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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     KEVIN LEE FRANCOIS, Appellant.

                             No. 1 CA-CR 16-0378
                               FILED 5-3-2018


           Appeal from the Superior Court in Maricopa County
                      No. CR2010-006046-001 DT
             The Honorable Alfred M. Fenzel, Judge, Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell
joined.


M c M U R D I E, Judge:

¶1            Kevin Lee Francois appeals his convictions and sentences for
burglary in the second degree, kidnapping, aggravated assault, sexual
abuse, and multiple counts of sexual assault. Francois argues the superior
court erred by denying his motion to appoint substitute trial counsel and
precluding defense witnesses. Francois also argues the court erred by
denying his motion to suppress DNA evidence. Finally, Francois raises a
claim of prosecutorial misconduct. For the following reasons, we affirm.

            FACTS 1 AND PROCEDURAL BACKGROUND

¶2            Early in the morning of August 22, 2003, the female victim
awoke in her bed with a man on top of her covering her face with a pillow.
The man violently physically and sexually assaulted the woman before
fleeing. The victim woke up her roommate, who called 9-1-1.

¶3            The victim did not see the perpetrator and could not
otherwise identify him, although she “thought maybe [she] recognized the
voice.” A male DNA profile from “dried oral secretions” located on the
victim’s breast did not match any possible suspects or the profiles stored in
a national law enforcement DNA database (“CODIS”). Fingerprints at the
crime scene that were not the victim’s also did not match prints in a law
enforcement database. The investigation went cold.

¶4            Seven years after the assault, Francois was arrested in
California after a police officer observed him attempting to break into a
residence, and pursuant to California law Francois provided a DNA sample


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Francois. State v.
Harm, 236 Ariz. 402, 404, n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                     2
                           STATE v. FRANCOIS
                           Decision of the Court

for testing. Francois’s DNA profile was then added to CODIS, and
thereafter, the Maricopa County Sherriff’s Office learned of a “hit” on the
DNA sample collected from the victim’s breast. Arizona law enforcement
officers determined that the hit was related to Francois’s DNA profile, and
they, with the assistance of a California peace officer, obtained a warrant to
collect a sample of Francois’s saliva and blood. The officers travelled to
California and procured the samples, and subsequent testing revealed a
“match” between Francois’s DNA and the DNA found on the victim’s
breast.

¶5            The State charged Francois with one count each of burglary in
the second degree, a Class 3 felony; kidnapping, a Class 2 felony;
aggravated assault, a Class 6 felony; sexual abuse, a Class 5 felony; and
eight counts of sexual assault, Class 2 felonies. The jury found Francois
guilty as charged and determined the State proved three aggravating
factors regarding all counts except the burglary charge, which the jury
found two aggravating circumstances. The court imposed aggravated
consecutive prison sentences totaling 137.75 years. Francois timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

A.     The Superior Court Did Not Abuse Its Discretion by Refusing to
       Substitute New Counsel and by Allowing Hybrid Representation.

¶6            Almost five years after the indictment, and one month before
trial was scheduled to begin, Francois requested appointment of substitute
counsel. The superior court denied the request, noting it had allowed
Francois to personally file motions and responses, thus Francois “had de
facto hybrid representation.” The court subsequently accepted Francois’s
waiver of counsel and permitted him to proceed pro se at trial with counsel
serving in an advisory capacity. 2 Eventually, Francois asked that advisory
counsel assume full representation of his defense.




2      In another criminal matter involving a similar sexual assault
committed against a different victim, Maricopa County Superior Court
Cause Number CR2010-006261, Francois waived counsel in 2011. The court
dismissed that case without prejudice after Francois’s conviction in the
instant matter.



