                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  THOMAS LAMONT MOTON, Appellant.

                             No. 1 CA-CR 13-0748
                                 FILED 12-30-14


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-127763-001
                The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant

Thomas Lamont Moton, Florence
Appellant
                                STATE v. MOTON
                               Decision of the Court



                          MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge
Kenton D. Jones and Judge Michael J. Brown joined.


S W A N N, Judge:

¶1            Defendant Thomas Moton appeals his conviction and sentence for
first-degree murder.

¶2            This case comes to us as an appeal under Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant’s
appellate counsel has searched the record on appeal and found no arguable, non-
frivolous question of law, and asks us to review the record for fundamental error.
See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196
Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Defendant has filed a supplemental
brief in propria persona in which he raises several issues for appeal. We have
searched the record and considered the issues raised by Defendant. We affirm his
conviction and sentence.

                    FACTS AND PROCEDURAL HISTORY

¶3            In June 2012, Defendant was indicted on one count of first-degree
murder for shooting and killing T.B., the mother of two of his children. Defendant
pled not guilty and the matter proceeded to a jury trial.

¶4              At trial, the state presented evidence of the following facts.
Defendant and T.B. had an ongoing romantic relationship that led to the birth of
their first child about 20 years ago. They lived together in Phoenix for some time
and eventually had a second child. Ultimately, T.B. moved out, and she and
Defendant maintained an on-and-off relationship. Defendant and T.B. had an
informal agreement that Defendant would have “custody” of their youngest child,
son D.B., during the week, and T.B. would have “custody” on the weekends.
Eventually T.B. began seeing another man; she planned to move to Texas with him
without telling Defendant, taking her three children, including D.B. In the days
leading up to the shooting, tensions escalated between T.B. and Defendant.

¶5            Six days before the shooting, T.B. was out with friends when her
daughter, L.B., came home from a party to find Defendant pulling into the
driveway of T.B.’s house. Defendant wanted to know where T.B. was; he went
into the house and checked all of the rooms looking for her. Defendant stayed at


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                                 STATE v. MOTON
                                Decision of the Court

the house all night waiting for T.B., but T.B. never came home. The next morning,
Defendant sent T.B. the following text message:

       Yeah, what’s up. Just couple nights ago, you were telling me to call
       or stop by any time. Then the first time I do, all bad. But I’m glad I
       did, you reminded me of the real [T.B.], the low down dirty, bald
       headed bitch. . . . Remember, I got all your info, dumb ho . . . . It’s
       cool. I’ll see you, I promise you dat. So keep this for your records
       and choke on a dick, bitch.

After receiving this text, T.B. told L.B. that they were not going to stay at the house
anymore and asked L.B. to gather as many belongings as she could and put them
in the car.

¶6            Three days before the shooting, L.B. was graduating from high
school. Defendant was not going to allow D.B. to attend the graduation. To get
around Defendant, T.B. and L.B. went to D.B.’s school and signed him out without
Defendant’s permission so he could attend. For the next two nights, T.B. and her
children stayed with friends and did not inform Defendant of their whereabouts.
T.B. never returned D.B. to school or to Defendant; she was going to keep D.B.
with her so he could also attend the eighth-grade promotion of T.B.’s middle
daughter, C.B. T.B. planned on driving to Texas with all three children
immediately after the promotion.

¶7             The eighth-grade promotion, and ultimately the shooting, took place
at Westview High School in Avondale. T.B. was nervous about going to the
promotion, believing Defendant might try and find her there, so she decided they
would leave right after C.B.’s name was called. After C.B.’s name was called, the
family walked out of the ceremony and T.B. asked a security guard from the school
to escort them to the car. Meanwhile, Defendant had driven to the school, parked
his motorcycle, and waited on one of the athletic fields with a view of the parking
lot. As T.B. and the rest of the family walked through the parking lot towards the
car, Defendant was seen crouching down and apparently trying to conceal himself
from view. Once the family got closer to T.B.’s car, Defendant ran towards them.
The security guard who had been walking with the family spotted Defendant and
pointed him out. The family ran to the car; T.B. got into the driver’s seat, D.B. into
the backseat. Defendant stood in front of the car and pointed a gun at T.B through
the windshield. She tried to start the car but it did not start. Defendant moved to
the driver’s side window, yelled “give me my fucking son,” shot T.B. at least three
times, and fled. T.B. died at the scene due to massive blood loss from these
injuries.




