Opinion
2 CA-CR 2022-0124
09-05-2023
The State of Arizona, Appellee, v. Richard Curtis Lynn Jr., Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, and Derek Kilgore, student certified pursuant to Rule 39(c), Ariz. R. Sup. Ct., Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20210003001 The Honorable Catherine M. Woods, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, and Derek Kilgore, student certified pursuant to Rule 39(c), Ariz. R. Sup. Ct., Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Richard Lynn Jr. appeals from his convictions and sentences for aggravated assault with a deadly weapon or dangerous instrument; aggravated assault causing serious physical injury; two counts of aggravated assault causing temporary but substantial disfigurement; and attempted second degree murder. He asserts the trial court erred by admitting photographs of the victim's wounds and by denying his motion for mistrial following testimony alleging his gang affiliation. For the following reasons, we affirm Lynn's convictions and sentences.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against the defendant." State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). In December 2020, Lynn and his next-door neighbor, V.L., had a discussion about their property line. V.L. had placed rocks between the properties to indicate the property line and to prevent people visiting his property from parking on Lynn's property. Lynn's girlfriend's son later removed them. V.L. told Lynn that he was going to replace the rocks, and Lynn replied, "You know what, go ahead. Do what you got to do. We'll see what happens." V.L. put the rocks back.
¶3 Later that day, V.L. and two of his friends were gathered around V.L.'s car. Lynn came onto V.L.'s property with "a little gun" in his hand, and V.L. and Lynn made eye contact. Lynn said, "What's up now Blood?" and began shooting. Lynn shot V.L. three times: the first shot grazed his head and went through his ear, the second grazed his arm, and the third struck him in the back.
¶4 Lynn was arrested and ultimately found guilty on all counts as described above. The trial court sentenced Lynn to concurrent prison terms, the longest of which is twenty years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
I. Photographs
¶5 Lynn argues the trial court erred when it admitted certain photographs of V.L.'s wounds. We review the court's decision to admit photographs for an abuse of discretion. State v. Morris, 215 Ariz. 324, ¶ 69 (2007).
¶6 Lynn first objected to the state's intended use of two photographs of V.L.'s wounds during its opening statements, calling them "gruesome" and "prejudicial." One shows V.L.-lying in a hospital bed and wearing a neck collar-with a ruler placed near his head to measure the gunshot wound to his head and ear. The other shows the gunshot wound to V.L.'s back above bloody hospital bedding. The state urged that the photographs were needed because the state was required to prove the victim's injuries and that Lynn used a deadly weapon or dangerous instrument. After confirming the state would establish foundation for the photographs and concluding that Rule 403, Ariz. R. Evid., did not require preclusion-and commenting that it did not find the photographs "overly gruesome"-the trial court permitted the state to publish the two photographs during its opening.
¶7 Lynn later objected to these photographs, and others like them, when offered for admission during the state's direct examination of V.L. After questioning V.L. about the circumstances of the shooting, the state began questioning him about his wounds. V.L. testified about the shot that had grazed his head and gone through his ear, the one to his back, and the health implications of each. Over Lynn's objections, two photographs depicting the head wound, and two photographs of the back wound were admitted and published. The state also had admitted and published a photograph of V.L.'s bloody arm without objection.
¶8 On appeal, Lynn argues that, because V.L. testified to the nature of his wounds and Lynn did not dispute the nature or severity of those wounds, the photographs had no tendency to establish any disputed fact or issue in the case and therefore were irrelevant and only admitted for their inflammatory effect. Lynn also argues that, even if the photographs were relevant, the risk of prejudice substantially outweighed their probative value because they played "on the sympathies and emotions of the jury." The state maintains that the photographs were relevant and probative on whether V.L. sustained "serious physical injury and temporary-but-substantial disfigurement," and that "any incidental inflammatory effect was negligible."
