State v. Manuel

• Citation: 270 P.3d 828,229 Ariz. 1,574 Ariz. Adv. Rep. 4
• Decision Date: 21 December 2011
• Docket Number: No. CR–09–0253–AP.,CR–09–0253–AP.
• Parties: STATE of Arizona, Appellee, v. Jahmari Ali MANUEL, Appellant.
• Court: Supreme Court of Arizona

229 Ariz. 1

270 P.3d 828

574 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Jahmari Ali MANUEL, Appellant.

No. CR–09–0253–AP.

Supreme Court of Arizona, En Banc.

Dec. 21, 2011.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, John Pressley Todd, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Stephen M. Johnson, Phoenix, Attorney for Jahmari Ali Manuel.

OPINION

BALES, Justice.

¶ 1 This automatic appeal arises from Jahmari Ali Manuel's conviction and death sentence for murdering Darrell Willeford. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2011).

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In March 2004, Manuel walked into a Phoenix pawn shop carrying a pistol covered with a blue plastic bag and immediately began firing at Willeford, the shop owner, who fell to the floor behind a counter. Manuel walked around the counter and continued firing, ultimately shooting Willeford ten times. Manuel then took two guns from the shop. The pawn shop's surveillance camera recorded these events. At the crime scene, police recovered the plastic bag, which contained shell casings and DNA that was later matched to Manuel's DNA profile. In October 2004, police arrested Manuel at a North Carolina hotel.

¶ 3 Manuel was indicted for first degree murder, first degree burglary, armed robbery, and misconduct involving weapons. After finding Manuel guilty on all counts, the jury found one aggravating factor, pecuniary gain, see A.R.S. § 13–751(F)(5) (2011), and determined that Manuel should be sentenced to death for the murder.

DISCUSSION

¶ 4 Manuel raises six issues on appeal. For the reasons explained below, we affirm his convictions and sentences.

A. Denial of Motion for Change of Judge

¶ 5 Manuel argues that the trial court erred in denying his request for a change of judge pursuant to Arizona Rule of Criminal Procedure 10.2. We review de novo the trial court's interpretation of the rule. See Pima Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005).

¶ 6 Rule 10.2 grants the right to a peremptory change of judge. At the time of Manuel's trial, Rule 10.2(a) provided that “ [i]n any death penalty case, any party shall be entitled to request a change of judge as a matter of right no later than ten (10) days after the state files a notice of intention to seek the death penalty.” Ariz. R.Crim. P. 10.2(a) (2009) (emphasis added). In contrast, Rule 10.2(c) provided that a notice of change of judge could be filed “in a non-death penalty case” within ten days after “actual notice to the requesting party of the assignment of the case to a judge” if a notice had not earlier been filed. (Effective January 1, 2011, Rule 10.2 was amended to eliminate the distinction between capital and non-capital cases.)

¶ 7 Manuel was arraigned in December 2004 and the State filed its notice of intent to seek the death penalty in February 2005. In June 2009, the case was reassigned to a new judge. Within ten days of the reassignment, Manuel filed a notice of change of judge, which the trial court denied as untimely.

¶ 8 Manuel argues that the trial court should have granted his notice of change of judge because it did not attack the court's “dignity or integrity” and there is “no logical reason” a capital defendant should have less opportunity to change a judge than a non-capital defendant. These arguments are not convincing. A peremptory change of judge in the later stages of a capital case could be more disruptive administratively because the length and complexity of capital cases make it more difficult to substitute judges. Moreover, the prior version of Rule 10.2 allowed a capital defendant two peremptory changes: one before the state filed its notice of intent to seek the death penalty and one after. See Campbell v. Barton, 222 Ariz. 414, 416 ¶ 11, 215 P.3d 388, 390 (App.2009). And although Manuel cites in passing certain constitutional provisions, he has waived any constitutional argument against the rule's different treatment of capital defendants by not developing it. See State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987).

¶ 9 The trial court did not err in denying Manuel's notice of change of judge. The notice was not filed within ten days after the State filed its notice of intent to seek the death penalty and thus was untimely under Rule 10.2(a).

