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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KENYON OVERE HAMWRIGHT, Appellant.
No. 1 CA-CR 17-0732
1 CA-CR 17-0739
(Consolidated)
FILED 3-28-2019
Appeal from the Superior Court in Maricopa County
No. CR2014-105424-001
CR2017-106383-001
The Honorable Jacki Ireland, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade, Seth M. Apfel
Counsel for Appellant
STATE v. HAMWRIGHT
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
C A T T A N I, Judge:
¶1 Kenyon Overe Hamwright appeals his convictions and
sentences for aggravated assault, discharge of a firearm at a structure, and
misconduct involving weapons. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In February 2017, Hamwright fired a handgun multiple times
at a vehicle L.W. was driving. L.W. had been arguing about a phone with
Hamwright’s girlfriend (in Hamwright’s presence) at a hotel, and L.W. fled
when he saw that Hamwright had a gun. Before L.W. was able to drive
away, Hamwright fired six shots at L.W.’s vehicle. The crime was captured
on surveillance video, and when Hamwright was arrested, he was wearing
much of the same distinctive clothing evident in the surveillance video.
L.W. identified Hamwright as the shooter, and Hamwright was charged
with the offenses outlined above.
¶3 Following a jury trial, Hamwright was convicted as charged.
Based on Hamwright’s lengthy criminal history and the fact that he was on
probation when he committed the instant offenses, the superior court
sentenced him to concurrent aggravated sentences, the longest of which is
20 years.
¶4 Hamwright timely appealed his convictions and sentences.
We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-
4033(A).
DISCUSSION
I. Restraints During Trial.
¶5 Hamwright argues that the superior court improperly
required him to wear restraints during trial. He asserts that the order
requiring him to wear a leg brace and a stun belt lacked sufficient
justification and thus violated his due process rights.
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STATE v. HAMWRIGHT
Decision of the Court
¶6 Issues involving courtroom security generally fall within the
superior court’s discretion. State v. Dixon, 226 Ariz. 545, 551, ¶ 22 (2011).
But a court may not require visible shackles to restrain the defendant unless
the court determines—on a case-specific basis—that visible shackles are
necessary to safeguard an “essential state interest,” such as courtroom
security. Deck v. Missouri, 544 U.S. 622, 624 (2005) (citation omitted).
¶7 The threshold issue is whether Hamwright’s restraints were
visible. Dixon, 228 Ariz. at 552, ¶ 27. The record indicates the restraints
could not be seen. Further, the leg brace neither obviously impeded
Hamwright’s movements nor made any sounds to alert the jury to his
restraints. Because Hamwright has not established that the jury was aware
of his restraints, we find no due process violation.
¶8 Moreover, even assuming the jury became aware of the
restraints, the court did not err by determining restraints were necessary to
safeguard courtroom security. Hamwright was charged with offenses
involving a deadly weapon. He had been convicted of several other violent
offenses, including attempted murder. While in prison, he incurred 32
violations, including possessing or manufacturing weapons. Additionally,
the small size of the courtroom made it difficult for security officers to
quickly neutralize any potential risks to the jury and courtroom staff.
Accordingly, the superior court did not abuse its discretion by ordering
restraints.
II. Right to Self-Representation and Access to the Court.
¶9 Hamwright asserts that after he chose to represent himself
(with the assistance of advisory counsel), he was unable to effectively
represent himself because (1) his phone access was limited to when he was
in court, (2) his restraints impeded his ability to represent himself, and (3)
the jail disposed of legal documents he needed for trial. Hamwright argues
that these issues combined to deny him his right to self-representation and
his right of access to the courts. Although we review constitutional issues
de novo, Hamwright failed to object on constitutional grounds in the
superior court, so we review only for fundamental, prejudicial error. See
State v. Escalante, 245 Ariz. 135, 138, 142, ¶¶ 1, 21 (2018).
¶10 The Fifth Amendment to the U.S. Constitution guarantees
access to the courts. Bounds v. Smith, 430 U.S. 817, 821–22 (1977), overruled
on other grounds by Lewis v. Casey, 518 U.S. 343, 354 (1996). But a defendant
who represents himself does not have a right to his “preferred means of
access.” State v. Henry, 176 Ariz. 569, 584 (1993). A defendant’s
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STATE v. HAMWRIGHT
Decision of the Court
constitutional rights are violated only when he is “denied all meaningful
opportunity to prepare a defense.” Id.
¶11 Here, the record demonstrates the court did not deny
Hamwright a meaningful opportunity to prepare a defense.
