariz. 74, 82, ¶ 33, 235 P.3d 227, 235 (2010).
“If evidence has no probative value, it is inadmissible under Rule 401.”
State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988); Ariz. R. Evid. 402
(“[i]rrelevant evidence is not admissible”); Ariz. R. Evid. 401(a) (defining
relevant evidence as evidence that “has any tendency to make a fact more
or less probable”).
¶14 Here, the issue being tried was whether Leker assaulted the
police officers and resisted arrest. The information about the dispute
between Leker, which involved his sister and the tenant, was not relevant
to the trial because he never told the police about the dispute, and even if
the nature and reason for the dispute was allowed, the evidence would not
have helped the jury to decide whether Leker assaulted the officers and
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STATE v. LEKER
Decision of the Court
resisted arrest.5 Therefore, the trial court did not abuse its discretion
excluding evidence about the landlord-tenant dispute and Leker’s role in
that dispute.
¶15 Leker also argues that the court erred by allowing the State to
ask a number of witnesses about the results of the internal affairs
investigation because the investigative findings were hearsay. Because
there was no hearsay objection to the questions, we review the issue for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115
P.3d 601, 607 (2005).
¶16 Even if we assume, without deciding, that the results of the
investigation were hearsay, their admission would not amount to
fundamental error. Ordinarily, “if hearsay evidence is admitted without
objection, it becomes competent evidence admissible for all purposes,” and
“absent fundamental error, the failure to object is a waiver of any error.”
State v. Allen, 157 Ariz. 165, 170–71, 755 P.2d 1153, 1158–59 (1988) (citation
and internal quotation marks omitted). The erroneous admission of
hearsay constitutes fundamental error when it provides “the sole proof of
an essential element of the state’s case” and the defendant could not
otherwise have been convicted by competent evidence in the record. Id. at
171, 755 P.2d at 1159 (citation and internal quotation marks omitted).
¶17 Here, Leker only objected to the State’s questions on the basis
of relevance, but not as hearsay. After reviewing the record, and assuming
the statements were hearsay, the testimony about the results of the internal
affairs investigation about the officer’s use of force was not fundamental
prejudicial error. The jury heard from both officers who testified about the
facts of their encounter with Leker, his behavior, and their need to subdue
him and how they did so. J.L., an independent witness who saw the scuffle,
also testified about how Leker struggled with the officers. The jury was
able to watch those witnesses and determine their credibility. And the jury
was properly instructed on all of the elements of each offense. See State v.
Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) (noting that we
presume the jury follows the court’s instructions absent evidence to the
contrary). As a result, any alleged error in the admission of the results of
the investigative report did not result in fundamental prejudicial error
5 If Leker, for example, had explained the situation to the police before
attempting to make the call, the evidence about the dispute, his role in it as
well as the facts giving rise to the assault and resisting arrest would have
been relevant. Because he did not, the landlord-tenant dispute was not
relevant to determining his conduct towards the police officers.
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STATE v. LEKER
Decision of the Court
warranting a new trial because if we exclude the hearsay statements there
was sufficient evidence to sustain the convictions.
¶18 Leker also argues that the trial court improperly admitted a
photo of his injured finger that distracted the jury from his other more
serious injuries. Leker, however, misperceives what happened. The trial
court, in response to a juror question, asked Officer Cash a question
regarding a picture of Leker’s injured finger that was already admitted into
evidence. Because the exhibit had been admitted along with other exhibits,
the jurors were free to ask questions about the exhibit.
¶19 In Arizona, jurors are allowed to ask questions of a witness.
A juror has to write the question out, have it presented to the judge, and the
court, at its discretion and subject to objections from either party, can ask
the testifying witness the question. See Ariz. R. Crim. P. 18.6(e); State v.
Greer, 190 Ariz. 378, 379-80, 948 P.2d 995, 996-97 (App. 1997). Thus, the
court did not err in allowing the question about Leker’s finger, given that
the jury had all the exhibits, including the pictures depicting all his injuries
at the time they went to deliberate.
(C) Juror Challenges for Cause
¶20 Leker next contends that the trial court erred in striking
prospective jurors 41, 1, 13 and 34 for cause.6 We disagree.