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                                 STATE v. MOTON
                                Decision of the Court

¶8           For his case, Defendant did not testify nor did he present any
evidence. He did not dispute that he shot the victim; instead he argued that the
killing was not premeditated, and therefore, he should not be convicted of first-
degree murder.

¶9             After considering the evidence and hearing closing arguments, the
jury found Defendant guilty of first-degree murder. The court entered judgment
on the jury’s verdict and sentenced Defendant to natural life with no possibility of
release, with credit for 503 days of presentence incarceration. Defendant timely
appeals.

                                    DISCUSSION

I.     DEFENDANT’S ARGUMENTS DO NOT IDENTIFY ERROR.

¶10            In his supplemental brief, Defendant contends that the state and the
trial court acted improperly in several respects. We address each in turn.

       A.     Defendant Was Not Entitled to Substitute Counsel.

¶11            Two months before his trial for first-degree murder, Defendant filed
a motion with the court to change counsel. The trial court asked Defendant why
he wanted new counsel, and he cited “irreconcilable differences and incompetent
litigation” as his reasons. The court explained that it was not up to Defendant to
determine whether there were irreconcilable differences, and stated that there has
to be an absolute and complete breakdown in communication for that to be the
case. When the trial court asked Defendant if he could be more specific about his
concerns, Defendant stated that his counsel had not looked out for his best interest
and that his case was too much for his counsel to handle. The court replied that
Defendant’s counsel was representing him more than adequately and that counsel
was very familiar with Defendant’s case. Ultimately, the trial court found that
Defendant was being very vague and that there was no basis to give Defendant a
new lawyer at that time.

¶12            “A trial court’s decision to deny the request for new counsel will not
be disturbed absent an abuse of discretion.” State v. Cromwell, 211 Ariz. 181, 186,
¶ 27, 119 P.3d 448, 453 (2005). A Defendant is not “entitled to counsel of choice, or
to a meaningful relationship with his or her attorney.” State v. Moody, 192 Ariz.
505, 507, ¶ 11, 968 P.2d 578, 580 (1998); see Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
However, “[t]he presence of an irreconcilable conflict or a completely fractured
relationship between counsel and the accused ordinarily requires the appointment
of new counsel.” Cromwell, 211 Ariz. at 186, ¶ 29, 119 P.3d at 453. The trial court
did not abuse its discretion in denying Defendant’s motion to change counsel. The
court conducted an adequate inquiry into why Defendant wanted to change


                                           4
                                STATE v. MOTON
                               Decision of the Court

counsel, Defendant was unable to demonstrate any real conflict between himself
and counsel, and from the record, none is discernable. The motion was properly
denied.

¶13            Additionally, Defendant now argues that he should have been
provided new counsel because his trial counsel refused to call certain witnesses to
testify, refused to obtain certain documents to present at trial, and refused to file
certain motions at Defendant’s direction. These are claims of ineffective assistance
of counsel. We do not consider such claims on direct appeal; they must instead be
raised in a petition for post-conviction relief under Ariz. R. Crim. P. 32. See State
v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002).

       B.     The Trial Court’s Exclusion of an Order of Protection Was Not Error.

¶14            Defendant next contends that the trial court improperly excluded
from trial a piece of evidence in violation of his right to due process. Specifically,
he states that his attorney told him that the trial court precluded an order of
protection that T.B. had against Defendant from admission into evidence.
Defendant argues that he could have used the order of protection to impeach the
deceased victim’s hearsay statements. Defendant now contends that the exclusion
of this evidence prevented him from testifying because he “did not feel
comfortable” without it. And he argues that because he did not testify, the jury
found him guilty of first-degree murder.

