State v. Dunbar
| Decision Date | 29 April 2020 |
| Docket Number | No. 2 CA-CR 2018-0064,2 CA-CR 2018-0064 |
| Citation | 465 P.3d 527,249 Ariz. 37 |
| Parties | The STATE of Arizona, Appellee, v. Kevin DUNBAR, Appellant. |
| Court | Arizona Court of Appeals |
¶1 After a jury trial, Kevin Dunbar was convicted of attempted first-degree murder, aggravated assault with a deadly weapon, kidnapping, and possession of a deadly weapon by a prohibited possessor. He now appeals, contending he was denied the right to self-representation, insufficient evidence supported his kidnapping conviction, he was entitled to an in camera review of the victim's mental health records, and the trial court committed various errors in giving and rejecting certain jury instructions and at sentencing. We affirm Dunbar's convictions, but vacate his sentences and remand for resentencing on all counts because counts one, two, and five were improperly enhanced, counts two and three were improperly aggravated, and counts one and two were improperly imposed consecutively.
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. See State v. Allen , 235 Ariz. 72, ¶ 2, 326 P.3d 339 (App. 2014). Dunbar and R.W. were dating, and they lived together for a few weeks in R.W.’s condominium in Tucson. After R.W. ended the relationship and Dunbar had moved out, he repeatedly continued to contact her. When R.W. returned from work one day, she saw an unfamiliar car in her apartment complex. Rather than parking in her normal spot, she backed her car into a spot on the other side of the parking lot. As R.W. was collecting her belongings, she noticed Dunbar driving towards her.
¶3 After asking Dunbar what he was doing at the complex, R.W. got back into her car and telephoned 9-1-1. Meanwhile, Dunbar pulled his car in front of hers, blocking her escape. Dunbar approached the car and indicated he wanted to talk with R.W. She refused and told him she would not talk with him until he unblocked her car. Dunbar returned to his car and moved it slightly, but it continued to block R.W.’s. While Dunbar was back at his car, R.W. saw him doing something, but was unsure what it was. Dunbar returned to talk to R.W. and asked if she was mad at him and hated him; R.W. responded that she did. In response, Dunbar fired a gun multiple times into R.W.’s car hitting her in the arm, stomach, and thigh. Dunbar walked away toward his car and then turned around and fired another shot into the front windshield grazing R.W.’s head. Dunbar left the apartment complex in his car, which he had rented the day before, and tossed the gun he had used in a garbage can. The rental car was returned to a self-service location in Alabama, and the police arrested Dunbar three months later in New York.
¶4 A grand jury indicted Dunbar for attempted first-degree murder, possession of a deadly weapon by a prohibited possessor, kidnapping, and two counts of aggravated assault. A jury found him not guilty of one count of aggravated assault, but convicted him of the remaining counts. The trial court sentenced him to concurrent and consecutive terms of imprisonment totaling thirty-seven years, and Dunbar timely appealed. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033(A)(1).
¶5 Before trial, Dunbar elected to represent himself, and the trial court appointed an attorney to act in an advisory capacity after advising him of the seriousness of the charges and the dangers and disadvantages of self-representation. Dunbar filed several pretrial motions while representing himself and was granted multiple continuances to become familiar with his case and litigate his motions.
¶6 At a hearing almost a year after Dunbar elected to represent himself, his advisory attorney indicated Dunbar might want to be represented by an attorney. Dunbar agreed but then asked a question about special actions. The court accepted the attorney's suggestion to discuss Dunbar's representation at the next hearing, but asked the attorney to file a notice beforehand if Dunbar decided to have her represent him. At the next hearing, the advisory attorney asked Dunbar to clarify, on the record, whether he wanted her to take over as lead counsel.1 Dunbar indicated he wanted her to represent him after he received the results of the special action he had filed. The court warned Dunbar "[w]e can't come to one hearing and say one thing and then change our mind and come back and do it differently." The court allowed Dunbar to represent himself, and after litigating some motions during that hearing, Dunbar claimed his right to represent himself was being infringed because he "never surrendered [his] Faretta rights."2 The court clarified that Dunbar had previously surrendered his Faretta rights and then allowed Dunbar to continue to represent himself.
¶7 At the start of the next hearing, Dunbar's advisory attorney indicated it was her understanding that Dunbar wanted her to take over as lead counsel because two special actions he had filed had been decided. After addressing some of Dunbar's concerns, the court appointed the advisory attorney as lead counsel with no objection from Dunbar. After the advisory attorney discussed with the court the potential witness list for the defense, Dunbar interjected and said he had more concerns. The following exchange then occurred:
After a brief recess, the court asked Dunbar what his final answer was. Dunbar said he was "proceeding pro-se," and the court warned him, "I'm not going to do this dance with you again so you're going to have to live with your decision." Dunbar replied, "Yeah."
¶8 Less than a week later, Dunbar filed a motion, prepared by the advisory attorney and signed by her and Dunbar, waiving his right to self-representation and requesting re-appointment of counsel. The motion stated:
The court granted the motion, appointed advisory counsel as lead counsel, and indicated it would not accept filings other than those filed by the attorney, including motions Dunbar had personally submitted after filing his waiver of self-representation.
¶9 On the morning of trial, before a jury had been empaneled, Dunbar attempted to raise another motion on his own behalf. The trial court told Dunbar it would not consider his pro se motions because he was represented by counsel. The following exchange occurred:
After further discussion, Dunbar decided to remain in the courtroom.
¶10 On appeal, Dunbar argues the trial court committed structural error by denying his request to represent himself on the morning of trial. Specifically, Dunbar claims the trial court was required to conduct a colloquy to ascertain whether he was making a valid waiver of the right to counsel because his waiver of right to counsel was timely and unequivocal. The denial of a defendant's motion for self-representation is reviewed for abuse of discretion, but the erroneous denial of self-representation at trial is structural error. State v. McLemore , 230 Ariz. 571, ¶ 15, 288 P.3d 775 (App. 2012). In the limited number of cases where structural error occurs, "we automatically reverse the guilty verdict entered." State v. Ring , 204 Ariz. 534, ¶ 45, 65 P.3d 915 (2003).
¶11 "The right to counsel under both the United States and Arizona Constitutions includes an accused's right to proceed without counsel and represent himself." State v. Lamar , 205...
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State v. Dunbar
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