¶9 "Trial courts have broad discretion in admitting photographs." State v. Burns, 237 Ariz. 1, ¶ 60 (2015). In evaluating the exercise of that discretion, we consider three factors: "the photograph's relevance, its tendency to inflame the jury, and its probative value compared to its potential to cause unfair prejudice." Morris, 215 Ariz. 324, ¶ 69 (quoting State v. Hampton, 213 Ariz. 167, ¶ 17 (2006)). Photographs that "are gruesome, and thus [have] some potential to inflame the jury" can nevertheless be admissible if "their probative value outweighs any danger of unfair prejudice." Burns, 237 Ariz. 1, ¶ 62. But gruesome photographs that have "no tendency to prove or disprove any question which is actually contested . . . have little use or purpose except to inflame and would usually not be admissible." Morris, 215 Ariz. 324, ¶ 70 (quoting State v. Chapple, 135 Ariz. 281, 288 (1983)).
¶10 Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence," and if "the fact is of consequence in determining the action." Ariz. R. Evid. 401. Here, three of the aggravated assault charges required the state to prove either "serious physical injury" or "temporary but substantial loss or impairment." The photographs corroborated V.L.'s testimony about his wounds, and there was no dispute that they accurately depicted their severity. Although Lynn did not specifically dispute the nature or severity of V.L.'s injuries at trial, he also did not stipulate to them, and he directly challenged V.L.'s credibility in other respects. Witness credibility is a question exclusively for the jury, which in this case remained free to disbelieve V.L.'s testimony regardless of whether Lynn disputed any of its particulars. See State v. Clemons, 110 Ariz. 555, 556-57 (1974); State v. Lopez, 234 Ariz. 465, ¶ 25 (App. 2014) ("a witness's credibility is always relevant"). Nor do we know whether, had the state not offered the photographs, Lynn would have disputed the nature and severity of the wounds in some way. Nonetheless, Lynn's decision not to contest the nature or severity of the injuries did not relieve the state of its burden to prove the elements of the aggravated assault charges. See Hampton, 213 Ariz. 167, ¶ 19. Consequently, the photographs at issue are relevant and probative.
¶11 The trial court properly considered whether the photographs were unduly inflammatory or unfairly prejudicial. See Ariz. R. Evid. 403. (relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice"). When the court gave permission to publish the photographs in openings, it weighed their value under Rule 403, remarking that the photographs are not "overly gruesome." That finding did not change when they were later admitted during V.L.'s testimony and published alongside photographs of a similar nature. We cannot say the court abused its discretion in admitting the photographs.
Whether the photographs are unfairly prejudicial or overly gruesome in proportion to their probative value is a relative determination, and may take into account the entirety of the trial, all evidence presented, the demeanor of witnesses providing the foundation, and other factors best evaluated by the trial court. See State v. Gerlaugh, 134 Ariz. 164, 169 (1982) (trial court's discretion to admit or exclude gruesome photographs; must weigh probative value against risk of prejudice); State v. Harrison, 195 Ariz. 28, ¶ 21 (App. 1998) ("The trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice."); State v. Togar, 248 Ariz. 567, ¶¶ 21, 23 (App. 2020) (trial court considers all evidence together to determine relevance and probative value, then balances against prejudice).
II. Motion for Mistrial
¶12 Lynn argues that the trial court erred in not granting a mistrial after the jury heard testimony of Lynn's alleged gang affiliation. We review a court's decision on a motion for mistrial for abuse of discretion. State v. Kuhs, 223 Ariz. 376, ¶ 18 (2010).
¶13 In his testimony during direct examination, V.L. stated that Lynn had come onto his property with a gun in his hand and said, "What's up now Blood?" The state asked V.L. if that phrase meant anything to him, and he replied, "Nothing to me. He was probably saying that as a reference because he's a Blood. Because I'm not a Blood. I'm not a gang member." Lynn objected, arguing that V.L.'s answer was non-responsive because "[t]he prosecutor's question was not intended to elicit anything about [Lynn] being a gang member." He further argued the comment was prejudicial and moved for mistrial. The state agreed that the comment was improper and should be "stricken" but opposed declaring a mistrial. The court determined that a mistrial was unnecessary, but sustained the objection, and ordered the jury to disregard the comment.
