State v. Axton
| Decision Date | 22 December 2020 |
| Docket Number | No. 1 CA-CR 19-0634,1 CA-CR 19-0634 |
| Parties | STATE OF ARIZONA, Appellee, v. ANTHONY SCOTT AXTON, Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
The Honorable Douglas R. Camacho, Judge Pro Tempore
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
By Harriette P. Levitt
Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.
¶1 Anthony Scott Axton appeals his convictions and sentences for one count each of armed robbery, aggravated robbery, kidnapping, misconduct involving body armor, three counts of aggravated assault, and two counts of attempted first-degree murder. For the following reasons, we affirm.
¶2 On July 1, 2018, Axton and an accomplice entered a Dollar General in Kingman, Arizona. Armed and wearing masks, they held an employee and bystander at gunpoint. They ordered the manager to open the store's safe, and the manager placed money from the safe's cash drawers inside a duffle bag. Axton and his accomplice left the store but encountered police officers before they could drive away. Axton began firing his rifle at the police from behind his truck. After intense gunfire, Axton fled on foot but was eventually arrested by the police. Police discovered he was wearing body armor and found a second rifle, ammunition, zip ties, duct tape, and headcovers inside his truck.
¶3 The State charged Axton with: (1) armed robbery, a class 2 felony; (2) aggravated robbery, a class 3 felony; (3) three counts of aggravated assault, two class 2 felonies and one class 3 felony; (4) two counts of attempted first-degree murder, both class 2 felonies; (5) kidnapping, a class 4 felony; (6) attempted kidnapping, a class 5 felony; and (7) misconduct involving body armor, a class 4 felony. The State alleged all offenses were dangerous under A.R.S. § 13-704. It further alleged the aggravating factors of an accomplice's presence, the expectation ofpecuniary gain, emotional harm, and the wearing of equipment meant to minimize the risk of injury from a deadly weapon.
¶4 Over sixty exhibits were admitted into evidence at trial, including photographs of Axton's body armor. Officer Brennan Cassidy testified that he took the body-armor pictures. Cassidy explained how each photo displayed a different body armor component, and all were admitted without objection. Similarly, Detective David Kinion photographed Axton's duffle bag and its contents, including the duct tape. Without objection, Kinion testified and described where he found the items and how he photographed them.
¶5 Before deliberations, two jurors were selected as alternates and excused. During deliberations, the jury informed the court that one of the jurors said he had previously seen Axton "in town as a crossdresser." The information was provided to the court by juror G.M. Upon receiving the note, the court paused the deliberations to interview the jurors individually. K.A. was identified as the juror who had previously seen Axton, and the other jurors confirmed K.A. had referred to Axton as a "crossdresser."
¶6 When questioned by the court, K.A. said that he had seen Axton once or twice before but only recognized him after seeing his driver's license. K.A. told the court that when he saw Axton previously, he "oftentimes had what looked like breasts and wore female clothing." K.A. stated he did not directly interact with Axton and had only seen him in passing. The court asked K.A. if he held any bias against Axton or men who wear women's clothing, or if the recognition would affect his deliberations. K.A. answered that it would not affect his decision-making and mentioned the cross-dressing merely because it was unusual and out-of-place. However, after the court questioned K.A., another juror reported that K.A. had made disparaging comments and believed that K.A. could not remain impartial.
¶7 During the court's questioning, it came to light that an argument occurred between K.A. and G.M. over whether to inform the court that K.A. recognized Axton. Several jury members were frustrated by G.M.'s insistence on providing the information to the court. G.M. was the only juror who believed it was a problem the court needed to consider. When asked by the court about their frustrations, several jurors expressed that they were irritated because of the deliberations' delay.
