Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause Nos. CR20100889001, CR20112715001 Honorable Richard S. Fields, Judge Honorable Charles Sabalos, Judge.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz and Jonathan Bass Attorneys for Appellee.
Natasha Wrae Tucson Attorney for Appellant.
MICHAEL MILLER, Judge.
¶1 Daniel Renteria was convicted after jury trials in two different causes of negligent homicide and various drug offenses. He appealed the convictions in both causes and we have granted his request to consolidate the appeals. Renteria claims the trial court erred with respect to certain evidentiary rulings, as well as pre- and post-trial motions. For the reasons stated below, we affirm in part and vacate in part.
Factual and Procedural Background
¶2 Viewed in the light most favorable to sustaining the verdicts, see State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008), the evidence presented during the murder trial established the following. In March 2010, Renteria killed two men outside a residence. Renteria believed one of the victims, J.M., had molested his son and the other, R.R., had threatened to kill him and his son if the police were notified. He approached the residence with the intention of telling the men to stay away from his family, but shot and killed both because he saw them approach his vehicle in a menacing manner and felt threatened.
¶3 Renteria was charged with two counts of manslaughter for the killing of J.M. and R.R. Mistrials were declared in the first three trials on the manslaughter charges because the juries were unable to reach a decision. In the fourth trial, the jury acquitted Renteria of manslaughter as to J.M, but convicted him of the lesser-included offense of negligent homicide as to R.R.
¶4 While the final homicide trial was pending in August 2011, Renteria was arrested for selling heroin to an undercover law enforcement officer. After a jury trial in May 2012, he was found guilty of sale of a narcotic drug and possession of drug paraphernalia, and the trial court sentenced Renteria to a four-year minimum prison term for the manslaughter conviction. In June 2012, the court sentenced Renteria to a mitigated prison term of 6.5 years for the sale and/or transfer of a narcotic and a mitigated term of 2.75 years for possession of drug paraphernalia, to be served concurrently with the term imposed on the manslaughter conviction.
¶5 Renteria timely appealed his convictions and sentences. As we previously stated, we granted his motion to consolidate the appeals.
¶6 Renteria first argues the trial court erred in limiting the role of Natasha Wrae, the attorney hired by his relatives, to acting as an "intermediary" because she declined to file a general appearance notice. He asserts the trial court frustrated the purpose and utility of Knapp counsel, referring to Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1038 (1974), by refusing to let Wrae draft and file motions with the endorsement of appointed public defender Paul Skitzki. Renteria further argues the court "created more expense of both time and money by the public defender" when it struck Wrae's motion to modify and required the attorney of record to re-file it. Renteria asks this court to "find error" and to "issue an Opinion clarifying the issue."
¶7 As Renteria raises these arguments for the first time on appeal, we review for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is that which goes to the foundation of the case, denies the defendant a fair trial, and denies the defendant a right essential to his defense. Id. "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. ¶ 20. Renteria has not argued or established fundamental error and, accordingly, his claims are waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error waived if not argued). Because Renteria's claim involves his right to counsel, a fundamental constitutional right, we have examined the record for error that can be categorized as fundamental. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it sees it), and State v. McLemore, 230 Ariz. 571, ¶¶ 14, 16, 288 P.3d 775, 779-80 (App. 2012) (right of counsel is a fundamental constitutional right).
¶8 Renteria was represented by appointed counsel Paul Skitzki from the Pima County Public Defender's Office. Not long after Skitzki was appointed, Wrae filed a "Special Notice of Appearance/Association Pursuant to Knapp, " and a motion to modify conditions of release; Skitzki then filed a motion to withdraw the Pima County Public Defender's Office as counsel pursuant to A.R.S. § 11-587 and Rule 6.3, Ariz. R. Crim. P. At a subsequent hearing, Wrae informed the trial court that "at this point" she was not entering a formal appearance. The court denied Skitzki's motion to withdraw. The court also struck the motion to modify conditions of release because Wrae was not the attorney of record, finding "[s]he didn't have the authority to file the motion, not having entered a general appearance." Neither Wrae nor Skitzki objected to the court's ruling.
¶9 Skitzki adopted and re-filed the motion to modify conditions of release and the motion was granted. A few days later, Skitzki and Wrae filed a stipulation for substitution of counsel enabling Wrae to represent Renteria as attorney of record. The court entered an order substituting Wrae for Skitzki.
¶10 Under Knapp, retained counsel is permitted to associate with appointed counsel provided that "assisting" counsel be "made a counsel of record with reciprocal rights and duties under" the rules of procedure and "subject to the direction of the court." 111 Ariz. at 111, 523 P.2d at 1312. Here, Renteria never had Knapp counsel because Wrae declined to enter a formal appearance and be made attorney of record. Thus, the trial court did not err at all, much less commit error that affected the foundation of case, deprived Renteria of a right essential to his defense, or made it impossible for him to have had fair trial, see Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, by denying the motion to withdraw, striking the motion to modify, and permitting Skitzki, Renteria's sole attorney of record, to re-file the motion to modify under his name. Limiting Number of Defense Witnesses
¶11 Renteria next asserts the trial court committed reversible error by precluding a defense witness from testifying at trial and limiting the number of defense character witnesses. We review the court's evidentiary rulings for an abuse of discretion. State v. Superior Court, 128 Ariz. 583, 585, 627 P.2d 1081, 1083 (1981).
¶12 The trial court granted the state's motion to preclude J.M.'s sister from testifying, finding it irrelevant and cumulative. She would have testified about J.M.'s "reputation for being a burglar, for being a menace and for being a drug addict." The motion was renewed and denied before the fourth trial.
¶13 The trial court precluded the evidence after questioning its relevance and finding the testimony would be cumulative. Renteria does not cite any authority stating that this type of testimony is admissible. From the record before us, it appears that any relevance of such testimony would have been attenuated. The court did not abuse its discretion by precluding this minimally probative and cumulative evidence under Rule 403, Ariz. R. Evid. See State v. Machado, 224 Ariz. 343, ¶ 48, 230 ...