                          NOTICE: NOT FOR PUBLICATION.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.

                 ROBERT FRANKLIN BROWN, Appellant.

                             No. 1 CA-CR 13-0807
                                    FILED 9-9-14

           Appeal from the Superior Court in Maricopa County
                        No. CR2012-006890-001
               The Honorable Joseph C. Kreamer, Judge

                                  AFFIRMED


                                   COUNSEL

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

Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
                             STATE v. BROWN
                            Decision of the Court

G E M M I L L, Judge:

¶1            Robert Brown was convicted of first degree felony murder,
drive-by shooting, and aggravated assault. He appeals his convictions and
the sentences imposed. For the reasons set forth below, we affirm.

¶2              Brown’s counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969), stating that she has searched the record and found no arguable
question of law and requesting that this court examine the record for
reversible error. Brown was afforded the opportunity to file a pro se
supplemental brief and he has done so. See State v. Clark, 196 Ariz. 530, 537,
¶ 30, 2 P.3d 89, 96 (App. 1999).

                 FACTS AND PROCEDURAL HISTORY

¶3              On May 6, 2012, Brown and Allen Robinson went to a Circle
K to purchase alcohol. The clerk refused to sell them alcohol because they
appeared drunk. They then asked two minors, L.G. and F.J., to purchase
alcohol for them, but they declined to do so. F.J. drove off eastbound on
Hatcher Road with L.G. in the passenger seat. Shortly thereafter, Brown,
driving, and Robinson, sitting in the passenger seat brandishing a hand
gun, caught up with L.G. and F.J. Once they caught up, Brown pulled into
the lane next to F.J.’s vehicle. Robinson began yelling at L.G. and F.J., while
pointing the gun at them. Robinson then fired two shots at them. A bullet
struck F.J. in his side but he sped up the vehicle. Brown continued driving
next to F.J.’s vehicle. Robinson fired two more times. One bullet struck F.J.
in his head, who died as a result of multiple gunshot wounds, and the other
struck L.G.

¶4            In May 2013, Brown was found guilty by a jury of first degree
felony murder, a class 1 dangerous offense, drive-by shooting, a class 2
dangerous felony, and aggravated assault, a class 3 dangerous felony. The
trial court then conducted a hearing on aggravating circumstances. The
jury found two aggravating circumstances beyond a reasonable doubt for
each count: a dangerous offense that involved the discharge of a deadly
weapon and the presence of an accomplice.

¶5            At the sentencing hearing, the court weighed the two
aggravating circumstances and various mitigating circumstances. Brown
was sentenced to life imprisonment with a possibility of release after 25
years for the felony murder conviction and 13 years each for the drive-by
shooting and aggravated assault convictions, with all three sentences to be



                                      2
                             STATE v. BROWN
                            Decision of the Court

served concurrently, and 485 days of presentence incarceration applied to
each. Brown filed a timely notice of appeal and amended notice of appeal
from the judgment and sentence. We have jurisdiction under the Arizona
Constitution Article VI, section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031,
and 13-4033(A).

                                DISCUSSION

¶6            We view the evidence in the light most favorable to sustaining
the jury verdicts. State v. Carrasco, 201 Ariz. 220, 221, ¶ 1, 33 P.3d 791, 792
(App. 2001). In his supplemental brief, Brown raises four arguments, which
we examine in turn.

                      Ineffective Assistance of Counsel

¶7            Brown makes two claims of ineffective assistance of counsel.
First, Brown claims his attorney refused to call a witness that Brown
believed would impact the case. Brown alleges his attorney insisted Brown
testify instead. Second, Brown claims that he did not agree with his
attorney’s strategy during the case. He states, “I did not want to win my
case the way he had plan[ed] to do it, which was lie or bend the truth.”

¶8            The Arizona Supreme Court has held that ineffective
assistance of counsel claims cannot be brought on direct appeal. State v.
Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Such claims must be
asserted in Rule 32 post-conviction relief proceedings. Id. We cannot
address Brown’s ineffective assistance of counsel claims in this direct
appeal.

