State v. Greer

• Decision Date: 13 April 2020
• Docket Number: No. 2 CA-CR 2018-0080,2 CA-CR 2018-0080
• Parties: THE STATE OF ARIZONA, Appellee, v. GLENN R. GREER, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. GLENN R. GREER, Appellant.

No. 2 CA-CR 2018-0080

ARIZONA COURT OF APPEALS DIVISION TWO

April 13, 2020

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pinal County

No. S1100CR201503228

The Honorable Lawrence M. Wharton, Judge Pro Tempore

AFFIRMED AS CORRECTED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

Rosemary Gordon Pánuco, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

VÁSQUEZ, Chief Judge:

¶1 After a jury trial, Glenn Greer was convicted of conspiracy to commit first-degree murder, assisting a criminal street gang, knowingly supplying a firearm to another person to be used in the commission of a felony, and possessing a firearm while a prohibited possessor. The trial court sentenced him to consecutive and concurrent prison terms, the longest of which is life without the possibility of release on any basis for twenty-five years. On appeal, Greer argues the court violated his right to an impartial jury by denying his motions for a mistrial and for a new trial. Greer also argues the court violated his right to a speedy trial "when it failed to dismiss his case for a violation of the time limits" as he "was not brought to trial within the 270-day time frame for a complex case" and "was held more than 26 months pre-trial." Last, Greer argues that we should correct the sentencing minute entry because it conflicts with the court's oral pronouncement at the sentencing hearing. For the reasons stated below, we affirm Greer's convictions and sentences as corrected.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences in the light most favorable to affirming Greer's convictions. See State v. Duffy, 247 Ariz. 537, ¶ 2 (App. 2019). In 2014, Greer was incarcerated in the Arizona Department of Corrections (ADOC) and was on "probate status" with the Arizona Aryan Brotherhood (AAB) gang. Before his release, Greer's status "was revoked," but he maintained contact with the AAB. That same year, an AAB member, David Bounds, while incarcerated, wanted to kill a prosecution witness in his upcoming first-degree murder trial. He recruited Eric Olson, an AAB member who had been released from prison, to kill the witness, and directed another inmate Larry Wilson, upon his release, to assist Olson and "make sure that [the] murder took place." Bounds also told Wilson that Greer would be "in place" and "could line [Wilson] up with any guns or anything that [he] needed." Unbeknownst to Bounds, Wilson was cooperating as an informant with the Correctional Intelligence Task Force with ADOC.

¶3 After his release in May 2015, Wilson met with Greer, who had also been released, to obtain a firearm to kill the witness. Wilson was also to determine Greer's "mindset" regarding "[w]hether or not he wanted to regain his status within the [AAB] organization" as a "patch member" by participating in the homicide. After the meeting, Wilson gave the firearm he had obtained from Greer to law enforcement.

¶4 A grand jury indicted Greer for conspiracy to commit first-degree murder, assisting in a criminal street gang, knowingly supplying a firearm to another person with knowledge that the firearm would be used in the commission of a felony, and possessing a firearm while a prohibited possessor. Greer was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Denial of Right to Impartial Jury

¶5 Greer argues "[t]he trial court violated [his] Sixth and Fourteenth Amendment rights to an impartial jury by denying his motion for a mistrial" and his motion for a new trial. "We review the denial of a motion for mistrial and a denial of a motion for new trial for an abuse of discretion," State v. Mills, 196 Ariz. 269, ¶ 6 (App. 1999), including motions made on constitutional grounds, see State v. Lehr, 277 Ariz. 140, ¶ 43 (2011) (reviewing denial of motions based on Sixth Amendment right to a fair and impartial jury).

¶6 During voir dire, conducted in Greer's presence, prospective jurors were asked to state their names, residences, employment, and details about their family. Later, a gang specialist with the Correctional Intelligence Task Force testified that AAB members gather information to "target" and kill people on behalf of the AAB. The next morning, two jurors submitted notes to the trial court, one anonymously and the other signed by Juror 13, expressing concerns about juror safety. One of the notes explained there had been conversations among some of the jurors regarding their safety.

