State v. Davee

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW CARL DAVEE, Appellant.

No. 1 CA-CR 23-0363
FILED 03-04-2025

Appeal from the Superior Court in Yavapai County
No. P1300CR201500754
The Honorable John David Napper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Cynthia J. Bailey and Judge Andrew M. Jacobs
joined.

H O W E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Matthew
Carl Davee has advised this Court that counsel found no arguable questions
of law and asks us to search the record for fundamental error. A jury
convicted Davee of one count of aggravated assault. Davee was given the
opportunity to file a supplemental brief in propria persona; he has not done
so. After reviewing the record, we affirm his conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Davee. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998).

¶3 In the late afternoon on the date of the incident, Davee was
riding his motorized bicycle in circles in front of the victim’s house, yelling
and spitting. He would pull onto the property, curse and then ride
approximately fifteen feet away before returning and repeating the
behavior. The victim described Davee’s actions as obnoxious, vulgar, and
antagonistic. The victim’s brother, who was with the victim when Davee
approached the house, testified that Davee was spitting, swearing at the
victim, and saying that the victim and his house were disgusting.

¶4 The victim confronted Davee in front of the house and Davee
rode away. The victim pursued Davee on foot. Davee stopped after riding
a short distance, got off his bicycle, set his backpack and a camera on the
ground and ran towards the victim. The victim picked up Davee’s camera
and threw it at him. Davee and the victim then began to scuffle, during
which Davee stabbed the victim in the chest. The victim retreated to his
home and Davee began to leave the area. The victim’s brother, who had
followed Davee and the victim in a vehicle, exited the vehicle, pointed a
handgun at Davee and called 911, but Davee continued to leave the area. A

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Decision of the Court

neighbor eventually stopped Davee at gunpoint until police officers
arrived. When police arrived, despite not being questioned, Davee
spontaneously stated that he acted in self-defense.

¶5 The State charged Davee with aggravated assault using a
deadly weapon or dangerous instrument, a class 3, dangerous,
nonrepetitive felony. A.R.S. §§ 13-1204(A)(2), 13-105(13). Davee underwent
court-ordered treatment to restore his competency numerous times during
the approximately seven years of pretrial proceedings. Davee’s competency
was finally restored after the court found that his competency was
dependent on medication.

¶6 After a four-day trial, the jury convicted Davee of aggravated
assault. The jury further found the victim suffered emotional and financial
harm. The trial court found Davee’s mental health issues warranted a
mitigated sentence. The court sentenced Davee to the minimum term of five
years’ imprisonment. A.R.S. § 13-704(A) (sentencing range for class 3,
dangerous, nonrepetitive felonies). The court also awarded Davee 995 days
of presentence incarceration credit. Finally, the court ordered Davee to pay
$24,231.60 in restitution to the victim.

DISCUSSION

¶7 We review Davee’s conviction and sentence for fundamental,
reversible error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011).
Counsel for Davee has advised this Court that after a diligent search of the
entire record, counsel has found no arguable question of law. We have read
and considered counsel’s brief and fully reviewed the record for reversible
error, see Leon, 104 Ariz. at 300, and find none. All the proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure. So
far as the record reveals, counsel represented Davee at all stages of the
proceedings, and the sentences imposed were within the statutory
guidelines.

¶8 Although Davee moved for a mistrial following the
prosecutor’s cross-examination on his immediate and unprovoked
statements about self-defense to law enforcement and subsequent silence,
the trial court did not err in denying the motion. The Constitution does not
prohibit use of a defendant’s silence before or after arrest if no Miranda
warnings are given. Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). Police
arrived at the scene shortly before 5:00 p.m. and put Davee in their patrol
car but did not question him. Later, police informed Davee of his Miranda
rights at the police station at 6:05 p.m. Reference to a defendant’s silence is

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not a violation of due process in the absence of Miranda warnings. Fletcher
v. Weir, 455 U.S. 603, 607 (1982). We decline to order briefing and affirm
Davee’s conviction and sentence.

¶9 Upon the filing of this decision, defense counsel shall inform
Davee of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Davee shall have 30 days from
the date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

CONCLUSION

¶10 For the foregoing reasons, we affirm Davee’s conviction and
sentence.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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