Opinion
No. 1 CA-CR 14-0012 No. 1 CA-CR 14-0013 No. 1 CA-CR 14-0014 No. 1 CA-CR 14-0015 (Consolidated)
02-26-2015
STATE OF ARIZONA, Appellee, v. BRANDON RAY DAVIS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Peg 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. CR2005-133330-001, CR2006-109307-001, CR2006-176964-001, CR2013-104527-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Peg Green
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Brandon Ray Davis appeals his convictions and sentences for unlawful use of transportation, leaving the scene of an accident, and criminal trespass. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the trial evidence in the light most favorable to sustaining the jury's verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007).
¶2 A police officer began following a Ford Mustang that had been reported stolen and saw a man driving and a woman in the front passenger seat. When he caught up with the Mustang seconds later, it had collided with a parked pickup truck, causing extensive damage to the driver's side of the Mustang and deploying the driver's-side airbag, the only airbag in the car.
¶3 The female passenger, who had remained at the scene of the accident, had minor lacerations to her right hand but appeared to have no other injuries. She told the investigating officers that a bald, white male she had met earlier that evening named Brandon had been driving. She said that when he had offered her a ride he was driving a red truck, but then he stopped at an apartment complex and switched to his "other vehicle," the Mustang.
¶4 Police officers found Davis hiding in a vehicle in a nearby residential backyard. Davis had a laceration on his head, as well as several scrapes and burns to his face, neck, and arms -- injuries that appeared to have been caused by a deployed airbag. It was later discovered that Davis had also fractured his left leg. Davis told the officers that he had not been in a car accident, but had sustained his injuries in a fight. Police officers also discovered a red truck registered to Davis four spaces from where the stolen Mustang had been parked at a nearby apartment complex.
Once Davis was apprehended, the passenger said that she could not positively identify him as the driver because she did not have her eyeglasses with her.
¶5 The jury convicted Davis of unlawful use of transportation a lesser included offense of theft of means of transportation, leaving the scene of an accident, and criminal trespass. Davis timely appeals.
DISCUSSION
¶6 Davis raises three arguments on appeal. First, he argues that the trial court erred when it denied his motion to dismiss because the police acted in bad faith when they failed to preserve potentially exculpatory evidence, in violation of his due process rights. Second, Davis argues that the trial court erred when it refused to give a Willits instruction based on the loss of said evidence. And third, Davis argues that the trial court erred when it allowed the state to introduce the out-of-court testimonial statements of the woman passenger, based on its finding that the witness was unavailable to testify, and that Davis had participated in procuring her unavailability. We address each argument in turn. I. Motion to Dismiss
¶7 Davis argues that the trial court abused its discretion when it denied his motion to dismiss because the Avondale Police Department exercised bad faith when it failed to impound potentially exculpatory evidence, in violation of Davis's due process rights. Specifically, Davis argues that the police should have preserved the Mustang and the driver's-side airbag because this evidence could have supported his claim that he had not been driving the car.
¶8 Failure to preserve potentially useful evidence does not constitute a denial of due process absent bad faith on the part of the police. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). "The presence or absence of bad faith for purposes of the due process clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." State v. Speer, 221 Ariz. 449, 457, ¶ 37, 212 P.3d 787, 795 (2009) (quoting Youngblood, 488 U.S. at 56, n. *). And the exculpatory value of evidence must be apparent at the time it is destroyed. Speer, 221 Ariz. at 457, ¶ 37, 212 P.3d at 795.
¶9 We limit our review of the denial of a motion to dismiss to the evidence presented at the evidentiary hearing. See State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996) (appellate courts restrict review of an order on a motion to suppress to evidence admitted at suppression hearing). And we review the trial court's ruling for abuse of discretion. State v. Moody, 208 Ariz. 424, 448, ¶ 75, 94 P.3d 1119, 1143 (2004).
