Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2009-117226-001 The Honorable Robert E. Miles, Judge
Thomas C. Horne, Attorney General, Joseph T. Maziarz, Section Chief Counsel Criminal Appeals Attorneys for Appellee
Law Office of Nicole Farnum, Nicole T. Farnum Attorneys for Appellant
RANDALL M. HOWE, Judge
¶1 Anthony Matthew Pena appeals his convictions and sentences for first degree murder, aggravated assault and discharge of a firearm at a structure. He asserts the trial court erred in not suppressing evidence of a handgun that police discovered in violation of his Fourth Amendment rights and in not suppressing evidence of a prior act. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On January 26, 2006, Pena was involved in a physical altercation at a sports bar. The fight erupted outside the entrance after security personnel prohibited Pena from bringing a handgun into the bar. Once allowed inside, Pena "started talking smack" and "mean-mugged" the bar manager. After being physical beaten and bloodied by the manager outside the bar, Pena threatened the bar's staff: "[You're] dead. . . . You don't know who you're messing with. I'll be back."
¶3 The next evening, an unknown assailant fired gunshots at the bar's entrance. One of the shots struck and seriously wounded a customer who had momentarily stepped outside. The shooter then fled on foot. Security personnel working for an establishment across the street, including a security guard and off-duty police officers, ran after the gunman. While pursuing the suspect, the security guard passed the officers and confronted the suspect in an alley behind the sports bar. The suspect fatally shot the guard and fled. Responding on-duty police officers located seven spent nine-millimeter shell casings grouped in front of the sports bar and three similar casings in the alley where the second victim was shot. They did not, however, locate the shooter or the gun.
¶4 Nearly a year later, on January 25, 2007, an officer responded to an emergency call regarding a fight between Pena and a woman on the corner of Third Street and Thomas Road. When he arrived at the scene, the officer observed Pena walking away from the area with a woman throwing gravel at him and yelling, "Just stay away from me." The officer called out to Pena to stop and return. Noticing Pena was wearing baggy clothes and his hands were in his coat pockets, the officer told him to take his hands out to ensure "he couldn't get to anything inside of his pockets that he could harm me with." Pena complied, and as he was walking towards the officer, the officer asked more than once whether he was carrying any weapons. Pena did not respond, but "just stared at [him]." The officer became very suspicious and proceeded to pat down Pena. As the officer began searching the waistband, Pena turned to face the officer and dropped his right hand from his head to the area around his front waist. The officer became "immediately concerned" for his safety, and as he attempted to physically prevent Pena from fully turning, another officer arrived. The other officer assisted with the pat down, and, as a matter of officer safety, he lifted up Pena's untucked shirt and noticed a gun in the right side of his waistband. The officers then arrested Pena and impounded the weapon.
¶5 At the time, police did not suspect that Pena committed the crimes at the sports bar the year before. Forensic testing showed the gun that Pena was carrying was the same weapon that fired the casings and projectiles discovered in front of the sports bar and the nearby alley where the second victim was killed. The police also learned that, at the time of the shootings, Pena lived in a townhome less than a block from the sports bar and adjacent to the alley.
¶6 Regarding the shooting incidents, the State charged Pena with one count each of first degree premeditated murder, aggravated assault and discharge of a firearm at a structure, all dangerous felonies. Pena moved before trial to suppress evidence of the handgun and the forensic testing results that tied the weapon to the charged crimes, arguing the officers violated his Fourth Amendment rights when they searched him on January 25, 2007, and seized the weapon. On September 27, 2011, the court held a hearing to consider the issue and denied Pena's motion.
¶7 Pena also sought to preclude evidence of the incident the evening before the alleged shootings as a prior act under Arizona Rule of Evidence 404(b). On November 30, 2011, the court held a hearing on the motion. The State argued the prior act was admissible because it was intrinsic to the crimes charged and was relevant to prove Pena's motive and identity as the shooter. The State also provided testimony from the sports bar's security guard, who initially discovered the gun in Pena's possession on January 26, 2006. The guard testified that he noticed markings on the gun that identified it as a Ruger, the same brand that police found on Pena a year later and that was used in the shootings. Thus, the court found the evidence was admissible as intrinsic evidence.
¶8 At the close of trial, the jury found Pena guilty as charged. The court sentenced Pena to a natural life sentence for the first-degree murder conviction to be served consecutively to ...