State v. Bradley

• Decision Date: 03 September 2015
• Docket Number: No. 1 CA-CR 14-0229,1 CA-CR 14-0229
• Parties: STATE OF ARIZONA, Appellee, v. VANCE EDWARD BRADLEY, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. VANCE EDWARD BRADLEY, Appellant.

No. 1 CA-CR 14-0229

ARIZONA COURT OF APPEALS DIVISION ONE

September 3, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CR 2012-138001-001

The Honorable Hugh E. Hegyi, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Cory Engle

Counsel for Appellant

Vance Edward Bradley, Buckeye

Appellant

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.

DOWNIE, Judge:

¶1 Vance Edward Bradley appeals his conviction for possession or use of dangerous drugs (methamphetamine). Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record, found no arguable question of law, and asked that we review the record for reversible error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Bradley filed a supplemental brief in propria persona that we have considered. For the following reasons, we affirm, though we correct the minute entry from the sentencing hearing to reflect five historical felony convictions instead of six.

FACTS AND PROCEDURAL HISTORY¹

¶2 Officer Montoya was on patrol in a marked police vehicle when she noticed a Nissan with inoperable brake lights. She activated her squad car's lights and siren, but the Nissan did not stop. A second police unit pulled alongside the vehicle and motioned for the driver to pull over, which she did. Bradley was in the passenger seat.

¶3 Officer Montoya noticed the ignition had been "punched" and had a piece of metal protruding from it, which often indicates a stolen vehicle.² The officers asked the Nissan's occupants to step out of the vehicle. As Officer Montoya went to remove a utility knife that Bradley had on his person, Bradley reached for the knife and pulled away. As a result, Officer Montoya handcuffed him.

¶4 Officer Montoya obtained Bradley's consent to search him. She found "close to a thousand dollars" in cash in his pocket. When asked about the cash, Bradley stated, "I just got paid." As Officer Montoya was checking Bradley's information, he stated, "The cash is legit. . . . I got my check in my wallet. You can look." Officer Montoya removed Bradley's wallet from his pocket and saw a small baggie containing a substance she suspected to be methamphetamine. Officer Montoya said, "I found your meth," whereupon Bradley responded that he found the baggie on the floor of the car. When Officer Montoya related Bradley's explanation to the driver, she began yelling at him, and Bradley then said that he found the baggie on the ground.

¶5 Bradley was charged with one count of possession or use of dangerous drugs (methamphetamine), a class four felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-3407(A)(1). He filed a motion to suppress, arguing the officer lacked justification for reaching into his pocket. After an evidentiary hearing, the trial court denied the suppression motion.

¶6 Bradley failed to appear for his first trial, which ended in a mistrial. Approximately a month later, a second jury trial commenced — again in Bradley's absence. The jury returned a guilty verdict.

¶7 Bradley was subsequently apprehended on the bench warrant. The court held a consolidated status conference and sentencing hearing. Bradley made an oral motion to waive counsel and represent himself. The court recessed for just under an hour to give Bradley time to review a waiver of counsel form and then questioned Bradley about his request. Based on Bradley's responses, the court found that his waiver of counsel was not voluntary and denied it. Sentencing proceeded, with Bradley represented by counsel. The court sentenced Bradley to a mitigated term of seven years' imprisonment, with 236 days of presentence incarceration credit. Bradley timely appealed.

DISCUSSION

¶8 We have read and considered the briefs submitted by appellate counsel and Bradley and have reviewed the entire record. See Leon, 104 Ariz. at 299-300, 451 P.2d at 880-81. We find no reversible error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. The jury was properly impaneled and instructed. Thejury instructions were consistent with the offense charged. The record reflects no irregularity in the deliberation process.

I. Substantial Evidence

¶9 The record includes substantial evidence to support the jury's verdict. See State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981) (In reviewing for sufficiency of evidence, "[t]he test to be applied is whether there is substantial evidence to support a guilty verdict."). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial evidence "may be either circumstantial or direct." State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003).

¶10 The State was required to prove beyond a reasonable doubt that Bradley: (1) knowingly possessed or used a dangerous drug, and (2) the substance was in fact a dangerous drug. See A.R.S. §§ 13-3401(6), -3407(A)(1). Officer Montoya testified she retrieved the baggie at issue from Bradley's person, and the parties stipulated that the substance in the baggie tested positive for methamphetamine, a dangerous drug. The court read this stipulation to the jury.

II. Trial In Absentia

¶11 Under the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, Section 24, of the Arizona Constitution, a criminal defendant has a right to be present at trial. State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996); see also Ariz. R. Crim. P. 19.2 ("The defendant has the right to be present at every stage of the trial . . . ."). A defendant, however, may voluntarily relinquish that right. State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9, 953 P.2d 536, 539 (1998). A valid waiver depends on the voluntariness of the absence. Id. "The trial court may infer that a defendant's absence is voluntary if the defendant had personal knowledge of the time of the proceeding, his right to be present, and the warning that the proceedings would take place in his absence if he failed to appear." State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996).

¶12 Throughout the trial court proceedings, Bradley received warnings, both orally and in writing, that a failure to appear could result in the trial proceeding in his absence. For example, in a minute entry from a September 2012 pretrial conference, the court stated:

A defendant's failure to appear at the comprehensive pretrial conference, the final trial management conference or the trial may result in a bench warrant being issued for his or her arrest and the CPTC and trial being conducted in the defendant's absence.

At a hearing in October 2012, the court set a final trial management conference and trial dates and told Bradley: "[M]ake sure that you appear for those dates, otherwise a warrant will be issued for your arrest, and trial could go forward in your absence." At the suppression hearing in January 2013, the court warned Bradley:

[U]nless the case is dismissed you're expected back here March 11th and for trial on March 18th. If you fail to appear either day a warrant could be issued for your arrest. And if you fail to appear for the trial it could proceed in your absence. . . . Do you understand that[?]

[THE DEFENDANT]: Yes, sir I do.

¶13 Bradley failed to appear for a March 2013 pretrial hearing, where the following exchange took place:

THE COURT: And do you have any knowledge of why [Bradley] failed to appear [?]

[DEFENSE COUNSEL]: Judge, I saw him in the hallway earlier, we had a discussion with regard to the report from pre-trial services. And I had to go to two separate courts, I told him I would be back, and he's no longer in the hallway.

THE COURT: Okay. . . . I'm going to revoke the current release conditions but I'm going to affirm all the trial dates, the current dates [Bradley] has. He received notice of those when he was here March 11th.

¶14 Bradley also failed to attend an April 8, 2013 hearing, despite being present when it was set. Defense counsel stated that Bradley had been in contact with his office and counsel requested a continuance. The following exchange took place:

THE COURT: . . . The real question is whether the State would intend to try him in his absence.

[PROSECUTOR]: And the State would, Your Honor. Not at the last scheduled [trial management conference], but the one before that, you gave him an advisement on the record that went pretty in depth about what could happen if he failed to show up at the trial management conference. He was aware of that. Despite that fact, he hasn't shown up. The State is prepared to try him in absentia.

THE COURT: Okay. But is anybody concerned about notice issues if I were to . . . continue this. I just want to be clear on the record.

[PROSECUTOR]: And during that advisement, Your Honor, you made him aware that the trial date -- you made him aware of the trial date that was set and you told him . . . your defense attorney might have to continue that trial date and it's your responsibility to keep in touch and make sure you're updated of wherever the case is continued to and find out the new trial date. So that was told to the defendant on the record.

¶15 Under these circumstances, the trial court did not err by conducting the trial in absentia. See Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at...