¶10 At the evidentiary hearing, a police officer testified that seconds before he arrived at the scene of the crash, he observed a man driving the Mustang and a woman in the passenger seat. As the collision investigator, he took photographs of the vehicle and swabbed the steering wheel and blood found on the hood of the car for possible DNA evidence. Among the photographs he took, at least one was of the driver's-side interior, showing the position of the seat and the deployed airbag. He saw nothing of evidentiary value on the airbag. He was not concerned, in view of his own observation before the crash and the statements of the woman who remained at the scene, that the woman might have been the driver. The officer did not preserve the driver's-side airbag or impound the vehicle. However, he testified that he was not trying to hide evidence. Though in the officer's experience it was normal practice to impound vehicles, his supervisor had informed him that the Mustang was being released to its owner.
¶11 The trial court denied Davis's motion to dismiss, concluding that there was no evidence of bad faith in failing to preserve the evidence. The court explained, "I can't find that the police had knowledge of the exculpatory value of the evidence at the time that it was failed to be basically tested." The court found that the police would have had no reason to believe that the airbag was of exculpatory value, not only because they believed the driver was a man, but also because the suspect appeared to have suffered injuries from an airbag deployment. The court also found that the police officer made reasonable efforts to preserve evidence from the car in the form of DNA swabs and photographs before releasing the car to its owner.
¶12 The evidence presented at the hearing supports the trial court's finding that no exculpatory value of the evidence was apparent at the time the Mustang was released to its owner, and that the police did not exercise bad faith in failing to impound the car. The evidence also supported the court's finding that the officer who conducted the investigation made reasonable efforts to secure evidence from the vehicle before releasing it to its owner. We find no error. II. Willits Instruction
¶13 Davis argues that the trial court abused its discretion when it refused to give a Willits instruction based on the state's failure to impound the Mustang for defendant's examination. He contends that such an examination could have revealed that the airbag did not fully deploy and that the seat was positioned in a way that could not have accommodated "Davis's tall frame."
State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
¶14 A Willits instruction allows the jury to draw an inference from the state's destruction of material evidence that the lost or destroyed evidence would have been unfavorable to the state. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). A defendant is entitled to a Willits instruction upon proving that "1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and 2) there was resulting prejudice." State v. Glissendorf, 235 Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052 (2014) (citations omitted).
¶15 We review the trial court's refusal to give a Willits instruction for abuse of discretion. Glissendorf, 235 Ariz. at 150, ¶ 7, 329 P.3d at 1052. And we may affirm the trial court's ruling on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶16 Before trial, Davis requested a Willits instruction, arguing that if the car had been preserved, he could have tested the shift knob for fingerprints, examined the position of the seat to determine whether it would accommodate a man of his height, and subjected the airbag to DNA testing. After the close of evidence, Davis argued only that the airbag might have contained another person's DNA, or it may not have deployed fully enough to cause his burns, and that he was prejudiced by his inability to test the airbag to rebut the state's evidence that he was the driver. The court denied the request for a Willits instruction, reasoning, "I don't believe that the exculpatory nature of the airbag was apparent before the police returned the car to [its owner], and I don't see how the absence of the defendant's DNA on the airbag or evidence that it did or did not fully deploy would have a tendency to exonerate the defendant."
¶17 The trial court's conclusion that the missing evidence did not have a tendency to exonerate Davis was reasonable and supplied sufficient support for the court's denial of the instruction. Indeed, we see no reasonable prospect that the missing evidence would have been exculpatory even now. "To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might be helpful . . . there must be a real likelihood that the evidence would have had evidentiary value." Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052. A defendant is not entitled to a Willits instruction "merely because a more exhaustive investigation could have been made." State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). Davis's arguments about the airbag and seat position are sheer speculation, an insufficient basis for a Willits instruction. See Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052; State v. Henry, 176 Ariz. 569, 583, 863 P.2d 861, 875 (1993) (holding that defendant was not entitled to a Willits instruction for failure to preserve vehicle, in part because photographs of the vehicle were taken and admitted at trial, and thus the vehicle itself "had no material exculpatory value"); State v. Tucker, 157 Ariz. 433, 443, 759 P.2d 579, 589 (1988) (holding that absence of defendant's fingerprints on gun would not have excluded defendant from having handled gun and having committed the crime). III. Forfeiture by Wrongdoing
¶18 Finally, Davis argues that the trial court abused its discretion and violated his rights under the confrontation clause when it allowed the state to introduce the out-of-court testimonial statements of the female passenger at trial.
