State v. Leeds ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARSHALL EDWARD LEEDS, Appellant.
No. 1 CA-CR 14-0709
FILED 9-10-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-450698-001
The Honorable Jerry Bernstein, Commissioner
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Joel M. Glynn
Counsel for Appellant
Marshall Edward Leeds, Kingman
Appellant
STATE v. LEEDS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.
N O R R I S, Judge:
¶1 Marshall Edward Leeds timely appeals from his conviction
and sentence for one count of misconduct involving weapons, a class 4
felony. After searching the record on appeal and finding no arguable
question of law that was not frivolous, Leeds’ counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking
this court to search the record for fundamental error. This court granted
counsel’s motion to allow Leeds to file a supplemental brief in propria
persona, and Leeds did so. We reject the arguments raised in Leeds’
supplemental brief and, after reviewing the entire record, find no
fundamental error. Therefore, we affirm Leeds’ conviction and sentence as
corrected.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On October 18, 2013, D.P., Leeds’ probation officer, joined by
other officers, visited Leeds’ home and conducted a “probation search” for
a weapon. After answering the door, Leeds was handcuffed and then asked
for the weapon. Leeds initially said his father’s guns were in storage, but
eventually admitted the gun was on a table in the bedroom. After a quick
search, the officers located the gun in the bedroom. Officers arrested Leeds,
and, subsequently, at the police station, read Leeds his Miranda rights.
Leeds admitted to carrying the gun while walking the family dog around
the neighborhood because he was worried about his safety. He also
acknowledged he knew carrying a gun was illegal.
¶3 Based on the foregoing evidence, a jury found Leeds guilty of
one count of misconduct involving weapons. Leeds admitted to being on
probation at the time of the offense. At the combined “priors trial” and
sentencing hearing, the court found Leeds had committed two historical
1We view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Leeds. State
v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
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STATE v. LEEDS
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priors. The court sentenced Leeds to a presumptive term of ten years as a
category three repetitive offender and awarded Leeds 329 days of
presentence incarceration credit.
DISCUSSION
I. Supplemental Brief
¶4 As we construe his supplemental brief, Leeds first argues the
superior court improperly denied his motion to suppress the gun. We
review this issue for clear and manifest error. State v. Walker, 215 Ariz. 91,
94, ¶ 16, 158 P.3d 220, 223 (App. 2007).
¶5 Although the Fourth Amendment protects against
unreasonable searches and seizures, reasonable suspicion justifies a
warrantless search of probationers. State v. Adair, 1 CA-CR 14-0115, slip op.
at *1 , ¶ 1 (Ariz. App. Sep. 3, 2015) (search of probationer’s home valid when
reasonable under the totality of the circumstances); see also U.S. v. Knights,
534 U.S. 112, 119, 122 S. Ct. 587, 591, 151 L. Ed. 2d 497 (2001) (reasonable
suspicion sufficient under Fourth Amendment for search of probationer);
Samson v. California, 547 U.S. 843, 846, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006)
(under the totality of the circumstances, reasonable suspicion justifies
searching a parolee). D.P. testified at the suppression hearing that Leeds’
counselor had told him Leeds was carrying a gun because he was worried
about being attacked in his neighborhood. The counselor also told D.P. that
Leeds’ behavior was “increasingly paranoid and he was having some
delusions.” This information provided D.P. with reasonable suspicion to
perform the probation search for a gun.
¶6 Leeds next argues the officers violated his Miranda rights
when they questioned him about the gun while he was in handcuffs, but
before his arrest. Leeds did not raise a Miranda argument in the superior
court, and thus we review for fundamental error. State v. Henderson, 210
Ariz. 561, 564-65, ¶ 8, 115 P.3d 601, 604-05 (2005).
¶7 Under the “public safety exception” to the Miranda rule, the
officers did not need to read Leeds his Miranda rights before asking him
about the gun. When officers ask questions that are objectively “necessary
to secure their own safety or the safety of the public,” the officers need not
first give Miranda warnings. New York v. Quarles, 467 U.S. 649, 659, 104 S.
