State v. Leary

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID ALLEN LEARY, Appellant.

No. 1 CA-CR 14-0488
FILED 5-24-2016

Appeal from the Superior Court in Maricopa County
No. CR 2013-002001-002
The Honorable Karen L. O’Connor, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Ballecer & Segal, Phoenix
By Natalee E. Segal
Counsel for Appellant
 STATE v. LEARY
Decision of the Court

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

O R O Z C O, Judge:

¶1 David Allen Leary appeals his convictions for conspiracy to
commit possession of narcotic drugs for sale, sale or transportation for sale
of marijuana, and possession for sale of cocaine. Leary argues the trial court
erred when it: (1) held the State did not violate Leary’s right to a “speedy
trial;” (2) held the State did not engage in prosecutorial vindictiveness; (3)
denied Leary’s motion to sever; (4) admitted testimony of two law
enforcement witnesses; and (5) denied Leary’s motion for mistrial based on
juror misconduct. For the following reasons, we affirm Leary’s convictions.

FACTS AND PROCEDURAL HISTORY

¶2 The State indicted Leary in a 2011 case that is not before us
(the 2011 case).1 For reasons we address in more detail below, the State re-
indicted Leary in 2013 to add an additional count and the trial court
dismissed the 2011 case. A jury convicted Leary as charged in the 2013 case
and the trial court sentenced him to an aggregate term of 9.25 years’
imprisonment. Leary timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031 and -4033 (West 2016).2

1 The State asserts that this court may take judicial notice of the
records of the Superior Court. See State v. Valenzuela, 109 Ariz. 109, 110
(1973). The State did not provide an appendix with the numerous
documents it cited from the 2011 case, which would have aided this court
in its consideration of this matter.

2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

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I. The Denial of the Right to a Speedy Trial

¶3 Leary argues the State denied him his right to a speedy trial
under Rule 8.2, Arizona Rules of Criminal Procedure. Specifically, Leary
argues the State dismissed the 2011 case and re-indicted him in 2013 to
avoid the impending time limit in the 2011 case. See Ariz. R. Crim. P. 8.2.a.

Background

¶4 The State indicted Leary and sixty-three other defendants in
a 226-count indictment in the 2011 case. Within that indictment the State
charged Leary, among other things, with conspiracy to commit possession
of narcotic drugs for sale and possession for sale of cocaine. The State
re-indicted Leary and the four remaining codefendants in the instant case
on April 8, 2013. The 2013 indictment included the original charges against
Leary plus one new count of sale or transportation for sale of marijuana.

¶5 The minute entry from an April 15, 2013 conference in the
2011 case noted that the last day to begin trial was May 20, 2013. At that
conference, the State informed the trial court that the State had re-indicted
Leary and the remaining codefendants. The State made an oral motion to
dismiss the 2011 case but Leary asked the trial court to direct the State to
file a written motion. The trial court did not rule on the oral motion to
dismiss.

¶6 The trial court held a status conference in the 2011 case a week
later on April 22, 2013. This was supposed to be the day trial started. The
transcript of that conference reflects that the State again informed the court
that it had re-indicted the remaining defendants. The State further argued
it was now necessary to continue the 2011 case because one of Leary’s
codefendants was still undergoing a competency evaluation. Leary
objected to a continuance and argued he was ready to go to trial. The court
continued the trial for thirty days because of the codefendant’s Rule 11
proceeding.

¶7 The trial court held a complex case management conference
in the 2011 case on May 14, 2013. On that date the court scheduled various
matters, including a settlement conference, excluded all time and ordered
that the new last day to begin trial was June 9, 2013. There is nothing in the
minute entry to indicate whether Leary waived time or raised an objection.
At the subsequent complex case management conference, the trial court
again scheduled a future hearing, excluded all time and ordered that the
new last day to begin trial was July 9, 2013. On that occasion the record is
clear that Leary waived the applicable time limits.

