State v. Hardy ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GREGORY JUSTIN HARDY, JR., Appellant.
No. 1 CA-CR 22-0298
FILED 5-23-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR202001039
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee
The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
STATE v. HARDY
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Gregory Justin Hardy, Jr. appeals his convictions and
sentences for one count of fraudulent schemes and artifices, one count of
obstructing criminal investigations or prosecutions, and two counts of
conspiracy. After searching the entire record, Hardy's defense counsel
identified no arguable question of law that is not frivolous. In accordance
with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297(1969), defense counsel asks this Court to search the record for fundamental
error. Hardy filed a supplemental brief in propria persona, which we have
considered. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2019, the State charged Hardy with aggravated assault,
burglary, robbery, disorderly conduct, and trespass ("2019 case"), and the
court set trial for September 2020. While in jail awaiting trial, Hardy called
his father several times and asked for his father's mailing address. Hardy
used a different inmate's name and identification number for each of these
calls. A detective monitored Hardy's outgoing phone calls.
¶3 Hardy's father provided two mailing addresses, and Hardy
sent a letter to each address using another inmate's name. The jail
intercepted both letters after receiving alerts from the detective. In the first
letter, Hardy asked his father to speak with the victims of the 2019 case to
convince them to drop the charges against him and provided his father with
the victims' address. In the second letter, Hardy asked his father to visit the
victims' home and offer the victims his truck to drop the charges.
¶4 Shortly after the jail intercepted the second letter, the victims
informed the detective that they received a letter from one of Hardy's fellow
inmates. In that letter, the inmate asked the victims to drop the charges
against Hardy, explaining "[Hardy] is an innocent man." At that time, the
jail also informed the detective that the inmate gave a corrections officer an
additional letter and two notes. The detective interviewed the inmate, who
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Decision of the Court
admitted to receiving the notes and the additional letter from Hardy. The
notes instructed the inmate to send the victims a letter, and the additional
letter instructed the inmate to contact Hardy's father and urged Hardy's
father to offer the victims $500 or Hardy's truck to drop the charges.
¶5 Following the detective's investigation, the State charged
Hardy with (1) fraudulent schemes and artifices, a class 2 felony, under
A.R.S. § 13-2310(A); (2) obstructing criminal investigations or prosecutions,
a class 5 felony, under A.R.S. § 13-2409; (3) conspiracy to commit
obstructing criminal investigations or prosecutions, a class 5 felony, under
A.R.S. §§ 13-1003 and 13-2409; and (4) conspiracy to commit tampering with
a witness, a class 6 felony, under A.R.S. §§ 13-1003 and 13-2804. The
superior court conducted a four-day jury trial, during which the victim,
detective, and fellow inmate testified.
¶6 At trial, the detective testified about monitoring Hardy's
outgoing phone calls and recognizing Hardy's voice in the calls. The
detective also testified about alerting the jail to the letters addressed to
Hardy's father and receiving information related to the 2019 case from the
fellow inmate and the victims. The State introduced the two letters Hardy
addressed to his father, the two notes and additional letter Hardy gave to
the fellow inmate, and the letter the victims received from the fellow
inmate. The victim testified to having received a letter from Hardy's fellow
inmate, and in turn, that inmate testified to sending the victim a letter at
Hardy's request. The court denied Hardy's motion under Arizona Rule of
Criminal Procedure ("Rule") 20 and the jury convicted Hardy as charged.
¶7 During the aggravation phase of the trial, the jury found the
State had proven the first aggravating factor (presence of an accomplice) for
all counts. At sentencing, the court found that the State had proved three
prior felony convictions and that Hardy was a category three repetitive
offender. The court sentenced Hardy to presumptive terms of 15.75 years
in prison for count one, five years in prison for counts two and three, and
three-and-three-quarter years in prison for count four, all to run
concurrently.
¶8 Hardy timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶9 Hardy raises several issues in his supplemental brief. "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
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Ariz. 402, 404 n.2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495
(App. 1996)).
I. Jury Selection and Instructions.
¶10 Hardy first argues the "trial was tainted" because the judge
interfered with jury selection, claiming the trial judge "picked" the jury,
controlled the jury, and did not let him use any peremptory challenges. As
to peremptory challenges, our supreme court abolished them, effective
January 1, 2022. See Ariz. R. Crim. P. 18.4 (2022). Because Hardy's trial
began in March 2022, he was not entitled to any peremptory challenges.
¶11 As to Hardy's general claims about the judge's role in jury
selection, we presume trial judges are free of bias and prejudice, and "a
defendant must show by a preponderance of the evidence that the trial
judge was, in fact, biased." State v. Ramsey, 211 Ariz. 529, 541, ¶ 38 (App.
2005). Hardy provides no examples nor citations to the record to rebut the
presumption of judicial impartiality. Nor does Hardy argue bias or
prejudice among the jurors. See State v. Miller, 178 Ariz. 555, 558 (1994)
(noting a defendant may be entitled to a new trial for juror misconduct "if
the defense shows actual prejudice or if prejudice may be fairly presumed from
the facts"). Hardy has shown no reversible error.
¶12 Hardy also argues "the setting of the jury was completely on
the judge's doing" and "when a juror requested to be released, he was
threatened." Presumably, Hardy refers to deliberations during the
aggravation phase when Juror Two asked to leave. In response, the court
reminded Juror Two that he was there under a "jury summons" and
expected to continue his service. The court also ensured that Juror Two did
not disclose information regarding the jury's deliberations and directed
Juror Two to rejoin the jury and submit any questions in writing once he
returned to the deliberation room. See Ariz. R. Crim. P. 18.6(c), (f) (requiring
trial courts to instruct jurors concerning their duties and to provide jurors
with "additional instructions" as necessary). Without objection from
defense counsel, the judge eventually excused Juror Two from the jury and
replaced him with an alternate juror. But there is nothing in the record to
suggest the court threatened Juror Two or any other juror, and Hardy
provides no citations to the record to show otherwise.
