State v. Orduno

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA,
Appellee,

v.

ADAN ORDUNO, JR.,
Appellant.

No. 1 CA-CR 14-0663
FILED 1-28-2016

Appeal from the Superior Court in Maricopa County
No. CR2012-158171-001
The Honorable Pamela D. Svoboda, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
 STATE v. ORDUNO
Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.

S W A N N, Judge:

¶1 Adan Orduno, Jr. (“Defendant”) appeals his conviction for
influencing a witness. He contends the trial court’s decision to post a
bodyguard next to a witness during her testimony constituted reversible
error.1 For the following reasons, we affirm Defendant’s convictions and
sentences.

FACTS AND PROCEDURAL HISTORY

¶2 While awaiting trial on other charges, Defendant escaped
from a Maricopa County jail by using a make-shift rope to access the
ceiling tiles in his cell and crawling out onto the jail roof sometime before
morning on November 11, 2012; he had left his pants stuffed with trash in
his bed to simulate a sleeping person. Jail security noticed he was missing
about 9:00 a.m. on November 11 and began a search of the area. Maricopa
County Sheriff’s Office (“MCSO”) officers later saw Defendant on security
camera footage from a nearby convenience store, wearing a jail-issued
blanket, pink socks, and slide-on shoes. MCSO officers spoke to Witness
(“Witness”), a woman who had visited Defendant while he was in jail,
and asked for her help in apprehending him. When Defendant called
Witness, she arranged a meeting with him to allow the officers to take him
back into custody. MCSO officers took Defendant into custody when he
arrived to meet her.

¶3 A few weeks after Defendant was apprehended and
returned to jail, he sent Witness a threatening letter. In the letter,
Defendant implied that he and Witness had had a relationship and made
sexually explicit comments about her. He also wrote that if Witness did

1 Defendant also submitted a pro se supplemental opening brief. A
different panel of this court struck the supplemental brief because
Defendant has no right to hybrid representation. We therefore do not
consider arguments from the pro se brief.

2
 STATE v. ORDUNO
Decision of the Court

not pay him $25,000, he would tell the police that she had been involved
in several serious crimes. Witness later testified at trial that she had no
knowledge of the crimes to which Defendant had alluded, but she felt
frightened nonetheless. Defendant’s letter also contained statements
implying that she should expect retribution for cooperating with the
police. On April 4, 2013, Defendant was indicted for escape, influencing a
witness, and five counts of bribery of a public servant or party officer,
though the court later dismissed the bribery charges on the state’s motion.

¶4 The parties estimated the trial would last about five days,
but it was prolonged for numerous reasons. Before the trial began, a
discovery dispute delayed jury selection while the jury pool waited.
Defendant chose to represent himself at trial, but because he was
considered a security risk, he wore restraints during trial. To prevent
jurors from seeing the restraints, the court took the time to hold all bench
conferences at the defense table and put them on the record after the jury
left the courtroom. On the second day of trial, Defendant developed a
medical issue that required treatment, resulting in an early dismissal for
the day. His condition and treatment also caused additional time-
consuming discussion without the jury present. The next day, a juror had
an emergency that caused an early dismissal because the jury did not have
alternate jurors. The trial slowed again two days later as Defendant
conducted a very lengthy cross-examination of Witness. The court
acknowledged to the jury that the trial was progressing slowly.

¶5 Before the sixth trial day, the court received an email from a
juror expressing frustration about the trial delays, complaining about
Defendant’s conduct, and expressing doubt that the juror could be
unbiased about Defendant. The email also stated that the jurors had
discussed their frustration with Defendant among themselves. The court
individually interviewed the jurors to ensure they had not violated the
admonition by discussing the facts of the case. None of the jurors
admitted to discussing the facts of the case, but two jurors stated they had
already formed an opinion regarding Defendant’s guilt. After further
questioning, the two jurors said they could remain impartial until
deliberations, and the court did not dismiss them. When the court
interviewed the juror who had sent the email, the juror stated that he had
been affected by Witness’s demeanor: “I was sitting right in front of the
witness. She was visibly shaken when she sat down. She was with a
security guard sitting next to her.” He affirmed, however, that he had not
formed an opinion about Defendant’s guilt, and the trial continued.

