State v. Sy

1

STATE OF ARIZONA, Appellee, v. BAIDY MOCTAR SY, Appellant.

No. 1 CA-CR 21-0489

Court of Appeals of Arizona, First Division

March 9, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No CR2018-108804-001 The Honorable Warren J. Granville, Judge Retired The Honorable Rosa Mroz, Judge Deceased

Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Jennifer Roach Counsel for Appellant

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge David D. Weinzweig joined.

MEMORANDUM DECISION

BAILEY, JUDGE

¶1 Baidy Moctar Sy appeals his convictions and sentences for armed robbery. For reasons that follow, we affirm the convictions but modify the superior court's sentencing order.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2017, Ashley^[1] was working the night shift at a Circle K convenience store. A man entered the store and asked for a cup of water. While Ashley retrieved the water, another "very big" man walked into the store. He wore a clown mask, gloves with an Arizona State University ("ASU") logo, a gray hoodie, and black-gray shoes. The masked man pointed a gun at Ashley with his left hand and demanded the money from the register. She gave the masked man the money, and he took her phone. The man who asked her for water then took several packs of cigarettes. When the two men left together, Ashley pushed the "panic button" and police officers arrived to investigate the robbery. Video surveillance from the store captured clear images of both men.

¶3 The next night, Martin withdrew money from a Wells Fargo ATM. While walking back to his car, Martin was approached by two masked men. The men demanded his money, pointed a gun at him and threatened, "we know where you live, empty your pockets." The men were wearing clown masks, gloves, and hoodies. They took Martin's money, wallet, phone, and keys. They demanded that Martin withdraw more money from the ATM, but his account was over the daily withdrawal limit. Seeing no additional funds could be withdrawn, the men left the area and Martin called police officers from a nearby store. Video surveillance from the ATM showed Martin trying to make a second withdrawal and appearing distraught.

¶4 In the evening a week later, Lisa withdrew money from the same Wells Fargo ATM. When Lisa walked back to her car, a man wearing "a clown or a joker" mask and gloves approached her. She noted that the man was "very tall" and he spoke with an accent. He pointed a gun at her and demanded her belongings. The man took various items from Lisa, including a brown purse and black wallet containing her credit cards. When the man fled the area, Lisa called police officers from a nearby gas station. Later that night, a woman tried to use one of Lisa's credit cards at a pharmacy. Video surveillance from the pharmacy showed that the woman arrived with two men, one wearing a hat and the other wearing a black tank top. A detective recognized the man wearing the hat as Carlos Juarez. Ashley the clerk from the Circle K robbery, later identified Mr. Juarez as the man who asked her for water and took cigarettes.

¶5 Shortly after the robberies, a detective contacted Sy on another matter and observed a pair of gloves with an ASU logo in the backseat of his car. Detectives seized the gloves from the car pursuant to a search warrant. The police also seized Sy's shoes after his arrest. The gloves and shoes appeared consistent with those worn by the masked man in the Circle K robbery. Detectives discovered that another of the third victim Lisa's credit cards had been used to make an online purchase, which listed Sy's mailing address, phone number, and wife, Susana, as the recipient. Through the use of cell phone data, an expert determined that Sy and Juarez were near the location of the robberies during the relevant dates and times.

¶6 When a detective spoke with Susana she confirmed that Sy knew Juarez and the two men often stayed out late in September 2017. Around this time, Susana found a clown mask in their laundry basket and Sy denied that it belonged to him. Sy also gave her a brown purse and black wallet as gifts, claiming he found them. After seeing a news story related to the robberies, Susana grew suspicious and threw the mask and purse away, keeping only the wallet. The detective seized the wallet, which appeared consistent with Lisa's wallet. The detective showed Susana a series of still images from the Circle K and pharmacy video surveillance. In the pharmacy video, Susana identified Sy, Juarez, and Juarez's girlfriend, detailing why their physical characteristics and clothing appeared consistent with the individuals in the images. In the Circle K video, Susana recognized the masked man's hoodie as belonging to Sy, and the clown mask as the one she found in their laundry basket. She also noted that her husband is tall, he speaks with an accent, and is left-handed. Detectives executed a search warrant on the couple's home and located a black tank top consistent with the one worn by Sy in the pharmacy video. Susana confirmed the tank top belonged to him.

