State v. Camargo

• Decision Date: 29 October 2013
• Docket Number: 2 CA-CR 2011-0399
• Parties: THE STATE OF ARIZONA, Appellee, v. JOSEPH EDWARD CAMARGO, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JOSEPH EDWARD CAMARGO, Appellant.

2 CA-CR 2011-0399

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Filed: October 29, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20102732001

Honorable Howard Fell, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Alan L. Amann

Tucson

Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender

By Michael J. Miller

Tucson

Attorneys for Appellant

ESPINOSA, Judge.

¶1 After a jury trial, Joseph Camargo was convicted of possession of a deadly weapon by a prohibited possessor. The trial court found he had three prior felony convictions and sentenced him to a presumptive ten-year prison term. On appeal,Camargo argues the court abused its discretion by denying his motion to continue the trial date and fundamentally erred in failing to instruct the jury on the state's burden of disproving his justification defense. He also contends the state presented insufficient evidence to disprove that defense. For the following reasons, we affirm in part and vacate in part.

Factual Background and Procedural History

¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). One morning in July 2010, police officers responded to a 9-1-1 call reporting shots fired near a local park. The first officer to arrive at the park saw four individuals, including Camargo, congregated in the parking lot next to a blue sedan. Because of the shots fired-report, he directed Camargo to "get on the ground" and put his hands up. Instead, Camargo turned his back, prompting the officer to wrestle him to the ground, revealing a handgun in the waistband of Camargo's pants. After the officer removed the gun and placed it on the ground, Camargo said "[you] didn't find the gun on [me] . . . it was l[y]ing on the ground." Later, while he was being transported to the station, Camargo asked the officer "how come [you] couldn't just say [you] found the gun lying on the ground?"

¶3 After Camargo's prior felony convictions were discovered, he was charged with prohibited possession of a deadly weapon. He was convicted and sentenced as set forth above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Motion for Substitution of Counsel

¶4 Camargo first argues the trial court erred by denying his morning-of-trial requests to substitute counsel and continue the trial to allow his newly retained attorney time to prepare. His trial, initially set for June 2011, had been reset to August 9 on the state's motion. When the August 9 trial date was affirmed at a May 23 hearing, Camargo did not indicate any desire or plans to change counsel. The morning of trial, however, he filed a notice stating that the Roach Law Firm, LLC, would be replacing the Pima County Legal Defender as his counsel. This notice was accompanied by a request for a continuance of the trial date "to allow counsel to prepare for trial." After a brief hearing, the court denied the motion for substitution and corresponding motion to continue.

¶5 Because the attorney Camargo had retained was unprepared to go forward with the trial as scheduled, Camargo's request for new counsel was inextricably linked to his motion to continue the trial. Thus, while this argument may implicate his constitutional right to counsel, it is premised on the court's decision to deny the motion for a continuance, which will not be reversed absent an abuse of discretion. See State v. Hein, 138 Ariz. 360, 368, 674 P.2d 1358, 1366 (1983) (applying abuse of discretion standard where defendant requested new representation on morning of trial); State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990) (abuse of discretion standard applied to denial of continuance that implicated constitutional right to counsel).

¶6 "'[A]n indigent criminal defendant possesses rights under the Sixth Amendment [of the United States Constitution] and Article 2, Section 24 [of the Arizona Constitution], to choose representation by non-publicly funded private counsel . . . .'"

State v. Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d 1259, 1261 (App. 2009), quoting Robinson v. Hotham, 211 Ariz. 165, ¶ 16, 118 P.3d 1129, 1133 (App. 2005) (alterations in Aragon). Nevertheless, this right "is not absolute, but is subject to the requirements of sound judicial administration." Hein, 138 Ariz. at 369, 674 P.2d at 1367. Consequently, "[a] trial court has 'wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.'" Aragon, 221 Ariz. 88, ¶ 5, 210 P.3d at 1261, quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). In weighing these competing interests, courts consider

whether other continuances were granted; whether the defendant had other competent counsel prepared to try the case; the convenience or inconvenience to the litigants, counsel, witnesses, and the court; the length of the requested delay; the complexity of the case; and whether the requested delay was for legitimate reasons or was merely dilatory.

