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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DARROL DEAN CLAYBORN, Appellant.

                             No. 1 CA-CR 17-0262
                               FILED 3-22-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002137-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Bain & Lauritano, Glendale
By Sheri M. Lauritano
Counsel for Appellant
                           STATE v. CLAYBORN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.


C A M P B E L L, Judge:

¶1            Darrol Clayborn appeals his convictions and sentences for
multiple counts of aggravated assault. He argues the trial court erred by not
allowing the defense to elicit testimony from a witness who had indicated
he would invoke his Fifth Amendment privilege against self-incrimination.
For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2             On an evening in October 2013, E.A. (“E. Weezy”) threw a
party at his family’s apartment. His parents were out of town, and between
50 to 70 of his friends showed up throughout the night. Many of the
partygoers were drinking alcohol. Clayborn and E. Weezy did not know
one another at the time, but Clayborn came to the party with a mutual
friend named Peanut.

¶3             In the early morning hours, after most people had left the
party, an argument broke out between Clayborn and E. Weezy. E. Weezy
and his older brother both asked Clayborn to leave the apartment, and
Clayborn went toward the front door with Peanut. Then, instead of leaving,
Clayborn turned back around, took a gun out from around his waist, and
started shooting. E. Weezy and several other partygoers were hit, including
A.G. (“Smash”), who was shot in the stomach. Multiple witnesses recalled
hearing continuous gunfire, and at least one witness saw Smash shoot a gun
at Clayborn after he ran out of the apartment. Clayborn himself was also
shot in the leg.

¶4            Clayborn was indicted on four counts of attempted second
degree murder, all class 2 dangerous felonies, twelve counts of aggravated
assault, all class 3 dangerous felonies, and one count of misconduct


       1 “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2 (App. 2005).


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                          STATE v. CLAYBORN
                           Decision of the Court

involving weapons, a class 4 dangerous felony. At trial, Clayborn presented
a claim of self-defense and testified that he only drew his gun after he saw
Smash draw his first.

¶5            During trial, the State informed the court that Smash had
indicated he would refuse to testify. Outside the presence of the jury, the
State questioned Smash about how he would answer any questions about
the evening of the incident. Smash responded:

      Well, how I’m going to answer is I was intoxicated, I was on
      drugs, I don’t remember nothing. Like I said at the hospital,
      the officer came to see me, I told him the same thing. Prior to
      that, a week after that, I was on . . . Xanax bars, Xanax, and I
      don’t remember nothing that happened that month. I was on
      drugs. And from there, that’s it. I plead the Fifth. I want an
      attorney. I’m not going to say nothing else. That’s all I’m
      going to say.

¶6            Toward the end of the State’s case-in-chief, the court
addressed the issue of Smash testifying. His counsel informed the court that
his client was invoking his Fifth Amendment rights, and that even if given
full immunity by the State, Smash would agree to be sworn in but refuse to
answer any questions. Clayborn’s counsel asked that he be required to
invoke his Fifth Amendment right in front of the jury. The court heard
arguments from both parties but ultimately reasoned:

      On the record we made . . . it’s largely unchallenged that it’s
      a valid invocation . . . between the discussion of illegal drug
      use, guns, any impeachment with prior inconsistent
      statements, or impeachment from other witness’ statements,
      that there’s sufficient reason for any of us to believe that
      [Smash] could potentially, by testifying, incriminate himself
      as to any number of things, not the least of which would
      include the crimes for which Mr. Clayborn is currently on
      trial.

      So assuming . . . there is a valid invocation and there’s never
      really been any challenge to that, part two turns to whether
      there was a valid purpose served by requiring the invocation
      to take place in front of the jury.

      ...




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                            Decision of the Court

       I just don’t know that there’s any material evidence that could
       be garnered from having him testify simply to invoke because
       the only thing it would effectively do is cause the jury to guess
       or speculate that his invocation had to do with the offenses in
       this case . . . . I don’t believe there’s a purpose to having him
       invoke in the presence of the jury . . . .

Accordingly, Smash did not appear before the jury as a witness.

¶7            The court granted Clayborn’s motion for a directed verdict on
two of the counts of aggravated assault. The jury acquitted Clayborn of the
four counts of attempted second degree murder, but found Clayborn guilty
of the remaining ten counts of aggravated assault and found three or four
aggravating circumstances associated with each count. Clayborn later pled
guilty to the single count of misconduct involving weapons. The court
sentenced Clayborn to two consecutive terms of 9.5 years’ imprisonment.2

                               DISCUSSION

¶8              Clayborn argues the trial court abused its discretion by
denying his motion to compel Smash to testify. First, Clayborn contends
that Smash’s invocation of the Fifth Amendment was not valid; second,
Clayborn contends that even if his invocation was valid, Clayborn should
have been allowed to question Smash to compel his invocation of the Fifth
Amendment in front of the jury. “A trial court’s decision whether to allow
a party to call a witness before the jury who will assert his Fifth Amendment
privilege is reviewed for an abuse of discretion.” State v. Harrod, 218 Ariz.
268, 275, ¶ 19 (2008).