                               Unfair Prejudice

¶9             Brown contends he was unfairly prejudiced in the eyes of the
jurors because a security device on his leg and back were allegedly visible
to jurors, thus alarming jurors that he was in custody.1 We review Brown’s
claim of unfair prejudice for fundamental error because Brown did not
object at the trial court. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115
P.3d 601, 607 (2005). He alleges that jurors saw the restraints, but he does
not point to evidence in the record to support this contention. See State v.
McMurtrey, 136 Ariz. 93, 98, 664 P.2d 637, 642 (1983) (“An appellate court
will not find error on the ground that the defendant was shackled unless it
is shown that the jury saw the shackles.”); see also State v. Mills, 196 Ariz.
269, 271 ¶ 8, 995 P.2d 705, 707 (App. 1999) (to warrant mistrial, appellant

1   Brown does not challenge the use of restraints.


                                       3
                             STATE v. BROWN
                            Decision of the Court

required to show he suffered prejudice from jurors’ observation of him in
restraints).

¶10             “The question is whether the defendant was prejudiced by
what the jury saw, not the mere fact that it was seen.” State v. Johnson, 147
Ariz. 395, 399, 710 P.2d 1050, 1054 (1985). Brown did not request that the
trial court ask the jurors if they were in fact aware of the restraints, nor did
he seek “to make an evidentiary record after trial.” See State v. Apelt, 176
Ariz. 349, 361, 861 P.2d 634, 646 (1993) (defendant could have, but did not,
request post-trial voir dire of jury to identify any prejudice resulting from
exposure to defendant in handcuffs or shackles). Brown has made no such
record. Nor has he demonstrated how or why, on this record, an appellate
court should find prejudice. Because the record does not reveal any
prejudice to Brown from his security device, we conclude there was no
error.

                            Jury Bias & Prejudice

¶11          In his supplemental brief, Brown raises two new arguments
regarding alleged incidents that occurred during voir dire. He contends
these incidents prejudiced him and made the jury biased. Because he did
not raise these arguments during jury selection, we review them for
fundamental error only. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.

¶12          Brown argues that during jury selection, members of the jury
pool expressed Brown “was guilty already” because he is African-
American. A review of the record supports that there were two members
of the jury pool who made comments about an inability to be fair and
impartial because of Brown’s race.

¶13           During voir dire, one juror stated he was racist. For that
reason, he believed Brown “probably did kill [the victim].” In open court
the judge asked if the juror meant that “because [Brown] is African-
American, he did it?” The juror responded, “[p]robably so.” The judge
probed further, asking, “[y]ou still, in today’s day and age, feel that way?”
The juror again affirmed to which the judge responded, “[i]f you feel like
that, you are exactly right; you are not qualified to be here.” Neither party
objected to the juror’s release for cause.

¶14          Later, a second juror claimed he was “biased” and thus
unable to be fair and impartial because he had been the victim of a crime
perpetrated by an African-American. The court dismissed him for cause
and there was no objection from either party. When the court, near the end



                                       4
                             STATE v. BROWN
                            Decision of the Court

of jury selection, asked if the defense passed the panel, Brown’s attorney
answered affirmatively.

¶15            The burden is on the party challenging the jury panel to show
that the panel selection was a “material departure from the requirements of
law.” State v. Greenwalt, 128 Ariz. 150, 167, 624 P.2d 828, 845 (1981). To do
so, the challenging party must show that the jurors “could not be fair and
impartial.” State v. Reasoner, 154 Ariz. 377, 383-84, 742 P.2d 1363, 1369-70
(App. 1987). This court cannot assume comments made by perspective
jurors tainted the entire panel; the record must affirmatively present proof
that a fair and impartial jury was not seated. See id.; Greenwalt, 128 Ariz. At
167, 624 P.2d at 845.

