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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

CHARLIE RUSSELL MARTIN
, Appellant

.
Nos. 1 CA

- CR 17

- 0125 and 1 CA

- CR 17

- 0126

(Consolidated)

Appeal from the Superior Court in Maricopa County Nos. CR2014

- 105 544

- 001 and CR2016

- 112365

- 001 The Honorable Annielaurie Van Wie , Judge Pro Tempore

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Joseph T. Maziarz Counsel for Appellee

Michael J. Dew
, Attorney at Law, Phoenix By Michael J. Dew C ounsel for Appellant

Charlie Russell Martin, Florence Appellant FILED 9-25-2018STATE v. MARTIN Decision of the Court

2 MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the c ourt, in which Presiding Judge Paul J. McMurdie and Judge James B. Morse Jr. joined.

S W A N N , Judge:

¶1 This is a n appeal under Anders v. California , 386 U.S. 738 (1967), and State v. Leon , 104 Ariz. 297 (1969) , from C harlie Russell Martin ’s convictions and sentences for two counts of aggravated driving under the influence (“DUI”) , and the revocation of probation and imposition of
sentence for an earlier misconduct involving weapons offense

. We have considered the issues raised by Martin’s pro per supplemental brief , and we have searched the record for fundamental error. 1 See Smith v. Robbins , 528 U.S. 259 (2000); Anders , 386 U.S. 738; State v. Clark , 196 Ariz. 530, 537, ¶ 30 (App. 1999). W e affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Martin ’s first trial resulted in a hung jury. The state presented the following evidence at ret r ial.

¶3 In the early evening on December 5, 2015, the driver of a minivan noticed a Mustang tailgating her. She saw in her rearview mirror that the Mustang’s driver was male. Soon after she stopped at a red light
, the Mustang impacted the minivan and pushed it forward into another vehicle

. After checking on her backseat passengers
, the minivan’s driver turned around to look at the Mustang. She saw the Mustang’s driver, its sole occupant, exit his car and leave

. A witness also saw the Mustang’s driver hit the minivan, exit the vehicle
, and walk away.

¶4 Police were dispatched to the scene. An officer located Martin, who matched the dispatcher’s description of the Mustang’s driver
, approximately 100 yards west of the crash site . Martin did not imme diately respond to the officer’s order to stop. The officer detained Martin and

1 We deny Martin’s Petition for Permission to File Additional Brief or to Amend Supplemental Brief.

We also deny his Request for Oral Argument & Request for Status of Case.STATE v. MARTIN Decision of the Court

3 observed that he was unsteady and unable to stand on his own . The officer also noticed that Martin’s speech was slurred and that he emanated a “strong odor” of alcohol.

¶5 Marti n denied any involvement in the collision, and he refused to consent to a blood draw. A n officer drew his blood within two hours of the accident pursuant to a search warrant

. A forensic scientist determined that Martin’s blood alcohol concentration was .256 %

. At the time of the collision, Martin was subject to an order requiring that he install a certified interlock device on any vehicle he d rove.
¶6 Martin testified that though he had been drinking alcohol on the day in question, he was not driving the Mustang at the time of the collision. According to Martin, the Mustang was his sister’s and his female friend was driving it at the time of the collision

. Martin test ified that he was unable to exit the vehicle from the passenger’s side after the crash , and had maneuvered “over the console” to exit from the driver’s side after seeing his friend’s door slam shut

. ¶7 The jury found Martin guilty of two counts of aggravated DUI

. Martin waive d his right s to hearing s on aggravating circumstance s and prior felony convictions

. He admitted that he was on felony probation for misconduct involving weapons at the time of the offenses , and he admitted to multiple prior felony convictions

. ¶8 The court revoked Martin’s probation for misconduct involving weapons and imposed a 2.5

- year prison term for that class

- four

felony offense. The court sentenced him to 11

- year prison terms for the DUI offenses, to be served conc urrent with each other and consecutive to the 2.5

- year term

. Martin appeals.

DISCUSSION

I. MARTIN’S ARGUMENTS DO NOT IDENTIFY FUNDAMENTAL ERROR.

¶9 Martin argues in his supplement al brief that we should reverse his conviction s based on witness perjury , a Mirand a violation
, judicial bias and jury coercion
, and an improper Anders brief. We discern no fundamental error with respect to those issues

.
A. No Evidence Supports Martin’s Claim of Perjury.

¶10 Martin first contends that two witnesses committed perjury.STATE v. MARTIN Decision of the Court

4 ¶11 The knowing use of perjured testimony raises to a denial of due process if a reasonable likelihood exists that the false testimony could have affected the jury’s judgment. U nited States v. Lochmondy , 890 F.2d 817, 822 (6th Cir. 1989). T he defendant must show that (1) the s tatement was actually false, (2) the statement was material, and (3) the prosecutor was aware of the statement’s falsity. Id. Martin has proffered no evidence showing perjury , and our review of the record reveals none

. Martin identifies inconsistencies in witness testimonies. But mere inconsistency in testimon y does not establish perjur y

. United States v. Croft , 124 F.3d 1109, 1119 (9th Cir. 1997).