¶19 The confrontation clause generally prohibits the admission of out-of-court testimonial statements in a criminal trial unless the declarant is unavailable to testify and has been cross-examined by the defense. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). The forfeiture-by-wrongdoing doctrine, however, provides an exception to this general rule. See Crawford, 541 U.S. at 62; Giles v. California, 554 U.S. 353, 359 (2008). This doctrine has been codified as Ariz. R. Evid. 804(b)(6), which provides that the out-of-court testimonial statement is admissible if the statement is "offered against a party that wrongfully caused -- or acquiesced in wrongfully causing -- the declarant's unavailability as a witness, and did so intending that result."
¶20 Before a trial court may admit an out-of-court testimonial statement under the forfeiture-by-wrongdoing doctrine, the state must prove by a preponderance of the evidence that: 1) the declarant is unavailable to testify at trial; 2) the declarant's unavailability is the result of wrongdoing; 3) the defendant engaged in or acquiesced in the wrongdoing; and 4) the defendant intended to procure, and actually procured, the declarant's unavailability to testify as a witness. See State v. Franklin, 232 Ariz. 556, 559-61, ¶ 12-24, 307 P.3d 983, 986-88 (App. 2013); State v. Valencia, 186 Ariz. 493, 498, 924 P.2d 497, 502 (App. 1996); Ariz. R. Evid. 804(b)(6). A witness is considered unavailable when the state has conducted a reasonable and good-faith search for that witness and failed to obtain his or her presence at trial. State v. Montano, 204 Ariz. 413, 420, ¶¶ 25-26, 65 P.3d 61, 68 (2003); see also Ariz. R. Evid. 804(a)(5) (a witness is considered unavailable when the proponent of the declarant's statement has been unable to procure the declarant's attendance to testify "by process or other reasonable means").
¶21 We review a court's ruling on the admissibility of hearsay evidence for abuse of discretion. State v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App. 2003). We review the court's decision to admit evidence over a confrontation clause objection de novo. See State v. Smith, 215 Ariz. 221, 228, ¶ 20, 159 P.3d 531, 538 (2007).
¶22 The trial court conducted an evidentiary hearing on the state's motion to admit the passenger's out-of-court statements. At the hearing, two detectives testified that they engaged in numerous efforts to locate the woman (who was a transient at the time of the incident) by (1) leaving at least a dozen messages on her cell phone, (2) searching police databases and the Internet -- including Facebook, (3) going to her last listed address and talking to a neighbor who had seen her there and, who, in the detective's presence, talked to the woman on her cell phone, and (4) talking to her mother, who said she had an order of protection against her daughter and had not been in contact with her for some time, although she had received a bill indicating she had been treated in a hospital emergency room in Michigan in early August. This evidence supports the court's conclusion that the state "used all reasonable means available to locate and contact a witness who clearly is unwilling to have any contact with the State's agents," and had shown by a preponderance of the evidence that she was unavailable for trial.
¶23 The state also established that shortly after Davis was arrested, he engaged in a series of conversations from jail in which he attempted to prevent the woman from testifying at trial. His girlfriend told him he needed to call "Greg," but would not explain why, except to say, "It's actually kind of a good thing, I promise you it's a good thing . . . It's something that I thought would help you. I think it will help you, but it's better off if he says it." Davis then called Greg, who offered his help on the pending charges, explaining, "Yeah, you just tell me whose house and where to go. You know what I mean. Write me a letter if you have to." Later in the conversation, Davis commented, "Yeah that chick needs to go step up and . . . say she was driving man. You know?" Greg responded, "Well, I'll get a police report and we'll give her a little, good talk after." Greg then said, "You know what I mean?" and Davis responded, "Yeah."
¶24 In later conversations, Davis and his girlfriend frequently discussed the critical nature of this witness's testimony, the girlfriend's desire to acquire her contact information, and the progress of their efforts to enlist the help of a mutual acquaintance to persuade her not to testify. Davis told his girlfriend the state "ain't got nothing really," only "one witness . . . Corina," whom he identified as "some chick from uh, Jaime's." Two days later, when Davis's girlfriend pressed him for the full name of this witness, he told her to talk to his lawyer and said, "They can't find her though." In this same conversation, they discussed another friend's unsuccessful effort to pay a witness not to testify against him. Davis's girlfriend told him that the friend had accepted a plea resulting in 10 years rather than proceeding to trial. Davis expressed surprise and suggested that he might have accepted the plea because "the fucking hooker fucking decided to testify." He asked, "Was he even taking care of her like he was supposed to?" His girlfriend responded, "He was. I mean . . . that's what he was saying," adding, "she cost him all kinds of money. . . ."