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¶8 One month later, and one week before the Rule 8 deadline,
the State filed its written motion to dismiss without prejudice the 2011 case,
and once again argued that it had re-indicted the only remaining
defendants and had brought additional charges. The State further argued
the motion was not made for the purpose of avoiding the time-limiting
provisions of Rule 8. The trial court granted the motion “Pursuant to State’s
Motion to Dismiss” the next day, six days before the Rule 8 deadline.

¶9 Three months later, Leary filed his motion to dismiss the
instant case. Leary argued the State re-indicted him to circumvent the Rule
8 deadline because it knew it could not be ready for trial in the 2011 case
and the trial court would not continue the matter. The trial court denied
the motion and found the State had the authority to re-indict Leary, add
additional counts and dismiss the original case. The court further noted
that all parties knew “from the onset” that the State would re-indict the
remaining defendants if the 2011 cases were not resolved. In its ruling on
Leary’s motion for reconsideration, the court added that the last day in the
2011 case had to be tolled because of the codefendant’s competency
evaluation. Leary filed a special action in this court and we declined
jurisdiction. Once the State re-indicted Leary, the Rule 8 time limits began
“anew.” State v. Lemming, 188 Ariz. 459, 461 (App. 1997) (citation omitted).

Discussion

¶10 We will uphold a trial court’s ruling regarding Rule 8 unless
the defendant shows both an abuse of discretion and prejudice. State v.
Wassenaar, 215 Ariz. 565, 571, ¶ 16 (App. 2007). “Whether a trial court
abused its discretion and prejudice resulted depends upon the facts of each
case.” Id. (citation omitted). To establish prejudice, a defendant must
establish that the delay harmed his defense. State v. Vasko, 193 Ariz. 142,
147, ¶ 22 (App. 1998). A defendant who fails to establish prejudice or that
he was deprived of a fair trial “has not established prejudice sufficient to
warrant reversal of his conviction.” Wassenaar, 215 Ariz. at 571, ¶ 16.
Absent prejudice, a speedy trial violation does not warrant reversal of a
conviction. Vasko, 193 Ariz. at 143, ¶ 3.

¶11 The trial court in the 2013 case did not abuse its discretion
when it held the State had the authority to re-indict Leary and seek
dismissal of the 2011 case. “The court, on motion of the prosecutor showing
good cause therefor, may order that a prosecution be dismissed at any time
upon finding that the purpose of the dismissal is not to avoid the provisions
of Rule 8.” Ariz. R. Crim. P. 16.6(a). The 2011 trial court granted the motion
“Pursuant to State’s Motion to Dismiss[,]” which is sufficient indication the

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2011 court found good cause to dismiss based on the new indictment and
that the State did not seek to avoid Rule 8 as the State pled in its motion.3

¶12 Also, Leary has failed to establish he suffered any prejudice.
He does not identify witnesses who were not available for trial in the 2013
case because of any delay or any evidence he was not able to offer at trial
and does not explain how re-indictment or delay otherwise affected his
defense in any way. Finally, Leary does not explain how any delay
ultimately deprived him of a fair trial. Therefore, even if there had been a
violation of Rule 8, it would have been mere technical error that did not
warrant reversal of Leary’s convictions. See Vasko, 193 Ariz. at 143, ¶ 3.

II. Prosecutorial Vindictiveness

¶13 Leary also argues the State dismissed the 2011 case and
re-indicted him to add a third count as an act of prosecutorial
vindictiveness. Leary argues the vindictiveness resulted from his
exercising his right to go to trial in the 2011 case. 4 The trial court found
there was no evidence of bad faith or vindictiveness.

¶14 We review the decision of whether to dismiss a case for
vindictive prosecution for abuse of discretion. State v. Mieg, 225 Ariz. 445,
447, ¶ 9 (App. 2010). “A criminal defendant’s constitutional right to due
process protects him from prosecutorial decisions that are ‘motivated by a
desire to punish him for doing something that the law plainly allowed him
to do.’” Id. at 447, ¶ 10 (quoting United States v. Goodwin, 457 U.S. 368, 384
(1982)). Due process prevents a prosecutor from punishing a defendant
who exercises protected rights by subsequently subjecting that defendant
to more severe charges. Mieg, 225 Ariz. at 447, ¶ 10.

