State v. Shortman

• Decision Date: 29 December 2022
• Docket Number: 1 CA-CR 21-0354
• Citation: 86 Arizona Cases Digest 25,523 P.3d 405
• Parties: STATE of Arizona, Appellee, v. Lance SHORTMAN, Appellant.
• Court: Arizona Court of Appeals

86 Arizona Cases Digest 25

523 P.3d 405

STATE of Arizona, Appellee,

v.Lance SHORTMAN, Appellant.

No. 1 CA-CR 21-0354

Court of Appeals of Arizona, Division 1.

Filed December 29, 2022

Arizona Attorney General's Office, Phoenix, By Andrew Reilly, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Aaron J. Moskowitz, Counsel for Appellant

Vice Chief Judge David B. Gass delivered the opinion of the court, in which Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

GASS, Vice Chief Judge:

¶1 Lance Shortman appeals his convictions and sentences for two counts of aggravated driving under the influence of alcohol (DUI) and one count of failing to remain at the scene of a crash resulting in vehicle damage. Because we find no reversible error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court recounts the facts in the light most favorable to sustaining the verdicts and resolves all reasonable inferences against Shortman. See State v. Stroud , 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005).

¶3 One early evening in September 2018, the victim stopped his car in a left-turn lane at a busy intersection in Maricopa County. After the left-turn arrow turned green, the victim started turning left. Shortman was driving his van in the opposite direction, ran the red light, and crashed into the victim's car. The victim did not sustain serious injuries, but the crash disabled his car. Shortman fled the scene.

¶4 Another driver saw the crash and followed Shortman while calling the police. Shortman eventually stopped at an apartment complex about 2.5 miles from the crash. A police officer arrived and found Shortman inspecting the damage to his van. Shortman told the officer he "ran into" a stop sign. Shortman also told the officer he was driving on a "somewhat" suspended license. Shortman later admitted he was involved in a car crash and left the scene, but he said the other car "cut him off" and caused the crash.

¶5 Shortman showed signs of impairment and also admitted drinking a few beers that day. The officer arrested Shortman and secured a warrant to draw his blood. Testing and retrograde analysis revealed Shortman had a blood alcohol concentration between .163 and .179 within two hours of the crash.

¶6 The State charged Shortman with two counts of aggravated DUI, both class 4 felonies, and one count of failing to remain at the scene of a crash resulting in vehicle damage, a class 2 misdemeanor. The State also alleged Shortman was on felony probation when he committed the offenses.

¶7 In June 2021, the superior court conducted a six-day jury trial. Over Shortman's objection, the superior court seated some jurors in the gallery behind the State to allow for social distancing during the COVID-19 pandemic.

¶8 The jury convicted Shortman on all counts. The jury also found Shortman committed the offenses while on felony probation. See A.R.S. §§ 13-708.C, -604.B.4. The superior court imposed presumptive concurrent 2.5-year prison terms for the felony DUI convictions, and a concurrent two-month jail term for the misdemeanor failing to remain at the scene of a crash resulting in vehicle damage. See A.R.S. §§ 13-702.D, -707, -708.C, -604.B.4.

¶9 Shortman timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and -4033.A.1.

ANALYSIS

I. Seating of Jurors

¶10 Shortman argues the superior court abused its discretion when it seated some jurors in the jury box and others in the gallery behind the State, an argument he timely pressed with the superior court. Because no jurors sat behind the defense, Shortman argues "the courtroom atmospherics tilted in favor of the State, risking an unfair trial that served no essential state interest." Shortman points to no specific trial event to show the seating arrangement caused prejudice. Instead, he argues the seating arrangement was "inherently prejudicial."

¶11 This court generally reviews the superior court's decisions regarding jury issues for abuse of discretion. See State v. Glassel , 211 Ariz. 33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005) (reviewing a motion to strike a jury panel for abuse of discretion); State v. Hurley , 197 Ariz. 400, 402, ¶ 9, 4 P.3d 455, 457 (App. 2000) (reviewing a jury instruction decision for abuse of discretion); Hedlund v. Sheldon , 173 Ariz. 143, 143, 840 P.2d 1008, 1008 (1992) (reviewing a superior court judge's decision to employ dual juries for abuse of discretion). An "abuse of discretion" is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Tilley v. Delci , 220 Ariz. 233, 238, ¶ 16, 204 P.3d 1082, 1087 (App. 2009). Additionally, superior courts generally have "broad discretion over the management of a trial." Gamboa v. Metzler , 223 Ariz. 399, 402, ¶ 13, 224 P.3d 215, 218 (App. 2010) ; see also Ariz. R. Evid. 611(a). The superior court did not abuse its broad discretion in Shortman's case.