                                      3
                           STATE v. FRANCOIS
                           Decision of the Court

¶7            Francois argues the court erred by permitting hybrid
representation. Francois does not direct us to any objection raised to the
superior court regarding his hybrid representation. Instead, the record
shows that he participated in his defense by filing numerous detailed pro se
motions, and participating in pretrial hearings. Further, Francois provides
no authority to support his summary assertion that this case “required
representation.” Arizona does not prohibit hybrid representation and the
superior court has discretion to allow it. State v. Cornell, 179 Ariz. 314, 325
(1994). On this record, and absent authority that would prohibit hybrid
representation under the circumstances presented in this case, we do not
find reversible error.

¶8             Francois also argues the superior court erred by denying his
request for new counsel because Francois and counsel had an irreconcilable
conflict. Francois contends he and counsel failed to communicate, and they
disagreed over trial strategy.

¶9             A superior court ruling regarding a request for substitute
counsel “will not be disturbed absent an abuse of discretion.” State v.
Cromwell, 211 Ariz. 181, 186, ¶ 27 (2005). The Sixth Amendment right to
counsel does not guarantee a defendant a “meaningful relationship” with
his attorney. Morris v. Slappy, 461 U.S. 1, 14 (1983); Cromwell, 211 Ariz. at
186, ¶ 28. Rather, courts must balance a defendant’s right to counsel
“against the public interest in judicial economy, efficiency, and fairness.”
Cromwell, 211 Ariz. at 187, ¶ 31. In ruling on a substitution of counsel
request, the court considers factors including “whether an irreconcilable
conflict exists . . . whether new counsel would be confronted with the same
conflict; the timing of the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and trial; the proclivity
of the defendant to change counsel; and quality of counsel.” Id. (quoting
State v. LaGrand, 152 Ariz. 483, 486–87 (1987)). To demonstrate irreconcilable
conflict, “the defendant must present evidence of a ‘severe and pervasive
conflict with the attorney or evidence that he had such minimal contact with
the attorney that meaningful communication was not possible.’” State v.
Hernandez, 232 Ariz. 313, 318, ¶ 15 (2013).




                                      4
                            STATE v. FRANCOIS
                            Decision of the Court

¶10          At the time Francois requested substitute counsel, defense
counsel informed the court he could effectively 3 represent Francois, stating:

       [W]e haven’t had too many issues and we’ve been able to
       communicate and we’ve talked at length about his cases and
       what not. So I don’t feel like there’s any animosity towards
       us. But at the same time too I understand where he’s coming
       from. If he wants just more of my time than I’m able to give
       him in general, I just think that that’s a reality that I can’t take
       away from—I have other cases. . . . I know that Mr. Francois
       and I have a difference of opinion in terms of how many
       witness interviews need to be done.

Francois responded:

       Well, I’d just like the Court to know that I don’t doubt
       [defense counsel’s] effectiveness or his abilities or skills in the
       courtroom and I know that between [the prosecutor] and
       yourself and [defense counsel] you guys have a professional
       relationship and he does handle himself with decorum in the
       court and can litigate cases. . . . But there is a difference in
       opinion on who should be interviewed and what should take
       place. . . . The communication, we do have a good
       relationship. I respect [defense counsel].

¶11           As the foregoing comments illustrate, Francois and counsel
did not have a fractured relationship or a breakdown in communication. At
most, they disagreed over “who should be interviewed and what should
take place.” A difference in proposed trial strategy does not rise to the level
of a fractured relationship necessitating appointment of a different lawyer.
Hernandez, 232 Ariz. at 318, ¶ 15. The record shows the court considered
that Francois would experience the same frustration with new counsel
regarding counsel’s inability to spend all his or her time on Francois’s case,
the trial had been repeatedly continued, doing so again would
inconvenience witnesses, and current counsel was prepared to adequately
represent Francois. See id. at 321, ¶¶ 33–34 (describing factors the court
should consider when evaluating whether appointment of new counsel is


3      Francois stated his reason for wanting to proceed pro se was
“ineffective assistance of counsel.” To the extent Francois raises an
ineffective assistance of trial counsel claim in this direct appeal, we do not
address it. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).



