The Arizona Court of Appeals will hear arguments next month on whether a Cochise County judge erred in not letting a Sierra Vista man testify at his trial on charges he had intercourse with a 14-year-girl in 2017 after giving her methamphetamine.
Appellate attorney Emily Danies is set to go up against the Arizona Attorney General’s Office on Sept. 30 to argue her claim that John Lucien Shearer, 37, was denied due process after he sought to take the stand during his March 2019 trial despite the fact he formally announced earlier in the day that he would not be testifying.
Judge Laura Cardinal of the Cochise County Superior Court denied Shearer’s request, noting he had plenty of time before then to make a choice about testifying or not. She also noted the parties were ready to move onto closing arguments and that it would be “devastating” to reopen the evidentiary phase of the trial at that point.
The charges against Shearer stem from a runaway juvenile report involving a girl who left her foster home on May 1 and came into contact with a man named “John” on a Tucson street. They traveled together to Sierra Vista where they visited two of Shearer’s friends at an apartment.
That evening Shearer took the girl to a nearby home where he lived with his mother and stepfather. It is there, according to the girl, that she and John had sex after doing drugs.
Officers with the Sierra Vista and Tucson Police Departments eventually found the girl at the apartment of Shearer’s friends along with the clothing she was wearing the day she ran away. She was tracked to that location through a cell phone she was using.
The friends confirmed Shearer and the girl had been there together, and that she showed up later after being kicked out of Shearer’s home.
The girl provided detectives information about the location of Shearer’s home as well as a description of his vehicle and bedroom. A search warrant led to the seizure of evidence from the home, while DNA and other physical evidence was obtained during a medical examination of the girl.
Shearer was convicted by a jury of 11 felonies for which he must serve 37 years in prison followed by lifetime probation and registration as a sex offender. However, his appeal seeks to overturn the verdicts by arguing that Cardinal abused her judicial discretion when she refused to reopen the evidence phase of Shearer’s trial.
Under Arizona law, such decisions will not be disturbed by an appellate court unless the trial court’s decision appears to have deprived a defendant of a substantial right.
Assistant Attorney General Tanya Kelly is representing the Cochise County Attorney’s Office in the appeal. Her answer to the appeal is that Shearer voluntarily waived his right to testify during the time that evidence was being presented to the jury, and thus was never denied a right to testify.
“Out of the presence of the jurors, after confirming that he had consulted with his counsel and that he understands that he has a constitutional right to testify on his own behalf, Shearer elected not to testify,” Kelly noted in her answer. “Shearer confirmed that his decision not to testify was entirely his own decision.”
But after the lunch recess and a subsequent break in court proceedings, Shearer’s trial attorney David Gregan told Cardinal his client wanted to take the stand after all. The judge denied the request and the parties moved on to closing arguments.
Danies is also challenging Cardinal’s decision to deny repeated requests to replace Gregan as Shearer’s court-appointed attorney.
Both Gregan and Shearer argued prior to trial that there was “an irreconcilable conflict” and a “breakdown of communication” between attorney and client. At one point Shearer filed a bar complaint against Gregan.
Then at a hearing one week before trial Gregan told Cardinal “at this point, Judge, I can’t in good faith say I can effectively assist Mr. Shearer in any capacity.” Shearer told the judge at the same hearing that Gregan was “the third attorney that this Court has appointed that’s done absolutely nothing but railroad me.”
The Sept. 30 oral arguments will include Danies and Kelly putting forth their positions on whether the attorney decision was, as the defense claims, a reversible error requiring a new trial.
The hearing is the second time Shearer has had a conviction reviewed by the court of appeals.
In July 2019, a three-judge panel unanimously affirmed Shearer’s conviction and 2.5-year prison sentence stemming from a 2017 traffic stop during which meth, marijuana, and drug paraphernalia were found in a pickup truck he was driving.
In that case, a Cochise County Sheriff’s deputy in a fully marked patrol vehicle initiated a traffic stop on the truck for an obstructed license plate. The pickup’s driver -later identified as Shearer- refused to pull over and ran several stops signs trying to evade the deputy.
Eventually Shearer stopped and got out of the truck. Deputies found a gun and holster next to the truck.
Shearer was convicted by a jury of nine felonies, including weapons misconduct for being a felon in possession of a firearm and possession of a firearm during a felony drug offense.