¶15           From the record we cannot say whether the trial court actually
excluded this evidence, and there is no indication that trial counsel ever attempted
to have it introduced. Normally, “[a]n appellate court ‘will not disturb a trial
court’s rulings on the admission or exclusion of evidence unless [the court] finds
a clear abuse of discretion and resulting prejudice, or finds that the trial court
misapplied the law.’” State ex rel. Montgomery v. Miller, 234 Ariz. 289, 297, ¶ 15,
321 P.3d 454, 462 (App. 2014) (quoting Lohmeier v. Hammer, 214 Ariz. 57, 61, ¶ 7,
148 P.3d 101, 105 (App. 2006)). Because there is no record of an attempt to
introduce this evidence at trial, we cannot say that the court misapplied the law.

¶16            Further, Defendant was given an opportunity to testify before
closing and declined to do so. “[A] defendant must make his desire to testify
known at trial and cannot allege this desire as an afterthought.” State v.
Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995). The trial court has no duty
to ensure that a defendant “feels comfortable” enough to testify. Because
Defendant never made it clear at any time that he wanted to testify, there was no
error in this regard.




                                          5
                                 STATE v. MOTON
                                Decision of the Court

       C.     Defendant’s Claims of Prosecutorial Misconduct Are Unsupported.

¶17            Defendant next contends that the state violated Ariz. R. Crim. P. 15.1
by failing to disclose two exhibits (exhibits 146 and 147) containing security
footage from the parking lot where Defendant shot T.B., depriving him of his
ability to prepare for trial.

¶18            Rule 15.1 requires that the prosecutor make available to the defense
certain material and information within his or her control. See Ariz. R. Crim. P.
15.1(a). “The underlying principle 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. Lawrence, 112
Ariz. 20, 22, 536 P.2d 1038, 1040 (1975); State v. Stewart, 139 Ariz. 50, 59, 676 P.2d
1108, 1117 (1984). Defendant provides no support for his contentions that the state
failed to disclose any material or information to the defense. The record shows
that defense counsel had no objection to the admission of the “undisclosed
exhibits” into evidence at trial. We note that defense counsel cross-examined the
witness, laying the foundation for the exhibits, and demonstrated that he had
watched the videos and was very familiar with their contents.

¶19          Defendant also asserts that the state engaged in prosecutorial
misconduct by failing to return some papers to Defendant that were in his
backpack at the time of his arrest and by allowing police officers to release a small
safe from T.B.’s car to her daughter, L.B., instead of giving it to Defendant.
Defendant argues that because the safe had contained a firearm at one point, he
could have used it as evidence that T.B. had a firearm in her possession.

¶20          Prosecutorial misconduct will warrant a mistrial if the misconduct
“permeates the entire trial and deprives the defendant of a fair trial.” State v. Trani,
200 Ariz. 383, 384, ¶ 6, 26 P.3d 1154, 1155 (App. 2001). We perceive no such
misconduct here.

¶21           Defendant’s Supplemental Brief states that the various documents in
his backpack included: (1) D.B.’s school enrollment forms; (2) paternity test results
regarding D.B.; (3) D.B.’s birth certificate; and (4) Defendant’s mental health
paperwork from Jewish Family Health Services. Because no issues even remotely
related to these documents were contested at trial, the documents were irrelevant
and their absence in no way deprived Defendant of a fair trial.

¶22          The fact that the police returned property of the victim to the victim’s
daughter instead of Defendant did not prejudice him. In fact, evidence was
introduced at trial that T.B. had owned a gun, and the absence of evidence of the
safe was therefore not prejudicial. We conclude that Defendant has not
demonstrated any misconduct on the part of the state.


                                           6
                                STATE v. MOTON
                               Decision of the Court

       D.     Defendant Was Not Denied His Right to a Speedy Trial.

¶23           Defendant argues that he was denied his right to a speedy trial under
the Sixth Amendment and Ariz. R. Crim. P. 8.2(a)(3). Rule 8.2(a)(3) provides that
for a complex case, a defendant shall be tried within 270 days of arraignment.
Defendant’s arraignment was held on June 13, 2012, and his trial began on August
13, 2013, well outside the 270-day limit.

