FILED BY CLERK
IN THE COURT OF APPEALS DEC 24 2012
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2011-0340
Appellee, )
)
v. )
)
MARCUS DESHAUN TUCKER, )
)
Appellant. )
)
)
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0386
)
Appellee, )
)
v. )
)
CLIFTON JAMES CUTTLER II, )
)
Appellant. )
)
)
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0391
) (Consolidated)
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
ANDRE LAVELLE ARMSTRONG, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause Nos. CR20111012001, CR20111012002, and CR20111012003 (Consolidated)
Honorable Jane L. Eikleberry, Judge
VACATED AND REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Amy M. Thorson, and
Nicholas Klingerman Tucson
Attorneys for Appellee
Law Offices of Cornelia Wallis Honchar, P.C.
By Cornelia Wallis Honchar Tucson
Attorney for Appellant Tucker
West & Zickerman, PLLC
By Anne Elsberry Tucson
Attorneys for Appellant Cuttler
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner Tucson
Attorneys for Appellant Armstrong
E S P I N O S A, Judge.
¶1 After an eight-day jury trial, appellants Andre Armstrong, Clifton Cuttler
II, and Marcus Tucker were convicted of offenses arising from their agreement to commit
a home invasion and were sentenced to terms of imprisonment. In their consolidated
appeals, they all argue they were deprived of their constitutional right to a public trial.
Armstrong separately challenges the sufficiency of the evidence supporting his
conviction and the trial court’s denial of his motions to sever his trial from that of his
codefendants. Cuttler also contends the trial court erred in denying his motion to permit
appointed counsel to withdraw. Although we find Armstrong’s separate arguments to be
2
without merit, we agree that all the defendants were deprived of a public trial.1 We
therefore vacate their convictions and sentences and remand for a new trial.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding the jury’s
verdicts. State v. Gunches, 225 Ariz. 22, n.1, 234 P.3d 590, 591 n.1 (2010). This case
arose from an undercover operation by Tucson police officers involving Armstrong,
Cuttler, and Tucker (collectively “the defendants”), as well as Torson Diaz, who is not a
party to this appeal. Between December 2010 and March 2011, police officers posing as
drug traffickers told Cuttler, Tucker, and Diaz they wanted to hire a “crew” to execute a
home invasion and steal between ten and twenty kilograms of cocaine for resale. They
offered to supply weapons, bulletproof vests, and a vehicle for the job. The three men
agreed, and on March 15, 2011, they arrived at the appointed time at an arranged staging
area, accompanied by Armstrong. All four men reviewed the details of the plan,
inspected the weapons, and tried on the bulletproof vests the undercover officers had
brought. Shortly thereafter, as the men prepared to leave to execute the plan, uniformed
police officers arrived and arrested them.
¶3 The defendants were charged in a fifteen-count indictment, which later was
condensed to allege only two counts against each defendant: one count of misconduct
involving body armor and one count of conspiracy to commit armed robbery, aggravated
1
We need not address Cuttler’s right to counsel argument in light of our resolution
of the public-trial issue.
3
robbery, aggravated assault, or kidnapping. Diaz was found incompetent to stand trial,
and the other three defendants were tried jointly over Armstrong’s objections.
¶4 On the third day of trial, the trial court closed the courtroom to all members
of the public except the press for the remaining proceedings, apparently in response to
complaints by jurors about intimidating conduct by persons in the courtroom and possibly
the court’s own observation of such conduct. The court entered the closure order despite
concerns raised by Armstrong, who asserted that his family members had not acted
inappropriately, and Tucker, who argued that excluding everyone from the courtroom
“may look prejudicial.” The court also denied a subsequent motion for mistrial based on
the argument the closure had violated the defendants’ constitutional right to a public trial.
¶5 The trial court denied all three defendants’ motions for a judgment of
acquittal pursuant to Rule 20, Ariz. R. Crim. P., and Armstrong’s and Cuttler’s motions
for a new trial. The jury found Cuttler and Tucker guilty of both counts of the indictment
but found Armstrong guilty only of the body armor charge after it was unable to reach a
verdict on the conspiracy charge as to him. Armstrong was sentenced to the presumptive
prison term of ten years. Cuttler was sentenced to presumptive, concurrent prison terms,
the longest of which was 15.75 years.2 Tucker pleaded guilty to an additional charge of
possession of a deadly weapon by a prohibited possessor and was sentenced to
presumptive, concurrent prison terms, the longest of which was 15.75 years.
2
Cuttler also was determined to be in violation of previously imposed conditions
of probation. The trial court revoked probation and sentenced him to the presumptive
prison term of 2.5 years on that conviction, to be served consecutively to his 15.75-year
sentence in this case.
4
¶6 The defendants filed separate appeals, which we consolidated because all
three contend they were denied the right to a public trial. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21, 13-4031, and 13-4033.
Public Trial
¶7 Tucker, Cuttler, and Armstrong argue they were denied their constitutional
right to a public trial when, during the third day of the eight-day trial, the judge closed the
courtroom to all members of the public except members of the press, based on concerns
that observers might have been photographing jurors and witnesses and giving them
“looks.” “Because the value of the public trial guarantee to the judicial system is
incalculable, we carefully scrutinize any trial court order that denies, restricts or limits a
defendant’s right to a public trial.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306,
1308 (1994). Whether a defendant has been denied a public trial is a constitutional
question we review de novo. See State v. Dann, 220 Ariz. 351, ¶ 27, 207 P.3d 604, 613
(2009). The improper denial of a public trial constitutes structural error, State v. Ring,
204 Ariz. 534, ¶ 46 & n.16, 65 P.3d 915, 933-34 & 934 n.16 (2003), and, consequently,
prejudice is presumed and need not be shown by the defendant.3 Waller v. Georgia, 467
3
Relying on Peretz v. United States, 501 U.S. 923 (1991), Levine v. United States,
362 U.S. 610 (1960), and United States v. Christi, 682 F.3d 138 (1st Cir. 2012), the state
contended for the first time at oral argument in this court that the defendants forfeited
review of the public-trial issue by failing to timely object to the courtroom closure. We
note that structural error is “fundamental [in] nature” and generally “can be raised for the
first time on appeal.” State v. Orendain, 188 Ariz. 54, 55, 932 P.2d 1325, 1326 (1997).
However, because we find the issue sufficiently preserved in this case, we need not
determine whether it is possible to forfeit review of a trial closure merely by failing to
object. See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999) (“An
5
U.S. 39, 49-50 & 49 n.9 (1984); State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 236
(2009).
¶8 The United States and Arizona Constitutions guarantee a defendant in a
criminal case a public trial. U.S. Const. amends. VI, XIV; Ariz. Const. art. II, § 24; see
Presley v. Georgia, 558 U.S. 209, ___, 130 S. Ct. 721, 723 (2010) (per curiam) (Sixth
Amendment right to public trial applicable to states); see also A.R.S. § 13-114(1).4 A
“public trial” is “a trial which is open to the general public at all times.” People v.
