Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-103286-001 The Honorable Edward W. Bassett, Judge
Arizona Attorney General, Phoenix By Myles A. Braccio Counsel for Appellee
Janelle McEachern Attorney at Law, Chandler By Janelle McEachern Counsel for Appellant
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.
Michael J. Brown, Judge
¶1 Bennie Lee Tye appeals from his convictions and sentences for first-degree felony murder and armed robbery, arguing his speedy trial rights were violated. For the following reasons, we affirm.
¶2 J.M. and Tye dated off and on for about a year, starting in August 2003. J.M. was an admitted drug addict and generally funded her drug habit through prostitution. In May 2004, J.M. got into the victim's red truck and began negotiating the price for her services. During this conversation the car windows were rolled down.
¶3 As they began to engage in sexual activity, the victim became rough with J.M. and she told him to stop. A struggle ensued during which J.M. heard footsteps run up to the driver side of the truck and then a loud boom, causing her ears to ring. The victim exited the truck. When J.M. looked outside, she saw Tye standing there asking if she was okay, but did not see a gun in Tye's hand. J.M. then took the car's stereo from the dashboard and exited the vehicle. She did not see where the victim went, and left the scene with Tye.
¶4 Police later found the victim in an alleyway not far from his truck. It appeared to police that the victim's pockets had been "pulled out" as though somebody had gone through them. It was later determined by a medical examiner that the victim had died of a gunshot wound in the upper left shoulder in his back. The medical examiner estimated that gun was fired within two feet of the victim's shoulder.
¶5 In August 2004, Tye was indicted on one count of second- degree murder and one count of misconduct involving weapons. Prior to trial, the State moved to dismiss the case on the second day of jury selection because the State could not locate J.M., who was expected to testify. The trial court granted the State's motion and entered a dismissal without prejudice.
¶6 In January 2011, Tye was indicted for first-degree felony murder and armed robbery. The trial court designated the case as a complex criminal case for purposes of determining time limits pursuant to Arizona Rule of Criminal Procedure 8. In November, Tye moved to dismiss the indictment with prejudice, alleging that "[m]ore than seven years ha[d] passed since the shooting and nearly six and a half years ha[d] passed since the case was dismissed without prejudice" and this "inordinate delay" violated Tye's right to a speedy trial pursuant to the Sixth Amendment of the United States Constitution and Article 2, Section 24, of the Arizona Constitution. He also asserted that the delay violated his right to due process under the Fifth and Fourteenth Amendment of the United States Constitution and Article 2, Sections 4 and 11, of the Arizona Constitution. After oral argument, the court denied the motion.
¶7 A jury found Tye guilty as charged. The trial court sentenced Tye to life with the possibility of parole after 25 years for first-degree murder, to be served concurrently with a 10.5 year sentence for ...