Opinion
2 CA-CR 2022-0088
06-26-2023
The State of Arizona, Appellee, v. Tommy Gene Jones Sr., Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Celeste Kinney, Assistant Attorney General, Phoenix Counsel for Appellee Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20201149001 The Honorable Javier Chon-Lopez, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Celeste Kinney, Assistant Attorney General, Phoenix Counsel for Appellee
Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Tommy Jones appeals from his convictions and sentences for kidnapping, aggravated assault, and attempted second-degree murder. He argues the admission of certain evidence violated his Sixth Amendment right to confront witnesses against him. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining Jones's convictions. See State v. Turner, 251 Ariz. 217, ¶ 2 (App. 2021). One evening in February 2019, Jones "snapped" during an argument with his girlfriend, M.R., and threatened to kill her and her family. When M.R. attempted to leave their house, Jones grabbed her hair, pulled her to the ground, kneeled on top her, and began strangling her with his hands. M.R. was able to break free, but Jones grabbed her from behind, placed her in a chokehold, and twisted her neck. Jones eventually released his hold, and M.R. ran to her next-door neighbor's house.
¶3 The neighbor called 9-1-1 and handed the phone to M.R. to speak with the dispatcher. M.R. explained that Jones had "almost choked the life" out of her. While waiting for police to arrive, M.R. texted her sister: "Police are on the way he tried to kill me I'm at the neighbor's." Responding officers observed M.R. was "visibly shaky," "looked like she had been crying," and had "some redness and markings around her neck."
¶4 M.R. was taken to the hospital in the early morning hours and, while being treated, described to the treating physician and a detective the injuries Jones had inflicted on her. Jones was arrested. Later that morning, M.R. emailed the detective that she wanted to recant her statement and asked that Jones not be charged. On February 5, M.R. left the detective a voicemail saying she wanted to change her statement and recant what she had told him. On February 7, the detective interviewed M.R., and she recanted her initial statement. M.R. thereafter maintained she had lied about what happened during the incident, she had inflicted the injuries on herself, and Jones had been trying to restrain her from hurting herself.
¶5 A grand jury charged Jones with one count of kidnapping, two counts of aggravated assault, and one count of attempted first-degree murder. When M.R. refused to testify at Jones's trial, the court found her in civil contempt and remanded her into custody. The jury found Jones guilty of kidnapping and one count of aggravated assault and not guilty of the second aggravated assault charge. It also found him not guilty of attempted first-degree murder but guilty of the lesser-included offense of attempted second-degree murder. The court sentenced Jones to concurrent prison terms, the longest of which is 10.5 years. Jones appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Jones's first trial ended in a mistrial because a member of the court staff contracted COVID-19.
Discussion
¶6 Before trial, the state moved in limine to admit into evidence several statements that M.R. had made close to the attack, in the event she refused to testify at trial. Specifically, it sought admission of M.R.'s statements during the 9-1-1 call, the law enforcement body-worn camera footage of her talking to officers at her neighbor's house, the text message she had sent to her sister, and testimony from the physician who had treated her at the hospital. Jones argued that the statements were hearsay and, relying on Crawford v. Washington, 541 U.S. 36 (2004), that their admission would violate his confrontation rights. After oral argument, the trial court granted the state's motion. The state also successfully moved to admit the detective's recorded interview with M.R. at trial.
¶7 On appeal, Jones maintains the trial court erred in admitting M.R.'s various statements because they violated his Sixth Amendment right to confrontation under Crawford. We review evidentiary rulings for an abuse of discretion, State v. Romero, 248 Ariz. 601, ¶ 22 (App. 2020), and Confrontation Clause issues de novo, State v. King, 213 Ariz. 632, ¶ 15 (App. 2006).
Jones does not argue on appeal that the statements were inadmissible hearsay. Our analysis accordingly focuses only on Jones's confrontation arguments. See State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.").
¶8 The Confrontation Clause of the Sixth Amendment to the United States Constitution bars the "admission of testimonial statements of a witness who d[oes] not appear at trial unless he was unavailable to testify" and there has been "a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54. Thus, "[t]he 'primary object' of the Confrontation Clause is 'testimonial hearsay.'" State v. Gomez, 226 Ariz. 165, ¶ 8 (2010) (quoting Crawford, 541 U.S. at 53). A statement is testimonial if it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," including "pretrial statements that declarants would reasonably expect to be used prosecutorially." State v. Parks, 211 Ariz. 19, ¶ 50 (App. 2005) (quoting Crawford, 541 U.S. at 51-52).
9-1-1 Call
¶9 Jones concedes that many of M.R.'s statements on the 9-1-1 call were nontestimonial to the extent she was relaying her immediate safety concerns to the dispatcher. He nevertheless contends "the balance of the statement" was testimonial because it was "clearly made in anticipation or with knowledge that the police would take action against the accused party." We disagree.
