State v. Moore ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHEYENNE DEAN MOORE, Appellant.
No. 1 CA-CR 19-0663
FILED 12-17-2020
Appeal from the Superior Court in Mohave County
No. S8015CR201800830
The Honorable Douglas Camacho, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. MOORE
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.
C R U Z, Judge:
¶1 Cheyenne Dean Moore appeals his convictions and sentences
for one count of luring a minor for sexual exploitation and two counts of
sexual conduct with a minor under the age of fifteen. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY1
¶2 Moore, who was twenty-seven years old, began chatting with
C.A., who was fourteen, using a social media messaging application. C.A.
told Moore she was fourteen. Moore requested pictures of C.A., and she
sent him pictures of herself in her underwear. Moore sent C.A. a picture of
his penis. In April 2018, Moore met C.A. at an elementary school and had
sex with her in a stairwell. The next day, Moore met C.A. at an apartment
where she was babysitting and had sex with her again. C.A. told a school
counselor about the sexual conduct, and police arrested Moore.
¶3 A grand jury indicted Moore for one count of luring a minor
for sexual exploitation (Count 1) and two counts of sexual conduct with a
minor under the age of fifteen (Counts 2 and 3). Several days before trial,
the superior court granted Moore’s request to represent himself with
advisory counsel’s assistance. Moore waived his right to a jury trial. On
the first day of the trial, Moore represented himself until it was time to
cross-examine the State’s first witness, C.A. Moore then requested the
superior court to reappoint his advisory counsel, Mr. Puchek, as counsel.
The court did so, and Puchek represented Moore for the duration of the
trial. The superior court convicted Moore as charged and found each count
was a dangerous crime against a child. The court sentenced Moore to
twelve years in prison for Count 1 and twenty years in prison each for
Counts 2 and 3, with all sentences to be served consecutively. Moore timely
appealed, and we have jurisdiction pursuant to Arizona Constitution article
1 We view the evidence in the light most favorable to sustaining the
convictions. See State v. Cropper, 205 Ariz. 181, 182, ¶ 2 (2003).
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6, section 9, and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A).
DISCUSSION
I. Failure to Sua Sponte Order a Second Competency Evaluation
¶4 Moore first argues the superior court erred by failing to sua
sponte order a second Arizona Rule of Criminal Procedure (“Rule”) 11
competency evaluation to determine whether he was competent to stand
trial, waive counsel, and waive a jury.
¶5 Moore underwent a Rule 11 evaluation in September 2018.
The evaluator noted that Moore appeared “to be a little grandiose and
present[ed] a very eccentric personality structure,” was “clearly of at least
average intelligence with no deficits in his intellectual functioning,” and
“did not appear to be either paranoid or frankly delusional.” Further,
Moore had “a very good grasp of the charges against him as well as a very
good grasp of court proceedings, and the roles of the various individuals in
a courtroom setting.” The evaluator noted that Moore had previously
undergone in-patient treatment for paranoid and delusional behavior but
was no longer receiving psychiatric treatment. The evaluator suspected
Moore had an underlying mental illness2 but concluded he was “clearly
competent to go through court proceedings.” In October 2018, the superior
court found Moore competent to stand trial.
¶6 A defendant is competent to stand trial if the defendant
understands the proceedings and has a “sufficient present ability to consult
with [their] lawyer with a reasonable degree of rational understanding.”
State v. Ibeabuchi, 248 Ariz. 412, 436, ¶ 16 (App. 2020) (quoting Dusky v.
United States, 362 U.S. 402, 402 (1960)). “The trial court has broad discretion
in determining whether reasonable grounds exist to order a competency
hearing and its decision will not be reversed absent a manifest abuse of
discretion.” State v. Amaya-Ruiz, 166 Ariz. 152, 162 (1990). The superior
court is under a continuing duty to inquire into a defendant’s competency
and order a Rule 11 examination sua sponte if reasonable grounds exist to
do so. Id.¶7 “A mentally incompetent defendant cannot knowingly or
intelligently waive constitutional rights.” State v. Cornell, 179 Ariz. 314, 322
2 The evaluator diagnosed Moore with schizotypal personality traits
and gave a rule out diagnosis of “schizophrenia, undifferentiated type, sub
chronic.”
