State v. Mills, 2 CA-CR 96-0200.

• Court: Court of Appeals of Arizona
• Citation: 995 P.2d 705,196 Ariz. 269
• Docket Number: No. 2 CA-CR 96-0200.,2 CA-CR 96-0200.
• Parties: The STATE of Arizona, Appellee, v. Alex Cruz MILLS, Appellant.
• Decision Date: 25 February 1999

995 P.2d 705
196 Ariz. 269

The STATE of Arizona, Appellee,
v.
Alex Cruz MILLS, Appellant

No. -0200.

Court of Appeals of Arizona, Division 2, Department A.

February 25, 1999.

Redesignated as Opinion and Publication Ordered April 14, 1999.

Review Denied February 8, 2000.

995 P.2d 707

Grant Woods, The Attorney General By Paul J. McMurdie, Christopher E. Avery, and Joseph T. Maziarz, Phoenix, Attorneys for Appellee

Constance L. Trecartin, Tucson, Attorney for Appellant.

OPINION

FLÓREZ, Judge.

¶ 1 Following a jury trial, appellant Alex Cruz Mills was convicted of the murder of his estranged wife, N., and was sentenced to a mitigated term of twenty-five years to life in prison. Appellant raises four issues on appeal, none of which merits reversal.

FACTS

¶ 2 We view the evidence in the light most favorable to sustaining the verdict and resolve all inferences against appellant. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). Several years before N.'s murder, appellant had received an $850,000 settlement from an automobile accident. Approximately one year later, N. filed a petition for dissolution of the marriage. During the prolonged dissolution litigation, appellant claimed that he was entitled to the remaining settlement proceeds.

¶ 3 While the dissolution action was pending, appellant provided large quantities of illegal drugs to Frank Estrella for Estrella to sell. In one transaction, Estrella lost a kilogram of cocaine, and appellant claimed Estrella owed him $10,000 for it. Upset with the dissolution proceedings, appellant arranged for Estrella to murder N. because "she [was] taking everything [he] own[ed]." He insisted Estrella "owe[d]" him for losing the cocaine.

¶ 4 In February 1993, Estrella went to N.'s residence and, in the presence of appellant's children, fatally shot N. in the chest. Before he left, Estrella took a bracelet from a table to prove he had been in N.'s home. Estrella paged appellant, who then met him at a nearby grocery store. When Estrella gave appellant the bracelet, appellant smiled and handed Estrella $4,500 in cash.

¶ 5 Approximately one year later, police investigators discovered information implicating Estrella in N.'s murder. Estrella confessed and inculpated appellant, leading to appellant's arrest and conviction.

SECURITY RESTRAINTS

¶ 6 Appellant contends that the trial court erred in denying his motions for mistrial and for new trial, claiming his due process rights were violated because some jurors observed him in security restraints outside the courtroom and because he was restrained inside the courtroom. 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. Hansen, 156 Ariz. 291, 751 P.2d 951 (1988) (mistrial); State v. Hickle, 133 Ariz. 234, 650 P.2d 1216 (1982) (new trial).

¶ 7 Appellant's motion for mistrial was based on two incidents in which some jurors observed detention officers escorting him in restraints to the courtroom. His motion for new trial was based on those two incidents and the additional claim that he was unconstitutionally restrained while he was inside the courtroom in the presence of the jury.

¶ 8 To warrant a mistrial, appellant was required to demonstrate that he suffered prejudice from the jurors' brief, inadvertent viewing of him in restraints outside the courtroom. State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993); State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985); State v. Galioto, 126 Ariz. 188, 613 P.2d 852 (App.1980). "The question is whether the defendant was prejudiced

995 P.2d 708

by what the jury saw, not the mere fact that it was seen." Johnson, 147 Ariz. at 399, 710 P.2d at 1054

¶ 9 The record shows that appellant reported to the court during the trial that on two occasions, one or more jurors had observed him in physical restraints outside the courtroom. Following the first incident, the court considered the type of restraints used outside the courtroom a "security issue" in which it was "not getting involved," but ordered "everybody [to] take every precaution and make sure it [did] not happen again." The court refused appellant's request that it interview the juror who saw him about the incident and appellant's counsel acknowledged that the incident may have been insufficient to cause a mistrial. Appellant mentioned this incident again seven days later. The court asked appellant's counsel for suggestions to address the situation and he responded, "I don't know, ask [the juror] what she saw and make sure that it does not influence her in any way in this case ... unless you want to talk to the rest of the jurors about it." The state made no objection and the court took appellant's suggestion under advisement.