¶10 During the 9-1-1 call, in response to the dispatcher's question, "what happened," M.R. explained that Jones had choked her and twisted her neck and repeatedly said she thought he was going to kill her. M.R. said she needed paramedics and told the dispatcher that she did not know where Jones had gone after she left the house. Jones appears to acknowledge that M.R.'s primary purpose in making those statements was to "enable police assistance to meet an ongoing emergency." Davis v. Washington, 547 U.S. 813, 822 (2006); see also State v. King, 212 Ariz. 372, ¶ 29 (App. 2006) (woman calling 9-1-1 after just being injured is not contemplating being witness but is "usually trying simply to save her own life" (quoting People v. Moscat, 777 N.Y.S.2d 875, 880 (N.Y. Crim. Ct. 2004))). Contrary to Jones's argument that the ongoing emergency had ended because M.R. had "already escaped to a safe place with her neighbor," M.R. did not know where Jones had gone when she left the house or whether he would pursue her, and police had not yet responded to the scene. Her statements were therefore nontestimonial and not subject to the Confrontation Clause. See State v. Fischer, 219 Ariz. 408, ¶ 37 (App. 2008). The trial court did not abuse its discretion by admitting the call. See Romero, 248 Ariz. 601, ¶ 22.
Jones contends that a redacted copy of the 9-1-1 call is "not available in the record" and argues M.R.'s "broad, ranging" statements in an unredacted copy were inadmissible. But Exhibit 68-the redacted copy of the 9-1-1 call admitted at trial-is in the record on appeal and does not contain the broad statements to which Jones refers.
Body-Worn Camera Footage
¶11 Jones contends the trial court erred by admitting an officer's body-worn camera footage containing M.R.'s statements that Jones had tried to kill her. He argues the statements were testimonial because, although they were "spontaneous" and "not in response to direct questioning," they were nonetheless "accusatory" and made with full knowledge that a criminal prosecution was being initiated. Again, we disagree.
¶12 M.R.'s statements to officers were made minutes after the attack had ended. M.R. was "visibly shaky" and upset and had not yet been treated for her injuries. Jones's whereabouts were still unknown. See Michigan v. Bryant, 562 U.S. 344, 358-59 (2011) (in determining primary purpose of statement, "standard rules of hearsay, designed to identify some statements as reliable, will be relevant"); see also Ariz. R. Evid. 803(2) (hearsay exception for "statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused"). As Jones acknowledges, the officers were not asking M.R. questions to "create a record for trial." Bryant, 562 U.S. at 358. And M.R.'s frantic responses and spontaneous statements support the trial court's admission of the evidence because they demonstrate that her primary purpose in making the statements was to obtain treatment for her injuries and ensure her safety. See id. at 367-68 (combined inquiry to determine primary purpose "accounts for both the declarant and the interrogator"). As such, the footage does not implicate the Confrontation Clause, see Fischer, 219 Ariz. 408, ¶ 37, and the court did not abuse its discretion in admitting it, see Romero, 248 Ariz. 601, ¶ 22.
Photograph of Text Message
¶13 Jones also challenges the trial court's admission of a photograph of the text message M.R. sent to her sister stating that police were on the way and "he tried to kill me." Jones argues the message "was clearly sent with full awareness of, and indeed reference to the fact that prosecution was imminent" because M.R. said the police were on the way, "indicating that she was aware that . . . Jones was going to be charged with a crime based on her statements." But Jones improperly conflates M.R.'s knowledge of an imminent police response with a purported reasonable belief that her statement would be available for use at a later trial. See State v. Alvarez, 213 Ariz. 467, ¶ 10 (App. 2006). The record supports the court's implicit finding that M.R.'s primary purpose in sending the message was to alert her sister to the ongoing situation, not to provide future testimony against Jones. See State v. Damper, 223 Ariz. 572, ¶¶ 2-3, 6, 11 &12 (App. 2010) (text message from murder victim to friend saying she and defendant were fighting was nontestimonial because "nothing in the message or its context suggests [the victim] intended or believed it might later be used in a prosecution or at a trial"). Thus, the evidence does not implicate the Confrontation Clause, see Fischer, 219 Ariz. 408, ¶ 37, and the court did not abuse its discretion by admitting it, see Romero, 248 Ariz. 601, ¶ 22.
Physician's Testimony
¶14 The emergency room physician who treated M.R. in the early morning following the attack testified that M.R. had stated that her boyfriend strangled her with his hands. M.R. also told the physician she had felt a twisting of her neck and thought she heard something crack. Jones contends M.R. made these statements with full awareness that her accusation would be used to prosecute him and was thus testimonial.