¶7 The trial court determined that going forward, jurors would be identified by number instead of name and that the voir dire transcripts would be sealed. The court also reviewed the notes Greer had made during voir dire, confirmed he had not removed them from the courtroom, and notified the jury of the precautions it had taken as it questioned the jurors individually outside of Greer's presence. Nine of the jurors revealed there had been discussions about safety concerns, yet each juror assured the courtthat they could be fair and impartial or were otherwise unconcerned. Specifically, Juror 13 expressed satisfaction with the court's measures, and further stated, "[a]s long as everything is wiped and sealed, that's fine."

¶8 Greer moved for a mistrial arguing that the jurors had violated the trial court's admonition to not discuss the case and "[t]his whole jury panel has been polluted." Greer claimed, "The[ jurors'] interpretation of fair and impartial at this point is get the case over, we[ wi]ll get this guy, and we[ wi]ll convict him and send him off, and we[ wi]ll cross our fingers and hope that he does[ not] send his friends after us." The court denied the motion stating that "all 14 [jurors] said that they could be fair and impartial" and "any discussions that may have been had had absolutely nothing to do with the issue that bear[s] on their ultimate role as jurors." Greer renewed his motion the next day of trial, arguing the state "developed in great length" through testimony "what the Aryan Brotherhood could and would do to you" and "[the court] simply can[not] remove that taint." Greer further maintained that the jury must have thought, "We convict him on all these things. Based on what we[ ha]ve heard, he[ is] going to go away for a long, long time, and we [will not] have to worry about him" and therefore they were "tainted." The court again denied the motion.

¶9 When trial resumed, the evidence presented by the state included testimony regarding Greer's violent history and that he had sent a note to AAB members warning of Wilson's cooperation with ADOC. At the trial's conclusion, two alternate jurors were chosen, Juror 5 and Juror 12, and only the twelve remaining jurors participated in deliberations. The author of one of the notes—Juror 13—and potentially the author of the anonymous note participated in deliberations.

¶10 Following his conviction, Greer filed a motion for a new trial, arguing he "was denied due process and denied a fair trial." Specifically, Greer claimed that "Jurors discussing being afraid of the defendant and whether their personal safety was in jeopardy prior to deliberations is juror misconduct, and as a result, a new trial is warranted."¹ The trial court denied the motion.

Motion for a Mistrial

¶11 On appeal, Greer argues the trial court erred by denying his motion for a mistrial because the jurors "discuss[ed] their fears" and in turn "discuss[ed] the testimony," and the court "did[ not] make a sufficient inquiry into whether the jurors could really be fair and impartial," which "deprive[d] . . . [him] of his Sixth and Fourteenth Amendment right to a fair trial before an unbiased and impartial jury." Quoting Arizona v. Washington, 434 U.S. 497, 513 (1973), he further argues the court erred in not granting a mistrial because its protective "measures [would] 'not necessarily remove the risk of bias.'"

¶12 "A declaration of a mistrial . . . is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Moody, 208 Ariz. 424, ¶ 126 (2004) (quoting State v. Dann (Dann I), 205 Ariz. 557, ¶ 43 (2003)). A trial court is in the best position to assess the responses of the jurors when questioned about impartiality and misconduct. See Stafford v. Burns, 241 Ariz. 474, ¶ 22 (App. 2017) ("[T]he trial court is in the best position to determine the effect, if any, of a juror's misconduct . . . ."); State v. Blackman, 201 Ariz. 527, ¶ 13 (App. 2002) ("Because the trial court has the opportunity to observe prospective jurors first hand, the trial judge is in a better position than are appellate judges to assess whether prospective jurors should be allowed to sit."); see also State v. Burns, 237 Ariz. 1, ¶ 110 (2015) ("A trial court has broad discretion in selecting methods to detect and protect against potential juror bias."). Additionally, not every violation of the admonition to not discuss the case automatically disqualifies a juror or jury. See State v. Trostle, 191 Ariz. 4, 13-14 (1997); see also State v. Arvallo, 232 Ariz. 200, ¶ 8 (App. 2013) (explaining that juror who expresses opinion about defendant's guilt or innocence prior to close of evidence before "trial is completed may nevertheless continue to hear the case as long as that juror keeps an open mind and retains a willingness to alter the opinion after hearing all of the evidence"); see also State v. Dann (Dann III), ...