State v. Lynch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

KITAGE QETU LYNCH, Appellant.

No. 1 CA-CR 18-0451
FILED 12-3-2019

Appeal from the Superior Court in Maricopa County
No. CR2016-118719-001
The Honorable Pamela S. Gates, Judge

AFFIRMED

COUNSEL

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

Ortega & Ortega, PLLC, Phoenix
By Alane M. Ortega
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.

W I N T H R O P, Judge:

¶1 Kitage Qetu Lynch (“Appellant”) was convicted and
sentenced by a jury of two counts of aggravated assault, two counts of
discharge of a firearm at a structure, one count of disorderly conduct, and
one count of unlawful discharge of a firearm within city limits. This appeal
is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State
v. Leon, 104 Ariz. 297 (1969). Appellant’s counsel advised this court that she
has searched the record and has found no arguable question of law that is
either not frivolous or that has not already been resolved. She requests this
court conduct its own independent review of the record for fundamental
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this
court reviews the entire record for reversible error). Appellant was
provided the opportunity to file a supplemental brief in propria persona, but
he has not done so.

¶2 We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 Finding no reversible
error, we affirm.

FACTS2 AND PROCEDURAL HISTORY

¶3 Around 1:00 A.M. on April 20, 2016, S.Z. called 911 to report
a man firing a gun sporadically in a dirt field at 95th Avenue and
Camelback in Glendale. S.Z. was with her husband, her brother, and her
three young children in a fifth-wheel trailer parked in the same field, and
she was worried the man might shoot one of her family members. S.Z.

1 Absent material changes from the date of the alleged offenses, we
cite to the current versions of all statutes and rules.

2 “We view the evidence in the light most favorable to sustaining the
verdicts and resolve all inferences against appellant.” See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

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reported that the man was kicking and punching the air, yelling, and
shooting the gun at random toward a new housing development.

¶4 Two Glendale Police Department patrol units—Sergeant E.H.
and Officer J.M.—responded to the 911 call. As they approached the field,
both units had their vehicle headlights, flashing red and blue lights, and
white LED takedown lights on. E.H. also initiated the spotlight on the front
left side of his vehicle. When E.H. pulled into the dirt field, he saw a light-
colored hatchback vehicle parked in the field and positioned his patrol
vehicle between the hatchback and the fifth-wheel trailer where the 911
caller was reportedly located. J.M. also pulled into the field, but before he
was even able to put his vehicle in park, the suspect rose up from the
passenger side of the hatchback and fired two shots at each of the officers.
One of the shots hit the hood of E.H.’s vehicle and ricocheted upward,
hitting the windshield. Fearing they would be shot, both E.H. and J.M. took
cover and the suspect ducked back down behind the hatchback vehicle.

¶5 J.M. advised via the police radio that they had been in an
officer-involved shooting, gave a description of the suspect, and then
watched as the shadow of the suspect’s legs moved toward the rear of the
hatchback vehicle. J.M. called out to E.H. to see if he was hurt but did not
hear anything; J.M. then exited his vehicle and positioned himself behind
it. At the same time E.H., who was unharmed, retrieved his rifle, exited his
vehicle, and stood on the running board of his vehicle in a space between
the open driver’s door and the body of the vehicle to get a better view of
the suspect.

¶6 E.H. and J.M. watched the suspect walk away from the
hatchback and across the dirt field, toward a tall wall separating the field
from the neighboring housing development. Other officers arrived on the
scene almost immediately, and watched the suspect reach the wall and then
lie on the ground next to it. The officers established a perimeter around the
field to secure the scene and to prevent non-law enforcement personnel
from entering or leaving the field. Within a few minutes of the initial shots,
a police helicopter arrived on the scene, located the suspect with a spotlight,
and scanned the rest of the field with a heat-sensor system to ensure there
were no other civilians in the field. Multiple officers, including the air unit,
maintained visual contact on the suspect as he moved back and forth in the
dirt next to the wall until a SWAT team eventually arrived at the scene and
took him into custody. The suspect taken into custody was identified as
Appellant.

