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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ROBERT ALFRED BERRY, Appellant.

No. 1 CA-CR 17-0801

FILED 2-7-2019

Appeal from the Superior Court in Mohave County

No. S8015CR201700286

The Honorable Billy K. Sipe, Jr., Commissioner

AFFIRMED

COUNSEL

Office of the Attorney General, Phoenix

By Gracynthia Claw

Counsel for Appellee

Office of the Legal Advocate, Kingman

By Jill Evans

Counsel for Appellant
STATE v. BERRY

Decision of the Court

2

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop

joined.

T H O M P S O N, Judge:

¶1 Robert Alfred Berry (defendant) appeals from his conviction 

on one count of unlawful flight in violation of Arizona Revised Statutes 

(A.R.S.) § 28-622.01 (2018). Defendant asserts the trial court erred in 

denying him new counsel. Finding no error, we affirm. 

FACTUAL AND PROCEDURAL HISTORY

¶2 Bullhead City Police Officer Riger attempted to pull 

defendant over after recognizing defendant driving his yellow truck and 

after learning defendant’s license was suspended. The officer engaged his 

overhead lights and siren. Defendant, rather than pulling over, drove 

through stop signs and eventually into a residential neighborhood. Due to 

the risk to civilians, Officer Riger stopped the pursuit. A video camera from 

the police car recorded the entire interaction.

¶3 In an interview with Officer Riger, approximately six weeks 

later, defendant claimed he had not stopped because he believed the 

pursuing officer had been Officer Crawford--whom he alleges previously 

threatened his life. A video was taken of the interview. 

¶4 At trial, Officer Riger testified. The video from the pursuit as 

well as the video from the interview were admitted as evidence. Defendant 

testified on his own behalf and admitted two prior felony convictions. He 

admitted fleeing from the officer but contended that he was protecting his 

life by evading Officer Crawford. Defendant was found guilty and 

sentenced to the presumptive sentence of five years. Defendant timely 

appealed. 
STATE v. BERRY

Decision of the Court

3

DISCUSSION

¶5 Defendant first asserts that the trial court violated his “Sixth 

Amendment right to counsel by failing to hold a hearing pursuant to State 

v. Torres [,208 Ariz. 340 (2004)] and by failing to appoint alternate counsel 

to remedy an irreconcilable conflict.” We disagree. 

¶6 Throughout the course of these proceedings, from pretrial to 

sentencing, defendant made several attempts to remove and/or replace his 

public defender. Defendant asserted his counsel was “absolutely not giving 

100%” and that his counsel was not helping him establish that another 

Bullhead Police Officer, Officer Crawford, had “put a hit” on him which 

was the basis for his defense. Defendant, in part, was upset that his counsel 

did not pursue evidence related to the alleged threats by Officer Crawford 

and believed those actions meant counsel was “not doing his job.” 

Defendant advised the court that he had contacted the FBI, Internal Affairs, 

and the media about the situation with the other officer. In addition, 

defendant asserted his counsel was colluding with the prosecutor to get 

him sent to prison where he would be killed. 

¶7 The state asserts, and we agree, that the trial court did hold a 

hearing on this matter on October 18, 2017, during the final trial 

management conference. The court heard from defendant, his counsel, and 

the state on the issue. Defense counsel explained how he had investigated 

all relevant information and his attempts to interview potential witnesses. 

The court concluded that defense counsel had “gone beyond the call of duty 

to effectively represent” his client and that the motion for new counsel was 

denied because his counsel had been “very diligent and very professional” 

in his representation of defendant. 

¶8 Then, before jury selection, the trial court took up the matter

of defense counsel. Defendant asserted that he refused to work with his 

counsel and would represent himself at trial if the court would not approve 

new counsel. After being warned about the perils of defending yourself, 

eventually defendant went to trial with his appointed counsel. At 

sentencing, the issue of counsel was once more discussed and the request 

for new counsel denied. 

¶9 In Torres, our Supreme Court held that the trial court must 

hold a hearing on a defendant’s colorable request for new appointed 

counsel. 208 Ariz. at 344, ¶¶13-14. At that hearing the defendant bears the 

burden to show “a genuine irreconcilable conflict with his counsel or that 

there has been a total breakdown in communications.” Id. at 343, ¶ 8. It has 
STATE v. BERRY

Decision of the Court

4

long been the case that disagreement on tactical decisions is not cause for 

new counsel. See State v. Henry, 189 Ariz. 542, 547 (1997). Nor is the 

defendant “entitled to counsel of choice, or to a meaningful relationship 

with his or her attorney.” State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998) 

(citing State v. Bible, 175 Ariz. 549, 591 (1993)). To the extent that a 

defendant is questioning the effectiveness or “quality” of his counsel, that 

is an Arizona Rule of Criminal Procedure, Rule 32, matter. State v. Spreitz, 

202 Ariz. 1, 3, ¶ 9 (2002). 

¶10 Here, the trial court heard from defendant on at least three 

occasions as to why his counsel should be replaced. The trial court always 

concluded that defendant had not shown sufficient proof that replacement 

was warranted. The court found no breakdown in communication. The 

court stated that defense counsel had “gone beyond the call of duty to 

effectively represent” defendant in preparing for trial. For these reasons, 

we find no error. 

¶11 Next, defendant asserts there was insufficient evidence that 

the law enforcement vehicle was a “marked vehicle” as required by A.R.S. 

§ 28-622.01. We review claims of insufficiency of the evidence de novo. 

State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). Although there was no explicit 

testimony that Officer Riger was driving a marked vehicle, there was 

sufficient circumstantial evidence in the record to support this conclusion. 

Defendant himself testified that he knew it was a police vehicle and that he 

had seen the lights and siren. The trial court noted that in the video there 

was a cage in the rear of the vehicle, that other vehicles gave the right of 

way to Officer Riger, and that visible weapons were present; thus, the 

“marked vehicle” could be reasonably inferred.

¶12 As pointed out by the state, State v. Schultz, 123 Ariz. 120 

(App. 1979), held that the “marked vehicle” requirement could not be 

inferred based on lights and siren alone. Schultz is distinguishable because 

in that case not only was there no evidence of a marked vehicle, but the 

motorcycle defendant told the officers he neither saw the lights nor heard 

the siren until just before he stopped. Id. In State v. Nelson, this court noted 

that “[t]his statute seeks to punish conduct which demonstrates that the 

offender has willfully chosen to create a potential danger to both life and 

property of others. The statute clearly punishes unreasonable conduct in 

resisting law enforcement activities.” 146 Ariz. 246, 250 (App. 1985). In this 

matter, defendant freely admits the willful decision to evade a law 

enforcement vehicle. In In re Joel, 200 Ariz. 512, 514 (App. 2001) (holding 

vehicle need not have activated siren) this court has held some elements of 
STATE v. BERRY

Decision of the Court

5

A.R.S. § 28-622.01 may be inoperable where unnecessary under the factual 

circumstances. Id. at ¶ 8. 

CONCLUSION

¶13 Defendant’s conviction and sentence are affirmed.