¶8 One juror believed that G.M. could not remain impartial and told the court that G.M. had stated: "crossdressers or transgenders should not be allowed in society." No other juror reported hearing this comment, although a different juror told the court that they also believed G.M. could no longer be fair. Several jurors said that G.M. appeared either "distressed," "taken aback," or "shocked" when she learned Axton might have worn women's clothing. When asked their opinions about G.M.'s reaction, two jurors believed she only reacted because she was unfamiliar with the term cross-dressing and was surprised by it. One of those jurors believed G.M.'s reaction stemmed from a concern for the deliberations' fairness. After interviewing every juror, the court did not recall G.M. for further clarification. Because G.M. was interviewed first, the court did not have the opportunity to inquire about her alleged statement or reactions.
¶9 When the court individually questioned each juror, all 12 told the court that they were not personally biased or otherwise influenced by the possibility that Axton cross-dressed. Apart from the two jurors who expressed concerns about K.A.'s and G.M.'s fairness, the other jurors believed everyone could remain fair and unbiased.
¶10 After approximately half of the jurors were questioned by the court, Axton's counsel requested that both K.A. and G.M. be struck from the jury and replaced with the alternates. Axton's counsel stated he was more concerned about K.A. than G.M. but requested G.M. be removed after hearing her alleged statements. In the alternative, Axton's counsel requested a mistrial. Over the objections of the State, the Court struck K.A. from the jury.
¶11 After the juror questioning concluded, Axton's counsel again requested that G.M. be struck from the jury but stated he was "not necessarily inclined to request a mistrial at this point as long as [K.A.] is struck." The court said it wished to conduct some research on the issue and recessed without ruling. After the break, the court did not further address Axton's request to strike G.M. See State v. Hill, 174 Ariz. 313, 323 (1993) (); State v. Mendoza-Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012).
¶12 The court gave the parties a proposed reconstitution instruction for the jury. The instructions concerned only removing a single juror, K.A., and Axton's counsel did not object to the instruction.
¶13 The jury returned a guilty verdict on all counts, except for Count 8, the charge of attempted kidnapping. The jury further found thatthe aggravating circumstances alleged by the State were proven beyond a reasonable doubt. After a sentencing hearing, the court sentenced Axton to concurrent and consecutive terms of imprisonment totaling 63 years' imprisonment, with 494 days' presentence incarceration credit.
¶14 Axton appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1). Axton's appellate counsel filed a brief per Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she found no arguable question of law that was not frivolous. Counsel asked this court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75, 83 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). Axton filed a pro se supplemental brief. In his supplemental brief, Axton argued: (1) the court improperly admitted photographic evidence of the body armor and duct tape, (2) the jury was prejudiced against him, and (3) multiple witnesses for the state improperly used notes during oral testimony or testified falsely. After reviewing the record, we issued a Penson order requesting the parties to address whether the superior court violated Axton's right to an impartial jury or abused its discretion by declining to either further question or strike juror G.M. from the jury.
¶15 Axton does not challenge the photographs' admission but instead argues that because the actual body armor and duct tape were not admitted into evidence, the jury "decided on fact[s] not admitted into evidence." However, Arizona courts regularly rely on photographs of items in place of the items. See State v. Bouillon, 112 Ariz. 238, 240-41 (1975); State v. Raffaele, 113 Ariz. 259, 262 (1976); State v. Rose, 121 Ariz. 131, 141 (1978). So long as the proponent complies with the Arizona Rules of Evidence, a court may properly rely on photographic evidence. See Bouillon, 112 Ariz. at 241.
¶16 In this case, the photographs were admitted correctly under Arizona Rule of Evidence 901(b)(1), which allows for identifying evidence through witness testimony. State v. Haight-Gyuro, 218 Ariz. 356, 358, ¶ 9 (App. 2008). Officer Cassidy testified that he took the body-armor photographs and explained how each photo identified a different component, thus satisfying Rule 901(b)(1). Similarly, Officer Kinion identified the pictures as those he took of the duct tape found in Axton'struck. The photos of the body armor and duct tape were admitted...
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