Opinion
No. 1 CA-CR 18-0049
04-30-2019
STATE OF ARIZONA, Appellee, v. DEAN BLISSETT, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Law Office of Kyle T. Green, Tempe By Kyle Green Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-005890-002
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee The Law Office of Kyle T. Green, Tempe
By Kyle Green
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Kent E. Cattani and Judge James P. Beene joined. WEINZWEIG, Judge:
¶1 Dean Blissett appeals his convictions and sentences for second degree murder, discharging a firearm at a structure, participating in a criminal syndicate, illegal control of an enterprise and transporting persons for the purpose of prostitution. He argues the superior court abused its discretion by denying his motion for mistrial and motion to sever his trial from that of his codefendant. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Blissett arranged clients for his prostitute girlfriend. He accompanied her to meet clients and waited outside. He collected and retained the tainted proceeds, promising protection and support in return.
¶3 His girlfriend received a text message from a prospective client named E.S. on the evening of November 26, 2014. She negotiated a price and E.S. provided his apartment address. Blissett drove her to the apartment complex and parked nearby. He fell asleep while waiting and was awakened by his girlfriend in tears "banging on the door." She was "screaming and yelling" that she "just got raped. He raped me." Blissett and his girlfriend searched for E.S. but could not find him and left. Blissett later told Willie Moore, his closest friend and cousin, that "the girl got raped." Both men then purchased handguns.
¶4 Two days later, the girlfriend received another text message from E.S., who asked if she remembered him. Blissett and Moore took the girlfriend's phone and continued texting under her identity. E.S. agreed to meet the girlfriend at a Tempe pharmacy and "make [a]mends."
¶5 Blissett drove to the pharmacy with his girlfriend, Moore and a second female. He parked to the west of the pharmacy. Blissett and Moore exited the vehicle in hoodies, each armed with a handgun. They approached the pharmacy and ascertained E.S.'s location via text messages. Blissett and Moore found E.S. in the driver's seat of his white Neon and opened fire. E.S. died from several gunshot wounds.
¶6 The State charged Blissett and Moore with first degree murder (count 1), conspiracy to commit first degree murder (count 2), discharge of a firearm at a structure (count 3), participation in a criminal syndicate (count 4), illegal control of an enterprise (count 5) and transporting persons for the purpose of prostitution (count 6). Blissett moved to sever his and Moore's trials, arguing their defenses were mutually antagonistic. The superior court denied the motion.
¶7 The superior court held a 19-day jury trial in October and November 2017. Midway through the trial, a family member of the victim heard a juror say, "this is crazy, we know they're guilty." Blissett alleged juror misconduct and moved for a mistrial. The court investigated. The trial judge questioned each juror individually. Each juror denied having discussed Blissett's guilt or innocence, denied having heard such discussions from other jurors, reaffirmed the admonition not to discuss the case prior to deliberations, and promised to keep an open mind and render a fair and impartial decision.
¶8 The court also examined the family member. He testified he heard, but could not see, a female at the elevator say, "this is more extreme than I thought. By the look of everything, we know they're guilty." Based on his testimony and phone records, the court pulled the security footage for the elevator area from the relevant period and saw three female jurors, including two jurors from a DUI trial in another courtroom and Juror 14 from Blissett's trial.
The State initially reported to the court that he overheard a male, but later corrected itself.
¶9 The superior court found that a juror from the other trial made the statement, and the jurors from Blissett's trial "credibly testified [they] did not hear anyone make a comment about the guilt or innocence of either of the Defendants." Nevertheless, in an abundance of caution, the court designated Juror 14 as an alternate juror.
¶10 The trial continued and the State rested. Blissett again moved the court to sever his trial from Moore's trial, arguing their defenses were mutually antagonistic. The superior court again denied the motion.