                                        5
                           STATE v. FRANCOIS
                           Decision of the Court

necessary when a defendant has “something less than irreconcilable
conflict” with current counsel). The record supports the superior court’s
denial of Francois’s Motion for New Counsel and the decision to allow
Francois to proceed pro se. See State v. Dann, 220 Ariz. 351, 358, 360, ¶¶ 10,
25 (2009) (“Whether an accused has made an intelligent and knowing
waiver of counsel is a question of fact . . . based substantially on the trial
judge’s observation of the defendant’s appearance and actions.”).
Accordingly, the court did not abuse its discretion by denying Francois’s
request for substitute counsel.

B.     The Superior Court Did Not Abuse Its Discretion by Precluding
       Francois’s Alibi Witnesses as a Discovery Sanction for Late
       Disclosure.

¶12           Four days before trial was scheduled to begin, Francois filed
a pro se “current witness list,” disclosing names of individuals who were
purportedly with him on the date of the sexual assault. The State, noting
Francois did not previously disclose an alibi defense, moved to preclude
such a defense at trial. The court granted the motion.

¶13           Francois does not argue that he timely disclosed his
supplemental witness list. See Ariz. R. Crim. P. 15.2(b)(1), (d)(1) (requiring
a defendant within 40 days after arraignment or within 10 days after the
prosecutor’s disclosure pursuant to Rule 15.1(b), whichever occurs first, to
provide a written notice to the prosecutor specifying all defenses, including
alibi, as to which the defendant intends to introduce evidence at trial).
Instead, without citing authority to support his arguments, he contends
preclusion was too drastic a remedy for his discovery violation, and the
court should have continued the trial to permit the State “to conduct their
due diligence as to the defense witnesses.” Francois further argues the State
was not prejudiced by his late disclosure because he timely disclosed a
third-party defense. We review the court’s decision to exclude evidence due
to untimely disclosure for abuse of discretion. State v. Rienhardt, 190 Ariz.
579, 586 (1997).

¶14           Arizona Rule of Criminal Procedure 15.2(c)(1) provides that a
defendant must timely disclose the names, addresses, and written or
recorded statements of all witnesses the defendant intends to call at trial.
Ariz. R. Crim. P. 15.2(c)(1). “[T]he underlying principal of Rule 15 is
adequate notification to the opposition of one’s case-in-chief in return for
reciprocal discovery so that undue delay and surprise may be avoided at
trial by both sides.” State v. Stewart, 139 Ariz. 50, 59 (1984). Where a
defendant fails to disclose a witness in a timely fashion, preclusion may be


                                      6
                            STATE v. FRANCOIS
                            Decision of the Court

appropriate. Ariz. R. Crim. P. 15.7(c)(1); State v. Thompson, 190 Ariz. 555, 558
(App. 1997).

¶15            If a court determines that a sanction is proper for a discovery
violation, the court must consider whether a less stringent sanction would
suffice before it precludes the evidence. State v. Meza, 203 Ariz. 50, 58, ¶ 37
(App. 2002). Further, before precluding evidence as a sanction for a
discovery violation, the court must consider “the significance of the
information not timely disclosed, the violation’s impact on the overall
administration of the case, the sanction’s impact on the party and the
victim, and the stage of the proceedings when the party ultimately made
the disclosure.” Ariz. R. Crim. P. 15.7(c).

¶16           The superior court did not abuse its discretion by excluding
Francois’s alibi witnesses. The record reflects the court considered the Rule
15.7 factors and specifically found that “the prejudice to the State is too
great” to allow Francois to pursue a new alibi defense on the eve of trial.
The record supports the court’s finding. Additionally, the court concluded,
and we agree, that the previously disclosed third-party defense did not
provide notice to the State that Francois would raise an alibi defense. A
defendant claiming that a third party committed the crimes in question
does not necessarily imply that the defendant was not present at the crime
scene. Furthermore, the difference in preparation and investigation which
would be performed by the State based on an alibi defense, versus that of a
third-party defense, is significant. As the State argued during the hearing
on their motion to preclude, an alibi defense requires time in order to
subpoena financial records, travel and phone records, and interview
witnesses to ascertain the truth of their statements regarding both their
location, and the defendant’s, at the time the crime was committed.

