Opinion
No. 2 CA-CR 2016-0390
02-22-2018
THE STATE OF ARIZONA, Appellee, v. JUAN MANUEL HERNANDEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20140702001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Juan Hernandez appeals his convictions and sentences for manslaughter, two counts of aggravated assault, endangerment, criminal damage, and two counts of driving under the influence of an intoxicant. Hernandez argues the trial court erroneously denied his motion to preclude certain officer testimony as a sanction for untimely disclosure. He further argues the court compounded that error by denying his motions for a mistrial and a new trial based on the same alleged error. We affirm.
Factual and Procedural History
¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Ramos, 239 Ariz. 501, ¶ 2 (App. 2016). In February 2014, at approximately 2:00 a.m., Hernandez was driving between seventy and ninety miles per hour on a surface street in Tucson when he collided with another vehicle, killing its driver and seriously injuring a passenger. Hernandez exhibited "bloodshot and watery eyes," slurred his speech, and admitted to Officer Murphy of the Tucson Police Department (TPD) that he had consumed alcohol, marijuana, and cocaine that day.
¶3 Officer Murphy remained with Hernandez at the hospital, eventually leaving him in the custody of TPD Detective Lee and other officers. During a recorded interview with Lee, Hernandez repeated his admissions and made other incriminating statements. Samples of Hernandez's blood showed an alcohol concentration of .154 and the presence of both tetrahydrocannabinol and a metabolite of cocaine.
A psychoactive compound in marijuana.
¶4 Several months before trial, another detective assumed the case and the state notified Hernandez that Detective Lee would not testify. Although the state had previously disclosed the recording and its intention to use it, Hernandez assumed the state would not be able to lay a foundation for the recording without Lee. About a week before trial, Officer Murphy reviewed the audio recording with the prosecutor, initialing and dating it for identification. On the third day of trial, the state informed Hernandez that Murphy would testify that he had been present during Hernandez's interview with Lee. Over Hernandez's objection, Murphy laid a foundation for the audio recording of Lee's interview, which was then played for the jury. Immediately after, Hernandez moved for a mistrial, which the trial court denied. The jury acquitted Hernandez of second-degree murder, but found him guilty of manslaughter, a lesser-included offense. It also found him guilty of the remaining charges as described above.
¶5 Hernandez then filed a motion for new trial arguing the state failed to disclose that Officer Murphy was present during the interview and that he would "lay the previously undisclosed foundation for admission of the recording at trial." The trial court denied the motion and sentenced Hernandez to seven concurrent terms of imprisonment, the longest of which was 10.5 years. Hernandez appealed; we have jurisdiction. A.R.S. §§ 13-4031, 13-4033(A)(1); see also Ariz. R. Crim. P. 32.1(f).
Disclosure Obligations
¶6 On appeal, Hernandez argues the state violated its duty to disclose that Officer Murphy had initialed and dated the compact disc containing the audio recording of Detective Lee's interview with Hernandez because those marks constituted statements, subject to disclosure. See Ariz. R. Crim. P. 15.1. Hernandez insists that because Murphy should not have been allowed to lay a foundation for the recording, it should not have been played for the jury. See Ariz. R. Evid. 901(a). The scope of disclosure is a question of law we review de novo. State v. Roque, 213 Ariz. 193, ¶ 21 (2006), overruled on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, ¶¶ 13-14 (2017). However, we review the trial court's assessment of the adequacy of disclosure for an abuse of discretion. Id.
¶7 Rule 15.1(b)(1), Ariz. R. Crim. P., requires the state to "make available to the defendant . . . any relevant written or recorded statement of [its] witness[es]." For the purposes of Rule 15, a "statement" includes "a writing prepared, signed or otherwise adopted or approved by a person." Ariz. R. Crim. P. 15.4(a)(1)(A). "A 'writing' consists of words or their equivalent, recorded in physical . . . form." Ariz. R. Crim. P. 15.4(a)(2). The state must complete disclosure at least seven days before trial. Ariz. R. Crim. P. 15.6(c).
The Arizona Rules of Criminal Procedure, including Rule 15, were amended effective January 1, 2018. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). For ease of reference, we cite the rules as amended because it is feasible to do so and will not result in injustice. See id.
