Opinion
No. 1 CA-CR 17-0814
04-04-2019
STATE OF ARIZONA, Appellee, v. ADRIAN PHILLIP HARVEY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By William Scott Simon Counsel for Appellee Barbara Hull Attorney at Law, Phoenix By Barbara L. Hull 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-002237-001
The Honorable Danielle J. Viola, Judge
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By William Scott Simon
Counsel for Appellee Barbara Hull Attorney at Law, Phoenix
By Barbara L. Hull
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined. CAMPBELL, Judge:
¶1 Adrian Phillip Harvey appeals from his conviction and sentence for second-degree murder, a class 1 felony. For the following reasons, we affirm.
BACKGROUND
We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
¶2 The victim was found in her bed with a fatal gunshot wound to the head. No gun or bullet casings were located at the crime scene and her cellular phone was missing. She had bruising on her thighs and her necklace appeared to be ripped from her neck. Detectives learned that the victim was previously involved in a romantic relationship with Harvey, who was known to be physically abusive, obsessive, and controlling. Harvey had threatened to kill the victim in the past.
¶3 When interviewed, Harvey told detectives he drove the victim home the night of the incident, watched her walk inside, and left. Two witnesses, Amber L. and Ginger D., would later testify that Harvey told them the victim committed suicide with a gun while he was in the apartment. He told Ginger D. he left with the gun to avoid suspicion. The forensic evidence was not consistent with a suicide. Both Amber L. and Ginger D. had been in romantic relationships with Harvey and described him as emotionally and physically abusive.
¶4 The State charged Harvey with one count of first-degree murder and one count of first-degree burglary. A jury found Harvey not guilty of first-degree murder but could not reach a decision on the lesser-included offense of second-degree murder or first-degree burglary.
¶5 In a second trial, the State proceeded on one count of second-degree murder. A jury found Harvey guilty. The superior court sentenced Harvey to the slightly aggravated term of 20 years' imprisonment.
DISCUSSION
I. Rule 404(b) Evidence
¶6 Harvey argues the superior court erred in admitting other-acts evidence under Arizona Rule of Evidence ("Rule") 404(b). Harvey claims the State presented the evidence for the improper purpose of showing his propensity to commit violent acts. We review the admission of other-acts evidence for an abuse of discretion. State v. Gulbrandson, 184 Ariz. 46, 60 (1995).
¶7 Though typically inadmissible, other-acts evidence may be admissible to prove motive, intent, or plan, if the evidence is relevant and the risk of prejudice does not substantially outweigh the evidence's probative value. Ariz. R. Evid. 402, 403, 404(b); State v. Roscoe, 145 Ariz. 212, 223 (1984). We have held that other violent or aggressive acts may be admissible if used to show the defendant's state of mind. See Gulbrandson, 184 Ariz. at 60-61; State v. Williams, 183 Ariz. 368, 377-78 (1995); State v. Wood, 180 Ariz. 53, 61-62 (1994); State v. Jeffers, 135 Ariz. 404, 418 (1983).
¶8 At trial, the State elicited testimony that Harvey (1) physically abused the victim in front of friends, co-workers, and roommates; (2) broke into the victim's apartment after she tried to leave him; (3) threatened to kill the victim if police were contacted; (4) physically abused Amber L. and Ginger D. in a similar manner; and (5) used guns to control, threaten, and intimidate all three women. The superior court found the other-acts evidence to be admissible under Rule 404(b) and provided limiting jury instructions.
¶9 The State presented the other-acts evidence to show the nature of the victim's relationship with Harvey, corroborate forensic evidence, and provide context for Amber L. and Ginger D.'s delayed reports. Although the very nature of such evidence is prejudicial, it was not used to show Harvey's propensity to commit violent acts or to elicit sympathy in the jurors. See State v. Mott, 187 Ariz. 536, 545 (1997). The other-acts evidence was relevant to the issue of Harvey's motive, opportunity, intent, and the absence of mistake or accident. Its probative value was not substantially outweighed by unfair prejudice, and the superior court provided appropriate limiting instructions.
II. Challenge to Jury Composition
¶10 Harvey, who is African American, claims the underrepresentation of African American jurors violated the fair cross-section requirement of the Sixth Amendment to the United States Constitution.