¶14 On appeal, Lynn argues that the trial court erred in denying his motion for mistrial because "gang membership contains an inherent connotation of violence, criminal activity, and deviant behavior." He argues that V.L.'s statement is akin to prejudicial references to the Aryan Brotherhood in Dawson v. Delaware, 503 U.S. 159, 165-67 (1992), and that a limiting instruction was deficient to cure the error. The state responds that the trial court is in the best position to determine if a mistrial should be declared and that it properly determined that a limiting instruction was sufficient to cure the error.
Lynn also asserts that V.L.'s testimony was improper character evidence under Rule 404(a), Ariz. R. Evid. The state correctly notes that Lynn did not specifically raise Rule 404 when he moved for mistrial below. "An objection on one ground does not preserve the issue on another ground," State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008), and the argument is therefore forfeited for all but fundamental error, see State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). It was undisputed at trial that V.L.'s testimony was inappropriate, and it was promptly excluded as such. The court's remedy was also sufficient to address any Rule 404 issue. Cf. State v. Lacy, 187 Ariz. 340, 348-49 (1996) (limiting instruction sufficient to cure improperly admitted evidence under Rule 404(b)).
¶15 Declaring a mistrial "is the most dramatic remedy for trial error and should be granted only if the interests of justice will be thwarted otherwise." State v. Miller, 234 Ariz. 31, ¶ 25 (2013). When determining if a mistrial should be declared, courts consider whether "the jury has heard what it should not hear," and "the probability that what it heard influenced [it]." Id. (alteration in Miller) (quoting State v. Laird, 186 Ariz. 203, 207 (1996)). We are deferential to the trial court's decision on a motion for mistrial, because "the trial judge is in the best position to evaluate the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial." Kuhs, 223 Ariz. 376, ¶ 18 (quoting State v. Bible, 175 Ariz. 549, 598 (1993)). Accordingly, "[w]hen a witness unexpectedly volunteers an inadmissible statement, the action called for rests largely within the discretion of the trial court . . . [to] decide if some remedy short of mistrial will cure the error." Miller, 234 Ariz. 31, ¶ 25 (alterations in Miller) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)). We do not disagree that proof of a defendant's gang affiliation can be powerful evidence to a jury. See State v. Johnson, 212 Ariz. 425, ¶ 28 (2006). But we cannot say that the court's remedy here was insufficient under the circumstances.
¶16 First, this case is unlike Dawson. There, at the sentencing phase of a capital case, the state focused on evidence of the defendant's alleged affiliations with the Aryan Brotherhood prison gang. Dawson, 503 U.S. at 161-62, 165. The United States Supreme Court determined that the evidence submitted was ambiguous, irrelevant, and violated the defendant's First Amendment rights because it "proved nothing more than [the defendant's] abstract beliefs." Id. at 165-67.
¶17 Here, in contrast to the introduced evidence of gang affiliation in Dawson, V.L.'s suggestion that Lynn is allegedly a gang member was isolated and unintentionally elicited, was never repeated, and was promptly corrected with a limiting instruction to the jury to ignore the comment. See Miller, 234 Ariz. 31, ¶ 26 (mistrial unnecessary when, among other things, witness's improper testimony was brief and unintentionally elicited); State v. Dann, 205 Ariz. 557, ¶¶ 40, 46 (2003) (single comment referring to defendant's prior incarceration was promptly objected-to and sufficiently cured with limiting instruction); State v. Almaguer, 232 Ariz. 190, ¶¶ 27-29 (App. 2013) (limiting instruction sufficient to cure "isolated" statement "not mentioned thereafter by the parties"). Additionally, the jury was admonished during preliminary and final instructions to entirely ignore any evidence that was "stricken from the record." See Miller, 234 Ariz. 31, ¶ 22 ("We presume juries follow their instructions."). Under these circumstances, the trial court did not abuse its discretion in denying the motion for mistrial.
Disposition
¶18 For the foregoing reasons, we affirm Lynn's convictions and sentences.