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STATE v. MOORE
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(1994). The test for whether a competency hearing is mandated before a
defendant waives a constitutional right such as the right to waive counsel
“is whether, on the basis of the facts and circumstances known to the trial
judge, there was or should have been a good faith doubt about the
defendant’s ability to understand the nature and consequences of the
waiver, or to participate intelligently in the proceedings and to make a
reasoned choice among the alternatives presented.” Id. at 322-23 (internal
quotation omitted). A diagnosis of mental illness does not preclude a valid
waiver. Id. at 322.
¶8 Moore argues his October 2018 Rule 11 evaluation should
have prompted the superior court to order another evaluation before
finding him competent to waive counsel and a jury because the evaluator
“noted that Moore had been treated inpatient in the past for delusions, had
been medicated in the past, and suffered from unknown underlying mental
illness.” However, the evaluator found Moore competent to stand trial
despite his mental health history, and Moore’s participation in the hearing
on his motions to represent himself and to waive a jury trial gave the court
no reason to suspect he was unable to understand the nature and
consequences of the waivers or make “reasoned choice[s] among the
alternatives presented.” See Cornell, at 322-23 (internal quotation omitted);
see also State v. Lynch, 225 Ariz. 27, 34, ¶ 18 (2010) (finding the trial court did
not err in denying a request for a second competency evaluation when prior
experts considered defendant’s “delusions but concluded that they did not
render him incompetent”). The record demonstrates that Moore answered
the superior court’s questions intelligently during the colloquies. And
although not dispositive, Moore’s attorney, who filed the motion resulting
in Moore’s first competency evaluation and was familiar with the results of
the evaluation, told the court he believed Moore was competent both to
seek to represent himself and to waive a jury trial. See Bishop v. Superior
Court, 150 Ariz. 404, 408-09 (1986) (“[O]n the question of competency to
comprehend the proceedings and assist the attorney, the defense lawyer is
often the most cogent witness.”).
¶9 Moore also argues the “kites” he sent the superior court3
before and after the trial were evidence that he was “delusional around the
time of trial” and suffered from a serious mental condition that affected his
3 The kites were not considered by the superior court. Noting the kites
were ex parte communication from Moore, the superior court attached
cover sheets to each kite which stated the court would not review or take
further action except to direct the clerk’s office to send copies to the State
and defense counsel.
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STATE v. MOORE
Decision of the Court
competency to waive counsel or a jury. In the kite Moore sent the court in
April 2019, Moore stated that he was innocent, asked the court to release
him, and further stated he had “sovereignty it is independent power and
authority to self-govern and Judge without external control.” In the kites
Moore filed in the month after trial, he maintained his innocence, asked the
superior court to acquit him, claimed that God was testing him because God
was preparing him to be royalty, and claimed to have dealings with Donald
Trump.
¶10 Although the kites contain some bizarre assertions, they are
consistent with the Rule 11 evaluator’s opinion that Moore was grandiose
and had “a very eccentric personality structure.” We disagree that the kites,
one submitted months before the trial and the others after Moore’s
conviction, prove that the superior court should not have determined he
was competent to waive his rights several days before trial. “Mental illness
itself is not a unitary concept. It varies in degree. It can vary over time. It
interferes with an individual’s functioning at different times in different
ways.” Indiana v. Edwards, 554 U.S. 164, 175 (2008). The superior court had
the broad discretion not to sua sponte order a second Rule 11 examination
before allowing Moore to waive his rights to representation and a jury, and
it did so only after finding Moore knowingly, intelligently, and voluntarily
waived those rights. We find no abuse of discretion.
II. Waiver of Jury Trial
¶11 Moore next argues the superior court erred by finding he
knowingly, intelligently, and voluntarily waived his right to a jury trial. He
contends the court failed to conduct an adequate colloquy to confirm he
was competent to waive his right to a jury trial, and the court’s error was
structural error entitling him to a new trial. See State v. Le Noble, 216 Ariz.
180, 184, ¶ 19 (App. 2007) (“[T]he complete failure of the trial court to notify
and explain to a defendant the right to a jury trial and to obtain a knowing,
intelligent and voluntary waiver of that right” is structural error.); see also
State v. Baker, 217 Ariz. 118, 122, ¶ 20 (App. 2007).
¶12 The right to a jury trial is a fundamental right of all defendants
under the Sixth Amendment to the United States Constitution (“Sixth
Amendment”) and Article 2, sections 23 and 24 of the Arizona Constitution.
