State v. Harold
| Decision Date | 14 February 2014 |
| Docket Number | No. 2 CA-CR 2012-0316,2 CA-CR 2012-0316 |
| Parties | THE STATE OF ARIZONA, Appellee, v. KEITHEN RAY HAROLD JR., Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
By Scott A. Martin, Assistant Legal Defender, Tucson
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
¶1 After a jury trial, Keithen Harold Jr. was convicted of one count of sexual assault. The trial court sentenced him to an enhanced, presumptive prison term of 10.5 years. On appeal, Harold argues that his speedy trial rights were violated. He further contends the court erred by failing to preclude the testimony of an expert witness, denying his request for a Willits instruction,1 refusing to allow him to impeach a witness with a prior conviction, and denying his motion for a mistrial based on improper closing arguments by the prosecutor. For the reasons stated below, we vacate the criminal restitution order but otherwise affirm Harold's conviction and sentence.
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdict. State v. Boozer, 221 Ariz. 601, ¶ 2, 212 P.3d 939, 939 (App. 2009). In December 2001, then sixteen-year-old L.C. saw two men in a parked car "trying to get [her] attention" as she walked to work from her apartment. L.C. approached the car and asked for a cigarette. The passenger, Harold, who introduced himself as "KiKi," pulled out a brown vial that he said contained "water" and asked if she would like some on her cigarette. Suspecting that "water" was a drug, L.C. asked about its effects. Harold told her it was "like marijuana" and the effects would last between twenty and thirty minutes. L.C. agreed and got in the back seat of the car. After smoking the cigarette, L.C. felt "disorientated [sic]" and "woozy."
¶3 As the other man drove the vehicle, Harold climbed into the back seat. The driver eventually stopped the car on a deadend street and both men took turns sexually assaulting L.C. Afterwards, L.C. was driven back to her apartment. On the way, Harold asked L.C. for her telephone number.
¶4 When she arrived at her apartment, L.C. told her older sister, L.G., what had happened, and her sister called 9-1-1. After officers arrived, a man who identified himself as "KiKi" telephoned L.C. Officers recorded the name and telephone number listed on the telephone's caller identification display. That evening, a nurse collected biological samples from L.C., including DNA2 evidence of the sexual assault and a urine sample.
¶5 Later that same month, the Tucson Police Department Crime Laboratory analyzed the samples taken from L.C. and confirmed the presence of semen on the vaginal swabs. In April 2002, a DNA analysis of the samples showed "a single source unknown male DNA profile." The detective assigned to the case interviewed potential suspects, but by December 2002 the case remained unsolved and the investigation was closed "pending a DNA hit."3 In March 2010, a Tucson Police detective obtained a DNA sample from Harold that revealed a profile that matched the profiles developed from the swabs taken from the victim.
¶6 Harold was indicted for sexual assault on July 11, 2011. The state introduced expert testimony linking Harold to the DNA evidence recovered after the sexual assault and showing that the urine sample from L.C. may have contained traces of phencyclidine (PCP). The jury found Harold guilty, and the trial court sentenced him 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).
¶7 On appeal, Harold first argues the trial court violated his right to a speedy trial pursuant to Rule 8, Ariz. R. Crim. P., and the United States and Arizona Constitutions by granting the state's motion for a continuance so that the DNA and toxicology analyses of the samples collected in 2001 could be completed. "The decision on a motion for continuance is committed to the discretion of the trial court, and we will not disturb that decision on appeal absent a showing of a clear abuse and resulting prejudice." State v. Cook, 172 Ariz. 122, 125, 834 P.2d 1267, 1270 (App. 1992). We review all constitutional questions de novo. State v. Nichols, 219 Ariz. 170, ¶ 9, 195 P.3d 207, 211 (App. 2008); see also State v. Parker, 231 Ariz. 391, ¶ 8, 296 P.3d 54, 61 (2013).
