Opinion
No. 2 CA-CR 2015-0398
01-23-2017
THE STATE OF ARIZONA, Appellee, v. SCOTT LUND LISTER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Michael Valenzuela, Assistant Attorney General, Phoenix Counsel for Appellee By Harriette P. Levitt, 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201501567
The Honorable Bradley M. Soos, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Michael Valenzuela, Assistant Attorney General, Phoenix
Counsel for Appellee By Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. MILLER, Judge:
¶1 After a jury trial, Scott Lister was convicted of aggravated assault, a dangerous nature offense, and sentenced to a slightly aggravated term of 8.5 years' imprisonment. He argues the trial court erred in admitting the victim's pretrial statement and the evidence was insufficient to support the jury's finding of dangerousness. We affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdict[]." State v. Guarino, 238 Ariz. 437, n.1, 362 P.3d 484, 486 n.1 (2015). On Mother's Day in 2015, K.F. rode his bicycle to his mother's house in Apache Junction where his brother, Lister, lived with their mother. K.F. had been hesitant about going there because of his previous conflicts with Lister. K.F. rode up to the gate but found it locked. When it became clear his mother was not going to come out of the house, K.F. began to ride away. Lister then fired a gun at him at least twice, hitting him once in the right leg. Although the weapon was never located, police officers later found one bullet in Lister's pocket and another in a black bag he had been carrying immediately after the shooting.
¶3 A detective from the Apache Junction Police Department met with K.F. in his hospital room later that day. The detective observed a circular wound on K.F.'s leg that appeared to be a gunshot wound. The detective also saw an x-ray of K.F.'s leg that showed a bullet still inside. K.F. told the detective his brother, "Cotton," a nickname for Lister, had shot him. Lister was charged with aggravated assault with a deadly weapon, a dangerous offense.
Lister was also charged with misconduct involving weapons, possession by a prohibited possessor, but that count was dismissed with prejudice at the state's request.
¶4 While in jail awaiting trial, Lister made numerous recorded phone calls to six different family members in which he sought their help to ensure K.F. would not appear at trial to testify against him. For instance:
The content and authenticity of the recordings, which were admitted in evidence for purposes of the motion in limine hearing only, are not disputed.
• On different occasions, Lister told his mother, his sister K., his niece, and his brother S. that his trial was scheduled for September 8 and that if the victim failed to appear he would not be convicted. "No victim, no case," he explained to his sister K. "If [K.F.] don't go to court, I'm walking."
• Lister asked his mother to schedule a family meeting with K.F., at which she could remind him that his testimony could result in Lister missing out on family Christmases and other holiday get-togethers. He made similar statements to his sister D. and his niece.
• Lister told his mother and his nephew that this was a family issue rather than a court issue.
• Lister told his niece to tell K.F. that the family would disown him if he testified.
• Lister urged his nephew to make sure K.F. stayed at home on the date of trial. Lister suggested to his niece that she should have his nephew take K.F. for a ride or to the movies on that date so that he would not be available to testify. Lister's niece promised Lister that K.F. would not show up in court.
• When Lister's sister D. said she did not think K.F. would appear at trial, Lister said, "[W]e cannot just think [it; w]e have got to put in some work" and "get in his ear" about it.
• Lister's sister K. said she had talked with K.F. and assured Lister that K.F. was "not going to be a problem." Lister urged her to "stay on [him]" and proposed transporting him to Payson on the day of trial so that he would not be in court.
• Lister also told his sister K. that, in the event K.F. was subpoenaed, he could "plead the fifth."
¶5 At one point, Lister even spoke to K.F. directly and told him this was a family issue and not a court issue. Lister said it was all up to K.F. whether Lister would receive a long sentence. He concluded by telling K.F. "No victim, no crime."
¶6 Before trial, the state moved in limine to admit K.F.'s pretrial statements in the event that he failed to appear at trial. Citing State v. Franklin, 232 Ariz. 556, 307 P.3d 983 (App. 2013), and Rule 804(b)(6), Ariz. R. Evid., the state argued Lister's wrongful efforts to make K.F. unavailable amounted to an equitable forfeiture of his Confrontation Clause rights. Lister did not file a written response, but when K.F. failed to appear on the morning of trial, despite a subpoena, the trial court held an evidentiary hearing on the motion at which Lister's mother, sister D., and niece testified and denied helping Lister facilitate K.F.'s absence.
¶7 At the conclusion of the hearing, the trial court found the family members' testimony to be "wholly lacking credibility," and found that the state had presented "convincing circumstantial evidence" that "the defendant intended to, and did, procure the unavailability of the victim." The court granted the state's motion in limine and allowed the introduction of K.F.'s pretrial statement to the detective over Lister's continuing objection. Lister was convicted and sentenced as described above. We have jurisdiction over his appeal under A.R.S. §§ 13-4031 and 13-4033(A)(1).
