                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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)
                              FILED 9-25-2018


           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
                             STATE v. MARTIN
                            Decision of the Court



                      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.


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                             STATE v. MARTIN
                            Decision of the Court

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-four-
felony 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.


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                             STATE v. MARTIN
                            Decision of the Court

¶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



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                             STATE v. MARTIN
                            Decision of the Court

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.



                                      5
                           STATE v. MARTIN
                          Decision of the Court

             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.”




                                    6
                            STATE v. MARTIN
                           Decision of the Court

             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


                                     7
                             STATE v. MARTIN
                            Decision of the Court

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).




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                            STATE v. MARTIN
                           Decision of the Court

                              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).




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




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