Opinion
1 CA-CR 12-0027
02-14-2013
STATE OF ARIZONA, Appellee, v. MICHAEL RAY FUQUA, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael T. O'Toole, Assistant Attorney General Attorneys for Appellee Emery K. La Barge, Attorney at Law By Emery K. La Barge Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Navajo County
Cause No. CR2005-0569
The Honorable Robert B. Van Wyck, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Michael T. O'Toole, Assistant Attorney General
Attorneys for Appellee
Phoenix
Emery K. La Barge, Attorney at Law
By Emery K. La Barge
Attorneys for Appellant
Snowflake
GOULD, Judge ¶1 Michael Ray Fuqua ("Defendant") appeals his conviction and sentence for conspiracy to commit first-degree murder. He raises issues related to the trial court's use of transcribed witness testimony from Defendant's previous trial and contends the court erred in ruling on his motion for change of judge. For the reasons stated below, we find no error and therefore affirm.
PROCEDURAL BACKGROUND
¶2 On October 4, 2005, the State charged Defendant with one count of conspiracy to commit first-degree murder. The charge was based on a purported agreement Defendant made with his cellmate, G.H., to murder the confidential informant who cooperated in the sting operation that led to the filing of drug and weapons-related charges against Defendant. G.H. testified at trial, and the jury convicted Defendant of the murder charge. The trial court imposed a life sentence on January 16, 2008, and this court subsequently reversed on the ground the trial court erred in precluding evidence of Defendant's statements to other inmates indicating he was only pretending to participate in the murder plot. State v. Fuqua, 2010 WL 5239167, No. 1 CA-CR 08-0672, at *1, ¶ 1 (Ariz. App. Dec. 16, 2010) (mem. decision) ("Fuqua I"). ¶3 On remand, the retrial resulted in a hung jury, and the court declared a mistrial on September 26, 2011. The court scheduled a new (third) trial, and Defendant waived his right to counsel and his right to a jury trial. G.H. refused to testify at the third trial; thus, the court found him unavailable as a witness, and over Defendant's objection, G.H.'s testimony from the first trial was read into evidence. ¶4 After a five-day bench trial, the court found Defendant guilty as charged. On December 14, 2011, the court imposed a life sentence with the possibility of parole after twenty-five years. Defendant appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A) (West 2012).
In a separate trial, Defendant was convicted of thirteen drug and weapons offenses, and we affirmed those convictions in State v. Fuqua, 2008 WL 4152838, No. 1 CA-CR 07-0309, at *1, ¶ 1 (Ariz. App. Sept. 4, 2008) (mem. decision).
G.H. also refused to testify at the second trial.
DISCUSSION
I. G.H.'s Transcribed Testimony ¶5 While Defendant's appeal in Fuqua I was pending, this court noted that one or more transcripts were prepared by Sue Baquet, whose State Supreme Court certification had expired in 2004. Accordingly, pursuant to Arizona Rule of Criminal Procedure 31.8(h), we stayed the appeal and revested jurisdiction in the superior court "to permit the court, the parties and court reporter Sue Baquet, to review the transcripts, make any necessary corrections, and then to certify that the transcripts fairly and accurately represent what actually took place." On April 8, 2009, the superior court conducted a status conference and ordered certified court reporter Lerryn Roberds to compare Baquet's "paper notes and the disk" to the relevant transcripts and render an opinion as to whether she, Roberds, could certify the transcripts as accurate for purposes of the appeal. On December 7, 2009, the court held an evidentiary hearing on the matter, and after considering the testimony of Roberds and the trial prosecutor, the court certified that Baquet's transcripts "fairly and accurately" represented Defendant's trial proceedings. As noted, G.H.'s testimony from Defendant's first trial was read into evidence during the bench trial that led to this appeal. ¶6 Defendant first contends the court erred in allowing G.H.'s testimony to be read into evidence because the transcript was prepared by an uncertified court reporter. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion and will reverse such a ruling only upon a finding of clear prejudice. State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 (App. 1994). ¶7 Defendant argues the court's admission of G.H.'s transcribed testimony violated Supreme Court of Arizona Rule 30(b)(4), which states: "No transcripts of the proceedings of the court shall be considered as official except those made from the records certified by the reporter or other authorized transcriber." Ariz. R. Sup. Ct. 30(b)(4); see A.R.S. § 32-4003(A) ("A person shall not report proceedings in any court in this state and shall not report depositions in this state for use in any court in this state unless the person is certified pursuant to this chapter."). Because Baquet was not a certified court reporter at the time of Defendant's first trial, he claims G.H.'s transcript was "unreliable." ¶8 We reject this argument. First, Defendant does not point to anything in the transcript that inaccurately reflects G.H.'s testimony. Indeed, when he objected to the court's decision to use the transcript, Defendant conceded that "I can't say this was wrong or this is right." Second, Defendant ignores the trial court's certification of the transcript after it held an evidentiary hearing, a process that conforms with our procedural rules when a lawfully prepared transcript is unavailable. Ariz. R. Crim. P. 31.8(f-h). At that hearing, Defendant had the opportunity to present evidence of the transcript's inaccuracy. He did not do so. On this record, we cannot conclude the court abused its discretion in allowing G.H.'s transcribed testimony into evidence. ¶9 In a related argument, Defendant asserts G.H.'s testimony was inadmissible because it was hearsay and in violation of Defendant's confrontation rights. