State v. McLemore

• Decision Date: 30 November 2012
• Docket Number: No. 1 CA–CR 08–1103.,1 CA–CR 08–1103.
• Citation: 288 P.3d 775,230 Ariz. 571,648 Ariz. Adv. Rep. 13
• Parties: STATE of Arizona, Appellee, v. Damon Paul McLEMORE, Appellant.
• Court: Arizona Court of Appeals

230 Ariz. 571

288 P.3d 775

648 Ariz. Adv. Rep. 13

STATE of Arizona, Appellee,

v.Damon Paul McLEMORE, Appellant.

No. 1 CA–CR 08–1103.

Court of Appeals of Arizona, Division 1, Department E.

Nov. 30, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sarah E. Heckathorne, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Bruce F. Peterson, Office of the Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate, Phoenix, Attorneys for Appellant.

OPINION

KESSLER, Judge.

¶ 1 Damon Paul McLemore (“McLemore”) appeals from his convictions of six felonies.¹ Pursuant to our order, the parties filed briefs addressing whether fundamental error occurred when the trial court failed to conduct a hearing on McLemore's request to waive his right to be represented by an attorney and to represent himself. See Faretta v. California, 422 U.S. 806, 818–19, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). As a matter of first impression, we hold that while the court failed to conduct a hearing on McLemore's Faretta request, on the facts of this case McLemore abandoned that request when he never reminded the court of the pendency of his request so that the court could rule on it. See People v. Kenner, 223 Cal.App.3d 56, 62, 272 Cal.Rptr. 551 (1990) (holding that when defendant had both the time and opportunity to follow up on a Faretta motion but failed to do so, the motion is deemed abandoned). If and when failures to hold Faretta hearings occur, we must examine the totality of the circumstances to determine whether the defendant intended to abandon his or her Faretta motion. Our review of the record confirms that McLemore intended to abandon his Faretta motion. After reviewing the entire record, we also conclude the evidence is sufficient to support the verdicts and sentences, McLemore had a fair trial, and there is no reversible error.

FACTUAL AND PROCEDURAL HISTORY ²

¶ 2 McLemore was indicted for first degree murder, armed robbery, three counts of aggravated assault, and first degree burglary based on his participation in an armed robbery of a jewelry store.

¶ 3 During the robbery, the store owner and two employees fled out the rear exit of the store and tried to shut and lock the door behind them. The front door was already locked and successfully locking the back door would have trapped McLemore and his accomplice in the store. McLemore and his accomplice followed the owner and employees out of the store and a shoot out between the victims and McLemore and his accomplice began. Ultimately, one employee was wounded and the store owner shot and killed one of the accomplices.

¶ 4 McLemore was charged with one count of first degree murder, a class 1 dangerous felony (Count 1), one count of armed robbery, a class 2 dangerous felony (Count 2), three counts of aggravated assault, class 3 dangerous felonies (Counts 3–5), and one count of first degree burglary, a class 3 dangerous felony (Count 6).

¶ 5 The jury found McLemore guilty of all offenses and also found each to be dangerous. McLemore was sentenced to concurrent presumptive terms for each dangerous non-repetitive offense: life imprisonment with the possibility of parole after 25 years (Count 1); 10.5 years' imprisonment (Count 2); 7.5 years' imprisonment (Counts 3–5); and 7.5 years' imprisonment (Count 6). Ariz.Rev.Stat. (“A.R.S.”) §§ 13–704(A) (2010),–751(A) (2010), –752(A) (2010), –1105(D) (2010).³ McLemore received 517 days' presentence incarceration credit.

¶ 6 McLemore timely appealed. This Court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1) (2003) and 13–4033(A)(1) (2010).

DISCUSSION

I. McLemore received a fair trial and there is no reversible error.

¶ 7 After reviewing the entire record, we find no meritorious grounds for reversal of McLemore's convictions or modification of the sentences imposed. The record reflects McLemore had a fair trial. With the exception of McLemore's request to represent himself, which we discuss below, the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure.

¶ 8 The evidence supports each of the convictions. It is sufficient to affirm the conviction for first degree felony murder because evidence established that McLemore and an accomplice robbed a jewelry store and during the immediate flight from the robbery, the accomplice was shot by the store owner and died from his wounds. SeeA.R.S. §§ 13–1902, –1904 (2010), –1105(A)(2) (defining robbery and felony murder). The evidence also supports the conviction for armed robbery because testimony and security footage demonstrated that McLemore brandished a firearm and took jewelry from the store while he was in the immediate presence of the store owner and staff. SeeA.R.S. §§ 13–1902, –1904 (defining armed robbery involving a deadly weapon or a use or threatened use of the weapon).

