State v. Price ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDRE LAMAR PRICE, Appellant.
No. 1 CA-CR 20-0595
FILED 8-17-2021
Appeal from the Superior Court in Maricopa County
No. CR2017-146350-002
The Honorable Frank W. Moskowitz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. PRICE
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.
W E I N Z W E I G, Judge:
¶1 Andre Lamar Price appeals his sentences and convictions.
Finding no reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 One morning in October 2017, Price and two friends robbed
or tried to rob three convenience stores before their getaway car stalled. All
three were arrested. The State indicted Price on two counts of armed
robbery, one count of attempted armed robbery, four counts of aggravated
assault, and two counts of kidnapping. After a 12-day trial, the jury
convicted Price of two counts of armed robbery, three counts of aggravated
assault and two counts of kidnapping. It also found aggravating factors,
including that Price was on probation when he committed the offenses. See
A.R.S. § 13-708(A). The court sentenced Price to concurrent prison
sentences, the longest lasting 17 years.
¶3 Price timely appealed. We have jurisdiction. See Ariz. Const.
art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A).
DISCUSSION
¶4 Price asserts three arguments on appeal.
I. Batson Challenge
¶5 Price first contends the State’s peremptory strike of a black
juror violated his rights under Batson v. Kentucky, 476 U.S. 79 (1986). A
discriminatory peremptory strike violates the Equal Protection Clause of
the Fourteenth Amendment. Id. at 85-86.
¶6 During voir dire, defense counsel raised a Batson challenge to
the State’s peremptory strike of a potential black juror, Juror 23. The
prosecutor then offered a race-neutral reason for the strike. He said that
Juror 23 was a college professor, and college professors are “typically not
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STATE v. PRICE
Decision of the Court
strong jurors for us.” The trial court asked the prosecutor about Juror 50, a
non-minority juror seated on the final jury despite her position as a “faculty
manager and teacher” at the same university. The prosecutor said he did
not know Juror 50 was a teacher and pointed to his trial notes that “she was
a manager, like, administrative, not a college professor.” The court denied
Price’s challenge and empaneled the jury, which included one black
member. We review Batson challenges for clear error. State v. Hardy, 230
Ariz. 281, 285, ¶ 11 (2012).
¶7 A Batson challenge has three steps. The defendant must first
make a prima facie claim of purposeful discrimination. Batson, 476 U.S. at
100. The State must then offer a facially valid race-neutral reason for the
strike, Hernandez v. New York, 500 U.S. 352, 360 (1991), which need not be
“persuasive, or even plausible,” Purkett v. Elem, 514 U.S. 765, 768 (1995).
And finally, the defendant must prove the State’s race-neutral reasons were
mere pretext for purposeful discrimination. State v. Roque, 213 Ariz. 193,
204, ¶ 15 (2006).
¶8 We find no clear error on this record because reasonable
evidence supports the superior court’s finding that Price did not establish
purposeful discrimination. The court heard and accepted the prosecutor’s
nondiscriminatory explanation that he “did not hear the teaching part.”
The superior court is best positioned to assess credibility and we afford
“much deference” to its ruling. State v. Newell, 212 Ariz. 389, 401, ¶ 54
(2006).
II. Exhibits in the Jury Room
¶9 Price next argues the superior court abused its discretion by
allowing the jury to review testimony from three witnesses in the jury room
during deliberations, including the testimony of two police officers and
Price himself. We agree. See State v. Jovenal, 117 Ariz. 441, 443-44 (App.
1977) (holding that trial courts may not furnish written transcripts of
testimony to the jury to review during deliberation). Even so, the error was
harmless. The jury saw video footage of the robberies and heard from 22
other witnesses, including two eyewitnesses, over the 12-day trial. See State
v. Morris, 215 Ariz. 324, 335, ¶ 44 (2007) (“An error is harmless if it appears
beyond a reasonable doubt that the error did not contribute to the verdict
obtained.”) (cleaned up) (citing State v. Dann, 205 Ariz. 557, 565, ¶ 18 (2003)).
III. Probation Aggravator
¶10 Price last argues the jury lacked sufficient evidence to find he
committed the offenses while on felony probation. We review this issue de
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STATE v. PRICE
Decision of the Court
novo, viewing the facts in the light most favorable to supporting the jury’s
verdict and resolving “any conflicts in the evidence against the defendant.”
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). We discern no error because the
record has “evidence that reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt.” Prosise v. Kottke, 249
Ariz. 75, 79, ¶ 21 (App. 2020) (quoting Pena, 235 Ariz. at 279, ¶ 5). In
particular, the record shows that Price was placed on three years’ felony
probation in 2016 and committed the felonies here in 2017. No conflicting
evidence was presented. We affirm.
CONCLUSION
¶11 Because Price shows no reversible error, we affirm his
convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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