Woodward, 841 P.2d 954, 956 (Cal. 1992). Our system of justice places great
importance on the public nature of criminal trials because “[o]penness in court
proceedings may improve the quality of testimony, induce unknown witnesses to come
forward with relevant testimony, cause all trial participants to perform their duties more
conscientiously, and generally give the public an opportunity to observe the judicial
system.” Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979). Accordingly, there is a
presumption that criminal proceedings will be open to the public, and “[c]losed
proceedings, although not absolutely precluded, must be rare and only for cause shown
that outweighs the value of openness.” Press-Enter. Co. v. Superior Court, 464 U.S. 501,
objection is sufficiently made if it provides the judge with an opportunity to provide a
remedy.”).
4
Although the public also has a qualified constitutional and common-law right to
attend court proceedings, see Waller, 467 U.S. at 44; Ridenour, 179 Ariz. at 3-4, 875 P.2d
at 1308-09, the public has not challenged the closure in this case; we therefore limit our
discussion to the right held by the defendants qua criminal defendants.
6
509 (1984) (Press-Enter. I ).5 Nevertheless, both federal and Arizona courts have
recognized that the right to a public trial may be limited under some circumstances. See,
e.g., United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1989); State v. Bush, 148
Ariz. 325, 330-31, 714 P.2d 818, 823-24 (1986).6
The Waller Test
¶9 In Waller, 467 U.S. 39, the United States Supreme Court unanimously
established a four-part test for determining whether a closure of criminal proceedings is
constitutional. Under that test,
the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect that interest, the
trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the
closure.
Id. at 48. We are unaware of any Arizona authority that has applied this test.
¶10 In its answering briefs, the state argues Waller does not apply here because
in that case, “everyone in the general public was apparently excluded” from the
proceedings, including the press, whereas here the press was not barred from the
courtroom. Although the state is correct that in Waller the proceedings were closed to
5
For a detailed discussion of the history of the right to a public trial, see generally
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-74 (1980).
6
Because the state and federal constitutional rights to a public trial appear to be
coextensive, our references to the federal right apply to the state right as well. See State
v. Casey, 205 Ariz. 359, ¶ 8, 71 P.3d 351, 354 (2003) (clauses in Arizona Constitution
usually interpreted in conformity with similar clauses of United States Constitution); cf.
Derendal v. Griffith, 209 Ariz. 416, ¶ 13, 104 P.3d 147, 151 (2005) (in context of right to
jury trial, article II, § 24 is Arizona’s analog to Sixth Amendment of United States
Constitution and thus construed consistently).
7
everyone, the Supreme Court announced a broad rule and did not restrict its application
to cases in which the proceedings were completely closed. 467 U.S. at 42, 48-49. On the
contrary, the test itself suggests the Court intended that it apply to any closure of a
criminal trial, whether complete or partial, as the second element requires that any order
excluding members of the public be “no broader than necessary” to protect the interest
advanced by the proponent of the closure. Id. at 48. If the test applied only in cases of
total closure, that requirement would be meaningless. Cf. State v. Hoggatt, 199 Ariz.
440, ¶ 13, 18 P.3d 1239, 1243 (App. 2001) (in context of statutory interpretation, courts
constrained to avoid construction that “would render portions of statute superfluous and
meaningless”). Thus, whether closure was partial or total is not a threshold question for
determining whether the test applies, but rather a component of the test itself, used to
determine whether the closure was no broader than necessary and, thus, constitutional
under the circumstances.
¶11 The state contends United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d
Cir. 1965), is analogous to the situation before us and provides guidance here. In that
case the Second Circuit Court of Appeals rejected the defendant’s claim that he had been
deprived of a public trial when the trial court initially excluded everyone from the
courtroom and then readmitted only the press and members of the bar. Id. at 970. After
noting the defendant’s family and members of his union had attempted to intimidate and
harass witnesses and otherwise disrupt proceedings, the circuit court determined the trial
judge “had good reason to believe that many persons in the courtroom were acting so as
to interfere with the orderly conduct of the trial.” Id. Although Fay bears similarities to
8
this case in that the press was allowed to remain in the courtroom while other members of
the public were excluded, we disagree with the state that it should guide our analysis
here.
¶12 Decided in 1965, Fay predates Waller and most of the other Supreme Court
authority establishing the modern framework for applying the public-trial guarantee. See
generally Presley, 558 U.S. 209 (2010); Press-Enter. Co. v. Superior Court, 478 U.S. 1
(1986) (Press-Enter. II); Waller, 467 U.S. 39 (1984); Press-Enter. I, 464 U.S. 501
(1984); Gannett Co., 443 U.S. 368 (1979). Moreover, the Second Circuit has applied the
Waller test repeatedly since it was announced in 1984, even in cases of partial courtroom
closures, further diminishing Fay’s persuasive value. See Sevencan v. Herbert, 342 F.3d
69, 75 (2d Cir. 2002) (Waller test only clearly established law for courtroom closures);
see also, e.g., English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998) (applying Waller to
exclusion of defendant’s family); Guzman v. Scully, 80 F.3d 772, 775 (2d Cir. 1996)
(defendant’s friends and family); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994) (all
members of public for portion of trial). Accordingly, we find the state’s reliance on Fay
misplaced.
¶13 Finally, although it appears no Arizona court has applied the Waller test in
any context, many other jurisdictions have done so, even in cases of partial courtroom
closures.7 As the Hawai’i Supreme Court has observed:
7
See English, 164 F.3d at 109-10 (public excluded during testimony of one
witness); United States v. Blanche, 149 F.3d 763, 769-70 (8th Cir. 1998) (defendant’s
family excluded after defense rested); United States ex rel. Morgan v. Lane, 705 F. Supp.
410, 413-15 (N.D. Ill. 1989) (public excluded during testimony of juvenile witnesses),
9
Although Waller addressed the complete closure of a trial to
the public, federal and state courts have subsequently
extended the Waller analysis to partial closures of trials, i.e.,
both closure of a segment of the trial during which the
testimony of one or more witnesses is elicited and closure
limited to particular members of the public.
State v. Ortiz, 981 P.2d 1127, 1137 (Haw. 1999). For all the foregoing reasons, we
conclude the Waller test applies to both complete and partial closures of Arizona criminal
trials.
Application of Waller
¶14 Applying Waller, we first consider whether there was an “overriding”
interest that justified the closure order in this case.8 Courts have generally upheld
aff’d, 897 F.2d 531 (7th Cir. 1990); Renkel v. State, 807 P.2d 1087, 1094 (Alaska Ct.
App. 1991) (public excluded during testimony of minor victims); State v. Ortiz, 981 P.2d
1127, 1137 (Haw. 1999) (defendant’s family excluded); People v. Webb, 642 N.E.2d 871,
874 (1994) (member of defendant’s family excluded during part of venire proceedings);
Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct. App. 1996) (public excluded during
testimony of one witness); State v. Schultzen, 522 N.W.2d 833, 836 (Iowa 1994)
(applying Waller in “quasi-closure” of courtroom in which defendant’s family hidden
behind screen during portion of one child witness’s testimony); Watters v. State, 612
A.2d 1288, 1293 (Md. 1992) (public prevented from entering courtroom during one
morning of trial); Commonwealth v. Cohen, 921 N.E.2d 906, 918 (Mass. 2010) (general
public, except defendant’s family, excluded during four days of jury selection); State v.