¶7 The State charged Sy with three counts of armed robbery, all class 2 felonies, for each date of offense (Counts 1 through 3). For a portion of time before trial, Sy waived his right to counsel and represented himself with the assistance of advisory counsel. In this capacity, Sy moved to suppress statements and evidence based on alleged constitutional violations. The superior court conducted multiple suppression hearings. In the hearing on the first motion, as relevant here, Sy moved to suppress evidence and statements obtained during the execution of a search warrant on his home, arguing the warrant lacked sufficient probable cause, specificity, and contained misleading statements. In the hearing on the second motion to suppress, Sy moved to suppress the gloves and argued he did not consent to the initial warrantless search of the car. Sy's written motions contained lengthy factual summaries and argument, and he conducted extensive witness examination in both hearings.

¶8 In the hearing on the third motion to suppress, Sy moved to suppress statements based on an alleged Miranda^[2] violation. For the first time, the superior court advised Sy of his right to testify at a suppression hearing as provided under Arizona Rule of Criminal Procedure ("Rule") 16.2(c). Sy confirmed that he understood the advisement and voiced no concern that he had not received the admonition before the two previous hearings. Sy did not testify on his own behalf in any of the three hearings. After hearing argument and witness testimony, the court denied all of Sy's motions, finding detectives acted lawfully in obtaining statements and evidence. As trial approached, Sy withdrew his waiver of counsel and asked the court to reappoint counsel. In the months before trial, Sy's counsel filed several motions but did not seek to revisit the suppression issues.

¶9 While still representing himself, Sy moved to suppress Susana's pretrial identification and requested a Dessureault^[3] hearing, arguing the pretrial identification procedure was suggestive, she appeared stressed during the interview, and the still images were poor in quality. Sy attached the still images to the motion for the superior court's review. The court heard argument on the motion by the parties. The State explained that Sy's motion pertained to Susana's identification of him in the still images. The court determined that Dessureault did not apply when a witness identifies "somebody she already knows." Sy argued that the detective showed Susana a blurry image from the pharmacy video, and she gave conflicting information when identifying him. The court found that such facts went to Susana's credibility as a witness and denied the motion without conducting a hearing.

¶10 At trial, Susana testified that she had been interviewed by a detective and watched the recording of that interview. She remembered providing various details that linked Sy to the robberies, including confirming his relationship with Juarez, recognizing clothing items, and receiving gifts consistent with stolen items. Susana testified that she identified Sy in the still image from the pharmacy video based on his body type. When cross-examined about her ability to discern anything from the pixelated or blurry image, Susana responded that she "believed it is him" based on his "body type, the way he slouched, the way he is carrying himself walking."

¶11 After a nine-day trial, the jury found Sy guilty as charged and found aggravating factors applied. Before sentencing, the State alleged that Sy had been previously convicted of one count each of kidnapping and armed robbery, class 2 felonies, committed on September 29, 2017, in Maricopa County Superior Court Cause Number CR2017-144951-001 ("2017 case"). This conviction resulted in a term of probation and predated the State's filing of charges in the current case. The State alleged that the 2017 case constituted one non-historical prior felony conviction under Arizona Revised Statutes ("A.R.S.") § 13-703(A), exposing Sy to the category-one repetitive offender sentencing range for Count 1 and the category-two repetitive offender sentencing range for Counts 2 and 3. See A.R.S. § 13-703(H)-(I). In the alternative, the State alleged that Counts 1 through 3 constituted multiple offenses not committed on the same occasion under A.R.S. § 13-703(A). The adult probation department issued a presentence report with a criminal history addendum, which mirrored the State's description...