¶15 There are two ways a defendant can establish prosecutorial
vindictiveness. First, a defendant can show actual vindictiveness with
objective evidence that a prosecutor acted to punish the defendant for
exercising his legal rights. Id. at 447, ¶ 11. Second, “a defendant may rely
on a presumption of vindictiveness if the circumstances establish a ‘realistic

3 Leary cannot challenge the 2011 trial court’s failure to expressly state
it found good cause or that the State did not seek to avoid the provisions of
Rule 8 because the 2011 case is not before us on appeal.

4 Leary’s motion to dismiss did not expressly argue prosecutorial
vindictiveness. Leary did, however, argue prosecutorial vindictiveness at
the hearing on the motion.

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likelihood of vindictiveness.’” Id. (quoting Blackledge v. Perry, 417 U.S. 21,
27 (1974)). In the context of Leary’s claim, however, “[t]he possibility that
a prosecutor would respond to a defendant’s pretrial demand for a jury trial
by bringing charges not in the public interest that could be explained only
as a penalty imposed on the defendant is so unlikely that a presumption of
vindictiveness certainly is not warranted.” Goodwin, 457 U.S. at 384.

¶16 We consider all relevant circumstances in our determination
of whether to apply a presumption of vindictiveness. Mieg, 225 Ariz. at 448,
¶ 15. In doing so, we bear in mind that the pretrial decisions of prosecutors
are entitled to “especially deferential” judicial evaluation. See Town of
Newton v. Rumery, 480 U.S. 386, 397 n. 7 (1987). If a defendant makes a prima
facie showing that the decision to charge the defendant was more likely
than not attributable to prosecutorial vindictiveness, the burden shifts to
the State to overcome the presumption by presenting objective evidence
that justified the prosecutor’s action. Mieg, 225 Ariz. at 448, ¶ 12. A
prosecutor’s desire to punish a defendant for all criminal acts does not
constitute vindictiveness that violates due process. Id.

¶17 The trial court did not abuse its discretion when it denied the
motion to dismiss based on prosecutorial vindictiveness. There is no
evidence of actual vindictiveness nor is there evidence that gives rise to a
presumption of vindictiveness. It is within the prosecutor’s discretion to
determine whether to file criminal charges and which charges to file. State
v. Tsosie, 171 Ariz. 683, 685 (App. 1992). While the prosecutor did not
initially charge Leary with every conceivable felony count available, “it
would ill-serve the public good to penalize the state when a prosecutor
chooses not to bring all conceivable charges at the outset.” Mieg, 225 Ariz.
at 449, ¶ 18. Further, the State is entitled to respond to changes in the
procedural posture of a case. So long as the State does not violate due
process, this can include bringing new charges. Id. at ¶ 19.

¶18 There is no evidence that the State sought to punish, penalize
or deter Leary when it re-indicted him and added an additional charge. The
evidence shows the State reacted to the changing evidentiary and
procedural posture of the case and did so in a permissible manner that did
not prejudice Leary in any way.

III. The Denial of Severance

¶19 Leary argues the trial court erred when it denied his motion
to sever the count of sale or transportation for sale of marijuana from the
other counts. If the trial court denies a motion to sever, the defendant must

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renew the motion during trial at or before the close of the evidence. Ariz.
R. Crim. P. 13.4.c. A defendant waives a severance issue if the defendant
does not make a timely motion to sever and does not subsequently renew
the motion. See id.; State v. Laird, 186 Ariz. 203, 206 (1996). Leary does not
claim he renewed his motion to sever and he does not contest the State’s
contention that he never renewed the motion.

¶20 If a defendant does not timely renew a motion to sever, we
ordinarily review only for fundamental error. Id. However, because Leary
does not argue the failure to sever constituted fundamental error, he has
waived the issue, and we do not address it. See State v. Moreno-Medrano,
218 Ariz. 349, 354, ¶ 17 (App. 2008) (finding that failure to allege
fundamental error waives argument altogether).