B. Denial of Motion to Suppress Evidence

¶ 10 Manuel argues that the trial court erred in denying his motion to suppress a pistol found in his hotel room when he was arrested. Because the police had no warrant to search the room, Manuel contends that the gun was inadmissible as the “fruit” of an unconstitutional search. See Nix v. Williams, 467 U.S. 431, 441–42, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

¶ 11 We review the denial of a motion to suppress for an abuse of discretion, considering only the evidence presented at the suppression hearing, State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996), and viewing the facts in the light most favorable to sustaining the ruling, State v. Dean, 206 Ariz. 158, 161 ¶ 9, 76 P.3d 429, 432 (2003).

¶ 12 Based on an informant's tip, police in North Carolina learned that Manuel was a suspect in a Phoenix murder and was staying with his girlfriend, D.J., at a Charlotte hotel. The police also learned that Manuel had two outstanding warrants for auto theft. A SWAT team was dispatched to the hotel, where officers forced Manuel to the floor and handcuffed him when he emerged from his second floor room. As Manuel was being arrested, D.J. came to the room's doorway, hysterical and screaming, “don't hurt him.” She was handcuffed and taken downstairs by Detective Hetrick and Officer White.

¶ 13 Other officers promptly conducted a sweep of the hotel room. While another officer covered with a rifle, Officer Balamucki lifted the mattress and box spring up from the foot of the bed to see if anyone was under it. When Balamucki did so, he heard a “clunking” sound and could see a gun through the mesh fabric covering the bottom of the box spring. The officers in the room radioed Hetrick and told him they could see a gun in the box spring. Hetrick then asked D.J. if the police could search the room for “guns and drugs,” and she said “go ahead.” Hetrick went to the room and retrieved the pistol.

¶ 14 In denying Manuel's motion to suppress the pistol, the trial court found that the search of the room was lawful based both on D.J.'s consent and as incident to Manuel's arrest. At trial, the pistol was admitted into evidence and an expert witness for the State testified that ballistics tests showed the pistol had fired bullet casings found at the murder scene.

¶ 15 Manuel argues that the trial court erred in finding that D.J. legally consented to the search and that the search was incident to Manuel's arrest. Without reaching the consent issues, we conclude that the warrantless sweep of the room was lawful under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

¶ 16 Citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Manuel contends that a search incident to a lawful arrest is limited to the area under the arrestee's immediate control. Under Gant, police are authorized to search a vehicle incident to the arrest of a recent occupant “when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1721. The Court in Gant, however, recognized that its holding does not affect other recognized exceptions to the warrant requirement, including the exception recognized in Buie. Id.; see also Meister v. State, 933 N.E.2d 875, 878 (Ind.2010) (concluding that Gant does not disturb other exceptions to warrant requirement for vehicle searches).

¶ 17 Buie recognized that police, incident to an arrest in a home, may conduct a warrantless, protective sweep: “a quick and limited search of the premises ... conducted to protect the safety of police officers or others” and “narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” 494 U.S. at 327, 110 S.Ct. 1093. The Supreme Court noted:

[I]ncident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 334, 110 S.Ct. 1093.

¶ 18 As we recently explained, Buie authorizes two types of protective sweeps: one involving the area “immediately adjacent” to the place of arrest, which does not require reasonable suspicion, and a second involving other areas, which requires a reasonable belief, supported by specific and articulable facts, that the area harbors someone who could pose a safety threat. State v. Fisher, 226 Ariz. 563, 565–66 ¶¶ 8–9, 12–13, 250 P.3d 1192, 1194–95 (2011).

¶ 19 The search of Manuel's hotel room was justified under the first Buie exception. The police knew that Manuel had outstanding felony warrants and was possibly involved in a Phoenix murder. While they were completing the arrest in the hallway outside the room, D.J. came to the doorway, screaming hysterically. Officers placed her in handcuffs and removed her from the scene while other officers swept the room to determine if anyone else was inside who might pose a threat. The hotel room was immediately adjacent to the place where Manuel was arrested and D.J. was detained. Cf. United States v. Thomas, 429 F.3d...