¶24           Rule 8.5(b) allows the trial court to grant a motion to continue trial
upon a showing that extraordinary circumstances exist and that the delay is
indispensable to the interests of justice. Delays resulting from continuances in
accordance with Rule 8.5 are excluded from computation of the time limits set
forth in Rule 8.2. See Ariz. R. Crim. P. 8.4(e).

¶25            The state was granted two continuances pursuant to Rule 8.5. The
state filed a motion for each continuance stating the reasons justifying the
continuance. These reasons included the school schedules of T.B.’s children who
lived out of state and needed to travel back to Arizona to testify at trial, and
various other scheduling conflicts. Although defense counsel was unopposed to
a continuance, Defendant refused to waive time. Both times, in accordance with
Rule 8.5, the trial court found that the delay was indispensable to the interests of
justice and that extraordinary circumstances existed warranting a continuance.
Additional pre-trial hearings and scheduling conflicts made it impossible to
conduct a trial before August 2013.

¶26            The decision to grant a motion for continuance falls within the sound
discretion of the trial judge, and we will not reverse absent a clear abuse of
discretion that is demonstrably prejudicial to the defendant. See State v. Jackson,
112 Ariz. 149, 154, 539 P.2d 906, 911 (1975). “Prejudice sufficient to support a claim
of denial of the Sixth Amendment right to a speedy trial requires a specific
showing of how the passage of time has impaired the defendant’s ability to
prepare his defense.” United States v. Paul, 326 F. Supp. 2d 382, 387 (E.D.N.Y. 2004);
see also United States v. Jackson, 504 F.2d 337, 341 (8th Cir. 1974) (“The governing
standard in determining the prejudicial effect of a pre-indictment delay is whether
the delay has impaired the defendant’s ability to defend himself.”) (quotation
omitted). Here, Defendant has not demonstrated prejudice from the continuances,
and we see nothing in the record to indicate that the court abused its discretion
under the rules.

       E.     Photos of the Deceased Victim Were Admissible.

¶27           Defendant next argues that the trial court abused its discretion by
admitting gruesome photos of T.B. into evidence. The state introduced photos of
T.B. during the testimony of the medical examiner and the testimony of a detective


                                          7
                                 STATE v. MOTON
                                Decision of the Court

who observed T.B. at the hospital emergency room. They both took photographs
of T.B.’s injuries and of identifying information on her body including the bullet
holes/gunshot wounds, exit wounds, and T.B.’s tattoos.

¶28                “Trial courts have broad discretion to admit photographs in criminal
trials. . . . If a photograph is relevant, the court must determine if it is inflammatory
and, if so, whether the danger of unfair prejudice substantially outweighs the
photograph’s probative value.” State v. Roscoe, 184 Ariz. 484, 494, 910 P.2d 635, 645
(1996) (citations omitted). Photos of wounds and autopsy photographs are usually
admissible to show how the victim was killed, the nature of the injuries, and the
features of wounds because they are probative in nature and their probative value
generally outweighs the danger of unfair prejudice. See, e.g., State v. Thornton, 187
Ariz. 325, 332, 929 P.2d 676, 683 (1996); State v. Bolton, 182 Ariz. 290, 305, 896 P.2d
830, 845 (1995); State v. Walton, 133 Ariz. 282, 292, 650 P.2d 1264, 1274 (App. 1982).
Here, the photographs were not unduly gruesome or inflammatory; they were
relevant and probative and depicted the nature of T.B.’s injuries and death. We
find no error in their admittance.

       F.     The Trial Court Properly Sentenced Defendant.

¶29            Finally, Defendant argues that the trial court erred by sentencing
him using alleged aggravators not found by a jury in violation of the standard set
forth in Blakely v. Washington, 542 U.S. 296 (2004).

       In Blakely, the Supreme Court held that the imposition of an
       aggravated sentence without a finding of any aggravating factor by
       a jury violates the rule announced in Apprendi v. New Jersey, 530 U.S.
       466 (2000), that “any fact that increases the penalty for a crime
       beyond the prescribed statutory maximum must be submitted to a
       jury, and proved beyond a reasonable doubt.”

State v. Martinez, 209 Ariz. 280, 283, ¶ 10, 100 P.3d 30, 33 (App. 2004), aff’d in part,
210 Ariz. 578, 115 P.3d 618 (2005) (citation omitted).