¶11 Moore testified and recounted his version of events. He was cross-examined by Blissett's counsel. Moore conceded he possessed a handgun on the evening of November 28 but said Blissett was unarmed. Moore also said he never texted E.S. and did not know why he and Blissett visited the pharmacy in Tempe. Blissett drove to the pharmacy. He and Blissett left the car and walked into an alleyway next to the pharmacy. Blissett told him to "wait right here real quick." Blissett walked ahead, out of sight. Moore heard gunshots a minute later and "took off running." He stopped and waited near a dumpster. As the gunshots continued, Moore reconnected with Blissett and they ran to the car and drove away. Moore said he did not suspect that Blissett had been involved in the shooting.
¶12 Blissett again moved to sever his and Moore's trial. The State countered that Moore had not "pointed a finger at Mr. Blissett at all" so there was "nothing antagonistic about what [Moore] said." Blissett's attorney disagreed. He said, "we're all pointing at each other and the State's not having to do any work without proving any of its case because myself and defense [c]ounsel are fighting for our client and against each other." The superior court found Blissett failed to show severance was required and denied the motion.
¶13 Blissett opted to testify in his own defense and related a different narrative in which he was armed and fired into E.S.'s car after the car "clipped" him. He claimed his girlfriend wanted to meet E.S. at the pharmacy, but he "didn't think she should do it." At the pharmacy, he and Moore exited the car and walked around while talking on their cell phones. Blissett then saw E.S. parked in a white Neon, approached and tried speaking with him, but E.S. drove away and clipped Blissett with the Neon. Blissett was "startled" and "scared" and began shooting into the car in "the spur of the moment." Blissett then heard gunshots coming from somewhere else, took cover and fired toward the gunshots. He ran back to his car when the shooting stopped. Blissett did not know where Moore had gone.
¶14 At trial's end, the superior court instructed the jury to "decide each count as to each defendant separately," state their finding for each count "in a separate verdict," "consider the charges against each defendant separately," and "determine the verdict as to each of the crimes charged based on that defendant's own conduct and from the evidence which applies to that defendant as if that defendant were being tried alone." The jury found Blissett and Moore guilty of second-degree murder (lesser-included offense of count 1) and of discharging a firearm at a structure (count 3). The jury acquitted both defendants of conspiracy to commit first degree murder (count 2) but found Blissett guilty of participating in a criminal syndicate (count 4), illegal control of an enterprise (count 5) and transporting persons for the purpose of prostitution (count 6). The superior court previously granted Moore's motion for directed verdicts of acquittal on counts 4 and 5, and the jury acquitted Moore on count 6.
¶15 Blissett filed a motion for new trial, raising the juror misconduct and severance issues. The superior court denied the motion and incorporated the findings and conclusions it previously made on the issues. The court then sentenced Blissett to a total of 25.25 years of imprisonment on all counts. Blissett's timely appeal followed.
DISCUSSION
¶16 Blissett asks us to vacate his convictions and grant him a new trial, arguing the superior court abused its discretion by denying his motion for mistrial based on juror misconduct and denying his motion to sever his and Moore's trial. We review each of these rulings for an abuse of discretion. State v. Dann, 220 Ariz. 351, 363, 370, ¶¶ 48, 106 (2009) (motion for mistrial and juror misconduct); State v. Cruz, 137 Ariz. 541, 544 (1983) (motion to sever). As explained below, we find no error.
A. Juror Misconduct
¶17 Defendants have the right to an impartial jury under the Sixth Amendment. Dann, 220 Ariz. at 371, ¶ 115. To protect this right, "a jury must refrain from premature deliberations," and a verdict may be reversed if the defendant demonstrates both juror misconduct and actual prejudice from the misconduct. Id. Courts should probe possible juror misconduct by "conduct[ing] whatever investigation it deems warranted," State v. Cota, 229 Ariz. 136, 150, ¶ 74 (2012) (quotation omitted), while assessing the credibility of jurors and witnesses, see Dann, 220 Ariz. at 372, ¶ 116. Meanwhile, "prejudice may be presumed from any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury," or if the jury considers extrinsic evidence. State v. Davolt, 207 Ariz. 191, 208, ¶ 58 (2004) (quotation omitted).