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."); Crawford v. Washington, 541 U.S. 36 (2004). We disagree. ¶10 As an exception to the hearsay rule, Arizona Rule of Evidence 804(b)(1) allows for the admissibility in criminal cases of an unavailable witness's previous testimony if that testimony was made under oath in a judicial proceeding and the party against whom the testimony is offered "had the right and opportunity to cross-examine the declarant[.]" Ariz. R. Evid. 804(b)(1). Defendant contends, however, that G.H. was not subject to meaningful cross-examination at Defendant's first trial because the State failed to timely disclose G.H.'s misdemeanor conviction in 2004 for false reporting to a police officer. In addition, Defendant argues he did not have the opportunity to meaningfully cross-examine G.H. at the first trial because the court reversibly erred in precluding testimony from other inmates showing that Defendant had no intention of carrying out the murder plot. Defendant believes it would have assisted his defense if he had been permitted to cross-examine G.H. with the inmates' statements, because "[i]t is completely plausible that if [G.H.] were questioned regarding [the other inmates'] statements[, G.H.'s] belief about [Defendant's] intent or lack of intent could be completely different." ¶11 "It is well within the trial court's discretion to decide if defense counsel had sufficient opportunity to cross-examine the witness at the prior proceeding." State v. Schad, 129 Ariz. 557, 569, 633 P.2d 366, 378 (1981). However, we review de novo challenges to admissibility based on the Confrontation Clause. State v. King, 213 Ariz. 632, 636, ¶ 15, 146 P.3d 1274, 1278 (App. 2006). We find no abuse of discretion in the trial court's determination that Defendant had a full opportunity to cross-examine G.H. at the first trial. ¶12 Regarding the State's failure to disclose G.H.'s prior false reporting conviction, the prosecutor avowed to the court, without objection from defense counsel, that this misdemeanor conviction did not appear during reviews of G.H.'s criminal history conducted prior to the first and second trial. Because the State did not know about G.H.'s 2004 misdemeanor conviction before he testified, it could not disclose that information to Defendant. See Ariz. R. Crim. P. 15.1(b) (prosecutor's duty to disclose applies only to information within her "possession or control"). ¶13 Moreover, the State's non-disclosure of G.H.'s 2004 misdemeanor conviction did not deny Defendant the opportunity to adequately cross-examine G.H. during the first trial. See U.S. v. Koon, 34 F.3d 1416, 1427 (9th Cir. 1994) ("The failure of a defendant to discover potentially useful evidence at the time of the former proceeding does not constitute a lack of opportunity to cross-examine.") (aff'd in part, rev'd in part on other grounds, 518 U.S. 81, 89-91 (1996)). The record reflects Defendant extensively impeached G.H.'s credibility during cross-examination, including procuring G.H.'s admission that he had two prior felony convictions in addition to other pending criminal matters, and the fact that he had cases dismissed in return for his cooperation with the State in its investigation into Defendant's pending charge. Thus, Defendant does not explain how the disclosure of G.H.'s misdemeanor conviction would have produced "any new and significantly material line of cross-examination that was not at least touched upon in the first trial." See Mancusi v. Stubbs, 408 U.S. 204, 215 (1972) (holding unavailable witness was adequately cross-examined at previous trial notwithstanding the failure of that examination to include specific questions where defense "counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial") (superseded by statute on other grounds as recognized in People v. Herrera, 232 P.3d 710, 717-20 (Cal. 2010)). ¶14 We also conclude Defendant was not deprived of a meaningful opportunity to cross-examine G.H. due to the court's erroneous decision to exclude the testimony of the inmates. Even if we assume the inmates' testimony would have caused G.H. to reconsider or change his opinion about whether Defendant truthfully intended to carry out the murder plot, G.H.'s testimony on Defendant's truthfulness - and, by inference, Defendant's lack of guilt in the murder plot - would have been inadmissible. State v. Williams, 133 Ariz. 220, 228, 650 P.2d 1202, 1210 (1982) (holding that witness' statements showing "her belief in the truth or falsity of defendant's confession and, thus, of his guilt or innocence" were irrelevant and inadmissible); State v. Reimer, 189 Ariz. 239, 241, 941 P.2d 912, 914 (App. 1997) (reviewing Ariz. R. Evid. 701, and remarking: "Arizona courts have expressly determined that neither expert nor lay witnesses assist the trier of fact to understand the evidence or to determine a fact in issue when they merely opine on the truthfulness of a statement by another witness."). ¶15 Based on the foregoing, we find no abuse of the court's discretion in finding Defendant had "a full opportunity" to cross-examine G.H. Accordingly, G.H.'s testimony was admissible under Rule 804(b)(1). Further, because we conclude that the court correctly determined Defendant had the opportunity to adequately cross-examine G.H. at the first trial, no violation of Defendant's confrontation rights occurred. See King, 213 Ariz. at 637, ¶ 17, 146 P.3d at 1279 (citing Crawford, 541 U.S. at 68, and remarking the Supreme Court "held that the Confrontation Clause prohibits the admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.").