Ct. 2626, 2633, 81 L. Ed. 2d 550 (1984); see also State v. Leteve, No. CR-12-0535,
2015 WL 4747709, at *2, ¶ 9 (Ariz. Aug. 12, 2015). Here, the State presented
evidence at the suppression hearing that Leeds had a gun and was paranoid
and delusional, see supra ¶ 5, which created a reasonable need for the officers
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STATE v. LEEDS
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to protect their safety. Thus, the court was not required to suppress Leeds’
pre-Miranda statements.
¶8 Finally, Leeds argues the State failed to present sufficient
evidence to support his conviction because it neither tested the gun for
DNA or fingerprints nor did it present any witnesses who testified to seeing
him with a gun. We review this issue de novo. State v. West, 226 Ariz. 559,
562, ¶ 15, 250 P.3d 1188, 1191 (2011).
¶9 Although the State did not test the gun for DNA or
fingerprints and did not present any witnesses who testified to seeing Leeds
with a gun, it was under no obligation to do so. See State v. Torres, 162 Ariz.
70, 76, 781 P.2d 47, 53 (1989) (“Police generally have no duty to seek out and
obtain potentially exculpatory evidence.”) (citation omitted); see also State v.
Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198 (2010) (appellate court
reviews sufficiency of the evidence by determining whether jury’s findings
are supported by substantial evidence; that is, evidence that is adequate to
support a reasonable person’s conclusion of defendant’s guilt beyond a
reasonable doubt); State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458
(App. 2003) (substantial evidence may be direct or circumstantial; denial of
Rule 20 motion reviewed for abuse of discretion). Based on our review of
the record, the State presented sufficient evidence supporting Leeds’
conviction, see supra ¶ 2, and it was not obligated to present further
evidence.
II. Anders Review
¶10 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Leeds received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.
¶11 The jury was properly comprised of eight members and the
court properly instructed the jury on the elements of the charge, Leeds’
presumption of innocence, the State’s burden of proof, and the necessity of
a unanimous verdict. The superior court received and considered a
presentence report; Leeds was given an opportunity to speak at sentencing
and did so; and his sentence was within the range of acceptable sentences
for his offense.
¶12 Although the superior court imposed a sentence within the
permissible range for a repetitive offender with two historical prior
convictions, the sentencing minute entry fails to describe Leeds’ historical
convictions. Thus, we correct the sentencing minute entry to add the
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following after “THE COURT FINDS that the Defendant has two prior
convictions”:
Solicitation of Possession of Narcotic Drugs, a
class 6 Felony committed on August 14, 2009,
and convicted on September 30, 2010, in
Maricopa County Superior Court cause number
CR2009-154104-001; and
Possession of Drug Paraphernalia, a class 6
Felony committed on August 2, 2012, and
convicted on March 22, 2013, in Maricopa
County Superior Court cause number CR2012-
153454-001.
¶13 The sentencing minute entry also mistakenly refers to Leeds’
current offense as “Non Dangerous - Non Repetitive” and cites A.R.S. § 13-
702 (West 2015), a statute that only applies to first-time offenders.2 At the
sentencing hearing, however, the court properly found Leeds was a
category three repetitive offender. Thus, we correct the sentencing minute
entry to reflect that Leeds’ current offense was “Non Dangerous -
Repetitive,” replace A.R.S. § 13-702 with A.R.S. § 13-703 (West 2015), which
applies to repetitive offenders, and change “Class 4 FELONY” to “Class 4
FELONY, with 2 prior felony convictions.”
CONCLUSION
¶14 We decline to order briefing and affirm Leeds’ conviction and
sentence as corrected.
¶15 After the filing of this decision, defense counsel’s obligations
pertaining to Leeds’ representation in this appeal have ended. Defense
counsel need do no more than inform Leeds of the outcome of this appeal
and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
¶16 Leeds has 30 days from the date of this decision to proceed, if
he wishes, with an in propria persona petition for review. On the court’s own
2Although the Arizona Legislature has amended certain
statutes cited in this decision after the date of Leeds’ offense, the revisions
are immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.
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STATE v. LEEDS
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motion, we also grant Leeds 30 days from the date of this decision to file an
in propria persona motion for reconsideration.
:ama
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