Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 28, Arizona Rules of Civil Appellate
Appeal from the Superior Court in Maricopa County Cause No. CR2011-007901-002 The Honorable Edward W. Bassett, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee.
The Hopkins Law Office, P.C. Tucson By Cedric Martin Hopkins Attorneys for Appellant.
Tiger Flowers, Jr. San Luis Appellant.
DIANE M. JOHNSEN, Chief Judge.
¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following the conviction of Tiger Flowers, Jr. of second-degree murder, a Class 1 felony. Ariz. Rev. Stat. ("A.R.S.") § 13-1104 (West 2004). Flowers's counsel has searched the record on appeal and found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel now asks this court to search the record for fundamental error. Flowers filed a supplemental brief raising several issues, which we address below. After reviewing the entire record, we affirm Flowers's conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 In November 2011, Flowers and Termaine Lee, Flowers's nephew, were charged by indictment with first-degree murder, A.R.S. section 13-1105 (West 2004), and assisting a criminal street gang, A.R.S. § 13-2308 (West 2004).The facts giving rise to the indictment occurred in May 2005.
¶3 Flowers grew up in an area of South Phoenix where the Lindo Park Crips gang is found. In May 2005, Flowers did not live in that area, but his sister, Carolyn Colter, resided in Flowers's childhood home there. The victim was in a relationship with Carolyn Colter and living with her around the time he was killed and conducted Lindo Park Crips' activities out of the home.
¶4 In the early morning of May 3, 2005, the victim's body was discovered beside the sidewalk at the intersection of 65th Avenue and Grant Street. The victim had been stabbed multiple times with more than one weapon, but there was very little blood at the scene, indicating to one of the investigators, Detective Clifton Jewell, that the victim was not killed at the location where his body was found. Jewell also observed what appeared to be a bite mark on the victim's arm; he swabbed the area for DNA.
¶5 In September 2009, Detective Marianne Ramirez received a notification from the Phoenix Crime Laboratory that Lee was a possible suspect in the homicide. Ramirez and Detective Tyler Kamp interviewed Sarah Dagle, Lee's girlfriend at the time of the murder. Dagle said that around May 2, 2005, Lee asked her if he could borrow her car because he and Flowers "were going to go handle business, take care of - take care of somebody, have somebody killed." Dagle was awoken later that night when the garage door opened and Lee came into her bedroom with blood on his hands, wearing someone else's clothes.
¶6 According to Dagle, a few minutes later, after Lee washed his hands, Dagle heard noises in the garage and saw Lee and Flowers and Flowers's Ford Thunderbird. The next day, she saw Lee removing the interior lining of the car and putting it in plastic bags. Dagle also saw spots of blood on the driver's side panel. She also saw local news coverage of a helicopter circling the scene of a dead body in the street.
¶7 Dagle told Pamela Colter, Flowers's sister and Lee's mother, what she saw. Colter confronted Flowers about what she had heard, and he confirmed that he went to Dagle's house while bloody one night. Shortly after the victim's murder, Colter saw Flowers driving in his Thunderbird with all the interior lining torn out, "[i]t was like a shell."
¶8 Ramirez and Kamp also brought Flowers's wife, Natosha Smith, into the police station for questioning. Smith told the detectives that Flowers and Lee returned home one night while bloody, rushed up the stairs, washed their hands and changed their clothes. She recounted that the Thunderbird was not at Smith's house the next morning.About one week later, she learned the victim had been killed. The State called Smith to testify at trial, and she recanted all the statements she had made in her police interview. After extensive impeachment with the transcript of her interview, she testified that she lied to the detectives because they were "mean" and "rude" and she wanted to return to her children.
¶9 Police re-submitted evidence from the case to the crime laboratory to be tested against the DNA profiles of Flowers and Lee. An analysis of the swabs Jewell took from the possible bite mark on the victim's arm matched Flowers's DNA, and scrapings of the victim's fingernails matched Lee's DNA.
¶10 After a ten-day trial, a jury acquitted Flowers of the charged offenses but found him guilty of the lesser-included offense of second-degree murder, a dangerous offense. See State v. Kamai, 184 Ariz. 620, 623, 911 P.2d 626, 629 (App. 1995) . The jury also found two aggravating factors. The court sentenced Flowers to an aggravated sentence of 22 years with 645 days' presentence incarceration credit.
¶11 Flowers timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013).
A. Issues Raised in Flowers's Supplemental Brief.
1. Denial of pro per motions.
¶12 After the guilty verdict, while the jury was deliberating about the charged aggravating circumstances, Flowers informed the court that he wished to represent himself. The court conducted a colloquy to ensure the waiver of counsel was knowing, intelligent and voluntary. See Ariz. R. Crim. P. 6.1(c). The record clearly reflects that Flowers was informed of the risks of self-representation and his duty to comply with the Arizona Rules of Criminal Procedure. See State v. Raseley, 148 Ariz. 458, 461, 715 P.2d 314, 317 (App. 1986).
¶13 In his supplemental brief, Flowers asserts the court abused its discretion in denying on timeliness grounds numerous post-trial motions he made while representing himself. Flowers argues he neither received advisory counsel nor the case file until after the deadline to file the motions. The record is clear, however, that the superior court carefully advised Flowers he would face time pressures imposed by court ...