270 Ariz. Adv. Rep. 45
1 CA-CR 97-0665Court of Appeals of Arizona, Division One, Department E.
Filed April 28, 1998 (Redesignated per Order dated May 27, 1998)
Appeal from the Superior Court of Maricopa County Cause No. CR 95-90661.
(Not for publication — Rule 111, Rules of the Arizona Supreme Court)
The Honorable Brian K. Ishikawa, Judge
Grant Woods, The Attorney General by Paul J. McMurdie, Chief Counsel Criminal Appeals Section and John Pressley Todd, Assistant Attorney General Attorneys for Appellee Phoenix
Dean W. Trebesch, Maricopa County Public Defender by Christopher Johns, Deputy Public Defender Attorneys for Appellant Phoenix
MEMORANDUM DECISION OPINION
¶ 1 Lovette S. Scott (“defendant”) appeals from his convictions and sentences for one count each of drive by shooting, misconduct involving weapons, and resisting arrest, and two counts of aggravated assault. For the reasons that follow, we affirm.
¶ 2 The charges in this case arose out of two gang-related shootings committed against the same victim at or near the same Mesa park on two consecutive days. On both occasions, defendant fired at the victim with a sawed-off rifle. The second incident was witnessed by police officers, who pursued the car in which defendant was riding until it crashed through a barricade on a dead-end street.
¶ 3 Defendant ran from the car, and officers found him hiding under a bush a short distance away. Defendant ignored officers’ commands to surrender and was eventually dragged from under the bush. However, defendant lay face-down with his arms underneath him and he refused the commands of officers to show his hands. Fearing that defendant might be concealing a weapon, four officers struggled with him and were eventually able to subdue and handcuff him.
1. Was sufficient evidence presented to sustain defendant’s conviction for resisting arrest?
2. Was defendant denied his right to a jury drawn from a fair cross-section of the community?
3. Did the trial court commit fundamental error in its award of presentence incarceration credit?
I. The Sufficiency of the Evidence
¶ 4 “When a defendant claims that evidence is insufficient to support a verdict, the appellate court does not reweigh the evidence.” State v. Jones, 188 Ariz. 388, 394, 937 P.2d 310, 316 (1997), cert. denied, 118 S.Ct. 705 (1998). Rather, we view the evidence in the light most favorable to upholding the verdict, reversing only if there is no substantial evidence of guilt. Id. Substantial evidence is evidence that would convince an unprejudiced thinking mind that the fact which is sought to be proven is true. Id.
¶ 5 Defendant was convicted of resisting arrest in violation of Arizona Revised Statutes Annotated (“A.R.S.”) section 13-2508(A)(1) (1989). This statute provides in pertinent part:
A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer’s official authority, from effecting an arrest by:
1. Using or threatening to use physical force against the peace officer or another.
In arguing insufficiency, defendant cites the testimony of Officer Solomon:
I was working on one of the hands, trying to bring it up behind his back, of which I was getting passive resistance, what I call. He wasn’t fighting me. On the same hand, he wasn’t helping me. He just kind of took what’s called a rock. He wouldn’t move at all. Just like this.
Defendant claims that this “passive resistance” is insufficient to support his conviction.
¶ 6 Defendant relies on our holding in State v. Womack, 174 Ariz. 108, 847 P.2d 609 (App. 1992). However, Womack hurts, rather than helps, defendant’s case. In that case, the defendant was charged under subsection (A)(2) of section 13-2508, which penalizes resisting arrest by using any means that create “a substantial risk of causing physical injury to the peace officer or another.” 174 Ariz. at 110-11, 847 P.2d at 611-12. The Womack court found that merely fleeing from officers in a high speed chase, without any evidence that anyone was put at risk of physical injury, was insufficient to sustain a conviction under that subsection. Id. at 113-14, 847 P.2d at 614-15. Womack is thus clearly distinguishable from this case where defendant is charged under subsection (A)(1), which contemplates an entirely different factual scenario than envisioned by subsection (A)(2).
¶ 7 More apropos is the dictum in Womack generated as the court sought to ascertain the intent of the legislature in enacting section 13-2508. The court looked to both a judicial and a dictionary definition of “resist” to discern as precisely as possible the type of behavior the legislature sought to enjoin. 174 Ariz. at 112, 847 P.2d at 613. The dictionary defined resist, inter alia, as “to exert force in opposition . . . to exert oneself so as to counteract or defeat.” Id. Womack also looked to the Connecticut Court of Appeals which had defined resistance as requiring that “[t]here must be actual opposition or resistance, making necessary, under the circumstances, the use of force.” Id. (quoting State v. Avnayim, 185 A.2d 295, 298-99 (Conn.App. 1962)).
¶ 8 Viewing the evidence here in a light favorable to the state, we note that Officer Ulibarri testified that defendant struggled with all the officers and would not put his hands up but kept them underneath his body. This necessitated the officer applying “knee strikes” to defendant’s thigh area. Officer Solomon testified that defendant kept his hands under his body while the officer tried to pull them out to handcuff him. While Solomon characterized defendant’s effort as “passive resistance,” he also testified it took twenty-five seconds to overcome this resistance, including a “knee strike” to defendant’s thigh.
¶ 9 Defendant attempts to characterize his behavior as merely nonsubmission to verbal commands of the officers, equivalent to the behavior of the defendant in Womack. We disagree that the evidence should be so construed. Rather, it is clear that defendant did more than merely go limp, as might be the case with a political protestor at a demonstration. Defendant engaged in “actual opposition or resistance, making necessary, under the circumstances, the use of force” by the officers. See Womack, 174 Ariz. at 112, 847 P.2d at 613.