Forfeiture by Wrongdoing
¶8 Lister argues the trial court violated his Confrontation Clause rights when it allowed the detective to testify as to what K.F. had said in the hospital under the forfeiture-by-wrongdoing doctrine. We review evidentiary rulings for an abuse of discretion, but review Confrontation Clause issues de novo. Franklin, 232 Ariz. 556, ¶ 10, 307 P.3d at 986.
¶9 The Sixth Amendment's Confrontation Clause protects the right of the accused to confront witnesses. Id. ¶ 11. But this right is not absolute. See id. A defendant may forfeit his right to confrontation by his own wrongdoing—a common-law doctrine now articulated in Rule 804(b)(6), Ariz. R. Evid. Franklin, 232 Ariz. 556, ¶¶ 10-12, 307 P.3d at 986; see also Crawford v. Washington, 541 U.S. 36, 62 (2004) (noting continuing validity of doctrine of forfeiture by wrongdoing). Rule 804(b)(6) provides an exception to the rule against hearsay for "[a] statement 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." The forfeiture-by-wrongdoing doctrine is rooted in the principle that "any tampering with a witness should once [and] for all estop the tamperer from making any [Confrontation Clause] objection based on the results of his own chicanery." Franklin, 232 Ariz. 556, ¶ 23, 307 P.3d at 988, quoting Gonzalez v. State, 195 S.W.3d 114, 117 (Tex. Crim. App. 2006) (emphasis and alterations in Franklin).
¶10 Arizona courts consider four factors to determine whether forfeiture by wrongdoing pursuant to Rule 804(b)(6) applies. Franklin, 232 Ariz. 556, ¶ 12, 307 P.3d at 986. First, the witness must be unavailable. Id. ¶ 13. Second, "the defendant's conduct must constitute a wrongdoing," of which witness tampering is one "classic form." Id. ¶¶ 14-15; see also A.R.S. § 13-2804(A). Third, the defendant must have "engaged in, or acquiesced to, the witness tampering." Franklin, 232 Ariz. 556, ¶ 22, 307 P.3d at 988. Fourth, the defendant must have "intended to procure, and actually procured, [the v]ictim's unavailability as a result of the witness tampering." Id. ¶ 24. If the state proves these four elements by a preponderance of the evidence, see State v. Valencia, 186 Ariz. 493, 498, 924 P.2d 497, 502 (App. 1996), then a defendant's hearsay and Confrontation Clause objections are properly overruled, see Franklin, 232 Ariz. 556, ¶ 25, 307 P.3d at 988.
¶11 Lister contends the trial court abused its discretion in determining the state had proven the four Franklin elements by a preponderance of the evidence. It is the duty of the finder of fact, not this court, to weigh the evidence and assess witness credibility. State v. Lewis, 224 Ariz. 512, ¶ 21, 233 P.3d 625, 629 (App. 2010). On appeal, our review is limited to whether substantial evidence supports the court's ruling, and we will affirm if so. See id. ¶¶ 21-22.
¶12 The record contains sufficient evidence to support the trial court's findings as to each Franklin factor. The court reasonably could conclude K.F. was unavailable, because he did not appear for trial despite a subpoena and other reasonable efforts by the state. See Ariz. R. Evid. 804(a)(5)(A) (declarant unavailable if statement's proponent has not been able to secure declarant's attendance "by process or other reasonable means").
¶13 Lister contends the state did not make a good-faith effort to secure K.F.'s attendance at trial. He cites State v. Montaño, 204 Ariz. 413, ¶¶ 25-26, 65 P.3d 61, 68-69 (2003), sentence vacated on other grounds, 206 Ariz. 296, 77 P.3d 1246 (2003); however, that case does not support his argument. In Montaño, our supreme court was unable to say the trial court's determination that the state had made a reasonable and good-faith effort to procure a witness's appearance at trial was an abuse of discretion, because the defendant had not convincingly pointed out any leads the police had failed to follow up on in their efforts to locate the witness. Id. ¶¶ 30-31. Lister also has not convincingly pointed out any leads the police failed to follow up on in their efforts to "locate [K.F.] so that he . . . could be put under subpoena." Id. ¶ 29, quoting State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995) (emphasis omitted). Indeed, a detective located K.F. and served him with a subpoena. Cf. id. The same detective also offered K.F. a ride to court and gave K.F. a working cell phone and his phone number in case there were "any issues." The court did not abuse its discretion in finding the state had made reasonable good-faith efforts to ensure K.F. appeared for trial. See Ariz. R. Evid. 804(a)(5)(A).