¶21 Rule 18.4(b) requires a court to excuse potential jurors
“[w]hen there is reasonable ground to believe that a juror cannot render a
fair and impartial verdict.” See State v. Eddington, 226 Ariz. 72, 78-79, ¶ 17,
244 P.3d 76, 82-83 (App. 2010). A trial court retains broad discretion under
Rule 18.4(b) to “determine [w]hen there is [a] reasonable ground to believe
that a [potential juror] could not be fair and impartial.” Eddington, 226 Ariz.
at 79, 244 P.3d at 83 (citation and internal quotation marks omitted). We
review a court’s decision to strike potential jurors for abuse of discretion.
State v. Prince, 226 Ariz. 516, 528, ¶ 26, 250 P.3d 1145, 1157 (2011).
6 Leker also contends that the State improperly struck prospective jurors
who were sympathetic to him. However, absent a discriminatory motive
to strike a prospective juror, the State, as well as the defendant, may use its
peremptory strikes to remove prospective jurors. See State v. Hernandez, 170
Ariz. 301, 305-06, 823 P.2d 1309, 1313-14 (App. 1991); Ariz. R. Crim. P.
18.4(c)(1)(ii).
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STATE v. LEKER
Decision of the Court
¶22 Here, potential juror 41 expressed hostility towards the State.
Counsel noted that potential juror 1’s body language indicated bias against
Leker, and potential jurors 13 and 34 stated they could not judge only the
evidence presented before the jury. The prospective jurors’ statements and
actions were enough, when raised to the court, for the trial court to decide
that they could not be impartial, or would not follow the law. As a result,
the record does not reveal that the court abused its discretion in striking the
four jurors for cause.
(D) Officers Attended the Complete Trial
¶23 Leker also contends that the trial court erred by allowing both
Officers Cash and Kurtz to be present during the entire trial because they
were witnesses. We disagree.
¶24 Both officers were considered to be victims because they had
been assaulted. Under the Victim’s Bill of Rights, victims in Arizona have
a constitutional “right ‘[t]o be present at . . . all criminal proceedings where
the defendant has the right to be present.” State v. Lindsley, 191 Ariz. 195,
199, 953 P.2d 1248, 1252 (App. 1997) (quoting Ariz. Const. art. II, § 2.1(A)(3));
see A.R.S. § 13-4401(19); Ariz. R. Crim. P. 39(b)(4) (providing that a victim
has a right to be present at all criminal proceedings). Because Officers Cash
and Kurtz were alleged victims of Leker’s criminal acts, they were entitled
to be present at all the criminal proceedings. Thus, the trial court did not
err in allowing the officers to be in the courtroom for all of the proceedings.
(E) Ineffective Assistance of Defense Counsel
¶25 Finally, Leker contends that his lawyer made strategic errors
during trial that caused him prejudice. Our supreme court, however, has
directed that any claim for ineffective assistance of counsel cannot be raised
on direct appeal, but must be raised afterwards in a petition for post-
conviction relief under Arizona Rule of Criminal Procedure 32. See State ex
rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007)
(noting that “a defendant may bring ineffective assistance of counsel claims
only in a Rule 32 post-conviction proceeding—not before trial, at trial, or on
direct review”). Because Leker can raise the ineffective assistance of
counsel claim pursuant to Rule 32 with the trial court, we will not consider
the argument.
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STATE v. LEKER
Decision of the Court
(F) Fundamental Error Review
¶26 In reviewing Leker’s arguments, we have read and
considered the entire record for reversible error. See Leon, 104 Ariz. at 300,
451 P.2d at 881. We find no reversible error. All of the proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure.
The record reveals that Leker was represented by counsel at all stages of the
proceedings, and the sentences imposed were within the statutory limits.
¶27 After this decision is filed, counsel’s obligation to represent
Leker in this appeal has ended. Counsel must only inform Leker of the
status of the appeal and Leker’s future options, unless counsel identifies an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984). Leker may, if desired, file a motion for reconsideration or petition
for review pursuant to the Arizona Rules of Criminal Procedure.
CONCLUSION
¶28 Accordingly, we affirm Leker’s convictions and sentences.
:ama
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