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¶7 After Appellant was taken into custody, Detective Eric
Holmstedt conducted separate one-on-one identifications of Appellant
with the officer-victims, E.H. and J.M. Detective Holmstedt properly read
an admonition to each of the officer-victims before conducting the one-on-
one identifications, reminding the victims that they need not feel obligated
to identify someone if they felt uncertain. J.M. stated the person in the one-
on-one identification had the same build and jeans as the suspect who shot
at him, but said he could not identify the person’s facial features. E.H. said
he was about eighty percent certain that the person in the one-on-one
identification was the suspect who shot at him, although he noted the
suspect had been wearing a jacket at the time of the shooting. A jacket was
later recovered from the scene, along with several hundred rounds of
ammunition and multiple firearms.

¶8 Appellant was charged with two counts of aggravated assault
as class two dangerous felonies (Counts 1 and 2), two counts of discharge
of a firearm at a structure as class three dangerous felonies (Counts 3 and
4), one count of disorderly conduct as a class six dangerous felony (Count
5), and one count of unlawful discharge of a firearm within city limits as a
class six dangerous felony (Count 6).3 The State also alleged several
aggravating circumstances, including that the offenses caused emotional
harm to the victims and that the victims of Counts 1 and 2 were peace
officers engaged in official duties.

¶9 Appellant’s counsel timely filed a Notice of Defenses
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 15.2, listing mere
presence, mistaken identification, and insufficiency of evidence as defenses
to the charges. Based on the alleged inherently suggestive nature of the
one-on-one identifications, Appellant’s counsel filed a motion requesting a
Dessureault hearing challenging the pretrial identification. See State v.
Dessureault, 104 Ariz. 380 (1969). Following that hearing, the court
determined by clear and convincing evidence that both E.H. and J.M.’s
identifications were sufficiently reliable.

¶10 Appellant’s counsel twice filed motions for Rule 11
competency hearings. The first hearing was on October 4, 2016. After
reviewing the written evaluations of two medical experts, the court found
Appellant competent to stand trial. Appellant’s counsel filed the second
Rule 11 Motion on December 4, 2017, asserting Appellant’s mental
condition had progressively deteriorated since the prior competency

3 The court determined Counts 1-4 were inherently dangerous, and
the jury returned a determination that Counts 5 and 6 were also dangerous.

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finding. The court held the second Rule 11 hearing on February 13, 2018,
and after reviewing three expert’s reports, found Appellant competent to
stand trial.

¶11 Following presentation of the evidence at trial, the jury found
Appellant guilty as charged. After weighing the aggravating and
mitigating factors, the court sentenced Appellant to 15 years in prison for
Counts 1 and 2, and 7.5 years in prison for Counts 3 and 4, all sentences to
run concurrently, with 790 days of presentence incarceration credit.
Appellant was sentenced to 2.25 years in prison for Counts 5 and 6, to run
concurrently with each other but consecutively to Counts 1, 2, 3, and 4.
Appellant filed a timely notice of appeal.

ANALYSIS

¶12 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The record
reflects the proceedings were conducted in compliance with Appellant’s
constitutional and statutory rights and conformed to the Arizona Rules of
Criminal Procedure. Appellant was represented by counsel at all stages of
the proceedings, and he was present during all critical stages except where
his presence was explicitly waived or where he refused to attend.

¶13 When Appellant’s counsel questioned the sufficiency of the
pretrial identification, the court properly held a Dessureault hearing and
found the officer-victims’ identifications were sufficiently reliable. The
court also conducted two Rule 11 competency hearings, and Appellant was
found to be competent to stand trial at the conclusion of each such hearing.

¶14 The State presented sufficient evidence to support
Appellant’s convictions for all counts, and the jury was properly comprised
of twelve members. There was no evidence of jury misconduct or deadlock,
and the court properly instructed the jury on the elements of the charges,
the State’s burden of proof, the presumption of innocence, and the need for
a unanimous verdict. The jury returned a unanimous verdict, and the court
ultimately imposed legal sentences for the crimes of which Appellant was
convicted.

¶15 Upon filing of this decision, Appellant’s counsel shall inform
Appellant of the status of his appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue that may
be appropriately submitted to the Arizona Supreme Court for review. See
State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from

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the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

CONCLUSION

¶16 For the foregoing reasons, we affirm Appellant’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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