Mahkuk, 736 N.W.2d 675, 683-85 (Minn. 2007) (purported gang members, including
members of defendant’s family, excluded); People v. Nieves, 683 N.E.2d 764, 766 (N.Y.
1997) (members of defendant’s family excluded during testimony of one witness); State
v. Washington, 755 N.E.2d 422, 424 (Ohio Ct. App. 2001) (public excluded during
testimony of one witness); Commonwealth v. Penn, 562 A.2d 833, 836 (Pa. Super. Ct.
1989) (same).
8
Some federal appeals courts applying the Waller test have suggested that a
permissible partial closure of the courtroom may be based on a lesser showing by the
moving party than would be required for a complete closure. These courts have required
the movant to demonstrate only a “substantial” interest rather than the “overriding”
interest described in Waller. E.g., Garcia v. Bertsch, 470 F.3d 748, 752-53 (8th Cir.
10
limitations on public access to criminal proceedings when there has been a need to
protect victims, witnesses, or jurors from embarrassment or intimidation. See, e.g.,
Press-Enter. I, 464 U.S. at 510-12 & n.10 (embarrassment of jurors); State v. Smith, 123
Ariz. 243, 249, 599 P.2d 199, 205 (1979) (embarrassment and emotional disturbance of
rape victim); see also Ariz. R. Crim. P. 9.3(c) (court may exclude spectators to prevent
embarrassment or emotional disturbance of witness). Here, the trial court closed the
courtroom in order to prevent intimidation of jurors and witnesses and to prevent
prejudice to the defendants. The court therefore articulated an overriding interest, and
Waller’s first prong was met.
¶15 Waller’s second requirement, however, that any “closure must be no
broader than necessary to protect [the] interest [advanced by the proponent of closure],”
467 U.S. at 48, was not met. First, the exclusion of the defendants’ families along with
the rest of the general public suggests the closure order was broader than necessary. The
Supreme Court has noted a special concern for accommodating the attendance at trial of
an accused’s family members. In re Oliver, 333 U.S. 257, 271-72 & 272 n.29 (1948);
accord Vidal, 31 F.3d at 69; English, 164 F.3d at 108; see also Braun v. Powell, 227 F.3d
908, 917 & n.6 (7th Cir. 2000) (collecting cases). Armstrong objected to the exclusion of
2006); Sherlock, 962 F.2d at 1356-57. Contra, e.g., Mahkuk, 736 N.W.2d at 685
(declining to apply “different tests to complete versus partial closures”); People v. Jones,
750 N.E.2d 524, 529 (N.Y. 2001) (same). Because we conclude the interests described
by the trial court in this case—protecting jurors and witnesses from intimidation and
avoiding prejudice to the defendants—satisfy either standard, any distinction between
them is immaterial here. We therefore need not address this issue and leave its resolution
for another day.
11
his family, maintaining they had not taken any photographs. Tucker also informed the
court that although his family members had not yet attended the proceedings, they did
plan to attend later. He pointed out his family members could not have been among those
acting inappropriately because they had not been present, yet the closure order
nevertheless precluded them from attending.9 Assuming some observers had taken
photographs or had given “looks,” it appears from the record the court’s closure order
was more extensive than necessary to protect the jurors’ and witnesses’ interests because
there is no indication the defendants’ families were involved. In light of the special
concern for permitting the attendance of a defendant’s family, the absence of any such
evidence suggests their exclusion in this case was unnecessary and thus impermissible
under the second part of the Waller test. See Ortiz, 981 P.2d at 1138 (trial court erred in
excluding defendant’s family “on a vague suspicion of wrongdoing, admitting that it
‘d[id not] know which people are . . . being investigated’”) (alterations in Ortiz).
¶16 Furthermore, the exclusion of a police witness also appears to have been
unnecessary based on the trial court’s express assumption that he had not been
intimidating jurors or other witnesses. The court stated, “[L]et’s just keep everybody out,
and that includes the officer who is here and who testified earlier. . . . I don’t think he’s
been playing with his cell phone, but if he has been, I don’t want it to happen. . . . It’s
9
This is an additional respect in which this case is distinguishable from Fay, 350
F.2d 967, upon which the state relies. In that case, the Second Circuit noted, “There was
good reason for the judge to believe that the defendant’s family and friends . . . were
attempting to intimidate and harass witnesses and otherwise to disrupt the proceedings.”
Id. at 970. Here, by contrast, there is no record of such conduct by any member of the
defendants’ respective families.
12
just better to have everybody removed.” Not only did the court fail to find that the officer
had behaved inappropriately, it explicitly stated it believed this was not the case.
Although we recognize excluding the officer stemmed from the laudable desire to be
evenhanded, doing so after observing he apparently posed no threat to the privacy or
safety of the undercover officers or the jury further rendered the closure order broader
than necessary to protect those interests. See State v. Washington, 755 N.E.2d 422, 426
(Ohio Ct. App. 2001) (trial court’s expression it would “rather be safe than sorry”
insufficient to justify closure under Waller test); cf. Bush, 148 Ariz. at 331, 714 P.2d at
824 (finding extensive record of spectator misconduct and concluding “the offending
spectators should have been removed from the courtroom”) (emphasis added).
¶17 With respect to the third part of the Waller test, the record shows the trial
court considered no alternatives to the closure it ordered, even though it appears
alternatives were available that might have obviated any need for even a partial closure of
the courtroom. Such measures could have included, for example, prohibiting cellular
telephones and posting court personnel to observe courtroom attendees. Given the
ubiquitous use of cell phones for a variety of purposes, including taking photographs, the
public routinely could be excluded from trial if concerns about their use were sufficient to
override a defendant’s public-trial right. But the right cannot be so easily denied. Cf.
Presley, 558 U.S. at ___, 130 S. Ct. at 725 (if broad risk of jurors overhearing prejudicial
remarks from public were sufficient to override defendant’s public-trial right, public
could be excluded “almost as a matter of course”); State v. Mahkuk, 736 N.W.2d 675,
685 (Minn. 2007) (“closure . . . based on generalized gang expert testimony would allow
13
closure in virtually every trial involving allegations of gang involvement”; more specific
findings required). Thus, employing safeguards such as disallowing the use of mobile
phones in the courtroom or requiring observers to leave them with security officers might
have struck a more precise balance between preserving the defendants’ right to a public
trial and protecting jurors and witnesses. The court therefore was required to consider
such alternatives before closing the trial. See Presley, 558 U.S. at ___, 130 S. Ct. at 724-
25 (trial court required “to consider all reasonable alternatives to closure” whether or not
offered by objecting party). Although we generally would defer to a trial court’s finding
that such alternatives to closure were impracticable, the court’s apparent failure to
consider them in the first instance was error.