¶14 The court also reasonably could conclude that Lister engaged in witness tampering intended to prevent K.F. from testifying, and that this conduct actually resulted in K.F.'s unavailability. Lister said "No victim, no crime" to K.F. and told him this was a family issue rather than a court issue. Lister also told K.F. it was up to him whether or not Lister went to prison. In addition to this direct contact with K.F., Lister sought assistance from six other relatives to prevent K.F. from testifying. Tactics Lister suggested to his family members included physically removing K.F. from the area on the date of trial by taking him to Payson or to a movie, badgering him into not testifying, threatening to disown him if he did testify, and trying to convince him to "plead the fifth."
¶15 Although three of the relatives Lister contacted denied attempting to prevent K.F. from testifying, the other three did not testify at the motion hearing—most notably Lister's sister K. who had assured Lister that K.F. was "not going to be a problem" after she had spoken with him. Furthermore, reasonable evidence supported the court's finding that the witnesses who did testify were not credible. Lister's niece admitted on the stand that she had promised Lister that K.F. would not show up to court. And Lister's sister D. admitted that she remembered a conversation along the lines of Lister telling her "we can't just think" that K.F. will not show up—"we've got to put in some work [and] get in his ear" about it. The evidence that relatives had assured Lister that K.F. would not testify was based on recorded conversations admitted in evidence for the purpose of the hearing. In contrast, the denials of assistance by those relatives had no independent corroboration. The trial court reasonably could infer that some or all of Lister's relatives did indeed work to prevent K.F. from coming to court, whether out of family loyalty or other motives. See People v. Turnquest, 938 N.Y.S.2d 749, 756 (N.Y. Sup. Ct. 2012) (given inherently clandestine nature of witness tampering, state may prove it in whole or in part by circumstantial evidence).
¶16 Sufficient evidence supports the trial court's finding that Lister engaged in witness tampering intended to result in and actually resulting in K.F.'s unavailability. Thus, the court neither abused its discretion nor violated Lister's Confrontation Clause rights by admitting K.F.'s pretrial statements under Ariz. R. Evid. 804(b)(6).
Sufficiency of the Evidence
¶17 Lister contends the evidence was insufficient to support the jury's finding of dangerousness. He did not object below to submission of that issue to the jury; therefore, it is his burden to show fundamental error and resulting prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). But it is fundamental, prejudicial error to sentence a defendant as a dangerous offender if the evidence is insufficient to support the dangerousness finding. See State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002) (illegal sentence constitutes fundamental error).
¶18 We review the sufficiency of the evidence de novo, and will affirm as long as the record contains "[s]ubstantial evidence" to warrant a conviction. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011), quoting Ariz. R. Crim. P. 20(a). "Substantial evidence" is either direct or circumstantial evidence that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). It is not the role of this court to reweigh the evidence. Lewis, 224 Ariz. 512, ¶ 21, 233 P.3d at 629. Instead, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191, quoting Mathers, 165 Ariz. at 66, 796 P.2d at 868.
¶19 An offense is dangerous if, among other things, it involves "the discharge, use or threatening exhibition of a deadly weapon." A.R.S. § 13-105(13); see also § 13-105(15) ("'Deadly weapon' means anything designed for lethal use, including a firearm."); § 13-105(19) ("'Firearm' means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases, except that it does not include a firearm in permanently inoperable condition.").
¶20 A rational trier of fact could conclude Lister's aggravated assault included the discharge or use of a firearm, which is a deadly weapon. K.F. heard the sound of a gunshot and felt a sharp pain in his leg. Three other nearby witnesses also heard the sound of multiple gunshots. Police officers found a bullet in Lister's pocket and one in a bag he had been carrying immediately after the shooting. K.F. told the detective Lister had shot him. Furthermore, the detective, a licensed paramedic who had seen more than one hundred gunshot wounds, observed a circular wound in K.F.'s leg which he testified was consistent with a gunshot wound, and also saw an x-ray showing a bullet in K.F.'s leg. This evidence was sufficient to support the dangerousness finding. See West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191. We will not reweigh the evidence as Lister would have us do. Lewis, 224 Ariz. 512, ¶ 21, 233 P.3d at 629.
Lister claims there was no evidence K.F. "was . . . shot with an actual bullet (as opposed to a pellet)." He is incorrect—for instance, the detective testified the x-ray showed a bullet in K.F.'s leg, and a reasonable factfinder could have inferred that Lister shot K.F. with a bullet like the ones found in his bag and in his pocket. Moreover, even if he were correct, a reasonable jury can conclude that a pellet gun is a deadly weapon. See State v. Cordova, 198 Ariz. 242, ¶ 5, 8 P.3d 1156, 1157-58 (App. 1999); see also § 13-105(19). --------
Disposition
¶21 For the foregoing reasons, we affirm Lister's conviction and sentence.