State v. Williams
| Decision Date | 23 December 2013 |
| Docket Number | No. 2 CA-CR 2013-0038,2 CA-CR 2013-0038 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MACHO JOE WILLIAMS, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Paul E. Tang, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.
¶1 After a jury trial, Macho Joe Williams was convicted of three counts of aggravated assault, two counts of kidnapping, and one count each of armed robbery, aggravated robbery, and weapons misconduct. The trial court sentenced him to a combination of consecutive and concurrent, enhanced prison terms totaling 51.5 years. On appeal, Williams argues the court erred by denying his motions to sever and by failing to discharge a codefendant's attorney who had previously represented Williams. He also contends the state presented insufficient evidence to support his convictions. For the reasons stated below, we vacate the criminal restitution order but otherwise affirm.
¶2 We view the facts in the light most favorable to sustaining Williams's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In August 2011, D.R. was working at a Tucson dry cleaner when he observed a man, later identified as Juan Valenzuela, pacing outside the store. Thinking that Valenzuela was "panhandling or just a druggie walking around," D.R. continued working. While D.R. was helping a customer, M.S., a masked man, later identified as Williams, entered the store, pulled out a gun, and told D.R. and M.S. to get on the floor. Valenzuela ran into the store and began emptying money from the cash drawer.
¶3 Williams "stepped on the back of [M.S.'s] head, smashed [his] face," and yelled at D.R. to open the safes in the back of the store. Williams followed D.R. to the back of the store, where D.R. opened one safe and explained that he did not know the combination to the other. After searching the safe and taking a metal box used to store money, Williams walked to the front of thestore, told Valenzuela "let's go," and left. Valenzuela grabbed the cash drawer before leaving. D.R. then ran to the front of the store, looked out the window, and saw a two-door, white Mercury Cougar. He saw a third person in the driver's seat and watched as Valenzuela got in the back seat and Williams got in the front passenger seat. D.R. then called 9-1-1.
¶4 Shortly thereafter, officers who were responding to an unrelated call in the area observed the car. The officers activated their patrol vehicles' lights and sirens and began following the car, but it did not stop, and a high-speed pursuit ensued. The car came to a stop only after one of the patrol vehicles hit it, causing the car to spin. A second patrol vehicle parked next to the car, pinning the front passenger side door shut. The driver, later identified as Steven Soto, ran from the car but officers apprehended him. Williams tried to exit through the driver's side door, but after a struggle, an officer ultimately detained him. During the struggle to detain Williams, Valenzuela climbed out of the front passenger side window and fled on foot, but he was quickly tackled to the ground. Officers found a gun, a mask, loose dollar bills, and the cash drawer inside the car.
¶5 All three men were charged with various offenses under this cause number and were tried together. Williams was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6 Williams first argues the trial court erred by denying his motions to sever his trial from Valenzuela's and Soto's. "[I]n the interest of judicial economy, joint trials are the rule rather than the exception." State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995). However, Rule 13.4(a), Ariz. R. Crim. P., requires severance when "necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." We will not disturb a trial court's decision denying a motion to sever absent a clear abuse ofdiscretion. State v. Van Winkle, 186 Ariz. 336, 339, 922 P.2d 301, 304 (1996).
¶7 In order to demonstrate an abuse of discretion, the defendant must show that, at the time he moved to sever, his defense would be prejudiced absent severance. See State v. Blackman, 201 Ariz. 527, ¶ 39, 38 P.3d 1192, 1202 (App. 2002); see also State v. Roper, 140 Ariz. 459, 461, 682 P.2d 464, 466 (App. 1984) (). A defendant is prejudiced to such a significant degree that severance is required when:
(1) evidence admitted against one defendant is facially incriminating to the other defendant, (2) evidence admitted against one defendant has a harmful rub-off effect on the other defendant, (3) there is significant disparity in the amount of evidence introduced against the defendants, or (4) co-defendants present antagonistic, mutually exclusive defenses or a defense that is harmful to the co-defendant.
Murray, 184 Ariz. at 25, 906 P.2d at 558. Here, Williams argues that severance was required because the "defenses were clearly antagonistic."
¶8 As a preliminary matter, we address whether Williams has properly preserved this issue. Rule 13.4(c) provides that a defendant's motion to sever must be made at least twenty days before trial and, "if denied, renewed during trial at or before the close of the evidence." This requirement "prevents defendants from 'playing fast and loose with the trial court' and allows the court to reassess the need for separate trials as the evidence is developed." State v. Flythe, 219 Ariz. 117, ¶ 5, 193 P.3d 811, 813 (App. 2008), quoting State v. Pierce, 27 Ariz. App. 403, 406, 555 P.2d 662, 665 (1976). "Severance is waived if a proper motion is not timely made and renewed." Ariz. R. Crim. P. 13.4(c).
¶9 Here, Valenzuela timely filed a motion to sever more than twenty days before trial. However, Williams did not request to join that motion until one week before trial. Williams's motion therefore was untimely. See Ariz. R. Crim. P. 13.4(c). Williams nevertheless argues that he joined Valenzuela's motion the same day he "became aware of the need for severance," after a hearing in which he learned that Valenzuela had signed an affidavit exculpating Soto.1 In support of his argument, Williams points to Rule 16.1(c), Ariz. R. Crim. P., which provides that "[a]ny motion . . . not timely raised under Rule 16.1(b) shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it." But, in Valenzuela's motion to sever, filed almost two weeks before the hearing at which Williams learned of the affidavit, Valenzuela argued that his defense was antagonistic to Williams's defense. Williams was thus alerted of the potential issue at that time and, with reasonable diligence, could have filed the motion sooner. See Ariz. R. Crim. P. 16.1(c).
¶10 Even assuming Williams had timely filed his motion to sever before trial, he also failed to renew his motion "during trial at or before the close of the evidence." Ariz. R. Crim. P. 13.4(c). Williams maintains he renewed his motion on the second day of trial after opening statements and again on the fourth day of trial after closing arguments. We disagree. On the second day of trial, Soto renewed his motion to sever, and Valenzuela explicitly joined. However, when the trial court asked Williams if he "want[ed] to add anything," his counsel responded, "[n]o," and then briefly explained their theory of the case. The court then denied the renewed motion "as to both defendants," presumably Soto and Valenzuela, and not all three. See Flythe, 219 Ariz. 117, ¶ 8, 193 P.3d at 813 (). And, although Williams did renew his motion for a mistrial on the fourth day of trial, this request was untimely because it occurred after, not at or before, the close ofevidence as required by Rule 13.4(c).2 See Ariz. R. Crim. P. 19.1(a) (); State v. Jackson, 144 Ariz. 53, 53-54, 695 P.2d 742, 742-43 (1985) ().
¶11 Because Williams did not properly renew his motion, "[s]everance [wa]s waived." Ariz. R. Crim. P. 13.4(c). Therefore, that claim is subject only to review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996) (). But, because Williams has not argued any error constitutes fundamental error, that argument is waived on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) ().
¶12 In any event, we find no error—let alone fundamental error—in the trial court's refusal to sever the trials. In State v. Cruz, 137 Ariz. 541, 545, 672 P.2d 470, 474 (1983), our supreme court held that "a defendant seeking severance based on antagonistic defenses must demonstrate that his or her defense is so antagonistic to the co-defendants...
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