3
 STATE v. ORDUNO
Decision of the Court

¶6 The jury returned a verdict of guilty on both counts and
found one aggravating factor for the escape charge and two aggravating
factors for the influencing a witness charge. The court sentenced
Defendant accordingly to imprisonment for an aggravated term of six
years for escape and a super-aggravated term of seven and one half years
for influencing a witness, to be served consecutively. Defendant appeals.

DISCUSSION

¶7 Defendant asserts, based on one juror’s statement, that the
court stationed a bodyguard next to Witness as she testified. He contends
that the presence of the security guard seated with Witness while she
testified violated his right to due process, his right to confront and cross-
examine witnesses and his right to the presumption of innocence. He
asserts that the court’s decision to place security next to Witness led the
jury to believe that the court thought he was guilty, precluding a fair trial
on the charge of influencing a witness.

¶8 Generally, the trial court has broad discretion over
courtroom security measures, State v. Cruz, 218 Ariz. 149, 168, ¶ 118 (2008)
and we uphold its security measures when they are supported by the
record, State v. Davolt, 207 Ariz. 191, 211, ¶ 84 (2004). Because Defendant
did not raise the issue of courtroom security in the trial court, we review
only for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). On fundamental error review, Defendant must prove both that
fundamental error occurred and that it caused him prejudice. Id. at ¶ 20.
Based on the individual facts and circumstances of a case, the deployment
of security personnel could amount to fundamental error if it “takes away
a right that is essential to [a defendant’s] defense, and is of such
magnitude that he could not have received a fair trial.” Id. at 568, ¶ 24.

¶9 But “conspicuous, or at least noticeable, deployment of
security personnel in a courtroom during trial” is not inherently
prejudicial to a defendant. Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986).
Because noticeable security measures may create the impression in the
minds of the jury that a defendant is dangerous or guilty, such measures
are evaluated on a case-by-case basis for prejudice. Id. at 569, 571.

¶10 To demonstrate error, Defendant must first provide
evidence of a conspicuous security presence in his trial. State v. Rivera, 168
Ariz. 102, 103 (App. 1990) (“[I]t is the defendant’s duty to prepare the
record in such a manner as to enable an appellate court to pass upon the
questions sought to be raised in the appeal.”). Defendant points only to

4
 STATE v. ORDUNO
Decision of the Court

the juror’s statement that Witness “was with a security guard sitting next
to her.”2 From that statement, it is unclear even if the juror was speaking
about the witness sitting at the stand to testify or sitting in the gallery after
her testimony. The juror’s statement described nothing about the guard’s
demeanor or actions. Defendant had the opportunity to clarify the juror’s
concern through further questioning, but did not do so. Without more,
the fact that one juror took note of one security guard in the court does not
demonstrate a prejudicial security presence. We therefore conclude that
Defendant has not presented sufficient evidence to enable us to determine
that courtroom security was noticeable to the jury.3 On this record, we
can find no error, much less fundamental error.

2 When Witness first took the stand, she testified that she was
nervous, adding “I would feel more comfortable with security standing
right here.”

3 Defendant’s assertion that the court intentionally omitted from the
record its decision to place a guard next to Witness during her testimony
is both unsupported and highly improbable. The trial transcripts alone
are over 1000 pages and contain extensive discussions about security
measures, including the court’s concerns that Defendant not reveal he was
in custody during the trial. The trial court went to great lengths to
preserve the trial record and avoid prejudicing the jury.

5
 STATE v. ORDUNO
Decision of the Court

CONCLUSION

¶11 For the foregoing reasons, we affirm Defendant’s convictions
and sentences.

:ama

6