¶13 Hardy further argues the jury instructions were inadequate
because jurors were not "given instructions for a 'hung jury,' if it occurred."
Though trial courts have broad discretion in assisting jurors at an impasse,
prematurely giving an impasse instruction could constitute coercion and
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STATE v. HARDY
Decision of the Court
would be improper if the jurors did not indicate they were deadlocked.
State v. Huerstel, 206 Ariz. 93, 99, ¶ 17 (2003); State v. Fernandez, 216 Ariz.
545, 550, ¶ 13 (App. 2007); see Ariz. R. Crim. P. 22.4 & cmt. (explaining that
"[i]f the jury advises the court that it has reached an impasse," the court may
ask the jurors if the court or counsel can assist and provide appropriate
instruction). The court did not provide impasse instructions in the final
guilt-phase instructions or initial aggravation-phase instructions. We note,
however, that the court gave an impasse instruction to the jury after it
indicated it could not agree during aggravation-phase deliberations. See
State v. Andriano, 215 Ariz. 497, 509, ¶ 56 (2007) (concluding the jurors had
"affirmatively indicated" they were at an impasse when the jury asked
"what would happen if the jury could not reach a verdict"), abrogated on other
grounds by State v. Ferrero, 229 Ariz. 239 (2012). Hardy has not demonstrated
any error in the jury instructions.
II. Sufficient Evidence.
¶14 Hardy also argues "the prosecutor made unproven
statements about" him, claiming (1) "the jury did not hear the alleged phone
calls, or see the alleged letters" and (2) "no handwriting expert was called
to verify the writing" in the letters. "Reversible error based on insufficiency
of the evidence occurs only where there is a complete absence of probative
facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)). The record shows the
prosecution introduced several letters into evidence, and a handwriting
expert was not required "to verify the writing" in those letters. See Ariz. R.
Evid. 901(b)(2) (allowing non-experts to provide an opinion as to the
genuineness of handwriting).
III. Ineffective Assistance of Counsel.
¶15 Hardy also claims he had an "ineffective attorney who gave
faulty advice among many other problems" but indicates he will address
"attorney issues" in a petition for post-conviction relief. We will not
consider claims of ineffective assistance of counsel on direct appeal. State
v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (explaining such claims must be brought
in a petition for post-conviction relief).
IV. Sixth Amendment Rights.
¶16 Hardy separately argues he "did not testify to defend himself"
or present his own witnesses based on defense counsel's advice. A
defendant has a Sixth Amendment right to present his own witnesses and
to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 52 (1987); State v.
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Sanchez-Equihua, 235 Ariz. 54, 57, ¶ 8 (App. 2014). Additionally, "a
defendant must make his desire to testify known at trial and cannot allege
this desire as an afterthought," and a trial court need not conduct "a sua
sponte inquiry . . . regarding a defendant's right to testify." State v.
Gulbrandson, 184 Ariz. 46, 65 (1995). The court complied with the Sixth
Amendment by informing Hardy of his right to testify, which Hardy
acknowledged; asking whether Hardy would call "any witnesses"; and
even providing Hardy and defense counsel time to discuss Hardy's
decision.
¶17 Likewise, Hardy argues that because he was not allowed to
testify at trial, "the judge could not use his testimony at sentencing."
However, Hardy does not explain what he means by that statement. Hardy
cites no authority prohibiting a sentencing court from considering a
defendant's statement at sentencing, even though that defendant did not
testify at trial. See Ariz. R. Crim. P. 26.10(c)(1) (requiring trial courts to "give
the defendant an opportunity to address the court"). In fact, courts must
allow defendants the opportunity "to make a mitigating statement for the
judge to consider in determining the sentence." State v. Hinchey, 181 Ariz.
307, 313 (1995) (quoting State v. McCall, 160 Ariz. 119, 124 (1989)). And the
record shows Hardy provided a statement at sentencing, which the court
considered. Hardy has shown no error.
V. No Fundamental Error.
¶18 In addition to evaluating the arguments raised in Hardy's
supplemental brief, we have conducted an independent review of the
record. Our review revealed no fundamental error. See Leon, 104 Ariz. at
300. All proceedings were conducted in compliance with the Rules, and the
record reveals that Hardy was present at all critical stages of the
proceedings and represented by counsel. See Ariz. R. Crim. P. 6.1, 19.2. The
State presented sufficient evidence from which the jury could determine
Hardy's guilt beyond a reasonable doubt. See State v. West, 226 Ariz. 559,
562, ¶ 16 (2011). The jury was comprised of twelve members. See A.R.S.
§ 21-102(B). The superior court properly instructed the jury on the
presumption of innocence, the burden of proof, and the elements of the
charged offenses. The court received a presentence report. Ariz. R. Crim.
P. 26.4. The court afforded Hardy an opportunity to speak at sentencing,
imposed sentences within the statutory limits, and stated on the record the
evidence and factors it considered in imposing the sentences. See A.R.S.
§§ 13-701, -703; Ariz. R. Crim. P. 26.9-26.10.
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STATE v. HARDY
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CONCLUSION
¶19 We affirm Hardy's convictions and sentences. Upon the filing
of this decision, defense counsel shall inform Hardy of the status of the
appeal and of his future options. Counsel has no further obligations unless,
upon review, counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). Hardy shall have 30 days from the date of this
decision to proceed, if he desires, with a pro per motion for reconsideration
or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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