¶18 Relying on Ayala v. Speckard, 131 F.3d 62, 71 (2d Cir. 1997), and State v.
Turrietta, 258 P.3d 474, 479-80 (N.M. Ct. App.), cert. granted, 268 P.3d 47 (N.M. 2011),
the state emphasizes that the trial court allowed the press to attend trial, thus effecting
only a partial, rather than a complete closure of the courtroom and thereby satisfying its
obligation to consider reasonable alternatives.10 But we disagree with the state that such
a generalized approach is permissible under Waller, particularly given the Supreme
Court’s directive that in deciding whether to close a trial, “the balance of interests must
be struck with special care.” 467 U.S. at 45. Rather, the decision must be based on the
circumstances attending a closure; although instituting a partial closure might, in some
10
The parties agreed at oral argument in this court that although the trial court’s
closure order did not include the press, no members of the press were present or attended
the trial.
14
cases, satisfy a court’s obligation to consider reasonable alternatives, it might not satisfy
that obligation in other situations. See, e.g., McIntosh v. United States, 933 A.2d 370,
378-79 (D.C. 2007) (“trial court failed to give proper consideration to reasonable
alternatives,” even though it “proposed a limited closure[] and defense counsel failed to
provide much in the way of argument or alternatives”); see also Commonwealth v. Penn,
562 A.2d 833, 838-39 (Pa. Super. Ct. 1989) (trial court erred in failing to consider
alternatives to closure of courtroom during testimony of one witness and to explain on
record why alternatives would be impractical or inadequate). And, to the extent that a
partial closure can constitute an alternative to closure, as suggested by the state, if the
partial closure under consideration is not sufficiently limited to comply with Waller’s
second requirement, the court must consider other alternatives. Here, as noted above,
reasonable alternatives to closure existed but the court did not consider them as required
by Presley. Accordingly, the third Waller requirement was not met.
¶19 Finally, the trial court’s findings, as required under the fourth prong of
Waller, were insufficient to support the closure order. Absent Arizona authority applying
Waller, decisions from other jurisdictions offer guidance in determining whether trial
court findings are “adequate.” Waller, 467 U.S. at 48. And courts agree that “[b]road
and general findings are insufficient to meet this requirement.” English, 164 F.3d at 109;
see Waller, 467 U.S. at 48; see also Press-Enter. II, 478 U.S. at 13-14 (“[P]roceedings
cannot be closed unless specific, on the record findings are made demonstrating that
‘closure is essential to preserve higher values and is narrowly tailored to serve that
interest.’”), quoting Press-Enter. I, 464 U.S. at 510.
15
¶20 In Guzman, the Second Circuit Court of Appeals held the trial court had
improperly “relied on the unsubstantiated statements of the prosecutor, rather than
conducting an inquiry of the prosecution witness on whose behalf the closure request was
made,” and concluded it therefore had not made adequate findings to support closing the
courtroom. Id. at 775. Similarly, in Penn, the Pennsylvania Superior Court concluded
the trial court had failed to make adequate factual findings to support the limited closure
of the courtroom during the testimony of a witness because “the trial court [had] made no
findings whatsoever regarding the nature, extent, or impact of the alleged intimidation on
[the witness]. 562 A.2d at 838, 840. The court found the trial court had “abused its
discretion in failing to examine [the witness] for itself, in camera if necessary, in order to
access [sic] his credibility and to determine the nature, extent, and impact of any attempts
to intimidate [him] and prevent or alter his testimony.” Id. at 838-39; accord, e.g.,
Mahkuk, 736 N.W.2d at 685 (findings inadequate when trial court excluded alleged gang
members from courtroom based on prosecutor’s assertion without taking evidence from
any witness regarding alleged intimidation).
¶21 These cases illustrate the level of specificity required with respect to the
factual findings a trial court must make in order to satisfy the fourth part of the Waller
test. Although an evidentiary hearing may not always be necessary, see Sherlock, 962
F.2d at 1359, a court cannot neglect to make findings altogether or base its closure order
only on broad or general observations. See, e.g., Waller, 467 U.S. at 48; English, 164
F.3d at 109; Guzman, 80 F.3d at 776; Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct.
App. 1996); Carter v. State, 738 A.2d 871, 877 (Md. 1999); Mahkuk, 736 N.W.2d at 685;
16
Washington, 755 N.E.2d at 425-26; Penn, 562 A.2d at 838-39; see also People v.
Clemons, 574 N.E.2d 1039, 1041 (N.Y. 1991) (“[N]o closure ‘can be tolerated that is not
preceded by an inquiry careful enough to assure the court that the defendant’s right to a
public trial is not being sacrificed for less than compelling reasons.’”), quoting People v.
Jones, 391 N.E.2d 1335, 1339 (N.Y. 1979), aff’g 557 N.Y.S.2d 179 (App. Div. 1990).
“While the right to a public trial may certainly bow to interests in protecting witnesses
from injury or intimidation in some cases, such an encroachment on a defendant’s rights
requires, at a minimum, that the trial court first determine whether or not the threat of
injury or intimidation in fact exists.” Penn, 562 A.2d at 839, citing Waller, 467 U.S. at
45. And, although a trial judge’s own observations of spectator behavior could support
closure of trial, the judge must make specific findings to comport with Waller.
¶22 Here, the factual findings the trial court made were too generalized to
satisfy the Waller test. Although, as noted in our discussion of the first Waller
requirement, we agree with the court’s implicit conclusion that the interests here are
“overriding,” the court did not make a sufficient record to permit a determination of
whether those interests were in fact threatened. See Waller, 467 U.S. at 48 (party seeking
closure must advance interest likely to be prejudiced); see also Press-Enter. I, 464 U.S. at
510 (trial court must make “findings specific enough that a reviewing court can
determine whether the closure order was properly entered”). And, as noted by another
court addressing a similar issue, “An appellate court may not provide a post hoc rationale
for why the trial judge would have closed the trial had it held a hearing and made
findings.” Carter, 738 A.2d at 878, citing Waller, 467 U.S. at 49 n.8.
17
¶23 The trial court stated it was concerned that observers “may be taking
photographs of the jurors and/or the undercover police officers, either to intimidate them
or for whatever purpose.” But it did not identify on the record specific individuals who
had alleged others had been engaging in improper conduct, stating only generally that
“[t]he jurors have expressed some concerns.”11 Nor did the court question them about
what they had observed; indeed, it acknowledged that it “didn’t talk to the jurors” but
explained instead that their “concerns [had been] communicated to the bailiff,” who then
apparently conveyed them to the court.12 Additionally, judicial security officers
examined the cellular telephones of many, albeit not all, observers and found no
“relevant” photographs. Consequently, the record contains no testimony or evidence to
support a finding that observers had been photographing witnesses or jurors. See
Mahkuk, 736 N.W.2d at 685 (vacating conviction under Waller where record contained
“no indication as to which specific witnesses had been intimidated or threatened,” “no
evidence from any witness asserting that a witness had been intimidated or threatened,”
11
Such a record need not have been made in open court but could have been taken
privately at the bench or in camera. See Penn, 562 A.2d at 839.
