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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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. CR2014-105544-001 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

Counsel for Appellant

Charlie Russell Martin, Florence

Appellant

FILED 9-25-2018
STATE v. MARTIN

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Paul J. McMurdie and Judge James B. Morse Jr. joined.

S W A N N, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 

(1967), and State v. Leon, 104 Ariz. 297 (1969), from Charlie 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). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Martin’s first trial resulted in a hung jury. The state presented 

the following evidence at retrial.

¶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 immediately 

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 Martin denied any involvement in the collision, and he 

refused to consent to a blood draw. An 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 drove.

¶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 testified 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 waived his rights to hearings on aggravating circumstances

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-fourfelony offense. The court sentenced him to 11-year prison terms for the DUI 

offenses, to be served concurrent 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 supplemental brief that we should 

reverse his convictions based on witness perjury, a Miranda 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

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¶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. United States v. Lochmondy, 890 F.2d 817, 

822 (6th Cir. 1989). The defendant must show that (1) the statement 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 

testimony does not establish perjury. 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). Factors 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, 

195, ¶ 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 statements 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 state introduced no testimony or other evidence 

showing that Martin was provided Miranda warnings. Body-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 

further reveals that an officer repeatedly accused Martin of having left the 
STATE 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 questions by 

categorically denying involvement, his statements in no way constituted a 

confession or suggested culpability. We therefore conclude that the 

admission of his statements 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 verdicts in several ways.

¶17 “[A] trial judge is presumed to be free of bias and prejudice.” 

State v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999) (citation omitted). To rebut 

that 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, in 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 elaborate. But even assuming 

that the jury interpreted 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 rel. 

Montgomery 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 that 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

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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 Mustang. 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 Time to Deliberate.

¶23 Martin next contends that the court demonstrated bias and 

coerced 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 asked counsel whether he was close to completing his closing 

argument and counsel responded that he had 30 seconds 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 

the close of evidence, the court stated: “All of you will get the chance to 

deliberate. There is no rush. You can take your time. . . . You get to make 

your schedule, so just let us know. . . . [T]here’s no rush at all.”
STATE v. MARTIN

Decision of the Court

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4. The Court Correctly Excluded an Alternate Juror From 

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 that 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 in 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. §§ 28-1381(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 convictions 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 vehicle 
STATE v. MARTIN

Decision of the Court

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he operated with a certified ignition interlock device, he drove the Mustang, 

was involved in a collision, and was soon thereafter 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) and -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 doing 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 convictions. 

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 his 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

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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 must 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).