IV. The Testimony of the Law Enforcement Witnesses

¶21 Leary next argues the trial court erred when it admitted
certain testimony of a police officer and a federal agent. Leary argues the
court erred when it allowed the witnesses to interpret language heard in
recorded phone conversations and when it allowed them to express their
opinions on “ultimate issues in the case.” We address only the testimony
Leary identifies in his brief. We review the admission of the testimony
Leary objected to for abuse of discretion. See State v. Amaya-Ruiz, 166 Ariz.
152, 167 (1990).

The Interpretation of Language in the Phone Conversations

¶22 Leary identifies nine instances in which he argues the trial
court erred when it admitted the witnesses’ interpretations of language
used in recorded phone conversations.5 All but one of those instances
involved the testimony of the police officer. The officer testified that
language heard in the conversations referenced drug trafficking and
included references to the sale of cocaine and the price of marijuana. This
included the officer’s interpretation of the term “nine-inch ruler” and why
she believed that meant nine ounces of cocaine.6 The officer further testified
that language heard in the conversations showed that Leary had
relationships with drug traffickers, that Leary owed money to a drug
trafficker, that a transaction(s) involved money that was not just Leary’s

5 The jury listened to all of those recordings.

6 “[N]ine-inch ruler” is the only “drug language” from the
conversations that Leary identifies.

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and that Leary was purchasing drugs for other people. The officer testified
that language in the conversations also indicated one of Leary’s customers
was very pleased with the drugs he purchased. In the single instance of
testimony from the federal agent that Leary complains of in this context, the
agent testified that language in the phone calls suggested that Leary
brokered a drug deal between two other people and that the purchaser paid
$5,800 for nine ounces of cocaine.

¶23 We find no error of any sort in the admission of the witnesses’
interpretation of language in the recorded telephone calls. A trial court may
admit the testimony of a law enforcement officer that interprets “drug
language” and other associated language because it helps the jury
understand the evidence. State v. Nightwine, 137 Ariz. 499, 503 (App. 1983);
State v. Walker, 181 Ariz. 475, 480 (App. 1995). Questions about the accuracy
and credibility of the testimony, as well as the weight, if any, to be given
that testimony, were matters for the jury. Pipher v. Loo, 221 Ariz. 399, 404,
¶ 17 (App. 2009).

Comments on Ultimate Issues at Trial

¶24 Leary also identifies four instances in which he argues the
trial court erred when it allowed the two witnesses to comment on ultimate
issues the jury was to decide at trial, including Leary’s guilt. Leary argues
the trial court erred when it allowed the federal agent to testify, “I’m
proactive. I didn’t charge anyone that I didn’t believe committed the crime
that I charged them with. I’m not responding to a crime. I’m watching it
and proactively pursuing it. Mr. Leary wouldn’t be sitting there if I didn’t
believe he was guilty.” We find no error because the agent provided this
answer in response to a question Leary posed during cross-examination.
The answer was responsive to Leary’s question and Leary did not object.
“We will not find reversible error when the party complaining of it invited
the error.” State v. Logan, 200 Ariz. 564, 565-66, ¶ 9 (2001). Furthermore, “if
error is invited, we do not consider whether the alleged error is
fundamental.” Id. at 565, ¶ 9. “One cannot ‘complain about a result he
caused.’” State v. Doerr, 193 Ariz. 56, 63, ¶ 27 (1998) (quoting Morris K.
Udall et al., Law of Evidence, § 11, at 11 (3d ed. 1991)).