12
It is unclear from the record whether the trial judge personally observed any
spectator misconduct. At one point the judge suggested she had seen misconduct:
“Some of the observers in the courtroom have been concerning me with their behavior.
They’ve had cell phones out. I’m concerned that they may be taking photographs of the
jurors and/or the undercover police officers, either to intimidate them or for whatever
purpose.” But the judge did not disagree with Tucker’s attorney’s later statement, “I
believe my impression[] is correct, that the Court found out about this without your own
personal observation in order to then advise the gallery before you made your decision.”
Although a judge’s own observations of courtroom activity could support a closure order,
see McIntosh, 933 A.2d at 377, such observations must be established on the record
pursuant to Waller’s fourth requirement. 467 U.S. at 48.
18
and no “evidence indicating who specifically was intimidating or threatening witnesses”);
cf. Ortiz, 981 P.2d at 1138 (trial court conducted voir dire of jurors to determine whether
any tampering had taken place). Had the court specifically questioned the complaining
jurors and preserved their testimony or statements on the record, it might have been able
to identify the individuals who had engaged in the improper behavior, and thus also have
been able to tailor its order more narrowly by excluding those individuals only. See
Bush, 148 Ariz. at 330, 714 P.2d at 823 (court may clear courtroom of individuals who
intimidate witnesses or other court personnel). This also could have allayed the court’s
concern about causing prejudice to the defense by excluding from the courtroom a group
of observers that may have appeared to be associated with the defendants.
¶24 For the foregoing reasons, we conclude that three of the requirements set
forth by the Supreme Court in Waller were not satisfied here. We place great importance
on the protection of witnesses and jurors, and it is clear that here, as in Fay, “the situation
which the trial judge faced was not fully reflected in the black and white of the
stenographer’s minutes.” 350 F.2d at 972. Nevertheless, the closure of the courtroom,
even in part, cannot be deemed constitutional unless the Waller requirements have been
met. Bearing in mind the historical presumption of openness in criminal proceedings and
the Supreme Court’s warning that “[t]rial courts are obligated to take every reasonable
measure to accommodate public attendance at criminal trials,” we conclude that the
court’s order in this case denied the defendants a public trial. Presley, 558 U.S. at ___,
130 S. Ct. at 725. Because the error is structural under Waller, 467 U.S. at 49-50 & 49
19
n.9, and Ring, 204 Ariz. 534, ¶ 46 & n.16, 65 P.3d at 933-34 & 934 n.16, the defendants’
convictions and sentences must be vacated and this matter remanded for a new trial.
Sufficiency of the Evidence for Armstrong’s Conviction
¶25 Although we vacate Armstrong’s conviction and remand for a new trial
based upon the public-trial issue, we must address his sufficiency-of-the-evidence
argument because, were we to agree with him that the trial court erred in denying his
motion for a judgment of acquittal, his conviction would be reversed on that ground.
Burks v. United States, 437 U.S. 1, 17-18 (1978). And, because the prohibition against
double jeopardy “‘forbids a second trial for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster in the first proceeding,’”
State v. May, 210 Ariz. 452, ¶ 25, 112 P.3d 39, 46 (App. 2005), quoting State v. Moody,
208 Ariz. 424, ¶ 25, 94 P.3d 1119, 1133 (2004), the state would be barred from retrying
him.
¶26 After the state rested, Armstrong moved for a judgment of acquittal on both
counts, pursuant to Rule 20, Ariz. R. Crim. P., which motion the trial court denied.
Armstrong renewed his motion as to his body-armor conviction after the jury rendered its
verdicts, but the court again denied the motion. Armstrong contends the evidence was
insufficient and the court reversibly erred because the state had “presented no evidence
whatsoever that would allow a rational trier of fact to find proof beyond a reasonable
doubt that [he] wore the body armor ‘during the commission of any felony offense,’” as
20
required by A.R.S. § 13-3116.13 He does not dispute he wore a bulletproof vest, but
contends there was insufficient evidence he had participated in a conspiracy while
wearing it and therefore the evidence was necessarily insufficient. He urges this court to
accept his version of the events and conclude he was merely present when the other men
conspired to invade the home. Alternatively, Armstrong contends that, without an overt
act, § 13-3116 does not apply when the underlying felony is conspiracy, and he maintains
there was insufficient evidence of a nexus between the use of the vest and the underlying
conspiracy.
¶27 We review the denial of a Rule 20 motion de novo. State v. West, 226 Ariz.
559, ¶ 15, 250 P.3d 1188, 1191 (2011). When reviewing a claim of insufficient evidence,
we do not reweigh the evidence and determine whether we would have found the
defendant guilty; rather, we will reverse a jury’s verdict only if it is not supported by
substantial evidence. State v. Garfield, 208 Ariz. 275, ¶ 6, 92 P.3d 905, 907 (App. 2004).
“If reasonable persons could differ on whether the evidence establishes a fact at issue,
that evidence is substantial.” Id.
¶28 Here, there was substantial evidence from which the jury could have found
Armstrong had participated in the conspiracy. Police officers testified that Tucker,
Cuttler, and Diaz had planned to bring a fourth person to the pre-arranged meeting and,
on the day of the meeting, they arrived with Armstrong. Cuttler told one of the officers,
13
Section 13-3116 provides, “A person commits misconduct involving body armor
by knowingly wearing or otherwise using body armor during the commission of any
felony offense.”
21
who was undercover at the time, that he had spoken with Armstrong about the details of
the plan to invade the home, and Armstrong had confirmed he “knew what was going
on.” Like his codefendants, Armstrong inspected the assault rifles and then donned a
bulletproof vest. As one of the officers testified,
It’s the totality of the circumstances. He said, [“Y]eah, I
know what’s up.[”] He said, [“S]afety first.[”] He took off
his tee shirt and put on a bulletproof vest. Twelve[-]and[-]a[-
]half years being a police officer, I’ve never driven through a
parking lot and watched someone who was not about to go
commit a crime putting on a bulletproof vest under his tee
shirt for no reason.
¶29 However limited Armstrong’s participation in the conspiracy might have
been, reasonable jurors could have found him criminally liable as a coconspirator based
on the evidence presented. See State v. Arredondo, 155 Ariz. 314, 317, 746 P.2d 484,
487 (1987) (agreement primary focus of crime of conspiracy, and defendant’s
participation therein may be proven by minimal conduct). That the jury was unable to
reach a unanimous verdict on the conspiracy count, resulting in a mistrial as to that count,
does not mean Armstrong was entitled to a judgment of acquittal pursuant to Rule 20. As
our supreme court has observed, the fact that a jury was unable to reach a verdict on one
count does not “‘make[] the existence of any fact . . . more probable or less probable’” on
another count. Yaeger v. United States, 557 U.S. 110, 120-22 (2009), quoting Fed. R.
