State v. Paredes
| Decision Date | 24 May 1994 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 887 P.2d 577,181 Ariz. 47 |
| Parties | STATE of Arizona, Appellee, v. Alfredo Luis PAREDES, Jr., Appellant. 93-0129. |
| Court | Arizona Court of Appeals |
N.M., an assistant manager of a Circle K in Nogales, was shot in the face while working in the early morning of May 6, 1992. Following a preliminary hearing, appellant Alfredo Paredes was ordered to answer three charges: conspiracy, a class one felony; attempted first-degree murder, a dangerous offense and class two felony; and burglary of a nonresidential structure, a class four felony. The state subsequently filed an information charging Paredes with conspiracy to commit first-degree murder, armed robbery, and burglary of a nonresidential structure, with overt acts alleged to be of a dangerous nature. Paredes was additionally charged with attempted first-degree murder, burglary of a nonresidential structure, and armed robbery, all alleged to be dangerous offenses.
The state also alleged that Paredes (1) committed the offenses while on release from confinement pursuant to A.R.S. § 13-604.02(A); (2) committed the offenses while on pretrial release pursuant to A.R.S. § 13-604(M); (3) had a prior felony conviction pursuant to A.R.S. § 13-604(K); and (4) would be subject to Hannah 1 sentencing enhancement if convicted in a pending unrelated case.
Following a jury trial, Paredes was convicted and sentenced as follows: conspiracy to commit armed robbery and burglary of a nonresidential structure, a dangerous offense committed while on probation--life imprisonment with no possibility of parole for 25 years; attempted second-degree murder, a dangerous offense committed while on probation--life imprisonment with no possibility of parole for 25 years; burglary of a nonresidential structure, a dangerous offense with one prior conviction--12 years' imprisonment; and armed robbery, a dangerous offense committed while on probation--life imprisonment with no possibility of parole for 25 years.
On appeal, Paredes contends that his convictions should be reversed on grounds that (1) fundamental error occurred when his trial attorney failed to move for dismissal of certain charges; (2) testimony about Paredes's "mug shot" was impermissibly admitted into evidence; (3) the jury was improperly allowed to consider too many verdict forms and to find that the conspiracy conviction was a dangerous nature offense; and (4) he was improperly sentenced on the burglary conviction. For the reasons discussed below we affirm.
The parties do not dispute that Paredes was tried by information on charges that exceeded the scope of the preliminary hearing order, and Paredes concedes that he is precluded from asserting that the trial court lacked personal jurisdiction of certain offenses because his trial counsel failed to timely raise any defects in the charging document pursuant to former Ariz.R.Crim.P. 16.5(b), 17 A.R.S. State ex rel. Baumert v. Municipal Court, 124 Ariz. 543, 606 P.2d 33 (App.1979). However, Paredes contends that his convictions on these charges must be reversed, arguing that his counsel's inaction constituted "fundamental error." We disagree. State v. Allgood, 171 Ariz. 522, 525, 831 P.2d 1290, 1293 (App.1992); see also Ariz.R.Crim.P. 32.1(a), 17 A.R.S. Paredes has not filed a petition for post-conviction relief asserting ineffective assistance of counsel; therefore, we cannot consider his claim on appeal.
Paredes next contends that the trial court committed reversible error when it allowed into evidence testimony which implied that he had been arrested previously. During the state's case-in-chief, Officer Jesus Garcia of the Nogales Police Department testified on redirect examination that he had shown the victim a "mug shot" of Paredes, and explained that mug shots are "photographs from persons, individuals that have been arrested before...." Paredes's trial counsel did not object, move for a mistrial, or ask the court to admonish the jurors to disregard the comments.