¶ 10 On the fourteenth day of trial, another juror saw appellant in restraints outside the courtroom. Counsel again complained. The court responded that it would "ask the bailiff to be more diligent to make sure that it [didn't] happen again." Appellant asserted he was "very prejudic[ed]," but did not ask to voir dire the second juror. The court commented that "the leg brace itself does not importune [sic] to the jury that [appellant] is dangerous or anything." Ultimately, the jurors were not questioned because the court determined that an "interview of the jurors would do more harm than do good," a determination well within the trial court's discretion. Apelt.

¶ 11 After this second incident, the court, not appellant, raised the issue of a motion for mistrial:

THE COURT: Your point [that it is "very prejudicial to have him walking around with a leg brace on that he's some kind of a really bad character"] is made for the record, Mr. Bloom. We'll make every endeavor to stop it from happening again.

But if you had made a motion for a mistrial, the Court would have denied the motion.

MR. BLOOM: Consider it done, Judge.

THE COURT: Consider it denied.

¶ 12 Appellant made no offer of proof to establish his prejudice; although he did request that the court voir dire the jurors who saw him in restraints outside the courtroom, he did not request permission to do so; and, he did not object when the court ultimately declined to conduct voir dire of the jurors. Additionally, he did not seek to make a post-trial evidentiary record. Apelt. Based on the record before this court, we conclude that the trial court did not err in denying appellant's motion for mistrial based on this ground.

¶ 13 Appellant's claim that he was deprived of a fair trial by having been in shackles or a leg brace inside the courtroom while the jurors were present was not preserved for appeal by appellant's oral motion for mistrial. On the first day of jury selection when appellant initially questioned the necessity of his being in shackles, the guard suggested a "leg brace concealed under clothing." Appellant did not reassert his objection to the guard's proposal for a concealed leg brace or to the continuation of jury selection that day with appellant in shackles. At the end of that day, the court reiterated its instruction that appellant be unshackled and unhandcuffed in the courtroom "when ... we start the trial," but the court did not order that no restraints be used, as appellant now asserts. During the remainder of the trial, while in the courtroom appellant wore a leg brace concealed under his clothing; he never objected to that restraint. He never alleged during the trial, nor does he claim on appeal, that any juror observed the restraint in the courtroom. Thus, when viewed in context, appellant's oral motion for mistrial did not encompass appellant's restraint while in the courtroom. Having failed to preserve this issue, appellant has waived it. State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981). In any event, an unseen "restraint could not have affected the

995 P.2d 709

presumption of innocence." Castillo v. Stainer, 983 F.2d 145, 149 (9th Cir.1992), amended, 997 F.2d 669 (9th Cir.1993)

¶ 14 Nor can we say the trial court abused its discretion in denying appellant's motion for a new trial. In his motion for a new trial, appellant raised the issue of his having been seen in leg restraints both outside and inside the courtroom. A motion for a new trial may be granted on any of the grounds stated in Rule 24.1(c), Ariz. R.Crim. P., 17 A.R.S. Although appellant has not specified which of the grounds he relies on, he appears to be basing his arguments on Rule 24.1(c)(4) or (5), which provide:

c. Grounds. The court may grant a new trial for any of the following reasons:

....

(5) For any other reason not due to the defendant's own fault the defendant has not received a fair and impartial trial.

¶ 15 In his motion for a new trial, appellant argued that the presumption of innocence was impacted when he was "physically restrained in the courtroom." "The decision to restrain a prisoner in court rests within the discretion of the court." Johnson, 147 Ariz. at 399, 710 P.2d at 1054 (emphasis in original). Appellant contends the state failed to show the necessity of the in-court restraint. Had appellant made a proper objection at trial, however, the state would have been required to establish "some reason" for the restraint in the courtroom. State v. Reid, 114 Ariz. 16, 22, 559 P.2d 136, 142 (1976). Because appellant did not object, this issue is waived. Nelson. In any event, because there was no showing that jurors were aware appellant was wearing leg restraints in the courtroom, there was no basis for a new trial. See State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996); State v. McMurtrey, 136 Ariz. 93, 664 P.2d 637 (1983).

¶ 16 Just as the court did not err in denying the motion for mistrial based on appellant's having been restrained both outside and in the courtroom, it did not abuse its discretion in denying his motion for a new trial.

PRELIMINARY HEARING VIDEOTAPE

¶ 17 Appellant next contends that the trial court erred in allowing the state to impeach...