¶17           Absent authority to the contrary, we will not conclude that a
timely noticed third-party defense also notifies the State that a defendant
may raise an alibi defense. Therefore, the superior court could reasonably
conclude that precluding Francois’s alibi witnesses was a proper remedy
for his untimely disclosure. See State v. Ramos, 239 Ariz. 501, 505, ¶ 12 (App.
2016) (concluding preclusion of disclosed alibi witness was appropriate
remedy for untimely disclosure, despite significance of witness to
defendant and lack of defense counsel’s bad faith, because late disclosure
introduced a new defense theory and “caused a significant disadvantage to
the state.”).




                                       7
                           STATE v. FRANCOIS
                           Decision of the Court

C.     The Superior Court Did Not Abuse Its Discretion by Refusing to
       Suppress the DNA Evidence.

¶18           Francois moved pretrial to suppress the DNA evidence,
arguing his California arrest was unlawful and the arresting officer
conspired with others to establish probable cause in his California
attempted burglary case. As a result, Francois argued the warrantless
seizure of his DNA violated his Fourth Amendment rights. The superior
court denied the motion without conducting an evidentiary hearing.

¶19           Francois contends he was entitled to an evidentiary hearing
to determine whether his California arrest was “lawful” and the ensuing
warrantless seizure was constitutional. He further summarily asserts that
he “had the right to confront the state’s witnesses . . . [and] the court
impermissibly shifted the burden of proof to Francois to prove his arrest
and seizure was unlawful.” We review the court’s denial of a motion to
suppress evidence for an abuse of discretion if it involves a discretionary
issue, but we review constitutional and legal issues de novo. See State v. Gay,
214 Ariz. 214, 217, ¶ 4 (App. 2007). More specifically, we review the court’s
decision to deny a motion to suppress without conducting an evidentiary
hearing for an abuse of discretion. See Ariz. R. Crim. P. 1.9(e) (“[T]he court
may set a motion for argument or hearing.”) (emphasis added); State v.
Peterson, 228 Ariz. 405, 407, ¶ 6 (App. 2011).

¶20           The Fourth Amendment prohibits police from making
unreasonable searches and seizures, Terry v. Ohio, 392 U.S. 1, 9 (1968), and
the exclusionary rule generally prevents the introduction of evidence seized
in violation of a person’s Fourth Amendment rights, State v. Hackman, 189
Ariz. 505, 508 (App. 1997). Subject to some exceptions, a warrantless search
is per se unreasonable. State v. Branham, 191 Ariz. 94, 95 (App. 1997). As
pertinent here, if probable cause exists to support an arrest, 4 the United
States Supreme Court has rejected the argument that the Fourth
Amendment is violated by a law that authorizes the warrantless seizure of
a suspect’s DNA. Maryland v. King, 569 U.S. 435, 449–50 (2013).

¶21         The superior court did not abuse its discretion by denying the
suppression motion without conducting an evidentiary hearing. The court


4      “To make a warrantless arrest, a police officer must have probable
cause to believe both that a crime has been committed and that the person
to be arrested committed the crime.” State v. Keener, 206 Ariz. 29, 32, ¶ 15
(App. 2003).