Paredes argues that he was denied a fair trial, contending that the "mug shot" reference was highly prejudicial, irrelevant, and inadmissible, and that these factors alone warrant reversal. Although we agree with Paredes that it was improper to introduce this evidence, the error was not fundamental. State v. White, 168 Ariz. 500, 508, 815 P.2d 869, 877 (1991),cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992) (quoting State v. Brady, 105 Ariz. 190, 196, 461 P.2d 488, 494 (1969)) (citations omitted).
The evidence of Paredes's guilt was overwhelming. Five days before the shooting, Paredes purchased a Beretta nine millimeter pistol. Although the gun was never found, the crime lab expert testified that the bullet extracted from the victim's body came from either a Beretta or a Browning nine millimeter pistol. Bobby Lopez and Chris Lowe testified that Paredes was carrying a gun with him throughout the evening and that they had arrived at the convenience store intending to steal beer. Lopez and Paredes went inside while Lowe waited in the truck. Lopez saw Paredes shoot N.M. Lowe heard the gunshot and saw Paredes running out of the store with three twelve-packs of beer in one hand and a gun in the other. Several witnesses testified that Paredes told them he had shot the clerk. N.M. also testified that he was shot by the person who had entered the store with Lopez. After reviewing the evidence in its entirety, we conclude beyond a reasonable doubt that the jury would have reached the same verdict absent the "mug shot" testimony. Its admission, therefore, was harmless error.
Paredes next suggests that his conspiracy conviction was improper because the trial court allowed the jury to consider two verdict forms on that charge when they were provided with only one verdict form on the other three charges. According to Paredes, the additional verdict form implied to the jury that the conspiracy charge was particularly important, and "this could encourage them" to find him guilty. Paredes concedes that he did not object to the forms at trial; therefore, this issue can only be examined under the doctrine of fundamental error. State v. Moya, 140 Ariz. 508, 683 P.2d 307 (App.1984); Ariz.R.Crim.P. 21.3(c), 17 A.R.S. Error is fundamental when it goes to the foundation of the case or is of such dimension that the defendant cannot be said to have had a fair trial. State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991). We have reviewed the record and cannot say that the verdict forms caused Paredes's trial to be unfair. There is substantial evidence to support the conspiracy conviction. Furthermore, there is no evidence or implication in the record that the jury was adversely influenced by the additional form.
Paredes challenges his sentence for the conspiracy conviction, contending that the jury finding that it was a dangerous nature offense was improper. On both conspiracy verdict forms, the jury was instructed that if it found Paredes guilty, it must then decide if the conspiracy was a dangerous offense. Because the jury found that it was, and because Paredes committed the offense while he was on probation, the trial court enhanced his sentence to life imprisonment pursuant to A.R.S. § 13-604.02(A).
Paredes first argues that conspiracy cannot be a dangerous nature offense because it requires only an...
To continue reading
Request your trial
-
State v. Bowers
...nondangerous offenses, despite the apparent historical fact that they involved the use of a deadly weapon. Cf. State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App.1994) (imposition of life sentence proper when state filed allegations of dangerous nature of the offense and enhancement......
-
The State Of Ariz. v. Francis
...State v. Hollenback, 212 Ariz. 12, ¶¶ 9-11, 126 P.3d 159, 162-63 (App.2005) (dangerous crimes against children); State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App.1994) (dangerousness). ¶ 13 In State v. Tresize, however, our supreme court ruled that a defendant had sufficient notic......
-
State v. SR
...claim had no colorable merit in light of an amended indictment thatincluded a citation to § 13-604.02(A). See State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App. 1994) ("timely addendum to the information" provided sufficient notice of sentence enhancement pursuant to § 13-604.02(A)......
-
State v. Garcia-Ortiz
...(2005). On this record, Garcia-Ortiz has not shown any prejudice and, therefore, his sentence is affirmed. Cf. State v. Paredes, 181 Ariz. 47, 51, 887 P.2d 577, 581 (App. 1994) (declining remand in absence of prejudice despite sentencing error).4II. Ariz. R. Evid. 404(c) Character Trait Evi......