¶18 Blissett's argument fails as malformed and unpersuasive. Blissett bypasses the threshold requirement of juror misconduct and tackles the issue of prejudice. He assumes that jurors from his criminal trial engaged in premature deliberations near the elevators. But the court explored this claim and determined otherwise—after conducting independent interviews of all jurors, taking sworn testimony from the witness and watching actual video of the incident. The record includes reasonable evidence to support the court's decision. State v. Doolittle, 155 Ariz. 352, 356 (App. 1987) ("A reviewing court will not substitute its discretion for that of the trial court if there is any reasonable evidence to sustain the ruling below.").
¶19 Moreover, Blissett has not established prejudice. The only juror who was in the area where the comment was allegedly made was designated an alternate, and all of the jurors who deliberated indicated they had not heard the comment at issue.
B. Severance of Trial
¶20 The superior court must sever trials "if necessary to promote a fair determination of any defendant's guilt or innocence of any offense." Ariz. R. Crim. P. 13.4(a). To demonstrate error for failure to sever, a defendant "must demonstrate compelling prejudice against which the trial court was unable to protect." Cruz, 137 Ariz. at 544. Prejudice occurs when "evidence admitted against one defendant has a harmful rub-off effect on the other defendant" and "co-defendants present antagonistic, mutually exclusive defenses or a defense that is harmful to the co-defendant." State v. Murray, 184 Ariz. 9, 25 (1995). Defenses are antagonistic when the jury must disbelieve the core of one defendant's evidence or defense in order to believe the core of the other defendant's evidence or defense. Cruz, 137 Ariz. at 545; see also State v. Turner, 141 Ariz. 470, 472 (1984) ("When the defenses are tangential rather than on a 'collision course,' severance is not necessary.").
¶21 Blissett argues that he and Moore asserted mutually antagonistic defenses because the jury could not "believe the testimony of the co-defendant without disbelieving [his] testimony."
¶22 We disagree. Moore's defense was that he was not involved and did not know why the group visited the pharmacy. To be sure, Moore opined that Blissett was innocent and even unarmed, but that was not Moore's defense. For his part, Blissett said he wanted to speak with E.S. about his girlfriend, but E.S. clipped him while fleeing, causing Blissett to fire his handgun into the car. Blissett claimed Moore was not around, even expressing frustration at having to fend for himself. Those defenses are neither antagonistic or mutually exclusive. The jury could have accepted either or both. See State v. Grannis, 183 Ariz. 52, 59 (1995) (concluding defenses were not mutually antagonistic where defendant alleged he was not present during the murder and the codefendant claimed he killed in self-defense), disapproved of on other grounds by State v. King, 225 Ariz. 87, 90, ¶ 12 (2010).
¶23 Blissett similarly argues he was "forced into taking the stand due to the co-defendant's testimony," he "believed he would suffer more prejudice if he did not testify and give his version of the events," and the "rub-off effect of the evidence presented against the co-defendant resulted in [Blissett's] failure to have a fair and impartial trial."
¶24 We are not persuaded. Blissett provides no basis or authority for this argument. See State v. Burns, 237 Ariz. 1, 17, ¶ 50, n.5 (2015) (failure to support claim with argument or citation to the record waives the claim). And the record does not demonstrate the jury was unable to keep the evidence against each defendant separate or to render a fair and impartial verdict. See Grannis, 183 Ariz. at 59 ("To determine if a rub-off problem exists, the court must ask whether the jury can keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him.") (quotation omitted). The evidence and issues were straightforward, and the court instructed the jury to keep the counts, evidence and verdicts against each defendant separate. Id. (finding no harmful rub-off effect where evidence and issues were uncomplicated and where jury was instructed to "consider the evidence and the charges against each defendant separately"). At bottom, Blissett made a calculated, tactical decision to testify in his own defense and his later regret does not establish reversible error. The superior court's refusal to sever the trials of Blissett and Moore was not an abuse of discretion.
CONCLUSION
¶25 We affirm Blissett's convictions and sentences.