¶30          Because Defendant murdered T.B. in May 2012, the current version
of A.R.S. § 13-751 was not applicable at his sentencing hearing. Instead, the
applicable version of the statute provided that a defendant convicted of first-
degree murder shall be sentenced to either life or natural life. A defendant who is
sentenced to natural life is not eligible for release from confinement on any basis.
However, if the defendant is sentenced to life, the defendant may not be released
before the completion of the service of 25 years. See A.R.S. § 13-703 (2009).

¶31           In this case, the court considered many factors in its sentencing
decision, including Defendant’s family history, the harm done to the children, his


                                           8
                                STATE v. MOTON
                               Decision of the Court

violent tendencies, and his level of remorsefulness. Ultimately the court decided
to sentence Defendant to natural life.

¶32            “The trial court’s consideration of aggravating factors in imposing
the natural life sentence does not violate the holding in Blakely.” Martinez, 209
Ariz. at 283, ¶ 12, 100 P.3d at 33. “In Blakely, the Court specifically distinguished
the situation where judicial sentencing factors merely impact the minimum
punishment available from that where they increase the maximum punishment
above that authorized by the verdict.” Id. at 283, ¶ 13, 100 P.3d at 33. “Because a
guilty verdict for first-degree murder authorizes the court to impose a life sentence
either with or without the possibility of release, the court may properly consider
the statutory sentencing factors, without the need for jury findings regarding those
factors, in deciding whether to allow the possibility of release.” Id. at 284, ¶ 13,
100 P.3d at 34. There was no error in the court’s imposition of the natural life
sentence, much less fundamental error.

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

¶33           Our review of the record reveals no fundamental error. Defendant
was present and represented at all critical stages. The record shows no evidence
of jury misconduct and the jury was properly comprised of 12 jurors. See A.R.S.
§ 21-102(A); Ariz. R. Crim. P. 18.1(a).

¶34            The evidence that the state presented at trial was properly
admissible and was sufficient to support Defendant’s convictions. Defendant was
charged with the first-degree murder of T.B. under A.R.S. §§ 13-1101, 13-1105 and
13-751(A), which required the state to prove that Defendant intentionally or
knowingly caused the death of another person with premeditation. Premeditation
means that the defendant acted with either the intention or the knowledge that he
would kill another human being, when such intention or knowledge precedes the
killing by any length of time to permit reflection. See A.R.S. § 13-1101(1). “Proof
of actual reflection is not required, but an act is not done with premeditation if it
is the instant effect of a sudden quarrel or heat of passion.” Id. The state produced
evidence that Defendant knowingly and intentionally shot and killed T.B. with
premeditation. He brought a gun to the promotion ceremony that he knew T.B.
was attending, waited for her to walk towards her car, then ran up to the
windshield and pointed the gun at her, moved to the driver’s side window while
still pointing the gun at her, and shot her three times. This evidence was sufficient
to allow the jury to find Defendant guilty of first-degree murder.

¶35            At sentencing, Defendant was given an opportunity to speak, and
the court stated on the record the evidence and materials it considered in imposing



                                         9
                                 STATE v. MOTON
                                Decision of the Court

a sentence. The court imposed legal sentences for the offenses, see A.R.S. §§ 13-
701, 13-703, and correctly calculated Defendant’s presentence incarceration credit
under A.R.S. § 13-712(B).

                                   CONCLUSION

¶36           We have reviewed the record for fundamental error and find none.
See Leon, 104 Ariz. at 300, 451 P.2d at 881. Accordingly, we affirm Defendant’s
convictions and sentences.

¶37            Defense counsel’s obligations pertaining to this appeal have come to
an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Unless, upon review, counsel discovers an issue appropriate for petition for
review to the Arizona Supreme Court, counsel must only inform Defendant of the
status of this appeal and his future options. See id. Defendant has 30 days from
the date of this decision to file a petition for review in propria persona. See Ariz. R.
Crim. P. 31.19(a). Upon the court’s own motion, Defendant has 30 days from the
date of this decision in which to file a motion for reconsideration.




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