State v. Boozer ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JACQUELINE OLIVIA BOOZER, Appellant.
No. 1 CA-CR 17-0134
FILED 12-19-2017
Appeal from the Superior Court in Maricopa County
No. CR2016-119916-001
The Honorable James R. Rummage, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE V. BOOZER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James B. Morse Jr. joined.
M c M U R D I E, Judge:
¶1 Jacqueline Olivia Boozer appeals her conviction for resisting
arrest. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 Boozer was detained at a Walmart in Phoenix after a store loss
prevention officer observed her place store merchandise in her purse and
attempt to leave without paying for the items. Walmart contacted the
Phoenix Police Department and two officers responded. When the police
arrived, Boozer appeared “agitated” and did not comply with one officer’s
requests to sit down. The officers then attempted to handcuff Boozer, but
she repeatedly pulled away from and struggled with the officers.
Eventually, the officers handcuffed Boozer and escorted her to their patrol
car.
¶3 The State charged Boozer with one count of resisting arrest
and one count of shoplifting. Before trial, Boozer moved to determine the
officers’ victim status under the Victims’ Bill of Rights, requesting the court
find that the officers were not victims. The superior court denied the motion
and affirmed the officers’ status as victims. A jury convicted Boozer of both
counts. The superior court sentenced Boozer to .75 years’ imprisonment for
the resisting arrest conviction and to 3 days’ incarceration for the
shoplifting conviction. Boozer timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1).
1 We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Boozer. State v. Harm, 236 Ariz.
402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App.
1996)).
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STATE V. BOOZER
Decision of the Court
DISCUSSION
A. The Superior Court Did Not Err by Affirming the Officers’ Victim
Status under the Victims’ Bill of Rights.
¶4 Boozer argues the superior court erred by finding the police
officers who arrested her were victims under the Victims’ Bill of Rights and,
therefore, not subject to pre-trial interviews. We interpret the application of
the Victims’ Bill of Rights de novo. State ex rel. Montgomery v. Padilla (Simcox),
238 Ariz. 560, 564, ¶ 12 (App. 2015).
¶5 Superior courts are bound by the decisions of a higher court.
Sell v. Gama, 231 Ariz. 323, 330, ¶ 31 (2013). For the superior court, a decision
of this court is impliedly overruled only when our precedent is clearly
irreconcilable with intervening authority. See Blevins v. Gov’t Emps. Ins. Co.,
227 Ariz. 456, 462, ¶ 25 (App. 2011) (statutory changes did not implicitly
overrule prior precedent when the statute and caselaw were reconcilable).
In affirming the officers’ victim status here, the superior court stated it did
not read State v. Jurden “as expansive” as Boozer. The court noted Jurden did
not exclude officers as victims under the Victims’ Bill of Rights, and that
“nowhere in the case did they specifically overrule that prior finding of the
Court of Appeals, [in State v. Sorkhabi] which basically held that victim
status [was] appropriate.” Jurden, 239 Ariz. 526 (2016); Sorkhabi, 202 Ariz.
450 (App. 2002). The superior court did not err by following Sorkhabi.
¶6 Boozer asks that we review Sorkhabi in light of Jurden. We
have done so, and affirm our previous holding that police officers are
victims under the Victims’ Bill of Rights as charged in this case.
¶7 Under the Victims’ Bill of Rights, a “victim” is a person
“against whom the criminal offense has been committed.” Ariz. Const. art.
2, § 2.1(C). A qualifying victim has the right to refuse to be interviewed or
deposed by a defendant. 2 Ariz. Const. art. 2, § 2.1(A)(5); A.R.S. § 13-4433(A).
As charged here, a person resists arrest by “intentionally preventing or
2 Any witness may refuse to be interviewed by the defense. Mota v.
Buchanan, 26 Ariz. App. 246, 249 (1976). The party seeking the interview of
a non-victim may then move the court to order a deposition, but must show
that “the person’s testimony is material to the case or necessary [to]
adequately . . . prepare a defense or investigate the offense, . . . the person
was not a witness at the preliminary hearing . . . and . . . the person will not
cooperate in granting a personal interview.” Ariz. R. Crim. P. 15.3(a)(2).