State v. Butrick, 113 Ariz. 563, 565 (1976). “[A] jury trial waiver is valid only
if the defendant is aware of the right and manifests an intentional
relinquishment or abandonment of such right.” Baker, 217 Ariz. at 120, ¶ 7.
Before accepting a waiver, the superior court must “address the defendant
personally, inform the defendant of the defendant’s right to a jury trial, and
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STATE v. MOORE
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determine that the defendant’s waiver is knowing, voluntary, and
intelligent.” Ariz. R. Crim. P. 18.1(b)(2). A defendant’s waiver may be
either written or oral. Ariz. R. Crim. P. 18.1(b)(3). Whether there is a
knowing, voluntary, and intelligent waiver by a defendant depends on each
case’s unique circumstances. Butrick, 113 Ariz. at 566.
¶13 Here, after Moore indicated he wanted to waive his right to a
jury trial and the State agreed, the superior court engaged in a verbal
colloquy with him. See A.R.S. § 13-3983 (“A trial by jury may be waived in
criminal actions by the consent of both parties expressed in open court and
entered on its minutes.”). The court asked Moore whether he knew he had
a right to have a jury decide whether he was guilty of the charged offenses,
and he replied that he did. The court asked Moore if he understood there
might be advantages or disadvantages to having a jury decide his guilt or
innocence—Moore answered in the affirmative. The court told Moore that
having a jury trial was “an absolute right” that he had, and asked whether
anyone had forced, threatened, or bribed him to get him to waive his right
to a jury trial. Moore stated, “No, Your Honor.”
¶14 Next, the court asked Moore whether he needed to talk to his
advisory counsel about whether he wanted to waive his right to a jury.
Moore replied that he “definitely [had] decided to waive my right to have
a jury,” but that he wanted more time to discuss his defense with advisory
counsel. The court asked Moore whether he was “knowingly, intelligently,
and voluntarily waiving [his] right to have a jury” and Moore said, “Yes,
Your Honor.” The court asked advisory counsel and the State’s attorney
whether there was anything else the court should discuss with Moore
before the court decided whether he could waive his right to a jury and both
attorneys said no. The court then found that Moore knowingly,
intelligently, and voluntarily waived his right to a jury trial and set the
matter for a bench trial.
¶15 Moore’s waiver, made orally on the record, complied with
A.R.S. § 13-3983 and Rule 18.1(b). The court informed Moore of his right to
a jury trial and addressed him personally to ascertain that his waiver was
knowing, voluntary, and intelligent. See Butrick, 113 Ariz. at 566. Moore
unequivocally asserted his right to represent himself. Although Moore
argues “there was no written signed waiver or indication of the
equivalent,” Rule 18.1(b)(3) states explicitly that a defendant’s waiver of a
jury trial may either be made in writing or on the record in open court.
Without citation to authority, Moore also argues there should have been a
colloquy establishing that he discussed waiving his right to a jury trial with
counsel and “[t]here was no statement by defense counsel saying that ‘I
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STATE v. MOORE
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have explained to the defendant his right to trial by jury and consent to his
waiver of it.’” Moore fails to develop or provide any authority in support
of this argument. Therefore, it is waived on appeal. See State v. King, 226
Ariz. 253, 257, ¶ 11 (App. 2011) (opening brief must present significant
argument supported by legal authority). Moore further asserts that his
waiver was invalid because the court engaged in the colloquy after waiving
his right to counsel. Because Moore cites no authority to support the
argument that his waiver was not knowing, voluntary, and intelligent only
because he was acting in propria persona at the time of the waiver, this
argument is also waived on appeal. On this record, we find no error or
violation of Moore’s constitutional rights.
III. Request for a Continuance
¶16 Moore next argues the superior court abused its discretion by
denying his motion to continue and that the denial violated his right to
represent himself, thereby violating his rights under the Sixth Amendment.
We review the superior court’s decision to grant a defendant a continuance
made in conjunction with a motion to proceed pro se for an abuse of
discretion. State v. Lamar, 205 Ariz. 431, 436, ¶ 26 (2003).
¶17 Moore first asked for a one-week continuance on October 17,
2019, after the superior court granted his motion to represent himself. The
State objected to the motion to continue. The next day, on the Friday before
the start of his trial on Monday, Moore filed a written motion to continue.