Evid. 401. “[C]onjecture about possible reasons for a jury’s failure to reach a decision
should play no part in assessing the legal consequences of a unanimous verdict that the
jurors did return.” Id. From the evidence presented, rational jurors could conclude
Armstrong was aware of the plan and participated in the conspiracy. It was for the jury,
22
not this court, to weigh the evidence based on its assessment of the witnesses’ credibility.
State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). Thus, we will not
reevaluate the evidence according to Armstrong’s explanations. In re John M., 201 Ariz.
424, ¶ 7, 36 P.3d 772, 774 (App. 2001).
¶30 Armstrong alternatively offers various statutory interpretations of
§ 13-3116 that he insists precluded his conviction.14 He asserts, for example, § 13-3116
does not apply when the underlying felony is conspiracy and the state presents no
evidence of an overt act. He also argues there was insufficient evidence establishing a
“nexus” between the use of the vest and the conspiracy. The interpretation of § 13-3116
is a matter of first impression in Arizona, which we review de novo. State v. Garcia, 189
Ariz. 510, 513, 943 P.2d 870, 873 (App. 1997). “Our primary purpose in interpreting a
statute is to give effect to the legislature’s intent.” State v. Hinden, 224 Ariz. 508, ¶ 9,
233 P.3d 621, 623 (App. 2010). In determining that intent, “‘[w]e look first to the
statute’s language because we expect it to be the best and most reliable index of a
statute’s meaning.’” Id., quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133
(1993). “‘When the plain text of a statute is clear and unambiguous there is no need to
resort to other methods of statutory interpretation to determine the legislature’s intent
because its intent is readily discernable from the face of the statute.’” Estate of Braden
14
Although Armstrong failed to raise in the trial court, with as much specificity, all
of the statutory-interpretation arguments that he now asserts on appeal, the record
establishes the court considered the general issues he has raised; we therefore find them
adequately preserved for appeal.
23
ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 8, 266 P.3d 349, 351 (2011), quoting State v.
Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003).
¶31 Section 13-3116(A) provides, “A person commits misconduct involving
body armor by knowingly wearing or otherwise using body armor during the commission
of any felony offense.” Conspiracy to commit a felony requires “agree[ment] with one or
more persons that at least one of them or another person will engage in conduct
constituting . . . [a felony] offense” “with the intent to promote or aid the commission of
[the] offense,” and is classified as a felony offense. A.R.S. § 13-1003(A), (D). Section
13-1003(A) provides that “an overt act shall not be required if the object of the
conspiracy was to commit any felony upon the person of another.” See, e.g., Evanchyk v.
Stewart, 202 Ariz. 476, ¶¶ 15, 17, 47 P.3d 1114, 1118-19 (2002) (conviction for
conspiracy to commit first-degree murder requires neither overt act nor murder).
¶32 Armstrong maintains that conspiracy cannot be the underlying felony
required by § 13-3116(A) when the conspiracy at issue does not require commission of
an overt act. He relies on cases from other jurisdictions interpreting statutes that
criminalize possession of a weapon during the commission of a felony offense, and urges
us to adopt the reasoning of the Nevada Supreme Court in Moore v. State, 27 P.3d 447,
450 (Nev. 2001). There, the court held that, for sentencing purposes, the defendant could
not be regarded as having used a deadly weapon to commit conspiracy because the
conspiracy statute did not require an overt act and the conspiracy was completed when an
agreement was reached to commit an unlawful act. Armstrong also points to a decision
of the New Mexico Court of Appeals, which held a sentence-enhancement statute based
24
on the use of a firearm did not apply to the offense of conspiracy because “conspiracy is
an initiatory crime which involves no physical act other than communication.” State v.
Padilla, 879 P.2d 1208, 1212 (N.M. Ct. App. 1994). He cites no Arizona authority
interpreting Arizona’s weapons-misconduct statute, A.R.S. § 13-3102(A)(8), in a like
manner.
¶33 We agree with the state that Armstrong’s interpretation of the statute is
contrary to its plain language. Section 13-3116(A) unambiguously imposes criminal
liability for wearing body armor during the commission of any felony offense, and the
conspiracy charged in this case is a felony offense. See Diefenbach v. Holmberg, 200
Ariz. 415, ¶ 8, 26 P.3d 1186, 1189 (App. 2001) (when interpreting statute, no word
should be rendered void). And even were we to find the cases Armstrong relies on
instructive, both are distinguishable. As previously noted, the Nevada statute interpreted
in Moore, 27 P.3d at 449-50, was a sentence-enhancement statute based on a defendant’s
use of a weapon “in the commission of a crime.” Nev. Rev. Stat. § 193.165(1) (1995).
Likewise, in Padilla, 879 P.2d at 1212, the court examined a New Mexico sentence-
enhancement statute that provided for a one-year increase in the period of incarceration
based on the use of a firearm “in the commission of a felony.” N.M. Stat. Ann. § 31-18-
16(A) (1993).
¶34 In both cases, the courts concluded it was not possible for a firearm to be
used to commit an offense like conspiracy, which could be completed merely through
communication and agreement. Moore, 27 P.3d at 450; Padilla, 879 P.2d at 1212. And
both courts focused on the practical impossibility of using a weapon to commit
25
conspiracy. In contrast, § 13-3116(A) provides culpability not only for using body armor
in the commission of any felony, but also for merely wearing body armor during
commission of any felony. Whereas a gun cannot be “used” to conspire to commit a
crime, body armor may be worn while conspiring to commit a crime. Giving effect, as
we must, to the plain language of § 13-3116(A) as the unambiguous reflection of the
legislature’s intent, we cannot adopt Armstrong’s far-reaching interpretation of the
statute, which disregards that plain language.
¶35 Armstrong also asserts his conviction must be reversed because there was
no nexus between the use of body armor and the conspiracy. He urges this court to
analogize § 13-3116 to a charge for possession of a weapon during a felony offense under
§ 13-3102(A)(8). In support, he relies on State v. Petrak, which required a nexus
between weapons misconduct and the underlying felony and held “[t]he state must prove
that the defendant intended to use or could have used the weapon to further the felony
drug offense underlying the weapons misconduct charge.” 198 Ariz. 260, ¶ 19, 8 P.3d
1174, 1180 (App. 2000). Armstrong argues the body-armor statute is vague, and posits
that, without requiring a nexus between the underlying offense and the use of the body
armor, the resulting application of § 13-3116(A) in certain circumstances would be
“absurd.” Specifically, he contends a person could be convicted under the statute if he
were wearing body armor for a medical reason, such as “lower back support,” even
though conspiring to commit a felony unrelated to the use or wearing of the armor. The
state counters that whether an overt act is required or not, conspiracy is “an ongoing
offense” and all that is required under the plain language of the statute is that at some
26
point during the commission of the conspiracy, “the body armor would have been used or
have been available for use during the commission of a felony including conspiracy,” and
“such a nexus would exist.”