¶16            We conclude there was no error, despite the ugliness of the
prospective jurors’ comments, because we cannot find evidence of juror
prejudice in the record nor does Brown show that the impaneled jury was
biased or that actual prejudice existed. See id.; State v. Tison, 129 Ariz. 526,
535, 633 P.2d 335, 344 (1981) (“Unless there are objective indications of
jurors’ prejudice, we will not presume its existence”). Additionally, the
jurors were instructed that they must not be influenced by prejudice and
that they must decide on the basis of the evidence presented in court and
the law as provided by the trial court. Furthermore, the impaneled jurors
were sworn to duty, presumably using the standard oath set forth in
Criminal Rule 18.6, in which they commit to render a verdict in accordance
with the law and the evidence. Ariz. R. Crim. P. 18.6. We are aware of no
evidence in the record that the racist comments of two prospective jurors
tainted the empaneled jury and our review of the record does not support
Brown’s contention the jury was biased or that he was prejudiced. See, e.g.
State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App. 1983) (noting the
court could not make an assumption the jury was tainted).

¶17             Additionally, Brown argues unfair prejudice because the final
jury panel did not include any African-Americans. A “defendant in a
criminal case is entitled to a fair and impartial jury for the trial of his case,
but he is not entitled to be tried by any particular jury.” State v. Arnett, 119
Ariz. 38, 50, 579 P.2d 542, 554 (1978)). The record does not reflect that
African-Americans were systematically excluded during the jury-selection
process nor were any Batson challenges made. See State v. Garza, 216 Ariz.
56, 65, ¶ 31, 163 P.3d 1006, 1015 (2007) (citations omitted) (defendant waives
Batson challenges by failing to object at trial; cf. State v. Atwood, 171 Ariz.
576, 622, 832 P.2d 593, 639 (1992) (concluding that the court could not
determine whether an identifiable underrepresentation is the result of
systematic exclusion because the defendant did not provide information


                                       5
                             STATE v. BROWN
                            Decision of the Court

that a specific group was systematically excluded), disapproved on other
grounds by State v. Nordstrom, 200 Ariz. 229, 241 ¶25, 25 P.3d 717, 729 (2001).
On this record, no fundamental, prejudicial error occurred.

                                Judicial Bias

¶18           Brown states the judge restricted his testimony because the
judge struck a few of his answers and told him to “answer yes or no.” The
record reflects these remarks occurred during State’s cross-examination
and that the trial judge directed Brown to restrict his answers to the form
asked by the State.

¶19           A trial judge is presumed to be unbiased, State v. Henry, 189
Ariz. 542, 546, 944 P.2d 57, 61 (1997), and to rebut the presumption, a party
must prove bias or prejudice by a preponderance of the evidence, State v.
Hurley, 197 Ariz. 400, 404-05, ¶ 24, 4 P.3d 455, 459-60 (App. 2000). Our view
of the record does not reveal judicial bias. Furthermore, the trial judge’s
directions to Brown were warranted procedurally. See Ariz. R. Evid. 103(d)
(indicating that the court must conduct a jury trial so that inadmissible
evidence is not suggested to the jury by any means). The record does not
demonstrate any error in this regard.

 The Court’s Independent Review of the Record for Fundamental Error

¶20            Having examined the record for reversible error, see Leon, 104
Ariz. at 300, 451 P.2d at 881, we find none. The evidence presented supports
the convictions and the sentences imposed fall within the range permitted
by law. As far as the record reveals, Brown was represented by counsel at
all stages of the proceedings, and these proceedings were conducted in
compliance with his constitutional and statutory rights and the Arizona
Rules of Criminal Procedure.

¶21           Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d
154, 156-57 (1984), counsel’s obligations in this appeal have ended. Counsel
need do no more than inform Brown of the disposition of the appeal and
his future options, unless counsel’s review reveals an issue appropriate for
submission to the Arizona Supreme Court by petition for review. Brown
has thirty days from the date of this decision in which to proceed, if he
desires, with a pro se motion for reconsideration or petition for review.




                                      6
                   STATE v. BROWN
                  Decision of the Court

                     CONCLUSION

¶22   Brown’s convictions and sentences are affirmed.




                          :JT



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