B. The Admission of Martin’s Statements Given in the Absence of Miranda Warnings Constituted Harmless Error

. ¶12 Martin next contends that police did not give him a proper warning under Miranda v. Arizona , 384 U.S. 436, 444

– 45 (1966)

. ¶13 A person is entitled to Miranda warnings before being subjected to custodial interrogation. Id. at 444. Custody means that a reasonable person would feel deprived of his freedom in a significant way. State v. Perea , 142 Ariz. 352, 354 (1984). F actors indicative of custody include “(1) whether the objective indicia of arrest are present, (2) the site of the interrogation, (3) the length and form of the investigation , and (4) whether the investigation had focused on the accused.” State v. Pettit , 194 Ariz. 192, 19 5 , ¶ 13 (App. 1998) ( citation omitted). Interrogation means express questioning and any police words or actions that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis , 446 U.S. 291, 301 (1980).

¶14 Voluntary s tatements obtained without the benefit of Miranda warnings, though unlawful, are subject to the harmless error rule. State v. Montes , 136 Ariz. 491, 497 (1983). A constitutional error is harmless if “ the appellate court can say beyond a reasonable doubt that the jury would have found the defendant guilty without the evidence. ” Id.

¶15 Here, the s tate introduced no testimony or other evidence showing that Martin was provided Miranda warnings. B ody

- camera footage admitted at trial shows Martin sitting near the site of the accident
, in handcuffs
, surrounded by several officers. In these circumstances, Martin was in custody. See State v. Schinzel , 202 Ariz. 375, 380, ¶ 20 (App. 2002) (finding defendant clearly “in custody” for purposes of Miranda when he was under arrest, handcuffed, and surrounded by officers). The footage furt her reveals that an officer repeatedly accused Martin of having left theSTATE v. MARTIN Decision of the Court

5 scene of an accident he was involved in
, and asked him about his role in the collision

. That constituted interrogation. Martin should have been given Miranda warnings. But because he responded to the officer’s question s by categorically denying involvement
, his statement s in no way constituted a confession or suggested culpability

. We therefore conclude that the admission of his statement s constituted harmless error

.
C. No Evidence Supports Martin’s Claims of Judicial Bias and Jury Coercion.

¶16 Martin next contends that the superior court was biased
, and coerced the jury ’s verdict s in several ways

. ¶17 “[A] trial judge is presumed to be free of bias and prejudice.” State v. Med ina , 193 Ariz. 504, 510, ¶ 11 (1999) (citation omitted). To rebut th at presumption, a party must demonstrate bias or prejudice by a preponderance of the evidence. Id. The test for coercion is “whether the trial court’s actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors.” State v. McCutcheon
, 150 Ariz. 317, 320 (1986). Whether conduct amounts to coercion is particularly dependent upon the facts of each case. State v. Roberts , 131 Ariz. 513, 515 (1982). We discern no judicial bias or coercion under any of Martin’s theories.

1. The Admission of Testimony Obliquely Referencing the First Trial Did Not Evidence Bias or Constitute Coercion

. ¶18 Martin first contends that the court demonstrated bias and coerced the jury by allowing testimony concerning retrial.

¶19 An officer testified, i n response to the prosecutor’s question of whether he had “talk[ed] to the State before today ,” that he had “been on the stand before for this.” The officer did not elaborat e. But even assuming that the jury interpret ed his testimony as a statement that the proceedings were a retrial
, awareness that the case is a retrial does not automatically render a jury unable to perform its duties with impartiality. See State ex re l

. M ontgomery v. Rogers , 237 Ariz. 419, 422, ¶ 13 (App. 2015) (recognizing that jury instructions describing result of previous judicial proceedings have been upheld when they merely inform the jury of an uncontroverted fact). Nothing in the record suggests t hat the court acted with bias by failing to strike the testimony, or that the jury was improperly influenced by the fact of the prior trial.STATE v. MARTIN Decision of the Court

6 2. The Court’s Remarks Concerning Martin’s Response to a Jury Question Did Not Evidence Bias or Constitute Coercion.

¶20 Martin next contends that the court made “inappropriate comments making [him] look like a lier [sic] in open court” when discussing his response to a jury question.

¶21 The jury asked Martin to provide a description of the friend he claimed was driving the Mus tang. Martin described her as “thin” with “short, reddish hair.” When defense counsel asked him to “give a little more description,” the judge interjected: “[T]hat [description] does fit me right now.” And when Martin stated that the friend was “probably a little bit bigger than Your Honor” and clarified that by that he meant “[t]aller,” the judge stated: “Flattery gets you everywhere, sir.”

¶22 The judge’s offhand comments did not suggest that Martin

was a liar. The judge ’s first remark merely noted, as Martin’s own counsel had already suggested, that Martin’s initial description of his friend was general in nature. And the judge’s second remark was nothing more than a passing comment on the nuanced social meaning of the word “bigger.” Nothing in the judge’s comments suggested bias or jury coercion.

3. The Court Permitted Counsel to Complete Closing Argument and Gave the Jury T ime to Deliberate.

¶23 Martin next contends that the court demonstrated bias and

coerce d the jury by “cut [ting] off closing argument ” and “rushing the jury to make a verdict.”

