State v. Coleman ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KURT D. COLEMAN, Appellant.
No. 1 CA-CR 17-0042
FILED 8-8-2019
Appeal from the Superior Court in Maricopa County
No. CR2012-008340-001
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Law Office of Kyle T. Green, Tempe
By Kyle Green
Counsel for Appellant
STATE v. COLEMAN
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.
M O R S E, Judge:
¶1 Kurt D. Coleman appeals his convictions and sentences for
first degree murder, armed robbery, and misconduct involving weapons.
After searching the entire record, Coleman's counsel identified no arguable
question of law that is not frivolous. Therefore, in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
counsel asked this Court to search the record for fundamental error.
Coleman was granted an opportunity to file a supplemental brief in propria
persona and did not do so. After reviewing the entire record, we find no
fundamental error and affirm Coleman's convictions and sentences.
FACTS1 AND PROCEDURAL HISTORY
¶2 At approximately 7:30 p.m. on June 17, 2012, someone
wearing a hat, long pants, and a distinctively patterned long-sleeve shirt
entered a tobacco shop in Mesa. The store's owner was the only other
person in the shop. When the owner turned around to hand the individual
an item from a display case, the individual shot her point blank in the head
with a .25 caliber handgun, killing her. The shooter then grabbed cartons
of cigarettes and the cash register and fled. Shortly thereafter, another
customer entered the store, saw the victim's body on the ground behind the
counter, and called the police.
¶3 The next morning, a driver on a roadway near the tobacco
shop found a broken cash register on the street and turned it over to the
police. Fingerprints recovered from the bottom of the cash register matched
Coleman's prints. Also, images from the tobacco shop's surveillance video
1 We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.
State v. Harm, 236 Ariz. 402, 404 n.2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).
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STATE v. COLEMAN
Decision of the Court
that captured the murder showed tattoos on the shooter's hand and waist
that resembled Coleman's similarly-located tattoos.
¶4 Upon executing a search warrant at a residence associated with
Coleman, police found a shirt that matched the unusually patterned shirt
worn by the shooter. Police also recovered a .25 caliber handgun that had
been rendered inoperable. A witness testified that Coleman had disabled
the firearm the day after the murder. Significantly, Coleman admitted to at
least one acquaintance that he shot and killed the tobacco shop owner
before taking the shop's cash register. At the time of the murder, Coleman
was on secured release in an unrelated criminal matter, and Coleman
admitted during a police interview after the murder that he was prohibited
from possessing a firearm.
¶5 The State charged Coleman with first degree murder—based
on premeditation or, alternatively, felony murder—armed robbery, and
misconduct involving weapons. The State further provided notice that it
intended to seek the death penalty should Coleman be convicted of first
degree murder. At trial, although Coleman argued the murder was not
premeditated, he did not otherwise contest his guilt.2 Instead, his trial
strategy focused on presenting mitigation evidence during the sentencing
phase.
2 After the State concluded its case in the guilt phase, Coleman
expressly declined to seek a judgment of acquittal on any count. See Ariz.
R. Crim. P. 20. However, he moved for judgment of acquittal on the State's
allegation that he committed the offenses while on release. See Ariz. Rev.
Stat. (A.R.S.) § 13-751(F)(7)(a) (committing offense while "[i]n the custody
of or on authorized or unauthorized release from the state department of
corrections, a law enforcement agency or a county or city jail" is an
allegeable aggravating factor in death penalty cases). According to
Coleman, he was on "pre-trial release" in another criminal case. Thus,
Coleman argued, he was not on "release" as contemplated by the statute.
Based on the plain language of § 13-751(F)(7)(a), the trial court properly
denied the motion.
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STATE v. COLEMAN
Decision of the Court
¶6 The jury convicted Coleman of first degree murder,3 armed
robbery, and misconduct involving weapons. The jury also found the
following aggravating factors: previous conviction of a serious offense;
commission of the murder as consideration for the receipt of anything of
pecuniary value; and commission of the murder while on release from the
state department of corrections, a law enforcement agency or a county or
city jail. At the conclusion of the penalty phase, the jurors unanimously
recommended a sentence of life imprisonment for the first degree murder
conviction with no possibility of release.
¶7 The trial court sentenced Coleman as a dangerous, non-
repetitive offender to natural life imprisonment for the first degree murder
charge and credited him with zero days presentence incarceration.
Consecutive to the life term, the court imposed aggravated and concurrent
terms of 20 and 15 years' imprisonment, respectively, for the armed robbery
and misconduct involving weapons convictions, both of which the court
found were dangerous and repetitive offenses. For the terms ordered
served consecutively to the life term, the court credited Coleman with 1,631
days' presentence incarceration. Coleman timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶8 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 ("An exhaustive search of the record has failed to produce any
prejudicial error."). The proceedings were conducted in compliance with
the Arizona Rules of Criminal Procedure. The record reveals Coleman was
represented by counsel at all stages of the proceedings and was present at
all critical stages including the entire trial and the verdict. See State v.
Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); State v.
Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The
jury was properly comprised of twelve jurors, and the record shows no
evidence of jury misconduct. See A.R.S. § 21-102(A); Ariz. R. Crim. P.
18.1(a). The trial court properly instructed the jury on the elements of the
charged offenses, the State's burden of proof, and Coleman's presumption
of innocence. At sentencing, Coleman was given an opportunity to speak,
and the court stated on the record the evidence and materials it considered
3 The jury unanimously found Coleman committed first degree
murder under both theories alleged by the State—premeditation and felony
murder.
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STATE v. COLEMAN
Decision of the Court
and the factors it found in imposing the sentences. See Ariz. R. Crim. P.
26.9, 26.10.
CONCLUSION
¶9 We affirm Coleman's convictions and sentences.
¶10 Defense counsel's obligations pertaining to Coleman's
representation in this appeal have ended. Counsel need do no more than
inform Coleman of the outcome of this appeal and his future options,
unless, upon review, counsel finds an issue appropriate for submission to
our supreme court by petition for review. State v. Shattuck, 140 Ariz. 582,
584-85 (1984).
¶11 Coleman has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.21. Upon the Court's own motion, we also grant Coleman
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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