¶ 9 There was also sufficient evidence for the jury to convict McLemore of three aggravated assaults because the evidence shows he shot one victim, shot at the store owner, and pointed a gun at the third victim. SeeA.R.S. §§ 13–1204(A)(2), –1203(A)(1) (2010) (defining the elements of causing physical injury to another by using a deadly weapon). Both the owner and the employee who had been shot testified that the other employee appeared afraid while McLemore pointed the gun at him. Given that McLemore had already recklessly fired a shot that struck one employee, and fired a shot at the store owner while McLemore was fleeing the scene, a reasonable jury could conclude that pointing a gun at the employee placed the employee in reasonable apprehension of imminent physical injury.

¶ 10 Finally, the trial testimony as well as photographic evidence was sufficient to convict McLemore of first degree burglary. The evidence established that McLemore crossed a counter during the robbery, and that the area behind the counter was not open to the public and normally only used by employees. Therefore, a reasonable jury could conclude that McLemore was armed with a deadly weapon and remained unlawfully in the store with the intent to commit robbery. SeeA.R.S. §§ 13–1508(A) (2010), –1506(A)(1), –1501(2) (2010) (defining first degree burglary as commission of a burglary while knowingly possessing a deadly weapon).

II. McLemore's request to represent himself.A. Procedural history.

¶ 11 McLemore was represented by appointed counsel from the Office of the Maricopa County Public Defender.⁴ In late October 2007, nearly one year prior to trial, McLemore filed a “Notice to Proceed as Pro Per,” citing Rule 6 of the Arizona Rules of Criminal Procedure (“Rule 6”). In addition, McLemore's motion requested the assistance of advisory counsel, a ballistic expert and a weapons expert to assist in his pro se defense. A distribution list accompanying McLemore's motion indicates that personnel at the Fourth Avenue Jail delivered the motion to the Clerk of the Maricopa County Superior Court and the judge then presiding over McLemore's case.⁵ The jail distribution list indicates that McLemore also mailed a copy of his motion to the prosecutor, and to a defense attorney at the Office of the Legal Advocate who had been representing his co-defendant, but had been replaced by private counsel by the time McLemore filed his motion. McLemore's motion designated the intended recipients including the prosecutor and the superior court judge, but stated: “defense counsel none appointed” with respect to his own defense attorney. There is no indication in the record whether McLemore's appointed counsel, then employed by the public defender, received or ever knew about the motion.

¶ 12 For a reason not revealed by the record, the superior court did not set or hold a hearing on McLemore's motion. The next time McLemore appeared before the court was about three weeks after filing his motion, in early November, when a brief status conference was held. McLemore and his attorney were present, but his motion was not discussed, he was not personally addressed, nor did he speak during the conference. The next status conference was in January 2008 and the brief discussion at that conference pertained only to reaffirming the trial date. Again, the pending motion was not mentioned. A week later, the judge presiding over McLemore's case recused himself by minute entry and the case was assigned to another judge. In February 2008, McLemore's case was again reassigned after his co-defendant noticed a change of judge.

¶ 13 At the end of August 2008, approximately ten months after McLemore filed his motion to proceed pro se and about a month and a half before trial, his appointed counsel filed a motion to determine counsel, given a potential conflict of interest that had come to light when McLemore's counsel joined the Office of the Legal Advocate. After a brief hearing during which McLemore was present but did not speak, the court authorized appointed defense counsel to continue representing McLemore. No one alerted the judge that McLemore's motion to represent himself was pending. At no time before or during trial did McLemore request a ruling on his pending motion or affirmatively say he was abandoning that motion. Nor did McLemore or his counsel raise this issue on appeal.

B. McLemore's right to self-representation.

¶ 14 Among other fundamental constitutional rights, two mutually exclusive rights are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution: the right to effective representation by counsel, and the right to self-representation. Faretta, 422 U.S. at 818, 821, 95 S.Ct. 2525 (stating self-representation is “part of the ‘due process of law’ that is guaranteed by the Fourteenth Amendment” and the Sixth Amendment “implies a right of self-representation”); State v. Lamar, 205 Ariz. 431, 435–36, ¶ 22, 72 P.3d 831, 835–36 (2003). The right to...