¶9             Defendants have a Sixth Amendment right to “offer the
testimony of witnesses, and to compel their attendance, if necessary, in
order to present a defense.” Id. at ¶ 20 (quoting Washington v. Texas, 288 U.S.
14, 19 (1967)). When a witness asserts a Fifth Amendment right against self-
incrimination, however, “the trial court must balance the interests of the
defendant with those of the witness.” State v. Rosas-Hernandez, 202 Ariz. 212,
216, ¶ 10 (App. 2002) (citation omitted). If the witness validly invokes the
Fifth Amendment privilege by “showing a reasonable ground to apprehend
danger to [himself] from his being compelled to answer, the defendant’s
right to compulsory process must yield to the witness’s privilege not to
incriminate himself.” Id. at 216, ¶ 10 (citations omitted); see also State v.


       2This sentence was also consecutive to his sentence in
CR2013-433944-001.


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                           STATE v. CLAYBORN
                            Decision of the Court

Martinez, 218 Ariz. 421, 428, ¶ 27 (2008) (“[W]hen a witness has continued
reason to fear prosecution, the defendant’s Sixth Amendment right to
compel that witness’s testimony may be properly limited.” (citations
omitted)). “There is no Sixth Amendment right to compel a witness to
testify if the facts support that the witness has properly claimed the Fifth
Amendment privilege.” Rosas-Hernandez, 202 Ariz. at 216, ¶ 10 (citations
omitted).

¶10            The trial court may excuse a witness only “when the trial
judge has extensive knowledge of the case and rules that the Fifth
Amendment would be properly invoked in response to all relevant
questions that the party calling the witness plans on asking.” Harrod, 218
Ariz. at 276, ¶ 21 (citation omitted). “The witness must provide the court
with a factual predicate from which the court can evaluate the claim of
privilege,” but the court need not “personally question the witness if it can
gain the necessary information by other means.” Rosas-Hernandez, 202 Ariz.
at 217, ¶ 17 (citations omitted).

¶11            Clayborn argues first that “the trial court did not go deeper
into what areas the witness was facing potential incrimination” and it was
therefore “premature to allow him to refuse to testify,” as “[n]o showing
was made on the record as to any incrimination that could occur.” The trial
court, however, had already heard almost the entirety of the State’s case by
the time it made the decision not to force Smash to testify, which included
the testimony of seven partygoers and four responding police officers. One
police officer testified that, through their investigations, the police
ascertained there were “two separate shooting incidents,” but had so far
been unable to determine the identity of the second shooter. The officer
testified he had never heard anyone “say[] anything definitively” about the
identity of the second shooter until hearing the testimony of the other
witnesses in court. The officer also testified that it was possible—though
not probable—that Smash reached for his gun first, and Clayborn saw this
and managed to draw and shoot his own gun more quickly.

¶12               Not only did the trial court already have extensive knowledge
of the case, but given the possibility that Smash’s testimony may have led
to self-incrimination for the “second shooting,” the court had evidence to
conclude that Smash had a factual predicate for invoking the Fifth
Amendment. See id. at 217, ¶ 17. Furthermore, Clayborn did not object at
trial to the validity of Smash’s invocation of his Fifth Amendment right nor
ask the court to “go deeper into what areas the witness was facing potential
incrimination.” As the trial court noted, supra ¶ 6, “on the record we made,
. . . it’s largely unchallenged that it’s a valid invocation.” Rather, Clayborn


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                           STATE v. CLAYBORN
                            Decision of the Court

does so for the first time here and has therefore waived that argument on
appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13 (App.
2000) (“[W]e generally do not consider issues, even constitutional issues,
raised for the first time on appeal.”).

¶13            Next, Clayborn argues that—even if there was a proper
showing that Smash’s testimony would be self-incriminating—he was
required to invoke the Fifth Amendment’s protection in front of the jury. It
is, however, “well settled that in criminal cases the jury is not entitled to
draw any inferences from the decision of a witness to exercise his Fifth
Amendment privilege.” State v. McDaniel, 136 Ariz. 188, 194 (1983),
abrogated on other grounds by State v. Walton, 159 Ariz. 571 (App. 1989)
(citations omitted); see also State v. Corrales, 138 Ariz. 583, 588 (1983) (“The
decision to permit counsel to call a witness who has indicated he or she will
refuse to testify is ordinarily discretionary with the trial court, which must
determine whether the interest of the person calling the witness outweighs
the possible prejudice resulting from the inferences the jury may draw from
the witness’ exercise of the privilege.” (citations omitted)).

¶14            Here, we agree with the trial court. There was no material
evidence to be garnered from requiring Smash to invoke the Fifth
Amendment in front of the jury. The only discernible purpose of such a
requirement would be to create the prejudicial impression that Smash was
invoking the Fifth Amendment because he was himself somehow
implicated in wrongdoing—an inference that the jury was not entitled to
draw. Therefore, the trial court did not abuse its discretion in not allowing
the defense to call Smash as a witness only to invoke the Fifth Amendment
in front of the jury.

                               CONCLUSION

¶15          For the foregoing reasons, we affirm Clayborn’s convictions
and sentences.




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




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