State v. Wilson
| Decision Date | 21 April 2022 |
| Docket Number | 1 CA-CR 21-0251 |
| Parties | STATE OF ARIZONA, Appellee, v. DANIEL RAE WILSON, Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR202001339 The Honorable Richard D. Lambert, Judge
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
Counsel for Appellant Presiding Judge Maria Elena Cruz delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Michael J. Brown joined.
¶1 Daniel Rae Wilson appeals from his convictions and corresponding sentences on two counts of aggravated assault on a peace officer and one count each of resisting arrest, possession of dangerous drugs, possession of drug paraphernalia, criminal damage, and disorderly conduct. Because he has shown no reversible error, we affirm.
¶2 One evening in November 2020, Wilson spent the night at a home in Bullhead City, Arizona. The next morning, a visibly intoxicated Wilson was "yelling and screaming," trashing the house, including breaking a door, smashing a television, damaging a bedroom wall, kicking a garage door, and damaging lattice on the porch. Wilson also threatened Chris, who was at the home, and challenged him to a fight.
¶3 Chris called 911, but Wilson left before the police arrived. When law enforcement located Wilson, he disobeyed the officer's repeated orders to stop. The officer used his Taser to stun Wilson, but Wilson ran away.
¶4 After police ordered him to stop at gunpoint and sprayed him with pepper spray, Wilson appeared to comply. But after the officer placed a handcuff on one of his hands, Wilson began fighting with the officer and pinned the officer against a trailer.
¶5 After another officer arrived, they tased Wilson again, causing him to go "limp for maybe a half a second" before again fighting the officers. The officers were finally able to cuff Wilson when one of the officers laid on top of Wilson's chest. In a search incident to arrest, officers found about 2.5 grams of methamphetamine and a syringe in Wilson's front pockets. From the encounter with Wilson, one officer suffered a "boxer sprain" to his wrist, elbow, and shoulder. Another officer sustained abrasions on her arm and knees and an injury to her finger.
¶6 A grand jury indicted Wilson on two counts of aggravated assault on a peace officer, class four felonies (counts 1 and 2); resisting arrest, a class six felony (count 3); possession of dangerous drugs, a class four felony (count 4); possession of drug paraphernalia, a class six felony (count 5); criminal damage, a class two misdemeanor (count 6); and disorderly conduct, a class 1 misdemeanor (count 7).
¶7 Counsel was initially appointed to represent Wilson, but soon thereafter he moved to represent himself. After receiving a signed Form 8 and conducting a thorough colloquy, the court granted Wilson's motion and assigned his attorney to serve as advisory counsel. After Wilson repeatedly complained about advisory counsel's performance, another attorney substituted in as advisory counsel, soon replaced by a third attorney. Wilson then filed another motion requesting new advisory counsel, claiming he had not received sufficient communication from the assigned attorneys. At a hearing held a week before trial, Wilson explained his general displeasure with advisory counsel's lack of assistance but concluded that he was prepared to proceed to trial. The third advisory counsel then assisted Wilson throughout trial.
¶8 The court also denied Wilson's motion to appoint (1) an investigator "to conduct interviews to prove character" and (2) an expert to opine on "what drinking a fifth of [liquor] can do to you if you are not a drinker." The State then moved to preclude witnesses Wilson disclosed late, including purported "character" witnesses. At a hearing on the motion, Wilson withdrew all but one of his requested character witnesses: his fiancée, Melissa. After considering Arizona Rule of Criminal Procedure ("Rule") 15.7(c), the court precluded Melissa's testimony. The court rejected Wilson's later attempt to add another character witness.
¶9 In Wilson's opening statement, he explained that his defense was that "[n]one of [his] actions were done with the intention of committing a crime" because they resulted from a "pathologically intoxicated" state. And in closing argument, Wilson asserted that he had "no criminal intent," urging the jurors to consider that he is "not a violent person" although the charges are "violent in nature." Addressing the drug charges, Wilson argued he did not knowingly possess the contraband. He asked the jurors to infer from "common sense" that if he had known he possessed the items, he would have simply thrown them away while the police were chasing him. Wilson did not call any witnesses at trial and he chose not to testify.
¶10 The jury found Wilson guilty as charged. Given his prior criminal history, the court sentenced Wilson as a category-three repetitive offender to a combination of concurrent and consecutive prison terms totaling thirty years. Wilson timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
¶11 Wilson argues the superior court violated his constitutional right to court access by denying his motions for new advisory counsel, an investigator, and an expert witness, adding he had no access to a law library. We review those rulings for an abuse of discretion. State v. Gonzales, 181 Ariz. 502, 510-11 (1995) (); State v. Apelt, 176 Ariz. 349, 366 (1993) (investigators). Wilson did not raise this due process argument in the superior court. Thus, we review that claim for fundamental error resulting in prejudice. See State v. Escalante, 245 Ariz. 135, 138, 142, ¶¶ 1, 21 (2018).
¶12 When a defendant in custody exercises the right of self-representation, "the Fifth Amendment guarantee of access to the courts requires that he or she be provided an adequate law library or assistance from someone trained in the law." State v. Henry, 176 Ariz. 569, 584 (1993); see State v. Murray, 184 Ariz. 8, 28 (1995) ("Because defendants were provided with either advisory counsel or counsel throughout their proceedings, their constitutional right to court access was met, regardless of whether they had personal access to legal materials."). "Due process rights are violated only when a defendant is denied all meaningful opportunity to prepare a defense." Henry, 176 Ariz. at 584.
¶13 Wilson does not dispute that he had advisory counsel the entire time he was self-represented. This assistance of advisory counsel "afforded him the meaningful access required by the constitution." Id. "An inmate does not have the right to select his or her preferred means of access." Id. ¶14 The record shows Wilson filed motions citing court rules and cases, acknowledged he had Westlaw access, sent subpoenas, and was assisted by legal aide at the jail. Wilson repeatedly informed the court that he was prepared to proceed to trial as scheduled. Wilson has thus not shown he was denied meaningful court access denying him due process.
¶15 Wilson complains his relationship with advisory counsel "was completely and irretrievably broken." But he cites no authority suggesting that he was entitled to new advisory counsel based on a fractured relationship. Cf. State v. Torres, 208 Ariz. 340, 342, ¶ 6 (2004) ( courts are generally compelled to appoint new counsel for represented defendants "when there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel."). Even for represented defendants, generalized complaints of failure to communicate or lack of trust, such as those Wilson asserts here, do not alone require the appointment of new counsel. See State v. Riley, 248 Ariz. 154, 168, ¶ 13 (2020) (failing to communicate); State v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 14 (App. 2007) (losing trust).
¶16 Nor has Wilson shown that others in his advisory counsel's office created an impermissible conflict. To the extent a pro se defendant has a right to conflict-free advisory counsel, there was no impermissible conflict here. Cf. State v. Sustaita, 183 Ariz. 240, 243 (App. 1995) (). And Wilson has not identified which witnesses may have posed a conflict or established that an actual conflict of interest existed, let alone a conflict that compromised advisory counsel's assistance. Cf. State v. Moore, 222 Ariz. 1, 16, ¶ 82 (2009) ().
¶17 An indigent defendant is entitled to appointment of investigators and expert witnesses when "such assistance is reasonably necessary to adequately present a defense at trial." Ariz. R. Crim. P. 6.7(a). See also Jacobson v. Anderson, 203 Ariz. 543, 545, ¶ 5 (App. 2002) ("[D]ue process requires the appointment of expert witnesses for an indigent defendant when such testimony is reasonably necessary to present an adequate defense."). Determining reasonable necessity is within the court's discretion. Jones v....
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