State v. Story ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CODY WAYNE STORY, Appellant.
No. 1 CA-CR 20-0523
FILED 7-27-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201900776
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Rideout Law PLLC, Lake Havasu City
By Bradley H. Rideout, Wendy Marcus
Counsel for Appellant
STATE v. STORY
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.
B R O W N, Judge:
Cody Wayne Story appeals his conviction and sentence for
transporting dangerous drugs for sale. For the following reasons, we
affirm.
BACKGROUND
In April 2019, Story was traveling on I-40 in a pickup truck
driven by Kristopher William Douglas when they were stopped by law
enforcement for a mud flap violation. Douglas eventually consented to a
dog sniff. After the dog alerted to the truck, a search revealed a large
quantity of methamphetamine. The State charged Story with one count of
transportation of dangerous drugs for sale, and the superior court severed
his case from Douglas’s case.
Story moved to suppress the drugs, claiming he was detained
longer than necessary for officers to complete Douglas’s traffic citation. The
superior court denied the motion after an evidentiary hearing. In its ruling,
the court briefly referenced an evidentiary hearing previously conducted in
Douglas’s case.
In May 2020, as Story’s case was pending trial, the Arizona
Supreme Court issued several orders “in response to the COVID-19 public
health threat [to] limit[] and modif[y] court operations to ensure justice in
Arizona is administered safely.” In addition to granting power to presiding
superior court judges to determine “how in-person court proceedings. . .
are to be phased-in and conducted,” the supreme court also limited the
number of peremptory strikes per side from six to two, and it authorized
the use of technology to “facilitate alternatives to in-person appearance” for
jury selection.
Three days before trial, Story filed a motion in limine and
objection to the use of Zoom or other videoconferencing platforms for jury
selection, arguing such use would deny him the right to a fair and impartial
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STATE v. STORY
Decision of the Court
jury. The court denied Story’s motion as untimely, adding that the use of
videoconferencing did not “impede[] the selection of a fair and impartial
jury.” Defense counsel orally objected to reducing the number of
peremptory strikes, which the court similarly denied. During jury
selection, 29 prospective jurors appeared in person and four participated by
videoconference. Of those four, three were struck for cause and the fourth
by peremptory strike. After a three-day trial, the jury found Story guilty as
charged and he timely appealed.
DISCUSSION
A. Due Process
Story argues two temporary changes made to procedural
rules during the COVID-19 pandemic violated his due process rights: (1) a
reduction in the number of peremptory strikes and (2) a policy allowing
potential jurors to appear via videoconferencing. Because Story’s due
process claims were not timely raised in the superior court, we review
solely for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135,
140, ¶ 12 (2018); State v. Smith, 219 Ariz. 132, 133, ¶ 1 (2008).
Story contends his due process rights were violated because
he was among a group of criminal defendants subjected to different
procedural rules, based solely on the circumstances existing at the time of
his trial; however, “[a] defendant has no vested right in any particular mode
of procedure.” State v. Mendoza, 170 Ariz. 184, 193 (1992). Criminal trials
are governed by the procedural rules in place at the time of trial. See State
v. Medina, 232 Ariz. 391, 408, ¶¶ 70–73 (2013); see also Stargel v. State, 436
S.E.2d 786, 788 (Ga. Ct. App. 1993) (applying this reasoning to uphold a
statute that reduced peremptory strikes from 20 to 12).1
In addition, Story argues the orders modifying procedures
during the pandemic are void because they were not adopted in accordance
with Arizona Rule of the Supreme Court 28. That rule provides a
mechanism for “[a]ny person [to] petition the Arizona Supreme Court to
adopt, amend, or abrogate a court rule,” subject to a period of public
comment. Ariz. R. Sup. Ct. 28(a)(1), (5). But our supreme court has its own
constitutional authority to make procedural rules, including emergency
provisions, and that authority is much broader than the power granted to
the public to petition for new rules under Rule 28. See Ariz. Const. art. VI,
1 Because Story denies he is asserting an equal protection claim, any
such claim has been abandoned. See State v. Carver, 160 Ariz. 167, 175 (1989).
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§ 5(5); see also Burney v. Lee, 59 Ariz. 360, 363 (1942); State v. Pierce, 59 Ariz.
411, 414 (1942); Ariz. R. Sup. Ct. 26 (permitting our supreme court to
suspend rules “for good cause . . . and in furtherance of justice”).
1. Peremptory Strikes
Story argues the superior court violated his due process rights
by reducing his peremptory challenges from six to two. But there is no
constitutional right to peremptory strikes. Ross v. Oklahoma, 487 U.S. 81, 88
(1988). Peremptory strikes are a benefit conferred ‘beyond the minimum
requirements of fair [jury] selection,’” and states have discretion to
implement them. Rivera v. Illinois, 556 U.S. 148, 157–58 (2009) (alteration in
original) (citation omitted). Any temporary reduction in the number of
peremptory strikes cannot violate Story’s due process rights if the state
could eliminate the strikes altogether.
Story nonetheless asserts he was prejudiced by the reduction
in strikes because he was forced to use his last strike to eliminate a
prospective juror who appeared via videoconference, so he could not
eliminate another juror whom he found unfavorable. He does not,
however, contend these jurors should have been dismissed for cause. So
long as no jurors were removable for cause, the jury was considered
impartial under constitutional standards. Rivera, 556 U.S. at 159.