¶25 A couple of weeks later, Davis again complained, "They got a weak case . . . it comes down to a point where . . . do I risk going to trial and this fuckin' bitch comin' to testify on me?" A day later, Davis's girlfriend told him she had talked to Jaime, their link with the witness, "and it's all safe." Davis responded, "I'm good . . . I'm good now." A few days later, however, Davis and his girlfriend expressed dismay that he was not offered a better plea, and Davis again noted, "It's all up . . . to that one girl . . . and then it comes down to, he said, she said, you know what I mean?" His girlfriend again demanded the woman's name, saying "I want to know who she is."
¶26 The next day, Davis asked for an update on the witness, whom they now refer to as "the hooker," an allusion to their friend's unsuccessful effort to pay a witness not to testify against him. Davis's girlfriend responded by saying, "I don't know. I have to look into it. I heard she was free. She was leaving, but I don't know." A few days later, Davis's girlfriend reassured him, telling him that Jaime had called and told her to tell Davis to "go ahead and take it to trial."
¶27 About a month later, Davis again brought up the subject of the "other hooker," explaining that his lawyer did not seem to feel confident about his chances at trial, and "I need you to go talk to her, figure if it's all good or . . . whatever." The next day, his girlfriend again reassured him, saying, "I talked to our, um, our friend out in Mesa . . . and um, It's all good. For sure, for sure . . . I had to make sure of that." Davis nevertheless asked her to call another acquaintance to contact the witness, because "I just need the same, I just need the . . . same thing as the hooker effect, you know what I mean?" His girlfriend assured him she understood.
¶28 These conversations were not susceptible to an innocent explanation and clearly evidenced Davis's intentional efforts to have Greg, Jamie, and his girlfriend contact the witness and persuade her to recant her statements or not to appear at trial. "While a criminal act is not necessary to invoke the doctrine, witness tampering is a classic form of wrongdoing that can lead to forfeiture." Franklin, 232 Ariz. at 559, ¶ 15, 307 P.3d at 986. Davis's participation in these efforts to persuade the witness to change her story or to disappear before trial constituted a form of witness tampering, a wrongdoing sufficient to apply the forfeiture doctrine. See A.R.S. § 13-2804(a)(2013) ("A person commits tampering with a witness if such person knowingly induces . . . a person he believes may be called as a witness to . . . [u]nlawfully withhold any testimony; or [t]estify falsely.")
This statute was amended in 2014 to more broadly prohibit a person from "knowingly communicat[ing], directly or indirectly with . . . a person he believes may be called as a witness to do any of the following . . . [u]nlawfully withhold any testimony[,] [t]estify falsely[,] . . . [or] [e]vade a summons or subpoena." A.R.S. § 13-2804 (2014).
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¶29 The court found that the state had established through the jail calls that Davis had engaged in wrongdoing that was intended to, and did, result in the woman's unavailability to testify at trial. Accordingly, the court granted the state's motion to admit the woman's out-of-court statements at trial. It was reasonable for the trial court to conclude that the witness's disappearance and evasion of police was the result of Davis's and his friends' efforts. The fact that Davis and his girlfriend discussed the success of their efforts to procure her unavailability in veiled terms -- knowing that their conversations were recorded -- indicates that they were intent on keeping their role in securing her disappearance secret. Moreover, it was reasonable for the court to find that Jaime's repeated assurances through Davis's girlfriend that "it's all safe," "it's all good," and "go ahead and take it to trial," supplied additional evidence that it was Jaime's efforts that had succeeded in persuading the witness not to testify. Therefore, we conclude that the trial court did not err when it found that the witness's unavailability was the result of Davis's wrongdoing.
CONCLUSION
¶30 For the foregoing reasons, we affirm Davis's convictions and sentences.