State v. Lujan
| Decision Date | 24 August 1995 |
| Docket Number | Nos. 1,CA-CR,s. 1 |
| Citation | 911 P.2d 562,184 Ariz. 556 |
| Parties | STATE of Arizona, Appellee, v. Daniel LUJAN, Appellant. 94-0168, 1 94-0169. |
| Court | Arizona Court of Appeals |
Daniel Lujan (defendant) appeals the trial court's revocation of his probation and imposition of a four-year sentence on one count of attempted second-degree burglary. He also appeals his conviction and seventeen-year sentence on one count of kidnapping, contending that the trial court abused its discretion by refusing to strike the jury panel and that his sentence constitutes cruel and unusual punishment under the United States and Arizona Constitutions. We affirm.
At age sixteen, defendant was transferred to superior court for prosecution as an adult and charged by indictment with second-degree burglary, a class 3 felony. Eventually, he pled guilty to attempted second-degree burglary, a class 4 felony, and was placed on probation for four years.
On Halloween night of 1992, approximately six weeks after defendant was placed on probation, he was involved in another incident. Robert, the thirteen-year-old victim, was riding on the handlebars of his friend's bike when defendant and another person yelled at them, causing Robert's friend to stop the bike. Robert jumped off the handlebars, and defendant grabbed Robert from behind in a "bear hug" and dragged him against his will to a nearby house. The house belonged to Ernestine Guillen, and apparently a party was taking place. After defendant knocked on the door, Julio Carmelo opened it and told defendant to bring Robert inside. Carmelo, who was Ernestine's fiance and knew Robert prior to this incident, then called Ernestine's younger brother, Boxer, into the house.
Once inside the house, defendant released Robert. Despite the presence of other persons, including small children, defendant and two or three others proceeded to surround Robert. Defendant said, Robert's mouth was shaking, and he was quivering and had tears in his eyes. Robert's testimony revealed that he feared for his life. According to Carmelo, defendant and another person wanted to take Robert into the backyard and beat him up for a Halloween prank. However, Boxer told Robert to leave, and he left. The incident spanned approximately five minutes.
Following this incident, the seventeen-year-old defendant was again transferred to superior court for prosecution as an adult and charged with kidnapping, a class 2 felony. Because the victim was under fifteen years of age, the offense was alleged to be a dangerous crime against children. See Ariz.Rev.Stat.Ann. (A.R.S.) § 13-604.01. The State also filed an allegation pursuant to A.R.S. section 13-604.02(B) that the offense was committed while defendant was on probation in the attempted second-degree burglary matter. Additionally, a petition to revoke defendant's probation was filed.
Defendant was found guilty of kidnapping following a jury trial. He was sentenced to the mandatory, presumptive seventeen-year term of imprisonment and credited with 467 days of presentence incarceration. The trial court also revoked defendant's probation on the attempted second-degree burglary conviction and sentenced him to a presumptive four-year term. The court ordered that the sentence for the kidnapping conviction be served consecutively to the sentence for the attempted second-degree burglary conviction. Timely notices of appeal were filed in each cause number.
At defendant's request, we have consolidated the cause numbers. We will address each separately.
Defense counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), requesting that this Court search the record for fundamental error pursuant to A.R.S. section 13-4035 and State v. Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967). We have given defendant an opportunity to file a supplemental brief in propria persona raising any points that he might choose to bring to this Court's attention; however, a supplemental brief has not been filed.
As stated above, defendant was placed on probation for four years after pleading guilty to attempted second-degree burglary. The record indicates that he entered a plea of no contest to a charge of aggravated assault, which resulted in a violation of his probation. The dispositional hearing was conducted simultaneously with the sentencing hearing on the kidnapping conviction. After personally addressing defendant and giving him an opportunity to speak, the trial court found reinstatement of probation inappropriate and sentenced him to a presumptive four-year term of imprisonment. The sentence was run concurrently with the sentence imposed on the aggravated assault conviction, and defendant was given credit for 632 days of presentence incarceration.
Pursuant to A.R.S. section 13-4035, we have read and considered defense counsel's brief and reviewed the record for fundamental error. We find none.
Defendant first contends that the trial court abused its discretion by refusing to strike the entire jury panel following a panel member's comments regarding his work with gangs and about defendant's appearance. We disagree.
During voir dire, a prospective juror, A.G., said that he was a federal law enforcement officer and that he knew several investigators in the Maricopa County Attorney's Office. The trial court later asked whether any member of the jury panel had been called to testify as a witness at trial. The following colloquy transpired:
The trial court promptly excused A.G.
At the close of voir dire, the trial court asked defense counsel whether she had any additional questions. Defense counsel answered affirmatively and stated:
A couple of the people that were on the panel were excused because they had experience as law enforcement officers. And their answers to the judge's questions made it pretty clear they had certain biases, and I'm just concerned that having heard that, if any of you share the biases that I think came across from these officers' answers.
Is there anyone here who thinks that based on what those officers said, it in any way would affect your decisions here?
None of the jurors indicated that the officers' remarks would affect them. Defense counsel later made a motion to strike the entire panel based on A.G.'s comments regarding gangs; however, the motion was denied.
Although a defendant is entitled to be tried by a fair and impartial jury, he is not entitled to any one particular jury. State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845, cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). The trial court must be affirmed "unless the record affirmatively shows that such a fair and impartial jury was not secured." State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978). Excusing jurors is within the sound discretion of the trial court, and its actions will not be disturbed absent "a clear and prejudicial abuse of that discretion." Id.
Our review of the record reveals that the jury was fair and impartial. Defense counsel specifically asked the panel whether the prior remarks would affect their decisions in the case, and no one responded. We therefore decline "to indulge in an assumption ... that the panel was tainted." See State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App.1983). Defendant has failed to meet his burden of showing that the panel was prejudiced by A.G.'s remarks. See id. Accordingly, the trial court did not abuse its discretion by refusing to strike the entire panel.
Defendant next argues that his seventeen-year sentence is disproportionate to his crime and therefore constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United...
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State v. Flores
...defendant is entitled to be tried by a fair and impartial jury, he is not entitled to any one particular jury." State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995). Thus we must affirm the trial court unless the record affirmatively demonstrates the court did not in fact secur......
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State v. Moreno, 1 CA-CR 14-0131
...however, "unless the record affirmatively shows that . . . a fair and impartial jury was not secured." State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995) (quoting State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978)).¶4 As "objective indications" of prospective jurors'......
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State v. Sierra
... ... " State v. Moody, 208 Ariz. 424, ¶ 98, 94 P.3d 1119, 1147 (2004). And, as the state points out, Sierra has not established that an impartial jury was not ultimately secured. See State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App. 1995). ¶7 Sierra further contends the trial court erred in failing to stop the prosecutor from "discussi[ng] ... the law on actual physical control" and in engaging in "its own lengthy discussion of the law." "The scope of voir dire is ... ...
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State v. Reese
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