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STATE V. BOOZER
Decision of the Court
attempting to prevent a person reasonably known to [her] to be a peace
officer, acting under color of such peace officer’s official authority, from
effecting arrest by . . . using or threatening to use physical force against the
peace officer.” A.R.S. § 13-2508(A)(1).
¶8 In Sorkhabi, we held that a police officer can be a “victim” of
resisting arrest. 202 Ariz. at 452, ¶ 7. We explained, “[t]he statute’s plain
language demonstrates that resisting arrest is a crime committed against a
person . . . [and a] defendant must demonstrate criminal conduct toward an
individual, peace officer or another, to commit . . . resisting arrest.” Id. at
¶ 9. In Jurden, our supreme court held resisting arrest is an “event-directed”
offense. 239 Ariz. at 530, ¶ 17 (analyzing whether double jeopardy prohibits
multiple convictions under the resisting arrest statute stemming from a
single uninterrupted event). Boozer contends Jurden and “other
developments in the law” have implicitly overruled Sorkhabi, and that
police officers are no longer victims of resisting arrest or entitled to victims’
rights. For support, Boozer cites: (1) the 2012 amendment to the resisting
arrest statute;3 (2) an amended definition of “criminal offense” under A.R.S.
§ 13-4401(6); 4 (3) the court’s holding in Jurden that the resisting arrest statute
is ambiguous; and (4) legislative intent.
¶9 None of Boozer’s arguments are persuasive. First, although
the resisting arrest statute was amended to include preventing arrest by
“engaging in passive resistance,” the statute continues to include resisting
arrest by using or threatening physical force against a peace officer. A.R.S.
§ 13-2508(A)(1). This is the conduct the court in Sorkhabi found sufficient to
find the officer a “victim” of resisting arrest. 202 Ariz. at 452, ¶ 10. The
amendment to the statute does not, therefore, necessarily imply an officer
3 The legislature amended the resisting arrest statute in 2012 to
include preventing an officer from effecting an arrest by “[e]ngaging in
passive resistance.” A.R.S. § 13-2508(A)(3). Because Boozer was not charged
with “passive resistance,” we leave for another day whether an officer in
that scenario would be classified as a victim.
4 In 2012, the legislature amended the definition of “criminal offense”
under § 13-4401(6) from “conduct that gives a peace officer . . . probable
cause to believe that . . . a felony [or] a misdemeanor involving physical
injury, the threat of physical injury or a sexual offense [has occurred]” to
“conduct that gives a peace officer . . . probable cause to believe that a
felony, a misdemeanor, a petty offense, or a violation of a local criminal
ordinance has occurred.” 2012 Ariz. Sess. Laws, ch. 268, § 2 (2nd Reg. Sess.).
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STATE V. BOOZER
Decision of the Court
cannot be a victim of resisting arrest. Here, Boozer was charged with
preventing arrest by “using or threatening to use physical force against the
peace officer(s),” the same crime the defendant in Sorkhabi was charged
with. Id. at 452, ¶ 3.
¶10 For the same reason, the change to the definition of “criminal
offense,” which eliminated the requirement of a threat of physical injury,
does not change the Sorkhabi analysis. Boozer was charged and convicted
for using or threatening to use physical force. We need not analyze how the
statute may be applied in a different scenario, as that case is not before us.
¶11 Boozer also argues Jurden found the resisting arrest statute
ambiguous, allowing the court to review the legislative intent, and
“legislative intent supports the finding that [the police officers here] are not
entitled to the protections of victim’s rights.” The Jurden holding that
§ 13-2508 is ambiguous concerned whether the statute should be read to
designate an event-directed or victim-directed unit of prosecution. 239
Ariz. at 530, ¶ 16. After considering legislative history, the court held
resisting arrest is an event-directed offense because that interpretation
satisfies both purposes of § 13-2508: mandating submission to the state and
protecting officers. Id. at 531–32, ¶¶ 21, 26 (the statute’s primary purpose is
protecting the State’s authority). Jurden did not find the statute ambiguous
concerning the threat directed at an officer that would make the officer a
victim.