                                      8
                            STATE v. FRANCOIS
                            Decision of the Court

considered the arresting officer’s sworn testimony given at the probable
cause and suppression hearings in the California case. Based on that
testimony, the superior court concluded, as did the California court that
addressed the same arguments Francois raised in support of his
suppression motion, that the arrest in California was supported by probable
cause. Although the superior court did not conduct an evidentiary hearing,
it did consider materials Francois submitted to support his argument that
the California officers conspired against him, and the court determined
those materials did not indicate a conspiracy as Francois alleged. While a
hearing would have allowed the court to assess the credibility of the officer
involved, and would have avoided relying on the previous hearing in
California, we cannot say that it was an abuse of discretion for the superior
court to deny a suppression hearing. The court acted within its discretion
by implicitly determining Francois failed to present a prima facie
suppression issue requiring an evidentiary hearing on the motion to
suppress. See State v. Nilsen, 134 Ariz. 433, 435–36 (App. 1982) (“The trial
judge did not err in refusing to hold an evidentiary hearing. . . . The record
shows that he patiently and carefully reviewed the appellants’ offers of
proof and arguments. . . . No further hearing was necessary or desirable.”),
aff'd as modified, 134 Ariz. 431 (1983); see also Ariz. R. Crim. P. 16.2(b)(2)(A)
(requiring a defendant to allege specific circumstances and establish a prima
facie case supporting suppression of evidence before the State has the
burden of proving lawfulness of seizure). 5

¶22            To the extent Francois argues the superior court erred by
denying his suppression motion because the California statute requiring
arrested persons to provide a DNA sample is unconstitutional, we
summarily reject the argument. The record reflects that, although Francois
initially raised this issue before trial, he abandoned it after the United States
Supreme Court issued its decision in King. See King, 569 U.S. at 449 (2013)
(collecting and analyzing a suspect’s DNA pursuant to Maryland’s DNA
Collection Act is a legitimate booking procedure following an arrest
supported by probable cause and does not violate the Fourth Amendment).
In addition, the California Supreme Court has since found their statute to
be constitutional. People v. Buza, 413 P.3d 1132 (Cal. 2018).

¶23          Regarding Francois’s assertion that the court’s failure to
conduct an evidentiary hearing violated his confrontation rights, we do not

5     Because Francois failed to establish a prima facie case, we reject his
implication that the State had the burden to prove the seizure of his DNA
complied with the Fourth Amendment.



                                       9
                            STATE v. FRANCOIS
                            Decision of the Court

address it because Francois fails to present a developed argument
supported by authority and has thereby waived the issue. See Ariz. R.
Crim. P. 31.10(a)(7)(A) (“An appellant’s opening brief must set forth . . .
appellant’s contentions with supporting reasons for each contention, and
with citations of legal authorities . . . on which the appellant relies.”); State
v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9 (2004) (“In Arizona, opening briefs
must present significant arguments, supported by authority, setting forth
an appellant’s position on the issues raised.”) (quoting State v. Carver, 160
Ariz. 167, 175 (1989)); State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001)
(issue waived because defendant failed to develop argument in his brief).

D.     The State Did Not Engage in Prosecutorial Misconduct.

¶24          During closing arguments, defense counsel repeatedly
challenged the DNA evidence, saying it “sucks” and referring to the
evidence as “bogus.” During the State’s rebuttal argument, the following
transpired:

       [PROSECUTOR]: So ask yourself this: You heard evidence in
       this case from multiple sources that all of the forensic
       evidence in this case, the bedding, all of the DNA had all been
       released to the defense for independent testing. You heard
       from [the DNA unit criminalist] that he released evidence
       from the lab. He coordinated directly with another lab to
       release the evidence to them for independent testing for the
       defense.

       Now, if this is such—if DNA sucks and it’s bogus, what on
       earth are they doing asking for this evidence to be released for
       independent testing?

       [DEFENSE COUNSEL]: I am going to object as improper
       burden shifting. I think it is improper argument, judge, for the
       record.

       THE COURT: I don’t believe it is burden shifting but I think
       you should move on.