¶25 Leary failed to object to the other testimony he claims
constituted improper comments on ultimate issues at trial. As a general
rule, expert witnesses may not opine as to a defendant’s guilt or innocence.
State v. Lindsey, 149 Ariz. 472, 475 (1986). However, because Leary did not
object to the testimony, we review only for fundamental error. See State v.
Gendron, 168 Ariz. 153, 154 (1991). “To establish fundamental error, [a

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defendant] must show that the error complained of goes to the foundation
of his case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” Henderson, 210 Ariz.
at 568, ¶ 24. Even if a defendant establishes fundamental error, the
defendant must still demonstrate the error was prejudicial. Id. at ¶ 26.

¶26 In the first instance of testimony Leary did not object to, the
State asked the police officer to explain why a series of intercepted phone
calls caused her to believe a drug transaction had taken place. The officer
explained that based on phone calls between a number of named
individuals, she believed a codefendant met with another person and they
pooled their money together. They then had another person meet a
supplier, buy drugs and return the drugs to the codefendant. The officer
did not mention Leary, and did not express an opinion on anyone’s guilt.
Regardless, it was permissible for the officer to summarize the contents of
several intercepted phone calls and explain why she directed the
investigation based on the content of those calls. The testimony did not
usurp the function of the jury, did not take away a right that was essential
to Leary’s defense and did not otherwise deny Leary a fair trial. See
Henderson, 210 Ariz. at 568, ¶ 24. Furthermore, Leary has failed to show
prejudice.

¶27 The next two instances of testimony Leary did not object to
occurred when the federal agent answered jurors’ questions. First, a juror
asked the agent why authorities did not tap Leary’s phones, and the agent
provided a long narrative response. The only portion of that answer Leary
contends improperly commented on an ultimate issue was the statement,
“I believe that Mr. Leary was a customer of [a codefendant]. I believe I can
demonstrate to you that that occurred on August 19th. I think he was a
customer of cocaine, which he then brokered and sold to an unknown
customer. That is the extent of what I can prove related to Mr. Leary.”

¶28 The agent’s answer was a small part of a longer narrative that
explained why investigators did not tap Leary’s phones. Explaining what
the agent believed and what he could prove gave context to other portions
of his answer explaining what he could not prove, why he did not believe
Leary was involved in drug trafficking to the same extent as others and,
therefore, why investigators did not tap his phones. While the agent should
not have expressed his belief of Leary’s guilt, the manner in which he did
so within the context of the question and answer was not fundamental
error. See Henderson, 210 Ariz. at 568, ¶ 24.

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¶29 Second, another juror question asked the agent to explain
where Leary fit into the investigation, where he fit in the “hierarchy” of
those involved and why the agent believed Leary was responsible for
distribution of cocaine and marijuana. The question ended with, “Full
explanation, please?” The agent again provided a long narrative answer.
On appeal, Leary contends the first portion of the agent’s answer
constituted an impermissible comment on an ultimate issue. The agent
stated:

I’d be happy to give you a full explanation, but don’t confuse
my full explanation of what I’m telling you with what I can
prove. I believe Mr. Leary’s guilty of purchasing 9 ounces of
cocaine on August 19th. Specifically, I believe he is guilty of
sale of marijuana with [another person].

The agent then answered the question and included an explanation of what
he believed the evidence showed.

¶30 The agent’s answer was, again, a small portion of a much
longer narrative response. The question itself suggested that Leary
operated in the “hierarchy” of the drug traffickers who were investigated,
and that Leary was personally responsible for the distribution of cocaine
and marijuana. The portion of the answer Leary complains of indicated the
agent believed these could be misconceptions, which the answer addressed.
The agent explained what he believed Leary was guilty of to give context
to the agent’s explanation for what he did not believe or could not prove
Leary was guilty of. The agent explained why investigators could not
charge Leary with other offenses; why the agent did not want to mislead
the jury to believe Leary distributed cocaine to the same level as a
codefendant; that the agent could never prove Leary distributed cocaine to
the same extent as the codefendant; and that while Leary may have
purchased nine ounces of cocaine and sold it to someone, he “absolutely”
did not engage in mass distribution of cocaine. Again, while the agent
should not have expressed his belief of Leary’s guilt, the manner in which
he did so within the context of the question and answer was not
fundamental error. See Henderson, 210 Ariz. at 568, ¶ 24.