¶11 To establish a prima facie violation of the Sixth Amendment's fair cross-section requirement, the defendant must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.Duren v. Missouri, 439 U.S. 357, 364 (1979). If the defendant satisfies these requirements, the State must then demonstrate a significant state interest in adopting the selection criteria at issue. Id. at 367.
¶12 Before the first trial, Harvey objected to the 115-member jury pool, claiming the lack of African American jurors violated his constitutional rights. Harvey, however, failed to show the jury pool was selected contrary to Maricopa County's common procedure and the superior court denied the motion.
¶13 African Americans have long been recognized as a distinctive group, satisfying the first factor of the Duren inquiry. See Peters v. Kiff, 407 U.S. 493, 496-500 (1972). Harvey, however, fails to make any showing as to the second and third factor of the inquiry. He does not cite to statistics regarding the racial composition of Maricopa County, nor does he provide information on the process for selecting jurors from the community. Without more, the mere assertion that the jury panel consisted of all white jurors does not establish a prima facie violation of the fair cross-requirement. See, e.g., State v. Tucker, 118 Ariz. 76, 80 (1978). Harvey's claim that the State "gratuitously" referred to his race throughout the proceedings is irrelevant to this inquiry and has no basis in the record. See Duren, 439 U.S. at 364-66.
III. Testimony Related to the Victim's Employment
¶14 Harvey argues the superior court erred in precluding hearsay statements that the victim allegedly worked as a stripper and an escort before her death. Harvey claims the court's preclusion of such testimony prevented him from presenting his theory that the victim committed suicide. We review the court's application of the hearsay rule for an abuse of discretion. State v. Forde, 233 Ariz. 543, 564, ¶ 77 (2014).
Though Harvey seems to include drug abuse in this claim, the record shows he was able to elicit testimony throughout trial related to the victim's drug abuse.
¶15 Out-of-court statements offered at trial to prove the truth of the matter asserted are hearsay unless the proffering party shows that an exception applies. Ariz. R. Evid. 801(c)-(d), 802. Even if such an exception applies, the superior court has discretion to exclude hearsay that fails to meet both the Rule 402 relevancy standard and the Rule 403 balancing test. Ariz. R. Evid. 402, 403 (providing that even relevant evidence may be excluded if "its probative value is substantially outweighed by a danger of . . . unfair prejudice").
¶16 Early in the second trial, the superior court allowed Harvey to ask questions related to the victim's alleged employment as a stripper. After Harvey elicited testimony that the victim worked at a strip club in some capacity, the State moved to preclude any further questions on the subject. Outside the presence of the jury, the court heard from one witness, who would testify that the victim told her she worked as a stripper, and a second witness, who would testify that she heard a "rumor" the victim worked as a stripper from an unknown source. The court precluded this testimony as unreliable, irrelevant hearsay. Harvey went on to ask a detective whether the victim worked as an escort, but the question lacked any foundation and was struck from the record.
¶17 Any statements that the victim worked as a stripper or escort were clearly hearsay and Harvey fails to articulate, let alone demonstrate, which exceptions apply. Even so, the statements were irrelevant and lacking any probative value of the issues before the jury. Harvey may not simply elicit testimony based on his belief that the State acted in bad faith in its portrayal of the victim or as a thinly veiled attempt to attack her character. See State v. Mata, 125 Ariz. 243, 244 (1980) (upholding exclusion of uncorroborated, highly prejudicial hearsay that murder victim worked as a prostitute). We agree with the superior court's ruling and find no abuse of discretion.
IV. Cumulative Error
¶18 We also reject Harvey's claim that the cumulative effect of multiple purported trial errors constituted reversible error. Arizona does not recognize a cumulative error doctrine in criminal cases, except in the context of a prosecutorial misconduct claim. State v. Hughes, 193 Ariz. 72, 78-79, ¶¶ 24-25 (1998) (citing State v. Roscoe, 184 Ariz. 484, 497 (1996)). We evaluate each alleged error to determine whether it requires reversal. State v. Prince, 160 Ariz. 268, 274 (1989). To the extent Harvey argues the posture of his case merits application of the cumulative error doctrine, we decline to ignore long-standing precedent.
CONCLUSION
¶19 For the foregoing reasons, we affirm Harvey's conviction and sentence.