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State v. Hummert3/25/2004
MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury trial, appellant Steven Hummert was convicted of second-degree escape and conspiracy to commit second-degree escape and sentenced to aggravated terms of 3.75 years in prison. On appeal, Hummert argues the trial court erred in 1) violating his co-defendant's Sixth Amendment rights, 2) requiring witnesses to invoke their Fifth Amendment right against self-incrimination before the jury, 3) denying a continuance to resolve the issue of lost legal materials, 4) denying a continuance or mistral based on undisclosed evidence, 5) admitting inadmissible evidence, and 6) ordering Hummert to pay restitution for victimless crimes. Finding no reversible error, we affirm.
We view the facts in the light most favorable to sustaining the verdicts. State v. Mitchell, 204 Ariz. 216, , 62 P.3d 616, (App. 2003). Hummert was serving concurrent life sentences in prison. While working as a clerk in the maintenance yard, Hummert paid Clayton Guilliams, a prison employee , to help him escape from the prison. A few days before the event, Hummert confided to another inmate, Kenneth LaBelle, that he was planning to escape from prison in an air conditioning box. Hummert asked LaBelle to build a wooden frame to fit inside the cardboard box to hold him during his escape. Although LaBelle declined, another inmate, Steven Bruni, built the frame for Hummert.
On the day of the escape, Bruni helped seal Hummert into the box. Bruni and LaBelle helped load the box onto a truck driven by Guilliams, and Guilliams drove the truck out of the prison complex. Guilliams drove to a supply store in Mesa where Hummert freed himself from the box. Guilliams later disposed of the box in the desert and drove back to the prison.
A month after his escape, Hummert was arrested in Eugene, Oregon, on an unrelated charge of shoplifting. Although he gave the arresting officer several pseudonyms, the officer quickly determined Hummert's true identity and his status as a fugitive from Arizona.
CO-DEFENDANT'S SIXTH AMENDMENT RIGHTS
Hummert first argues the trial court erred by interfering with Guilliams's Sixth Amendment right to counsel. Although an accused has a right to counsel in all criminal prosecutions, U.S. Const. amend. VI, a Sixth Amendment right is personal to the defendant. United States v. Jones, 44 F.3d 860, 873 (10th Cir. 1995); see also United States v. Partin, 601 F.2d 1000, 1006 (9th Cir. 1979), citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Because Hummert does not have standing to assert a Sixth Amendment claim on behalf of Guilliams, we do not address his argument.
Hummert also argues that he was prejudiced because the court proceedings involving Guilliams and his counsel "amounted to a circus, right before the jury." A trial court has full discretion in the conduct of a trial, and that discretion will not be overturned on appeal absent an abuse of discretion. State v. Sucharew, 205 Ariz. 16, , 66 P.3d 59, (App. 2003).
Prior to Hummert's trial, Guilliams pled guilty to attempted escape, saying he had known that Hummert was in the box and that he had been helping Hummert escape. Guilliams later testified on behalf of the state at Hummert's trial. But, in contrast to his testimony at his change-of-plea hearing, Guilliams testified at Hummert's trial that he had believed he was transporting an air conditioning unit and that he had been unaware Hummert was hiding in the box in an attempt to escape. The trial court and counsel discussed the differences in Guilliams's testimony during a s
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