State v. Green
| Decision Date | 22 February 2018 |
| Docket Number | No. 1 CA-CR 16-0380,1 CA-CR 16-0380 |
| Parties | STATE OF ARIZONA, Appellee, v. KEISHAUN GREEN, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
The Honorable Pamela S. Gates, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Michael J. Brown delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.
¶1 Keishaun Green appeals from his convictions and sentences for first-degree felony murder and attempted armed robbery. Green challenges the sufficiency of the evidence supporting the convictions and argues the trial court erred by (1) failing to make findings for use of restraints at trial, (2) admitting a video in which he was wearing jail clothing, (3) admitting testimony that he appeared to be considering fleeing from police, and (4) refusing to give a third-party culpability instruction. For the reasons that follow, we affirm.
¶2 The convictions stem from the fatal shooting of a clerk at a convenience store. At trial, the State presented evidence that Green entered the store, walked to the counter, and within seconds, shot the clerk and fled without taking anything. There were no witnesses to the shooting, but surveillance video cameras recorded the entire incident. The quality of the video was poor, but the police linked Green to the shooting after he was found in possession of a handgun that matched the bullet used to kill the victim. During further investigation, a friend of Green informed the police that Green showed him a picture of the shooter from the surveillance video that had been broadcast on television and admitted that he was the person who shot the victim.
¶3 Green was indicted on charges of first-degree felony murder, a class 1 felony, and attempted armed robbery, a class 3 felony, both dangerous offenses. A jury convicted Green on both counts as charged. The trial court sentenced Green to natural life on the murder conviction, tobegin upon release in CR2013-428030-001, and to a concurrent presumptive 7.5-year prison term on the conviction for attempted armed robbery. Green timely appealed.
¶4 Green contends the evidence was insufficient to support his convictions. Specifically, he asserts there was no evidence on the element of intent with respect to the offense of attempted armed robbery, which served as the predicate offense for the felony murder. We review claims of insufficient evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
¶5 In considering claims of insufficient evidence, this court's review is limited to whether substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138 (1993); see also Ariz. R. Crim. P. 20(a) (). Substantial evidence is evidence, viewed in the light most favorable to sustaining the verdict, from which a reasonable person could find a defendant guilty beyond a reasonable doubt. State v. Roseberry, 210 Ariz. 360, 368-69, ¶ 45 (2005).
¶6 A person commits armed robbery if, while taking property from the presence of another against his will, such person is armed with a deadly weapon and threatens or uses force with the intent to coerce the surrender of property or to prevent resistance. Ariz. Rev. Stat. ("A.R.S.") §§ 13-1902(A), -1904(A). As applicable here, a person commits attempt if, acting with the kind of culpability otherwise required for the commission of an offense, the person intentionally does or omits to do anything which is any step in a course of conduct planned to culminate in the commission of the offense. Id. § 13-1001(A)(2). Green challenges the sufficiency of the evidence on the issue of his intent to take property, arguing that, at best, the evidence showing he took nothing made the question of his intent ambiguous and speculative.
¶7 A defendant's mental state "will be rarely provable by direct evidence." State v. Noriega, 187 Ariz. 282, 286 (App. 1996). Thus, a jury "will usually have to infer it from his behaviors and other circumstances surrounding the event." Id.; see also State v. Routhier, 137 Ariz. 90, 99 (1983) (); State v. Ramos, 133 Ariz. 4, 6 (1982) (). Here, viewed in its entirety, the evidence permits a finding beyond a reasonable doubt thatGreen had the requisite intent to commit armed robbery when he entered the store and pointed the handgun at the clerk.
¶8 First, the video depicts Green's actions in entering the store and exhibiting a weapon all completely consistent with a person intending to commit an armed robbery. See State v. VanWinkle, 230 Ariz. 387, 392, ¶ 16 (2012) (). Second, there was testimony that Green was in need of money, thereby establishing a financial motive for an attempted robbery. Third, evidence was presented that the victim laughed at Green when he displayed the handgun, which provides an explanation why he shot the clerk and fled without continuing with his attempt to coerce money from the clerk. Finally, the trial record lacks any alternative explanation for Green's actions in the store other than a failed attempted robbery. Cf. State v. Williams, 166 Ariz. 132, 139-40 (1987) ().
¶9 The fact that Green decided to flee without taking anything is what reduces the offense to an attempt; it does not preclude a finding that he had the intent to commit an armed robbery. See State v. Nash, 143 Ariz. 392, 404 (1985) (). We therefore conclude that there was sufficient evidence of Green's intent to support the jury's verdicts.
¶10 Green argues the trial court erred when it failed to make specific factual findings before permitting the sheriff's office to restrain him with a stun belt and leg braces at trial. Green made a pretrial objection to the use of any restraints at trial, noting the sheriff's office has a blanket policy that requires an in-custody inmate to wear a leg brace and stun belt. Citing Deck v. Missouri, 544 U.S. 622 (2005), Green argued that use of restraints was unconstitutional and that the leg brace and stun belt would interfere with his colostomy bag. The trial court overruled the objection after confirming with Green that the restraints employed by the sheriff's office did not interfere with his colostomy bag.
¶11 "Matters of courtroom security are left to the discretion of the trial court." State v. Davolt, 207 Ariz. 191, 211, ¶ 84 (2004). A trial courtabuses its discretion, however, in allowing visible restraints at trial in the absence of a particularized inquiry into their necessity. Deck, 544 U.S. at 629; State v. Gomez, 211 Ariz. 494, 502-03, ¶¶ 40-41 (2005). Reversal is required for a Deck violation unless the State can prove beyond a reasonable doubt harmless error. Deck, 544 U.S. at 635.
¶12 No claim was made in the trial court or on appeal that the restraints used were visible to the jury. Absent a showing that the jury was aware of the use of the restraints, no basis exists for reversal. See State v. Dixon, 226 Ariz. 545, 552, ¶¶ 28-31 (2011).
¶13 On appeal, Green expands his objection to the use of restraints to include claims that use of a stun belt poses risks of interfering with a defendant's right to counsel, interfering with a defendant's right to be present and meaningfully participate at trial, and chilling a defendant's due process right to testify on his own behalf. None of these claims regarding use of a stun belt were raised below. Consequently, appellate review of these claims has been forfeited except for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2011). Under this standard of review, Green bears the burden of establishing the existence of both fundamental error and resulting prejudice. Id. at 567, ¶ 20.
¶14 For an error to be "fundamental," a defendant "must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. at 568, ¶ 24. The record is devoid of any indication that use of the stun belt at trial had any effect on Green's ability to assist his counsel, or impacted his rights to be present or to testify at trial. Because the record lacks any indicia that the concealed restraints influenced the trial in any manner, Green has failed to meet his burden of establishing fundamental error. See Dixon, 226 Ariz. at 551-52, ¶¶ 26, 29-31 (unseen restraints did not violate defendant's right to a fair trial and order requiring their use without adequate inquiry did not constitute fundamental error).
¶15 Green argues the trial court erred in admitting a video of a detective questioning him while he was wearing jail clothing. He contends admission of the video was unfairly prejudicial and violated his right to the...
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