Moore’s motion stated he “might need” more time to prepare for trial, but
that on Monday he would “know for sure if [he was] ready or not.” The
motion further stated that Moore would “most likely need more time to
make a strategy based off of what evidence will and will not be admissible.”
The court denied the motion to continue, finding that Moore had failed to
establish that extraordinary circumstances existed or that delay was
indispensable to the interest of justice. See Ariz. R. Crim. P. 8.5(b). The
court also stated it had considered the victim’s rights to a speedy
disposition of the case. See id. Moore renewed his motion on the morning
of the first day of trial, and the court again denied the motion.
¶18 “A trial court maintains discretion [to determine whether to
grant a continuance made in conjunction with a motion to proceed pro se]
because a defendant’s right to represent himself does not exist in a
vacuum.” Lamar, 205 Ariz. at 436, ¶ 27. “The court must consider the
defendant’s right in conjunction with a victim’s constitutional right to a
speedy trial and the trial court’s prerogative to control its own docket.” Id.
(footnote omitted). Whether a defendant’s constitutional rights are violated
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by the superior court’s denial of a continuance depends on a particular
case’s facts and circumstances. Id. at 437, ¶ 28.
¶19 When Moore made the motion to continue, the trial was two
business days away, and witnesses were scheduled to appear. Moore was
equivocal about whether he needed a continuance, and the decision not to
continue the trial was well within the superior court’s discretion.
Accordingly, we find no abuse of discretion.
IV. Failure to Appoint New Counsel
¶20 Finally, Moore argues the superior court violated his Sixth
Amendment right to counsel by failing to appoint him new counsel because
he had an irreconcilable conflict with his attorney, Mr. Puchek.
¶21 In his opening brief, Moore claims to have requested new
counsel and that the superior court “held a hearing on [Moore]’s request for
a new attorney, and his motion to represent himself” on October 17, 2019.
He also references Puchek’s motion to withdraw filed in November 2018
but does not specifically reference any other motion.
¶22 At the October 17, 2019 hearing, Puchek told the court that he
and Moore had experienced differences over strategy, and that Moore told
him Moore wanted to fire him unless he got the case dismissed. The court
asked Moore, “And, Mr. Moore, I just want to clarify, are you asking for a
new attorney to be appointed, or are you asking for something different
than that?” Moore replied, “Your Honor, I am asking to represent myself
and to have an advisory counsel so I can have full power of attorney for
myself.” Moore told the court he wanted a different attorney as advisory
counsel, and the court stated, “if I appoint advisory counsel, the advisory
counsel that I would be appointing is Mr. Puchek.” Moore replied, “I think
Mr. Puchek would be a good advisory counsel, just as long as I could write
the motions to make sure that I get what I want.” After going through a
colloquy, the court granted Moore’s request to represent himself and
appointed Puchek as advisory counsel.
¶23 Moore’s assertion that he made a request for new counsel on
October 17, 2019, is not supported by the record.4 And it is undisputed that
4 Furthermore, at the December 4, 2018 hearing on Mr. Puchek’s
motion to withdraw, after the court told Moore that Puchek was an
experienced attorney with whom he should cooperate, Moore told the
court, “Your Honor, if he is the most competent attorney that the state can
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STATE v. MOORE
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Moore never filed a written motion for change of counsel. See Ariz. R. Crim.
P. 1.9(a) (“A motion must include a memorandum that states facts,
arguments, and authorities pertinent to the motion.”). Nor is there any
suggestion that the court waived the writing requirement. See Ariz. R.
Crim. P. 1.9(d). Because no such motion was made, the authority cited by
Moore to support his argument that the superior court should have
appointed new counsel is inapplicable. See, e.g., State v. Torres, 208 Ariz.
340, 343, ¶ 7 (2004) (discussing the superior court’s duty to inquire about
“the basis of a defendant’s request for substitution of counsel”) (emphasis
added); State v. LaGrand, 152 Ariz. 483, 486-87 (1987) (discussing the factors
the superior court should consider when ruling on a motion for change of
counsel). We find no abuse of discretion or violation of Moore’s Sixth
Amendment right to counsel.
CONCLUSION
¶24 For the foregoing reasons, we affirm Moore’s convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
provide me, then what makes you think that anyone else is going to be
competent enough to represent me if he’s the best? I’m . . . going to go
ahead and say that any person who did is going to be completely
incompetent. So you might as well keep him on unless there’s somebody
better.”
9