¶12 In 2020, the Maricopa County Superior Court's Criminal Division issued and then revised trial practices and procedures to ensure the safety of all individuals participating in criminal trials during the COVID-19 pandemic (COVID Trial Practices). See The Judicial Branch of Arizona—Maricopa County—Criminal Department Socially-Distanced Trial Practices and Procedures (2020). The COVID Trial Practices in place at the time of Shortman's trial required the superior court to ensure jurors were socially distanced and masked in the jury box and in the "gallery (prosecution side)[.]" Id. at 7.

¶13 To analyze the risk of an erroneous decision, this court considers the specific circumstances and procedural safeguards implemented in each case. Tracy D. v. Dep't of Child Safety , 252 Ariz. 425, 434, ¶ 35, 504 P.3d 934, 943 (App. 2021). Trial courts, however, are in the best position to assess safeguards. Id. at 435, ¶ 39, 504 P.3d at 944; see also Commonwealth v. Delmonico , 251 A.3d 829, 842 (Pa. Super. Ct. 2021) (holding trial court did not abuse its discretion by requiring jurors to wear masks and practice social distancing because the decision was based on the "essential demands of fairness" and adhered to the state supreme court's orders).

¶14 The pandemic forced superior courts hearing criminal trials to balance public safety against the need for a speedy trial, the preference for in-person testimony, and the reliability of evidence. Cf. Tracy D. , 252 Ariz. at 432–35, ¶¶ 27–40, 504 P.3d at 941–44 (discussing the tension between timely in-person hearings and due process in the context of terminating parental rights); see also Christopher Robertson & Michael Shammas, The Jury Trial Reinvented , 9 TEX. A&M L. REV. 109, 123 (2021) (suggesting the pandemic put the need for speedy trials in tension with the need for in-person trials). Tracy D. explained, "as to the risk that the procedures used will lead to erroneous decisions, we look to the specific circumstances of the case, including any procedural safeguards provided." 252 Ariz. at 434, ¶ 35, 504 P.3d 934. To do so here, the superior court implemented the safeguards prescribed by the COVID Trial Practices by separating the jury into two groups: one in the jury box and one in the gallery behind the State. Shortman has not shown the superior court erred or deprived him of any right when it followed the COVID Trial Practices.

¶15 Shortman cites no controlling authority, or facts in the record, to suggest the seating arrangement "conveye[d] alignment with the prosecutor" or was otherwise inherently prejudicial. Instead, Shortman relies on a dissent discussing "inherently prejudicial" trial procedures in Coy v. Iowa , 487 U.S. 1012, 1034, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (Blackmun, J. dissenting). Because the United States Supreme Court did not adopt the standards laid out in the dissent, the dissent does not bind this court here. See State v. Bush , 244 Ariz. 575, 597, ¶ 101, 423 P.3d 370, 392 (2018).

¶16 Shortman then offers only vague references to "courtroom atmospherics tilted in favor of the State" and "convey[ing] alignment with the prosecutor." Those vague references do not negatively implicate Shortman's presumed innocence. The superior court repeatedly instructed the jury it had to presume Shortman innocent and the State bore the burden to prove Shortman's guilt beyond a reasonable doubt. We presume the jury followed those instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006).

¶17 Though Arizona's appellate courts have not faced this precise issue in the criminal context, other courts have. See Commonwealth v. Davis , 273 A.3d 1228 (Pa. Super. Ct. 2022) ; People v. Bogan , No. 355649, 2022 WL 815371 (Mich. Ct. App. March 17, 2022) (unpublished per curiam opinion); United States v. Holder , No. 18-cr-00381-CMA-GPG-01, 2021 WL 4427254 (D. Colo. Sept. 27, 2021) (unpublished order). In each case, the trial court followed the applicable COVID-19 pandemic-based protocols involving jury seating in the gallery among other social-distancing procedures. And in each case, the relevant court found the protocols did not violate the defendant's right to a fair trial because each defendant—like Shortman here—could not establish the protocols compromised the trial's fairness, or the juror deliberations or verdicts.

¶18 Davis is particularly instructive. 273 A.3d 1228. In Davis and this case, jurors sat in the gallery and the defendant sat at the counsel table. Id. at 1241–42. This setup placed the parties in their typical positions—with the State closest to the jury and the defendant further away. See id. As Davis recognized, the layout was not ideal, but it "presented the most practical and effective accommodations for the jury and witnesses." Id. at 1242. And jurors could see and hear the witnesses. Id. In Davis , as here, the trial court "reflected careful consideration of governing safety and health measures." See id. Additionally, like the defendant in Davis ,...