¶36 In Petrak, this court interpreted the weapons-misconduct statute, which
criminalizes knowingly “[u]sing or possessing a deadly weapon during the commission
of any felony offense.” § 13-3102(A)(8). Petrak had been convicted after a jury trial of,
inter alia, misconduct involving weapons and possession of marijuana and paraphernalia;
based upon drugs, paraphernalia, and guns discovered in his house and truck. Petrak,
198 Ariz. 260, ¶¶ 2, 4, 8 P.3d at 1176, 1177. We reversed his conviction for weapons
misconduct in part because the trial court had failed to instruct the jury it was required to
find a nexus between the guns and the drugs, specifically, that the “weapon was used or
available for use or was intended to further the offense.” Id. ¶¶ 19-20, 30. A nexus could
be found based upon “the spatial proximity and accessibility of the weapon to the
defendant and to the site of the drug offense,” as well as other considerations. Id.
¶37 We agree with Armstrong that § 13-3116(A), which requires that the
accused have used or worn body armor during the commission of a felony, is strikingly
similar to § 13-3102(A)(8) and implies some relationship between the use of the body
armor and the commission of the offense. But to the extent Petrak provides any guidance
because of the similarity between the statutes, we find it does not suggest Armstrong is
entitled to relief. Even assuming, arguendo, that there must be a nexus between the use
of the body armor and the commission of the underlying felony and that the defendant
27
must have “intended to use or could have used” the body armor “to further the felony” of
conspiracy, the evidence established that nexus here.
¶38 Contrary to Armstrong’s assertions, the evidence at trial demonstrated he
had worn the armor at the staging area where his coconspirators had agreed to meet
immediately before committing the offenses that were the subject of the conspiracy. See
Petrak, 198 Ariz. 260, ¶ 19, 8 P.3d at 1180. This is not the “absurd” situation Armstrong
has envisioned in his brief on appeal, where a conviction could be obtained despite the
fact there was no connection between a defendant’s use of body armor and the underlying
felony. Instead, the evidence established Armstrong donned the vest while participating
in the staging of a home invasion—not that he wore it for some other, innocent reason
unrelated to the conspiracy. Indeed, Armstrong’s coconspirators had requested the vests
and automatic weapons in order to successfully execute the objectives of the conspiracy.
We conclude that, assuming a nexus was required, the state established it and presented
sufficient evidence to support Armstrong’s conviction.
Denial of Armstrong’s Motions to Sever
¶39 Armstrong next asserts the trial court abused its discretion by denying his
multiple motions to sever his trial from that of his codefendants, before, during, and after
the trial. We review a trial court’s severance ruling for an abuse of discretion, “in light of
the evidence before the court at the time the motion was made.” State v. Blackman, 201
Ariz. 527, ¶ 39, 38 P.3d 1192, 1202 (App. 2002). Armstrong argues severance of his trial
from that of his codefendants was required because evidence admitted against them
facially incriminated him, had a harmful “rub-off effect,” and prejudiced him by the
28
significant disparity in the amount of evidence introduced against him as opposed to his
codefendants. Although we vacate his conviction on the public-trial issue, we
nevertheless consider the severance issue as it is likely to recur on remand.
¶40 Defendants may be tried jointly when each “is charged with each offense
included, or when the several offenses are part of a common conspiracy, scheme or plan
or are otherwise so closely connected that it would be difficult to separate proof of one
from proof of the others.” Ariz. R. Crim. P. 13.3(b). Although joint trials may create
some possibility of confusion, they are the rule rather than the exception in the interest of
judicial economy. State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995).
Severance is required upon motion of a party, however, when “necessary to promote a
fair determination of the guilt or innocence of any defendant of any offense.” Ariz. R.
Crim. P. 13.4(a). Trying multiple defendants jointly may be prejudicial 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. The burden rests on the defendant to
demonstrate that the court’s failure to sever caused “‘compelling prejudice against which
the trial court was unable to protect.’” Id., quoting State v. Cruz, 137 Ariz. 541, 544, 672
P.2d 470, 473 (1983).
29
Rub-Off Effect
¶41 Armstrong first argues, as he did below, that the trial court should have
severed his trial to protect him from the harmful rub-off effect of evidence admitted
against his codefendants. He cites his codefendants’ gun deals and drug usage, which
occurred prior to his involvement in the conspiracy and which “plainly impl[ied he] was
associated with these other offenses and cast[ him] as a career criminal who should not be
released even if the jury thought the proof of any charged offense was lacking.” He
further argues “[he] had never surfaced anywhere in this investigation until his arrival at
the meet on March 15, . . . only a couple minutes before the [police] takedown,” and “he
had no involvement in the conspiracy at the time most of the statements by Tucker, Diaz,
and Cuttler were made.”
¶42 “Rub-off” occurs when “‘the jury’s unfavorable impression of the
defendant against whom the evidence is properly admitted influence[s] the way the jurors
view the other defendant.’” State v. Van Winkle, 186 Ariz. 336, 339, 922 P.2d 301, 304
(1996), quoting State v. Lawson, 144 Ariz. 547, 555, 698 P.2d 1266, 1274 (1985)
(alteration in Van Winkle). But “[m]ere introduction of evidence concerning one
defendant’s conduct that does not involve the other defendant generally does not
constitute sufficient grounds for severance,” id., and a court is not required to sever a
defendant’s trial based on rub-off if under all circumstances the jurors are capable of
following the court’s instructions, keeping the evidence relevant to each defendant
separate, and rendering a fair and impartial verdict as to each. Lawson, 144 Ariz. at 556,
30
698 P.2d at 1275; see also State v. Grannis, 183 Ariz. 52, 59, 900 P.2d 1, 8 (1995),
disapproved on other grounds by State v. King, 225 Ariz. 87, 235 P.3d 240 (2010).
¶43 We see no abuse of discretion in the trial court’s express finding that “the
jury was able to separate the evidence out between the various defendants.” During the
presentation of evidence and during argument, the prosecutor and state’s witnesses
specifically clarified which events of the conspiracy had involved Armstrong.
Demonstrative exhibits were prepared for this purpose and clearly specified which
defendants had participated in each aspect of the conspiracy. And at the close of
evidence, the court instructed the jury:
[Y]ou must consider the charges against each defendant
separately. Each defendant is entitled to have the jury
determine the verdict as to each of the crimes charged based
upon that defendant’s own conduct and from the evidence
which applies to that defendant as if that defendant were
being tried alone. The State has the burden of proving
beyond a reasonable doubt that each defendant committed the
crimes with which he is charged.
The record reflects that proper instruction and presentation of evidence enabled the jury
to weigh the evidence against each defendant in this case and effectively cured any
potential prejudice due to rub-off. See Murray, 184 Ariz. at 25, 906 P.2d at 558 (with
proper instruction, jury presumed to have considered evidence against each defendant
separately in finding both guilty).
Disparity of Evidence
¶44 Armstrong also contends there was a significant disparity in the amount of
evidence introduced against his codefendants when compared to the evidence introduced
31
against him. He argues the evidence presented at the joint trial “involved three months of
investigation but only two minutes that included Armstrong. . . . [T]his trial would have
lasted two days instead of nine days if Armstrong were tried alone.”