2. Videoconferencing
Story argues his due process rights were violated because
prospective jurors were allowed to appear via videoconferencing for jury
selection. First, he contends the use of videoconferencing prevented him
from being able to evaluate the jurors’ body language and demeanor.
Though viewing a prospective juror’s demeanor in-person is useful, see
Skilling v. United States, 561 U.S. 358, 386 (2010), criminal defendants are
entitled to a “fair trial, not a perfect one,” State v. Dann, 205 Ariz. 557, 565,
¶ 18 (2003) (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)). And we are not
persuaded that the use of optional videoconferencing during a global
pandemic is unconstitutional. See United States v. Crittenden, No. 4:20-CR-7
(CDL), 2020 WL 4917733, at *8 (M.D. Ga. Aug. 21, 2020) (“[U]nder normal
circumstances, being able to see a potential juror’s full facial expressions
may be tactically preferable. But the Court is unconvinced that it is required
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STATE v. STORY
Decision of the Court
by the Constitution.”); see also United States v. James, CR-19-08019-PCT-DLR,
2020 WL 6081501, at *2–3 (D. Ariz. Oct. 15, 2020).2
Second, Story argues the use of videoconferencing prevented
his jury pool from representing a fair cross-section of the community, as
required by Taylor v. Louisiana, 419 U.S. 522, 527 (1975). To prevail on that
issue, Story must show
(1) that the group alleged to be excluded is a ‘distinctive’
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.
State v. Cota, 229 Ariz. 136, 143, ¶ 14 (2012) (quoting Duren v.
Missouri, 439 U.S. 357, 364 (1979)).
Story alleges, without supporting evidence from the record,
that the use of videoconferencing may have prevented lower-income
individuals and those who lack access to technology from appearing for
jury service. The use of videoconferencing, however, was wholly optional,
and prospective jurors were permitted to appear in-person, as most of them
did.
Story also notes it was “unusual” for no Native Americans to
be included in the jury pool in relation to the demographic makeup of the
county. He did not raise this argument in the superior court, where
appropriate fact-finding could have been conducted. See State v. Brita, 158
Ariz. 121, 124 (1988) (“It is particularly inappropriate to consider an issue
for the first time on appeal where the issue is a fact-intensive one.”). He
does not argue or present evidence that Native Americans were subject to
“systematic exclusion” from the jury panel for any reason, and he does not
argue this exclusion extends beyond the single jury pool assigned to his
case.
2 Story briefly suggests that masks worn by prospective jurors who
were present in-person obstructed his ability to evaluate their body
language and demeanor. Because this suggestion is not supported by the
record or developed on appeal, we summarily reject it.
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STATE v. STORY
Decision of the Court
Story has not established fundamental, prejudicial error
relating to any of his due process claims.
B. Motion to Suppress
Story argues the court erred in denying his motion to
suppress, asserting the court’s references to Douglas’s case were
prejudicial. We review the denial of a motion to suppress for an abuse of
discretion, viewing the facts in the light most favorable to upholding the
court’s ruling. State v. Cornman, 237 Ariz. 350, 354, ¶ 10 (App. 2015). In
reviewing the motion, we only consider the evidence presented at the
suppression hearing. State v. Lietzau, 248 Ariz. 576, 579, ¶ 8 (2020).
We are unable to assess this argument because Story has not
provided the suppression hearing transcript on appeal. We presume that
“any evidence not available on appeal supports the trial court’s actions.”
State v. Lavers, 168 Ariz. 376, 399 (1991). Though the transcript should have
been automatically included in the record under Arizona Rule of Criminal
Procedure 31.8(b)(1)(B)(i), an appellant has the ultimate burden of
“ensuring the appellate record contains the necessary items for the
arguments presented” and supplementing the record where an item has
been omitted. State v. Olague, 240 Ariz. 475, 478, ¶ 7 (App. 2016); see also
State v. Zuck, 134 Ariz. 509, 512–13 (1982) (“It is the duty of counsel who
raise objections on appeal to see that the record before us contains the
material to which they take exception.”).3
Story contends he was prejudiced by the court’s references to
Douglas’s case and the court improperly relied on evidence from that case
in denying Story’s motion to suppress. The minute entry for the
suppression hearing says the court considered a video exhibit from the
other case and that “neither counsel object[ed].” Because Story failed to
object, we only review for fundamental, prejudicial error. See Escalante, 245
Ariz. at 140, ¶ 12. Story shows no prejudice because the court’s mention of
the Douglas’s case in its ruling was inconsequential. After analyzing the
applicable legal standards and the evidence presented at the suppression
hearing, and rejecting Story’s arguments, the court then noted it would “not
evaluate the other factors. However, for the reasons given in the co-
defendant’s case, there was reasonable suspicion to detain the defendant
and the co-defendant after the traffic stop ended.” That portion of the
3 In his appendix, Story includes documents from Douglas’s motion
to suppress. We decline to consider the documents because they are not
“essential to decid[ing] an issue on appeal.” Ariz. R. Crim. P. 31.11(b).
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STATE v. STORY
Decision of the Court
court’s ruling was merely an alternative finding; even assuming it should
not have been mentioned, on this incomplete record Story has not made any
showing it was prejudicial.
CONCLUSION
For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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