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State v. Duarte

Court of Appeals of Arizona, First Division

December 10, 2013


Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR2012-112448-001 The Honorable M. Scott McCoy, Judge

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

Maricopa County Public Defender's Office, Phoenix By Christopher V. Johns Counsel for Appellant

Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined.



¶1 Jerry James Duarte appeals his conviction of three counts of aggravated assault, Class 3 dangerous felonies, and one count of unlawful discharge of a firearm, a Class 6 dangerous felony, and the resulting sentences. Duarte's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), certifying that, after a diligent search of the record, he found no arguable question of law that was not frivolous. Duarte was given the opportunity to file a supplemental brief, but did not do so. Counsel asks this court to search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). After reviewing the record, we affirm Duarte's convictions and sentences.


¶2 Undercover Phoenix Police Detectives Miller and Casados noticed a vehicle, driven by Duarte and carrying one passenger, driving fast and switching lanes erratically as the vehicle passed their unmarked police car early one morning in March 2012. Because Duarte's passenger resembled somone wanted in an unrelated matter, the officers ran a record check and discovered a mandatory insurance violation. When the officers tried to get a closer look at the passenger by driving up to the passenger side, Duarte cut the officers off, moved into their lane, and brake-checked them. Because it was the end of the officers' shift, the officers decided not to further investigate the passenger's identification. The officers created distance between Duarte's vehicle and their unmarked police car and went over to the left lane. The officers stayed behind, and to the left of, Duarte's vehicle as Duarte stopped for a red light at I-17 and Seventh Street in Phoenix. Once at this intersection, Duarte took a gun from the center console of his car, rolled down the driver's side window, turned back toward the officers, and fired a round in their direction. When the officers saw the gun, they got down as low as they could in their vehicle to avoid the gunfire. At the time of the shooting, there were pedestrians and other vehicles around the intersection. Detective Miller immediately radioed for assistance. Duarte then drove through the red light.

¶3 The officers followed Duarte's vehicle from a distance. Duarte stopped his vehicle near Elwood Street and Seventh Street. Detective Miller, who was wearing a t-shirt, jeans, gun belt, and clip-on police badge, got out of his vehicle, drew his firearm, and identified himself as a police officer four or five times. Duarte looked at Detective Miller and pointed his gun at him. Detective Miller thought there was about to be a "gun battle, " but Duarte sped off. The officers resumed their chase until Duarte crashed his vehicle at a bus terminal while trying to avoid a police roadblock.

¶4 Duarte fled by jumping over two fences and hiding in an alley trash can. Approximately 45 police cars responded to the shooting, including air support and a K-9 unit. A police dog led the officers to the trash can where Duarte was hiding. After being taken into custody, Duarte apologized, saying that he did not realize the occupants of the other vehicle were police officers.

¶5 Police officers searching a nearby trash dumpster found a set of keys that matched Duarte's car ignition. They also found a revolver, lying next to a holster, in the middle of the bus terminal platform. Officers found a .38 caliber slug, a .38 caliber bullet, and a speed loader in Duarte's vehicle. The pillar immediately behind Duarte's driver door had a bullet strike.

¶6 After Duarte was taken to a hospital for treatment, an officer read him his Miranda[2]rights. Duarte admitted firing his gun up in the air (not in the direction of the officers) and reiterated that he did not know the occupants of the other vehicle were police officers. He also stated that he threw his gun and holster out the window and ran because he was scared.

¶7 Duarte testified at trial that on the morning of the shooting, he was in a "little hurry" because he was taking his father-in-law to jail to self-surrender for a DUI. A few days before the shooting, someone had tried to carjack him, so when he saw a vehicle following him, he thought they were going to do the same. He took out his gun from the center console and "discharged one round into the air, " when he thought one of the occupants was looking at him in a threatening manner. Duarte denied firing in the direction of the other vehicle. He ...

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