V. Juror Misconduct

¶31 As the final issue on appeal, Leary argues the trial court erred
when it denied his motion for mistrial based on juror misconduct. Leary
argues the court also failed to hold “a proper hearing” to determine if there
was juror misconduct.

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Background

¶32 Approximately two weeks into the trial, the trial court learned
of possible juror misconduct. The issue was whether an unidentified juror
was communicating with a person named “Michael” who was a former
tenant of Leary’s. The trial court questioned the sixteen jurors individually
and asked each of them a series of questions. Each juror told the trial court
he or she did not know anyone who lived with a roommate named Mike or
Michael, that nobody had tried to talk to the juror about the case and the
juror had not talked to anyone about the case. The trial court found there
was no evidence of misconduct, but nevertheless decided to hold an
evidentiary hearing the next day.

¶33 The first witness who testified at the evidentiary hearing was
Ms. Taylor, an attorney who lived with Michael and who also knew Leary.
Ms. Taylor knew that Michael had once rented a house from Leary and that
this relationship resulted in litigation between Michael and Leary.
Ms. Taylor acknowledged she had discussed Leary’s case with Michael, but
only in the context of what she saw on the Superior Court’s website.
Ms. Taylor did not speak to any jurors and did not know if Michael had
spoken to any jurors.

¶34 The second witness to testify at the evidentiary hearing was
the Training Director for the Maricopa County Office of the Public Defender
(the Training Director). It was she who contacted the court about possible
juror misconduct. The Training Director had a temporary employee whose
mother used to live with Michael when Michael rented a house from Leary.
The employee told the Training Director that Michael told the employee’s
mother he was discussing the case with an unidentified juror. The Training
Director disclosed this to the Public Defender, who agreed that the Training
Director should contact the trial court. The employee also testified at the
evidentiary hearing. She testified her mother told her that she had spoken
to Michael and Michael claimed he had talked to an unidentified juror
about the case. The employee was sufficiently concerned that she told the
Training Director.

¶35 The trial court found there was no evidence of juror
misconduct and denied Leary’s motion for mistrial. Leary argued the trial
court should conduct an additional evidentiary hearing to allow him the
opportunity to question Michael. The trial court determined that it would
hold an additional evidentiary hearing as soon as Leary subpoenaed
Michael to appear. The trial court even offered to “issue an order” for

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Leary, should he need one. However, Leary never subpoenaed Michael
and never requested an additional evidentiary hearing.

Discussion

¶36 We review the decision to grant or deny a motion for mistrial
based on jury misconduct for abuse of discretion. State v. Hall, 204 Ariz.
442, 447, ¶ 16 (2003). Juror misconduct requires a new trial only if the
defendant proves actual prejudice or “if prejudice may be fairly presumed
from the facts.” State v. Nelson, 229 Ariz. 180, 184, ¶ 12 (2012) (quoting State
v. Davolt, 207 Ariz. 191, 208, ¶ 58 (2004)). Upon an allegation that the jury
has received extrinsic information, we will not presume prejudice without
proof that the jury received extrinsic information and considered that
information in its deliberations. Id.

¶37 The trial court did not abuse its discretion when it denied
Leary’s motion for mistrial. The record contains no evidence that any juror
had contact with Michael or anyone else, nor is there any evidence that any
juror received extrinsic information from anyone or provided information
to anyone. Furthermore, there is no evidence that Leary suffered prejudice
from any alleged contact and there is no evidence from which we may
presume prejudice. Regarding the failure to hold an additional evidentiary
hearing, the trial court told Leary it would hold an additional hearing as
soon as Leary subpoenaed Michael and even offered to help Leary with
appropriate orders. The trial court’s failure to hold an additional hearing

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sua sponte, despite the absence of any effort by Leary to obtain the presence
of the one witness he sought to question, was not error.

CONCLUSION

¶38 For the above reasons, we affirm Leary’s convictions and
sentences.

:ama

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