¶ 10 This case is closer to State v. Henry, 259 Ariz. Adv. Rep. 41, 42 (App. December 23, 1997), where the defendant fled on foot until an officer forced him to the ground. The defendant refused to be handcuffed, squirming and tucking his arms underneath his body. He shouted to bystanders for help, and several people in the crowd approached the officer. Someone threw a bottle, which shattered and sprayed glass on the officer. Id.
¶ 11 The Henry court, after quoting both subsections of section 13-2508(A), stated:
The Defendant forcibly resisted being handcuffed which was an attempt to prevent the officer from taking him into custody. The crowd, at the Defendant’s behest, also intervened with the same purpose and in a manner that created a risk of injury to the officer.
All of this clearly supports the conviction for resisting arrest.
Id. Although Henry is imprecise on the point, we had no need in that case to construe subsection (A)(1) because there was a substantial risk of injury to the officer — a fact which met the requirements of subsection (A)(2). However, we did in Henry properly characterize conduct like this defendant’s — keeping his hands under his body — as forcible resistance. We believe that subsection (A)(1) criminalizes such conduct in the circumstances presented here.
II. Right to an Impartial Jury
¶ 12 The selection of a jury from a representative cross-section of the community is an essential component of a criminal defendant’s Sixth Amendment right to an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). In order to establish a prima facie violation of the fair cross-section requirement, a defendant must show that (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979); State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992).
¶ 13 In this case, defendant, who is black, moved to strike the jury panel because there were no African-Americans in the venire. Defense counsel argued that the alleged underrepresentation was caused “by virtue of the manner and means” by which jurors were brought to the Southeast District of the Superior Court of Maricopa County. However, no further evidence or explanation was offered, and the trial court denied the motion.
¶ 14 Defendant concedes that he failed at trial to make the required showing under the second and third prongs of Duren. Nevertheless, he urges us to adopt a “less onerous” test for an accused to establish a fair cross-section violation, claiming that the test set forth in Duren presents an impossible burden for indigent defendants. Defendant cites no evidence to support this assertion nor does he tell us why an indigent defendant could not avail himself of Rule 18.4(a), Arizona Rules of Criminal Procedure, the established Arizona procedure for challenging a “material departure” from the legal requirements for jury selection.
¶ 15 Despite the lack of any evidence why the established procedure does not suffice, defendant nevertheless proposes two alternatives. Under the first, once a showing has been made that no African-Americans have been summoned for a particular panel, reversal of the defendant’s convictions would be mandated under a theory of “structural error.” However, Arizona has already rejected any such approach. Our supreme court has stated that “the mere observation that a particular group is underrepresented is insufficient to support a constitutional challenge.” Atwood, 171 Ariz. at 621, 832 P.2d at 638. If there is no showing of a systematic exclusion of an identifiable class, the fact that a jury panel contains no members of a particular class is not a basis for striking a panel. State v. Tucker, 118 Ariz. 76, 80, 574 P.2d 1295, 1299 (1978). On this prior authority, we reject defendant’s first proposal.
¶ 16 Under defendant’s second proposal, a procedure similar to the one used to attack the discriminatory exercise of peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 94-97 (1986), would be employed. Once a prima facie showing is made that a “cognizable group” is unrepresented in the jury pool, the burden would shift to the prosecutor to provide a race-neutral explanation for the “cross-section deficiency.” Id.
¶ 17 Defendant’s attempt to engraft the Batson burden-shifting mechanism onto the procedure for challenging the entire jury pool is neither necessary nor workable. In the Batson context, it makes sense to require the prosecutor to assume the burden of providing a race-neutral explanation for a peremptory challenge because the prosecutor is the only one who knows why the challenge was made. In the context of selecting a jury panel, evidence of the methods used by the jury commissioner to produce the panel is as available to the defendant as to the prosecutor. See A.R.S. §§ 21-301
to — 331 (1990 Supp. 1997). For that reason, proving a challenge under Rule 18.4(a) to the panel is properly the burden of the party making the challenge. We see no reason to depart from the procedure required by Duren and Atwood and therefore reject this proposal also.
III. Calculation of Presentence Incarceration Credit
¶ 18 Defendant remained in custody from the time of his arrest until sentencing, a total of 912 days. In his opening brief, defendant contends that the trial court credited him with only 456 days of presentence incarceration. The state responds and correctly notes that the trial court in fact credited the full 912 days against defendant’s sentences, dividing the credit equally between the two consecutive terms of imprisonment. In reply, defendant concedes the state’s factual correction, but suggests that he may have been prejudiced by the allocation.
¶ 19 Defendant did not object to the allocation of credit in the trial court and, consequently, we review only for fundamental error. State v. Rios, 169 Ariz. 108, 109, 817 P.2d 53, 54 (App. 1991). Defendant offers no explanation how he has been prejudiced beyond the bare assertion that “[a]s a practical matter, most criminal defense lawyers know that allocation of all ‘back time’ is preferable for the client for the first sentence since an appellant will advance from one sentence to the next more rapidly.” However, the failure to act in accordance with a defendant’s preferences does not, standing alone, constitute fundamental error. We can discern no legal prejudice to defendant from the trial court’s action.
¶ 20 We find no error, fundamental or otherwise, leading up to defendant’s convictions and sentences. Therefore, the convictions and sentences are affirmed.
______________________________ James B. Sult, Presiding Judge
______________________________ William F. Garbarino, Judge
______________________________ Thomas C. Kleinschmidt, Judge