¶24 The record does not support Martin’s contentions. Counsel had the opportunity to present a lengthy closing argument. And when the
court ask ed counsel whether he was close to completing his closing argument and counsel responded that he had 30 second s left, the court allowed him to continue. The court also expressly assured the jury that its deliberation process was not subject to time or scheduling limitations

. At
t he close of evidence , the court stated : “ A ll of you will get the chance to deliberate. There is no rush. You can take your time.

. . . Y ou get to make your schedule, so just let us know

. . . . [T] here’s no rush at all.”STATE v. MARTIN Decision of the Court

7 4. The Court Correctly Excluded an Alternate Juror F rom Deliberations

. ¶25 Martin finally contends that the court demonstrated bias and coerced the jury by selecting as an alternate juror “the only [one] taking notes through the whole trial

. ”

¶26 The record reveals t hat the clerk randomly selected the alternate jurors by lot in accordance with Ariz. R. Crim. P. 18.5(h) (2)

. The record contains no suggestion of impropriety in the selection process.

D. The Anders Brief is Proper

. ¶27 Martin finally contends that he is entitled to reversal of his convictions because appellate counsel should not have filed an Anders brief

. He contends that counsel “did not search all the facts.”

¶28 Counsel asserts that he searched the record and found no arguable non

- frivolous question of law. And i n view of our own conclusions after independently reviewing the record, see infra
, we find no merit to Martin’s accusations that an Anders brief was improper.

II. OUR INDEPENDENT REVIEW OF THE RECORD REVEALS NO FUNDAMENTAL ERROR.

¶29 Our independent review of the record reveals no error, fundamental or otherwise . Martin was present and represented at all critical stages. The jury was properly comprised and instructed, and there is no evidence of juror misconduct

. ¶30 Martin was properly charged with two counts of aggravated DUI under A.R.S. § § 28

- 138 1 (A) (1), (2) (DUI), and

- 1383(A)(4) (aggravator)

. See State v. Nereim , 234 Ariz. 105, 112 (App. 2014) ( principles of double jeopardy not violated by conviction s on multiple forms of DUI under A.R.S. § 28

- 1381(A) ). The state presented properly admissible evidence at trial sufficient to support Martin’s convictions.

¶31 On count one, the state charged aggravated DUI under A.R.S. § § 28

- 1381(A)(1) and

- 1383(A)(4) . The state was required to prove that Martin either drove or was in actual physical control of a vehicle while under the influence of intoxicating liquor causing impairment to the slightest degree at a time he had been ordered to equip any vehicle he operated with a certified ignition interlock device. The state presented evidence that at a time when Martin was under order to equip any vehicleSTATE v. MARTIN Decision of the Court

8 he operated with a certified ignition interlock device, he drove the Mustang
, was involved in a collision , and was soon there after observed to be impaired by reason of alcohol

— he was unsteady and slurring his words, he smelled of alcohol, and a blood test confirmed the presence of alcohol in his body.

¶32 On count two, the state charged aggravated DUI under A.R.S. § § 28

- 1381(A)(2) a nd

- 1383(A)(4) . The state was required to prove that at a time Martin had been ordered to equip any vehicle he operated with a certified ignition interlock device, he either drove or was in actual physical control of a vehicle and within two hours of doin g so had a blood alcohol concentration of 0.08 or more that was attributable to alcohol consumed either before or while driving or being in actual physical control of the vehicle. The state presented evidence that at a time when Martin was under order to equip any vehicle he operated with a certified ignition interlock device, Martin consumed alcohol, drove the Mustang, and within two hours thereafter had a blood alcohol concentration well above 0.08.

¶33 The court imposed proper sentences for the DUI convicti ons. See A.R.S. § 28

- 1383 (A)(4) & (O); A.R.S. § 13

- 105(22) (a)(iv), (c), & (d); A.R.S. § 13

- 703(C) & (J) ; A.R.S. § 13

- 701(D)(11)

. The court also properly revoked Martin’s probation and imposed a lawful sentence for the underlying offense. See Ariz. R. Crim. P. 27.8(e); A.R.S. §§ 13

- 3102(M),

- 702(D). The court correctly calculated Martin’s presentence incarceration. To the extent that Martin’s presentence incarceration was improperly double

- credited on consecutive sentences, any such error inured to hi s benefit and the state has
not cross

- appealed. See State v. Dawson , 164 Ariz. 278, 281

– 82 (1990).STATE v. MARTIN Decision of the Court

9 CONCLUSION

¶34 We affirm Martin’s convictions, the revocation of his probation, and his sentences. Defense counsel’s obligations pertaining to this appeal have come to an end. See State v. Shattuck , 140 Ariz. 582, 584

– 85 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel mu st only inform Martin of the status of this appeal and his future options. Id. Martin has 30 days from the date of this decision to file a petition for review in propria persona

. See Ariz. R. Crim. P. 31.21(b)(2)(A). Upon the court’s own motion, Martin has 30 days from the date of this decision in which to file a motion for reconsideration. See Ariz. R. Crim. P. 31.20(c).