¶8 Harold was arraigned on July 28, 2011. Therefore, under Rule 8.2(a)(1) his trial was required to be held within 150 days, or by December 25. At a pre-trial conference on October 14, the trial court set a November 15 trial date. Ten days after the pre-trial conference, the state filed a motion to continue the trial, informing the court that "outstanding laboratory work . . . need[ed] to be completed by both the Tucson Police Department [(TPD)] Crime Lab and the Department of Public Safety [(DPS)] Crime Lab, and the results of these analyses [we]re necessary for the State's case-in-chief." The motion was supported by affidavits from both laboratories. The affidavit from TPD stated that the analyst who had conducted the original DNA testing "no longer work[ed] for [TPD] and as a result, additional time of 90 days [wa]s required to complete all scientific retesting of evidence." The DPS affidavit stated that the urine sample had been submitted to that laboratory for toxicology analysis on October 12, 2011, and it needed until January 31, 2012, to complete its toxicology testing. Over Harold's objection, the trial court granted the motion and reset the trial for March 20, 2012.4
¶9 Rule 8.2(a)(1) provides that an in-custody defendant, like Harold, must be brought to trial within 150 days of his arraignment. A delay is permitted, however, if a party demonstrates "extraordinary circumstances exist and that delay is indispensable to the interests of justice."5 Ariz. R. Crim. P. 8.5(b). If a trial court grants a continuance because of extraordinary circumstances, it must state the specific reasons for its decision on the record, State v. VanWinkle, 230 Ariz. 387, ¶ 8, 285 P.3d 308, 311 (2012), and should delay the case no longer than "necessary to serve the interests of justice," Ariz. R. Crim. P. 8.5(b).
¶10 Harold argues that the trial court "did not make the mandatory findings of 'specific reasons' that were extraordinary circumstances." Harold did not raise this argument below. Therefore, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Furthermore, because he does not argue on appeal that the error is fundamental, and, because we find no error that can be so characterized, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) ().6
¶11 Harold next contends the trial court erred by finding extraordinary circumstances existed to continue his trial under Rule 8.5(b). He claims the state "essentially conceded that [it] was inexplicably tardy in conducting the lab work necessary for its prosecution." Harold points out that the state had a "DNA hit" linking him to the crime in 2005 and another in 2010, "[y]et the State did not submit its request to the DPS crime lab to conduct toxicology analysis until October 12, 2011, almost 3 months after seeking [his] indictment."
¶12 First, Harold did not argue below and does not argue on appeal that his prosecution should be dismissed due to pre-indictment delay. And, the speedy trial rights afforded under Rule 8 do not begin to run until a defendant has been arraigned. Ariz. R. Crim. P. Rule 8.2(a)(1). "Our courts have consistently held that speedy trial rights do not attach under either our constitution or under the procedural rules enacted to implement the constitutional provisions until a prosecution is commenced or a defendant is held to answer." State v. Lemming, 188 Ariz. 459, 461, 937 P.2d 381, 383 (App. 1997). The Rules of Criminal Procedure explicitly acknowledge and provide the parties have a continuing duty to make additional disclosure "whenever new or different information subject to disclosure is discovered," Ariz. R. Crim. P. 15.6(a), afterthe initial disclosure period, see Ariz. R. Crim. P. 15.1(a)-(c).7Therefore, even though the rules assume that "in most cases scientific evidence will be ready within normal time limits," Snyder v. Donato, 211 Ariz. 117, ¶ 22, 118 P.3d 632, 637 (App. 2005) (internal quotation omitted), they do not require testing of all evidence to be completed and compiled before a defendant is indicted, as Harold seems to suggest.
¶13 Relying on State v. Heise, 117 Ariz. 524, 573 P.2d 924 (App. 1977), Harold nevertheless argues, "the fact that the State waited until the eve of . . . trial . . . to submit for laboratory testing a urine sample it had possessed for 10 years is not an 'extraordinary circumstance' for Rule 8.5(b) purposes." In Heise, the parties stipulated to extend the time for trial for thirty days. 117 Ariz. at 524, 573 P.2d at 924. The trial court issued a minute entry setting a trial date, then, on the court's own...
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