¶25           Francois argues the foregoing rebuttal argument constituted
improper vouching for DNA testing. We review for fundamental error
because Francois did not object at trial on this basis. See State v. Lopez, 217
Ariz. 433, 434–35, ¶ 4 (App. 2008) (an objection on a ground other than the
one asserted to the appellate court does not preserve the issue for appeal).
Thus, Francois bears the burden to establish that error occurred, that the


                                       10
                            STATE v. FRANCOIS
                            Decision of the Court

error was fundamental, and that the error resulted in prejudice. State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). That is, Francois must show that
“(1) misconduct exists and (2) ‘a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying
[Francois] a fair trial.’” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007)
(quoting State v. Anderson (Anderson II), 210 Ariz. 327, 340, ¶ 45 (2005)).

¶26            To determine whether the prosecutor’s argument was
improper, we consider whether he called the jury’s attention to matters it
should not consider. State v. Roque, 213 Ariz. 193, 224, ¶ 128 (2006), abrogated
on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267, ¶¶ 13–14
(2017). Improper prosecutorial vouching consists of two types: “(1) where
the prosecutor places the prestige of the government behind its witness; (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989).
The first type of vouching consists of personal assurances of a witness’s
truthfulness. State v. King, 180 Ariz. 268, 277 (1994). The second type
involves prosecutorial remarks that bolster a witness’s credibility by
reference to material outside the record. Id. Francois argues that the
challenged argument “inferred that Francois had retested the bedding and
shirt inferring they contained DNA evidence, something never testified to
by any witness. Piggybacking on this inference, the state argued that
government’s result [sic] was confirmed by none other than Francois’s own
handpicked lab.” Thus, Francois contends the prosecutor engaged in the
second type of vouching.

¶27            The prosecutor did not refer to matters outside the record to
support the State’s argument. The evidence established that Francois
requested independent DNA testing of the bedding from the crime scene
and the saliva sample collected from the victim’s body. To rebut Francois’s
argument that the DNA evidence and test results presented by the State
were unreliable, the prosecutor could, therefore, properly refer to the
defense’s request for independent DNA testing. See State ex rel. McDougall
v. Corcoran, 153 Ariz. 157, 160 (1987) (“It strikes us as elemental fairness to
allow the State to comment upon the defense’s failure to adduce potentially
exculpatory evidence to which defendant had access when defendant is
attacking the accuracy of the State’s evidence.”); State v. Martinez, 130 Ariz.
80, 82–83 (App. 1981) (no misconduct where prosecutor commented at trial
about defendant’s failure to present evidence on how a stolen speaker cover
got into his car trunk when the prosecutor made those statements as a
rebuttal to the defendant’s argument that the speaker cover had been found
and not stolen); see also State v. Kerekes, 138 Ariz. 235, 239 (App. 1983)
(because purported misconduct occurred during the State’s rebuttal


                                      11
                           STATE v. FRANCOIS
                           Decision of the Court

argument, this court views the challenged statement in the context of
defendant’s closing argument). Furthermore, even though the prosecutor
did not comment on Francois’s failure to provide the results of an
independent DNA test, such an additional inference would also not be
considered vouching. See McDougall, 153 Ariz. at 160 (prosecutor was
permitted to comment on defendant’s failure to produce evidence
concerning an independent breath test when defendant challenged the
accuracy of the State’s test results). While we recognize the fine distinction
between commenting on a defendant’s failure to present evidence and
commenting on evidence outside the record, we hold no vouching occurred
in this case. See id. (“Such comment is permitted by the well-recognized
principle that the nonproduction of evidence may give rise to the inference
that it would have been adverse to the party who could have produced it.”).

¶28           Finally, even if we were to hold the prosecutor’s comments in
closing to constitute vouching, the error would not be fundamental. See
Henderson, 210 Ariz. at 567, ¶ 20. The DNA evidence presented at trial
showed a match between Francois’s DNA profile and that of the saliva
found on the victim’s breast following the assault, and the victim testified
that she recognized Francois’s voice during trial as the same one she heard
during the assault.

                               CONCLUSION

¶29           Francois’s convictions and sentences are affirmed.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




                                        12