¶15 However, the trial court found that the primary purpose of M.R.'s statements to the physician-made in an emergency room in a hospital-was to enable the physician to provide her necessary medical care. See State v. Hill, 236 Ariz. 162, ¶ 22 (App. 2014) ("If the primary purpose of the encounter is the provision and receipt of medical care, the statement is non-testimonial, regardless of whether the care sought is for an emergent condition."). The record supports the court's conclusion. The physician testified that she needed to "find out from the patient directly what happened so that [she] can potentially identify anything that could be life-threatening." And because M.R. reported strangulation, the physician ordered a specialized diagnostic test to identify potential injuries. M.R.'s statement was nontestimonial, and its admission therefore did not violate the Confrontation Clause. See Fischer, 219 Ariz. 408, ¶ 37.
Jones also argues that M.R.'s statement to the physician was "really a statement to both" the physician and the investigating detective because the detective was in the room while M.R. received treatment. He provides no citation to the record to support this assertion. While the record shows that the detective was present when M.R. was in the emergency room receiving some treatment, there is no evidence that he was present when M.R. made the relevant statement to the physician during her initial evaluation. But even if he had been, we must consider the circumstances of the exchange as a whole to determine whether a statement is testimonial, see Hill, 236 Ariz. 162, ¶ 19, and the presence of law enforcement is only one factor in those circumstances. The detective's theoretical presence here does not alter our conclusion that M.R.'s primary purpose was to receive medical treatment.
Detective's Recorded Interview of M.R.
¶16 Jones next challenges the trial court's admission of the detective's recorded interview of M.R. a few hours after the attack. The state apparently concedes, and we agree, that M.R.'s statements contained in the two recordings are testimonial. See Davis, 547 U.S. at 822 (statements are testimonial "when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution").
¶17 The state argued in the trial court that the interview was admissible pursuant to Rule 806, Ariz. R. Evid. Under that rule, once a hearsay statement has been admitted,
the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.Id. But to satisfy the Confrontation Clause under these circumstances, a trial court "must instruct the jury as to the limited purpose" of the statement. State v. Huerstel, 206 Ariz. 93, ¶ 42 (2003); see also Ariz. R. Evid. 105; Crawford, 541 U.S. at 59 n.9 (Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted"). Such a limiting instruction was not given here. Instead, although the state sought admission of M.R.'s statements to the detective under Rule 806 to support her credibility, the state also argued her statements were substantive evidence of the truth. Nevertheless, under the unique circumstances of this case, we conclude any error in the admission of the evidence was invited by Jones and, in any event, harmless.
¶18 In his opening statement, Jones mentioned M.R.'s interview with the detective during which she had recanted her earlier statements. On the second day of trial, the parties discussed whether the trial court's ruling on the state's motion in limine permitted the state to introduce the detective's interview with M.R. Jones mistakenly believed the interview was part of the motion in limine, when it was not. Jones and the state, however, agreed that if Jones was going to play the recantation interview, then the detective's first interview would be admissible as an inconsistent statement. When the court asked Jones whether he was withdrawing his Confrontation Clause objection, he answered that he agreed with the state that "we're just doing it in a different order" and "[m]y evidence from the recantation would be impeachment evidence, . . . but then they would have the ability to bring in the other statements." For sequencing purposes, they agreed to play the recordings in chronological order. Thus, the court admitted the two recordings of the detective's first interview with M.R. as an inconsistent statement, and the recantation interview was played in full for the jury later. Because Jones withdrew his Confrontation Clause objection and agreed to the admission of the challenged evidence, the invited error doctrine applies and there is no error. See State v. Leyvas, 221 Ariz. 181, ¶ 25 (App. 2009).
During direct examination of the detective after his first interview with M.R. had been played for the jury, the state sought to play a portion of the recantation interview. Jones requested that the state play the entirety of the interview at that time. Although the state moved for admission of the exhibit and Jones had no objection, the court apparently did not rule on its admission.
¶19 Jones contends, however, that he only acquiesced to admission of the interview as a strategic option after the trial court incorrectly admitted M.R.'s other testimonial statements. He further argues that apart from M.R.'s statements, "there was very little evidence" against him. His arguments are unpersuasive. As explained above, M.R.'s other statements were neither testimonial nor erroneously admitted. Moreover, the record contains photographs of M.R.'s injuries along with testimony from several witnesses about M.R.'s condition and visible injuries and that it was "obvious" some type of struggle had taken place in the house. Jones returned to the house while officers were investigating and appeared intoxicated but had no visible injuries. Thus, even assuming the court erred by admitting the recordings of the law enforcement interview, because those statements were cumulative of the other, properly admitted evidence, any error was harmless. See State v. Copeland, 253 Ariz. 104, ¶ 27 (App. 2022).
Disposition
¶20 For the reasons outlined above, we affirm Jones's convictions and sentences.