IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

Transcription

1 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c; ARCAP 28(c; Ariz. R. Crim. P IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, v. ANGEL DAVID SMILEY, Appellee, Appellant. No. 1 CA-CR DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court Appeal from the Superior Court in Maricopa County Cause No. CR DT The Honorable Maria del Mar Verdin, Judge CONVICTIONS AND SENTENCES AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Maricopa County Legal Advocate By Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant Phoenix Phoenix J O H N S E N, Judge 1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967, and State v. Leon, 104 Ariz.

2 297, 451 P.2d 878 (1969, following Angel David Smiley s conviction on August 8, 2008, of first-degree murder, a Class 1 dangerous felony; attempted armed robbery, a Class 3 dangerous felony; burglary in the first degree, a Class 2 dangerous felony; and conspiracy to commit armed robbery, a Class 2 dangerous felony. Smiley s counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000; Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App Smiley was given the opportunity to file a supplemental brief but did not do so. Counsel now asks this court to search the record for fundamental error. After reviewing the entire record, we affirm Smiley s convictions and sentences. FACTS AND PROCEDURAL HISTORY 2 On December 21, 2006, Michael Carey contacted his friend, D.S., and told her he needed a ride to pick up money. 1 D.S. and her friend, C.C., picked up Sarah Duran at school, then went to Smiley s apartment complex to pick up Carey. There, John Pierce got in the car, informing D.S. he was there to give directions. Carey then came out to the car with Smiley, and 1 Upon review, we view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against Smiley. State v. Fontes, 195 Ariz. 229, 230, 2, 986 P.2d 897, 898 (App

3 Carey placed a big, black, long case into the trunk of the car. Carey told D.S. he needed to drop off the case in exchange for money. D.S. then drove Smiley, Carey, Pierce, C.C. and Duran to another apartment complex where another person provided Smiley with a gun. D.S. then drove Smiley and the others to the victim s house. 3 After D.S. parked, Carey asked Duran to do him a favor and go with [him], [Pierce] and [Smiley] down the street to the house. Duran agreed and accompanied the three men down the street toward the house. Pierce and Smiley were armed with handguns, and Carey retrieved something from the trunk of D.S. s car. Smiley, Pierce and Carey covered their faces with bandanas. 4 The victim was inside his residence with his two children and his granddaughter when the four approached. While Smiley, Pierce and Carey hid from view, Duran rang the doorbell. Assuming Duran was his daughter s friend, the victim opened the door. When the door opened, Duran moved out of the way and one of the men came around the corner of the house with a shotgun. The victim grabbed for the shotgun as his daughter ran down the hallway to find her brother. The victim s daughter heard several gunshots as she fled down the hall. Police later found damage from shotgun spray on the laundry-area door, near where 3

4 the victim s children had been. The victim s daughter said shots were fired from the hallway of the home, near the living room and the kitchen. She saw two or three people running out of the house. Smiley, Pierce, Carey and Duran then ran back to D.S. s car and fled. 5 The victim was shot several times; his injuries proved fatal. Police found evidence that two handguns and a shotgun were fired. After being informed of his Miranda 2 rights, Smiley was interviewed by the police and stated the plan was to take guns the victim had in his home and sell them. 6 After a joint trial with co-defendants Pierce, Carey and Duran, Smiley was convicted of first-degree murder in violation of Arizona Revised Statutes ( A.R.S. section (A(2 (Supp. 2008; 3 attempted armed robbery in violation of A.R.S (2001, (2001 and (2001; burglary in the first degree in violation of A.R.S (2001 and (2001; and conspiracy to commit armed robbery in violation of A.R.S (2001. Smiley was acquitted of two counts of aggravated assault. The jury found each count 2 See Miranda v. Arizona, 384 U.S. 436 ( Although this statute was amended after the date of Smiley s offense, the revisions are immaterial to the disposition of this appeal. Thus, we cite to the current published version of the statute. 4

5 was a dangerous offense. The superior court sentenced Smiley to natural life in prison for murder, an aggravated term of 10 years for attempted armed robbery and aggravated terms of 15 years each for first degree burglary and conspiracy to commit armed robbery. The 10- and 15-year sentences were concurrent with each other but consecutive to the sentence of natural life. 7 Smiley timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S (A(1 (2003, (2001 and (Supp DISCUSSION 8 The record reflects Smiley received a fair trial. He was represented by counsel at all stages of the proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. The court conducted a settlement conference in accordance with State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000, and concluded Smiley knowingly, intelligently and voluntarily rejected the State s plea offer. The court did not conduct a voluntariness hearing before allowing the State to introduce evidence of Smiley s statements to the police; however, because neither Smiley nor the evidence raised a question of the voluntariness of his statements, the superior court was not required to do so. See 5

6 State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977; State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 ( The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. The jury was properly comprised of twelve members with three alternates. The court properly instructed the jury on the elements of the charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was confirmed by juror polling. The court received and considered a presentence report and addressed its contents during the sentencing hearing. Smiley waived an aggravation hearing and knowingly, voluntarily and intelligently stipulated that each count of which he was convicted involved the presence of an accomplice as an aggravating factor. The court found, as an additional aggravating factor, that each count caused severe emotional and financial harm to the victim s family and imposed legal sentences on the charges arising out of the crimes for which Smiley was convicted. CONCLUSION 10 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at After the filing of this decision, defense counsel s obligations pertaining to Smiley s representation in this appeal 6

7 have ended. Defense counsel need do no more than inform Smiley of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, , 684 P.2d 154, (1984. Upon the court s own motion, Smiley has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. He has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. _/s/ DIANE M. JOHNSEN, Judge CONCURRING: _/s/ PETER B. SWANN, Presiding Judge _/s/ JOHN C. GEMMILL, Judge 7