In reaching its conclusion, the court specifically found that "Defendant failed to present any evidence that the transcripts filed by Ms. Sue Baquet did not accurately reflect what took place during the Defendant's trial."
Although Defendant states the court erred in finding G.H. was unavailable to testify at Defendant's second and third trial, he does not further expound on this argument. We therefore do not address it. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (appellate court will not consider issue on appeal when opening brief merely mentions issue and does not provide argument on it).
At an evidentiary hearing, two inmates, P.C. and M.V., testified as to what Fuqua had told them regarding the situation with G.H. P.C. testified that Fuqua had explained "[t]hat basically [Fuqua] would get bonded out if he would agree to this with G.H." and that Fuqua was "going along with it for the purposes of getting bonded out" but there was "no intention on hurting anyone." M.V. also testified that Fuqua said he was "trying to work something out with G.H. so he can have [Fuqua] bonded out."
We also note that G.H.'s 2004 false reporting conviction was admitted into evidence in the instant bench trial thereby allowing Defendant to further impeach G.H.'s testimony with that conviction.
II. Motion to Recuse ¶16 On August 29, 2011, before the trial on remand that resulted in a mistrial, Defendant filed a motion requesting the judge recuse himself based on language the court used in a written order dated June 15, 2011 denying Defendant's motions to dismiss. Specifically, Defendant was "concerned," "trouble[d]," and he had "an uneasy suspicion that [the judge] may not be entirely impartial[]" because the court gratuitously found that Defendant voluntarily made statements to G.H. regarding the purported murder plot, and the court's order stated: "The Defendant poisoned the second tree by his own conduct, and he cannot now take shelter under it to weather the storm caused by his own actions." The court summarily denied the recusal motion. ¶17 Defendant argues the court abused its discretion in ruling on the motion instead of forwarding the motion to the presiding judge to rule upon as required by Arizona Rule of Criminal Procedure 10.1(c). We find no error. ¶18 Rule 10.1(b) requires a party to file a motion for change of judge "[w]ithin 10 days after discovery that grounds exist for change of judge, but not after commencement of a hearing or trial . . . ." Ariz. R. Crim. P. 10.1(b). Defendant filed his motion for change of judge well outside the ten-day requirement imposed by Rule 10.1(b). Further, after he learned of the basis for his recusal motion, Defendant allowed a hearing on his "Notice Regarding Rule 8" and "Motion for Reconsideration of Release Conditions" to proceed on August 19, 2011. Thus, Defendant waived his right to a change of judge under Rule 10.1. Ariz. R. Crim. P. 10.4(a) ("A party loses the right (to a change of judge) under Rule[] 10.1 . . . when the party allows a proceeding to commence or continue without objection after learning of the cause for challenge."); State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989) (finding that a party waives his right to a change of judge under Rule 10.1 if, after learning of the cause for challenge, he allows a proceeding to commence or continue without objection). Finally, we note that Defendant did not include with his motion an "affidavit . . . alleging specifically the grounds for the change[]" as required by Rule 10.1(b). See State v. Rossi, 154 Ariz. 245, 248, 741 P.2d 1223, 1226 (1987) ("[Rule 10.1's] procedures would be rendered meaningless and effectively circumvented if permission to question a judge's partiality rested not on concrete facts and specific allegations but on mere speculation, suspicion, apprehension, or imagination."). For these reasons, the court did not err in ruling on - and denying - Defendant's motion for recusal.
The State responds that we review for fundamental error. Regardless of the applicable standard of review, we must first find that the court erred in order to warrant reversal. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991) ("Before we may engage in a fundamental error analysis, however, we must first find that the trial court committed some error."); State v. Mendoza-Ruiz, 225 Ariz. 473, 475, ¶ 6, 240 P.3d 1235, 1237 (App. 2010) (describing abuse of discretion as "clear and manifest error")(quoting State v. Newell, 212 Ariz. 389, 396 & n. 6, ¶ 22, 132 P.3d 833, 840 & n. 6 (2006)). Because we do not discern error, we need not decide the proper standard of review to employ in disposing of this issue.
--------
CONCLUSION
¶19 Defendant's conviction and sentence are affirmed.
________________________
ANDREW W. GOULD, Judge
CONCURRING: _____________________________________
PATRICIA K. NORRIS, Presiding Judge
_________________________
RANDALL M. HOWE, Judge