Hein, 138 Ariz. at 369, 674 P.2d at 1367.

¶7 The trial court evaluated the Hein factors on the record and concluded that a continuance was not warranted under the circumstances. Specifically, the court briefly recited the case history, identifying prior continuances, and then stated:

Subpoenas have gone out, writs have been issued and the jury is ready down in the jury room waiting for the trial and I don't have any reason to continue this trial.

The Aragon case that you cited whether a continuance is granted when the defendant has other competent trial counsel, which he does, who is prepared to try the case today. It is inconvenient to the litigants and the witnesses and to the Court. This is not a complex case, nevertheless, I don't see any reason to delay it.

Camargo takes issue with the court's analysis, arguing it accorded undue weight to the second factor of the Hein analysis based on an erroneous interpretation of this court's decision in Aragon. 221 Ariz. 88, ¶ 6, 210 P.3d at 1261-62. We disagree, however, with Camargo's assertion that the trial court viewed the availability of counsel as "the controlling factor in Aragon." To the contrary, it appears the court mentioned Aragon during its discussion of the relevant factors because it was referring directly to Camargo's motion to continue, which spelled out the Hein criteria but cited Aragon as authority for their application. Accordingly, the court's reference to Aragon does not demonstrate undue emphasis on a single factor but rather, suggests that all applicable factors were properly identified and weighed.

¶8 Camargo next argues the trial court erred in finding inconvenience to the witnesses because the state's witnesses were police officers and his own witnesses all resided within the state. Again citing Aragon, id., he appears to suggest the interests of such witnesses should be disregarded absent specific evidence of inconvenience. But in Aragon, the request for a continuance was made six days before trial,¹ and the impact of any scheduling change could have been alleviated by the "'juggl[ing of] calendars'" alluded to in that decision. Id. ¶¶ 2, 6. Here, the request was made the morning trial wasset to begin, when at least two witnesses were already standing by to testify.² Because this distinction has a significant impact on the level of inconvenience posed by the requested continuance, Aragon does not compel a finding that only the interests of out-of-state, non-law enforcement witnesses could be considered by the court.

¶9 Moreover, Camargo's proposed rule disregards the practical realities of criminal trials, which principally feature testimony from local law enforcement personnel, eyewitnesses to a local crime, and persons related in some way to a resident defendant. If courts only incorporated the interests of non-law enforcement witnesses traveling from out of state, the third factor identified by our supreme court in Hein, 138 Ariz. at 369, 674 P.2d at 1367, would be inoperative in the majority of cases.

¶10 Camargo also contends the trial court improperly discounted his request for new counsel when it stated it saw no reason to grant a continuance. While we acknowledge the importance of the Sixth Amendment right to counsel of one's choice, see Aragon, 221 Ariz. 88, ¶ 4, 210 P.3d at 1261, we also recognize the trial court is better positioned to balance a request for new counsel against concomitant delay and inconvenience because it is "the only unbiased party in a position to observe the proceeding," Hein, 138 Ariz. at 368, 674 P.2d at 1366. Moreover, "'if in the sound discretion of the court, the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the judge may compel a defendant to proceedwith designated counsel.'" State v. Miller, 111 Ariz. 321, 322, 529 P.2d 220, 221 (1974), quoting Lofton v. Procunier, 487 F.2d 434, 435 (9th Cir. 1973).

¶11 Contrary to Camargo's assertions, that the court concluded it saw no need for further delay does not suggest it failed to balance all of the interests involved, including Camargo's. And the court was free to tacitly find, based on Camargo's failure to make his request until the morning of trial—and failure to raise the issue at any point earlier, when inconvenience to the court and witnesses could have been greatly reduced—that Camargo's right to counsel of his choice was entitled to less weight as a result of...