¶45 Although Armstrong’s involvement in the conspiracy was of shorter
duration than that of his codefendants, even if a disparity of evidence exists, “severance is
required only if ‘the jury is unable to compartmentalize the evidence as it relates to
separate defendants.’” Grannis, 183 Ariz. at 59, 900 P.2d at 8, quoting United States v.
Singer, 732 F.2d 631, 635 (8th Cir. 1984). While the evidence established Armstrong
had participated in only one transaction in furtherance of the conspiracy, namely, the
staging of the home invasion, because the proof was compartmentalized and the jury was
instructed properly, he has not sustained his burden on appeal of demonstrating he was
prejudiced by the joinder of his case. See Schaffer v. United States, 362 U.S. 511, 515-16
(1960). Indeed, it is possible the disparity of evidence benefitted Armstrong; the jury
may have looked more favorably upon him because of his comparatively limited
involvement. See Van Winkle, 186 Ariz. at 339, 922 P.2d at 304.
Facially Incriminating Testimony and Confrontation Clause
¶46 Without citation to any specific trial testimony, Armstrong also asserts
severance was required because evidence admitted against his codefendants facially
incriminated him. See Murray, 184 Ariz. at 25, 906 P.2d at 558 (defendant prejudiced
when evidence admitted against codefendant facially incriminating to him); see also
Bruton v. United States, 391 U.S. 123, 126-28 (1968) (defendant facially incriminated
when codefendant’s confession implicated him). Armstrong refers generally to
32
“statements made prior to [his] alleged introduction into the conspiracy,” arguing that
unlike in a separate trial, where the state would have been required to present reliable
evidence demonstrating his involvement in the conspiracy before introducing
coconspirator statements against him, in the joint trial the jury heard about his
codefendants’ inculpatory statements prior to March 15. Therefore, he asserts he would
have fared better in a separate trial because the pre-March 15 statements would have been
precluded under Crawford v. Washington, 541 U.S. 36, 74 (2004).
¶47 First, we are not required to address Armstrong’s concern that his
codefendants facially incriminated him, because we generally do not consider arguments
that are not supported by citation to the relevant portions of the record. See Ariz. R.
Crim. P. 31.13(c)(1)(vi); State v. Rumsey, 225 Ariz. 374, n.4, 238 P.3d 642, 647 n.4
(App. 2010) (disregarding arguments not conforming to rule). Second, and in any event,
our review of the record discloses no testimony by his codefendants that was facially
incriminating to Armstrong. See Bruton, 391 U.S. at 126-28; see also Grannis, 183 Ariz.
at 59, 900 P.2d at 8 (statements made by codefendant against own interest which did not
specifically implicate defendant not facially incriminating), citing Bruton, 391 U.S. at
124-26. Indeed, both Tucker’s and Cuttler’s testimony, if believed by the jury, tended to
absolve Armstrong: they denied knowing him before March 15, planning to pick him up
for the meeting that evening, or discussing the conspiracy with him.
¶48 Additionally, we disagree that Armstrong would have successfully
precluded admission of all non-hearsay statements of his coconspirators at a separate trial
due to insufficient evidence he was involved in the conspiracy prior to March 15 or
33
contributed to the conspiracy at all. See State v. Stanley, 156 Ariz. 492, 495, 753 P.2d
182, 185 (App. 1988) (coconspirator statements admissible against defendant if state
establishes, inter alia, existence of conspiracy and defendant’s connection to it); see also
Ariz. R. Evid. 801(d)(2)(E) (coconspirator statement non-hearsay if made in furtherance
of conspiracy). As previously discussed, the state presented sufficient evidence of
Armstrong’s involvement in the conspiracy, specifically, the fact that his codefendants
had told undercover officers they expected a fourth conspirator at the meeting and that
Armstrong arrived at the pre-arranged location for the home invasion, confirmed his
knowledge of the plan with undercover police officers, inspected the automatic weapons
to be used during the offense, and donned a bulletproof vest. Armstrong cites no
authority to support his contention that evidence of Tucker and Cuttler’s activities before
his involvement on March 15 was inadmissible against him under the Sixth
Amendment’s Confrontation Clause, and we are aware of none.15
¶49 Contrary to Armstrong’s contention, even in a separate trial a defendant
generally is not entitled to exclude a former codefendant’s testimony, Zafiro v. United
States, 506 U.S. 534, 540 (1993), and there is no requirement that a coconspirator’s
statement satisfy the Confrontation Clause to be admissible. See Bourjaily v. United
15
At oral argument, Armstrong asserted Crawford supported his contention that in
a separate trial any evidence of coconspirator activities that had occurred prior to his
direct involvement in the conspiracy is precluded by the Confrontation Clause. 541 U.S.
at 74 (Rehnquist, C.J., concurring in judgment). But we find no support for this theory in
Crawford. See id. at 56. And in any event, Armstrong does not explain why out-of-court
statements about events prior to his involvement in the conspiracy should be considered
testimonial in nature. See id. at 59 (testimonial hearsay statements subject to
Confrontation Clause).
34
States, 483 U.S. 171, 183-84 (1987); see also Ariz. R. Evid. 801(d)(2)(E) (coconspirator
statements admissible non-hearsay when made during and in furtherance of conspiracy).
However, the confession of a codefendant that inculpates the defendant may not be
admitted without sufficient evidence to overcome the presumption against its
unreliability. See Cruz v. New York, 481 U.S. 186, 193 (1987) (where non-testifying
codefendant’s confession incriminating defendant not directly admissible, also
inadmissible during joint trial); see also Lee v. Illinois, 476 U.S. 530, 546 (1986)
(codefendant’s unreliable confession not admissible in joint trial). Although the
admission of codefendants’ confessions that inculpate the defendant would be barred if
the codefendants did not testify, Bruton, 391 U.S. at 126-28, Armstrong has failed to
identify any incriminating confessions. Finally, his contention that he may have fared
better with a separate trial did not entitle Armstrong to severance. See Zafiro, 506 U.S. at
540.
¶50 Armstrong has not demonstrated “‘compelling prejudice against which the
trial court was unable to protect’” through means other than severance, such as providing
jury instructions or precluding evidence. See Murray, 184 Ariz. at 25, 906 P.2d at 558,
quoting State v. Cruz, 137 Ariz. at 544, 672 P.2d at 473. We therefore find no abuse of
discretion in the court’s denial of Armstrong’s motions to sever his trial. See State v.
Mata, 125 Ariz. 243, 245, 609 P.2d 58, 60 (1980) (where evidence admissible in either
joint or separate trial, no abuse of discretion to deny severance and permit presentation of
evidence); State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980) (same).
35
Disposition
¶51 For the foregoing reasons, we find no error in the trial court’s denial of
Armstrong’s Rule 20 motions and severance requests. However, because all three
defendants were deprived of their constitutional right to a public trial, their convictions
and sentences must be vacated, and this matter is remanded for retrial or other
proceedings consistent with this opinion.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
36