¶8 At the outset, we must identify the potential relevance of the date and Murphy's initials on the disc. See Ariz. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable . . . and (b) the fact is of consequence in determining the action."). Here, the crucial evidentiary event was Detective Lee's interview with Hernandez. In view of Lee's unavailability at trial, Officer Murphy's presence during the interview, enabling him to authenticate and lay foundation for admission of the recording, became critical. See Ariz. R. Evid. 901.
¶9 However, Officer Murphy's review of the recording a week before trial was not, itself, relevant to any disputed fact in the case; that is, nothing about that act made any fact at issue more or less probable. See Ariz. R. Evid. 401. In the context of the case before us, Murphy's testimony established that he had reviewed the recording merely to refresh his memory, enabling him to testify he was present for the interview. In the absence of some chain-of-custody dispute as to the recording, nothing about this practice required Murphy to mark the disc with the date and his initials. The fact he did so has no independent relevance and did nothing to transform such trial preparation into a relevant evidentiary event. See id.
¶10 Indeed, Hernandez has not argued that a witness's mere routine trial preparation is a discoverable event under Rule 15, nor could he. Moreover, Hernandez has not argued that the particular features of Murphy's review might constitute a discoverable event—for example, by disputing the chain of custody or whether the recording had been altered. See, e.g., State v. Portis, 187 Ariz. 336, 338 (App. 1996) (chain of custody especially necessary when evidence "vulnerable to alteration and substitution").
Under normal circumstances, it is commonplace for both prosecution and defense witnesses to review their own prior statements, and, as here, reports of events they witnessed, before testifying at trial. See, e.g., Hopper v. Indus. Comm'n, 27 Ariz. App. 732, 742 (1976); see also Richard Alcorn, "Aren't You Really Telling Me . . . ?" Ethics and Preparing Witness Testimony, 44 Ariz. Attorney 15, 18 (Mar. 2008) ("Appropriate witness preparation . . . include[s] . . . [d]iscussing a witness's prior testimony to refresh the witness's recollection.").
Below, and to a lesser extent before this court, Hernandez suggests the state had a duty to disclose Murphy's presence during Lee's interview independent from any written or recorded statement. Hernandez, however, does not develop this argument or support it with legal authority. Accordingly, any such argument is waived. See Ariz. R. Crim. P. 31.10(a)(7)(A); State v. Bolton, 182 Ariz. 290, 298 (1995).
¶11 Hernandez characterizes Officer Murphy's marks on the disc as asserting it "was a true and correct copy of the interview recording." But this conflates Murphy's testimony at trial with the purpose for which he marked it—identification. At most, the marks signified that Murphy had listened to this specific recording on a particular day in preparation to testify.
¶12 Thus, even assuming the marks constituted a statement, that statement was not meaningfully relevant because its substance was too attenuated from the merits of Hernandez's case. Cf. State v. Schreiber, 115 Ariz. 555, 558 (1977) (materiality of exculpatory evidence in prosecutor's control evaluated in context of entire record). Nothing in Rule 15 indicates our supreme court intended the state to disclose that a prospective witness reviewed potential evidence in preparation for trial merely because that witness happened to record that he had done so. See Ariz. R. Crim. P. 15.1(b)(1).
¶13 We acknowledge that the interests of justice favor broad disclosure, and nothing we have said above should embolden any litigant in a criminal case to narrowly construe what might be characterized as a relevant statement under Rule 15. State v. Helmick, 112 Ariz. 166, 168 (1975) ("The object of discovery is to assist the search for truth by providing the parties with all the evidence possible so that the crucial facts may be presented at trial and a just decision made."). Nevertheless, the marks here do not constitute a statement meaningfully relevant to the underlying issues in the case. Accordingly, we cannot say the state violated the rules of disclosure. Thus, the trial court did not err by denying Hernandez's motion to preclude or his subsequent motions for mistrial and a new trial.
To the extent Hernandez relies on Roque, 213 Ariz. 193, ¶¶ 41-48, to suggest Officer Murphy's testimony exceeded the scope of his statements disclosed by the state, we are not persuaded. In Roque, the witness testified as an expert and, accordingly, his testimony was subject to additional disclosure requirements inapplicable to Murphy. Id. See Ariz. R. Crim. P. 15.1(b)(4)(B), (C). --------
Disposition
¶14 For the foregoing reasons, we affirm Hernandez's convictions and sentences.