¶12 To support her argument that legislative intent suggests
police officers are not victims under the Victims’ Bill of Rights, Boozer relies
on the legislative changes to § 13-2508 and the definition of “criminal
offense,” discussed above, and the current statutory scheme making
aggravated assault against a police officer a higher-class felony than
resisting arrest. In Jurden, the court explained that resisting arrest is in a
separate chapter of the criminal code than assault and aggravated assault,
A.R.S. §§ 13-1203 to -1204, and “[t]herefore, the goal of protecting
individual officers does not require interpreting § 13-2508 as a victim-
focused offense because a criminal sanction already exists . . . for injuries or
threat of injuries to officers.” 239 Ariz. at 532, ¶ 25. However, the court also
stated the “statute serves both to punish resistance to state authority and to
protect officers.” Id. at ¶ 26 (emphasis added). We do not find any of
Boozer’s arguments warrant reconsidering the holding in Sorkhabi.
¶13 Finally, even if we were to conclude the officers were not
victims under the Victims’ Bill of Rights, any error was harmless beyond a
reasonable doubt in this case. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18
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STATE V. BOOZER
Decision of the Court
(2005) (“Reviewing courts consider alleged trial error under the harmless
error standard when a defendant objects at trial and thereby preserves the
issue for appeal.”); see also A.R.S. § 13-3987 (a trial error is not grounds for
reversal “unless it actually has prejudiced, or tended to prejudice, the
defendant in respect to a substantial right.”) Here, Boozer’s attorney cross-
examined one of the arresting officers at a preliminary hearing. See Ariz. R.
Crim. P. 15.3(a)(2) (the party seeking a court ordered deposition must show
the person was not a witness at a preliminary hearing). Her attorney also
cross-examined both officers at trial. The State’s primary evidence at trial
was a videotape of the struggle between Boozer and the officers, which
Boozer admits she had access to prior to trial. Although Boozer did not
know precisely what the officers would testify to at trial, she has not shown
that a pre-trial interview would have provided her with information she
was entitled to obtain, or that her attorney was unable to adequately
prepare for trial without the interview.
B. Boozer’s Procedural Due Process Rights Were Not Violated.
¶14 Boozer argues that even if the officers were victims under the
Victims’ Bill of Rights, her due process rights were violated because her
attorney was not permitted to interview the arresting officers before trial.
Restrictions imposed on a defendant pursuant to the Victims’ Bill of Rights
“must be proportionate to the interest of protecting the victim as balanced
against the defendant’s due process right to a fundamentally fair trial.”
State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 240 (App. 1992).
A criminal defendant has no general right to pre-trial discovery. State v.
Tucker, 157 Ariz. 433, 438 (1988); State v. Connor, 215 Ariz. 553, 561, ¶ 21
(App. 2007). Before a victim can be compelled to comply with a discovery
request, the defendant “must first show a ‘reasonable probability that the
information sought by the defendant include[s] information to which [he
or] she [is] entitled as a matter of due process.’” State v. Sarullo, 219 Ariz.
431, 437, ¶ 20 (App. 2008) (a crime victim was not required to produce
medical records protected by the Victims’ Bill of Rights without a showing
the records contained exculpatory evidence).
¶15 Boozer has not shown a pre-trial interview of the officers
would have produced information due process entitled her to obtain. She
argues her attorney’s inability to interview the officers was such that it
prevented her from achieving the “basic notions of minimal competence”
required of attorneys. See State v. Draper, 162 Ariz. 433, 439 (1989) (“[E]xcept
in the most unusual circumstances, it offends basic notions of minimal
competence of representation for defense counsel to fail to interview any
state witnesses prior to a major felony trial.”). However, failure to interview
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STATE V. BOOZER
Decision of the Court
a witness prior to trial does not necessarily render counsel ineffective or
prejudice the defendant. 5 Id. (“Defense counsel often may obtain
information concerning a victim’s expected testimony from sources other
than the victim, such as police reports, interviews with other witnesses,
preliminary hearings, and grand jury transcripts.”).
¶16 Boozer’s inability to interview the officers prior to trial did not
violate her due process rights under the facts of this case.
CONCLUSION
¶17 For the foregoing reasons, we affirm Boozer’s conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 To the extent Boozer is challenging the effectiveness of her counsel,
we decline to consider the merits of that argument. A claim for ineffective
assistance of counsel must be raised in a petition for post-conviction relief
filed pursuant to Arizona Rule of Criminal Procedure 32. State v. Spreitz, 202
Ariz. 1, 3, ¶ 9 (2002).
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