A. Phone Access.
¶12 The court promptly addressed Hamwright’s complaint
regarding phone access by requesting that the jail allow him to make calls
notwithstanding restrictions resulting from Hamwright’s disciplinary
issues in jail. Hamwright did not raise the issue again, suggesting that the
issue was resolved. Further, Hamwright does not explain how his alleged
inability to make legal calls affected his right to receive a fair trial. He has
not established fundamental error.
B. Restraints.
¶13 Hamwright asserted during trial that his restraints prevented
him from moving around the courtroom and viewing the State’s evidence
as it was presented to the jury. In response, the court offered to have bench
conferences at the defense table, and offered to move the video screen so
Hamwright could see the State’s evidence as it was being presented. The
court permitted Hamwright to move around the courtroom in whatever
way his defense required, and Hamwright has not pointed to a specific
instance in which his ability to represent himself was prejudiced by his
restraints. We find no error.
C. Disposal of Documents.
¶14 Hamwright notified the court that officers at the jail had
disposed of some of his legal documents. The relevant legal documents
included a copy of the preliminary jury instructions and the notes he had
taken in preparation for a hearing. The superior court instructed a sheriff’s
deputy to inform jail personnel that Hamwright needed access to his
documents. The court also provided copies of the missing legal documents
(including the preliminary jury instructions), and postponed trial for 5 days
to permit Hamwright to meet with his investigator and a trial witness. The
court’s efforts apparently assuaged Hamwright’s previous concerns as he
did not bring the issue to the court’s attention again. Further, he has not
explained how losing documents prejudiced his case.
¶15 Accordingly, Hamwright has not shown he was denied a
meaningful opportunity to prepare a defense.
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STATE v. HAMWRIGHT
Decision of the Court
III. Right to Confrontation.
¶16 Before trial, the court ruled that Hamwright would be
permitted to impeach the victim with the victim’s felony convictions but
could not discuss the nature of the victim’s prior convictions. In 2008, the
victim was convicted of possessing marijuana for sale; in 2015, he was
convicted of facilitating the transportation of marijuana for sale.
Hamwright argues the superior court’s ruling violated the Confrontation
Clause of the Sixth Amendment. Generally, we review Confrontation
Clause challenges de novo, but because Hamwright failed to object at trial
on these grounds, we review only for fundamental, prejudicial error. See
State v. Boggs, 218 Ariz. 325, 337, ¶ 55 (2008).
¶17 Although the right of cross-examination is essential to the
right of confrontation, the superior court retains discretion “to curtail the
scope of cross-examination to within reasonable limits.” State v. Doody, 187
Ariz. 363, 374 (App. 1996) (quotation omitted). The question is “whether
the court unduly inhibited the defendant’s ability to present information
bearing on issues or on the credibility of witnesses.” Id.
¶18 Here, Hamwright’s cross-examination of the victim was not
unduly inhibited. His defense was mistaken identity. He elicited testimony
that the victim was unsure of his identity as the shooter. Hamwright
impeached the victim with three “sanitized” prior felony convictions and
the victim’s probation status. Further, Hamwright was able to cross-
examine the victim concerning the bullets found in his vehicle, implying
that because the victim possessed bullets he likely possessed a gun as well,
and the victim acknolwedged that he would be “in trouble” if he were
caught with a gun because of his status as a convicted felon.
¶19 Hamwright argues the court should have allowed him to
cross-examine the victim on the nature of his drug-sales convictions
because a State’s witness testified that the victim had a valid medical
marijuana card. He contends the victim’s multiple drug-related convictions
“called into question . . . the witness’s claim about having the . . . medical
marijuana card.” But under the Arizona Medical Marijuana Act, a
qualifying patient’s receipt of a medical marijuana card does not depend on
the patient’s prior felony convictions. A.R.S. §§ 36-2801(13), -2804.02(A), -
2804.05(A). Under A.R.S. § 36-2815(C), a cardholder will have his card
revoked if he sells marijuana to non-cardholders. But the record does not
include the date when the victim’s medical marijuana card was issued, so
it is unclear whether he was convicted of marijuana sales before or after
receiving the medical marijuana card. And even assuming the victim did
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STATE v. HAMWRIGHT
Decision of the Court
not have a valid medical marijuana card, Hamwright fails to explain how
the victim’s legal or illegal possession of marijuana at the time of the
shooting had any bearing on whether Hamwright committed the shooting.
¶20 Finally, even assuming error, Hamwright has not established
prejudice resulting from the victim’s testimony, particularly given the
surveillance video of the crime showing the shooter to be wearing the same
type of clothing Hamwright was wearing shortly after the crime.
Accordingly, Hamwright’s fundamental error claim fails.
CONCLUSION
¶21 For the foregoing reasons, Hamwright’s convictions and
sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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