Opinion
No. 1 CA-CR 18-0169 No. 1 CA-CR 18-0170 (Consolidated)
10-17-2019
STATE OF ARIZONA, Appellee, v. JEFFREY RAMONE MATHIS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee The Nolan Law Firm PLLC, Mesa By Cari McConeghy Nolan, Vicki A. R. Lopez 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2016-137807-001
No. CR2013-417499-001
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
The Nolan Law Firm PLLC, Mesa
By Cari McConeghy Nolan, Vicki A. R. Lopez
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
PERKINS, Judge:
¶1 Defendant Jeffrey Ramone Mathis appeals his convictions and sentences for first-degree murder, drive-by shooting, attempt to commit first-degree murder, and aggravated assault. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). Around 5:02 a.m. on October 25, 2015, Mathis drove his Yukon SUV towards a group of individuals standing outside of an entrance to a Phoenix nightclub and fired multiple gunshots that killed T.H. and seriously injured A.S. When the investigating detective interviewed A.S. at the hospital, A.S. identified the shooter as Mathis, a person A.S. knew from previous encounters and as the boyfriend of a woman with whom A.S. shared a child.
¶3 The detective located the SUV and found numerous bullet holes on the driver's side. The detective learned that Mathis owned the SUV, but sold it a few months after the shooting. In an interview with the detective in August 2016, A.S. again identified Mathis as the shooter from a photograph the detective presented to him. Cell phone records and activity on his Facebook account confirmed Mathis's location at the nightclub at the time of the shooting. When later interviewed by police, Mathis claimed he was living in Colorado at the time of the shooting and did not know anything about it.
¶4 The State charged Mathis with first-degree murder, a class 1 dangerous felony; drive-by shooting, a class 2 dangerous felony; attempt to commit first-degree murder, a class 2 dangerous felony; and aggravated assault, a class 3 dangerous felony. Following a ten-day trial, the jury found Mathis guilty as charged. The trial court sentenced Mathis to life in prison with the possibility of release after 25 years for first degree murder; a concurrent term of 15.75 years' imprisonment for drive by shooting; a consecutive term of 15.75 years' imprisonment for attempt to commit first
degree murder; and a term of 11.25 years' imprisonment for aggravated assault to be served concurrently with the attempted first degree murder sentence. Mathis timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion by Denying Mathis's Motion to Preclude Evidence.
¶5 Mathis argues that the court erred by denying his motion to preclude a witness's testimony regarding newly discovered evidence. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Sanders, 245 Ariz. 113, 128, ¶ 58 (2018).
¶6 During a 1:00 p.m. meeting with the prosecutor on November 30, 2017, to prepare for trial later that day, a witness, the brother of T.H., said that he had new information. The witness attended a trial assignment "master calendar" hearing on November 28, 2017, in response to a trial subpoena. A.S. and Mathis were also present. Upon seeing them, the witness recognized for the first time that those two individuals had been involved in an argument that he saw at the club earlier on the night of the shooting. The witness had not seen either of them since that night, and the individuals were not otherwise known to him.
¶7 The prosecutor reported the information to counsel for Mathis and the trial court that same day, before calling the witness to testify. The prosecutor avowed that the State was not aware of the information until the 1:00 p.m. meeting on November 30, 2017.
¶8 Mathis moved to preclude the witness's identification testimony, arguing that it was unfairly prejudicial and late disclosure. After hearing argument and briefing, the trial court found that the State had not violated the disclosure rules and denied Mathis's motion to preclude. The witness then testified in relevant part that he was working at the club as security on the night of the shooting; he observed an argument between Mathis and A.S.; and he directly interacted with Mathis earlier that night in a discussion about where Mathis had parked the SUV. The witness did not see the shooting.
¶9 The purpose of disclosure in a criminal case is "to give full notification of each side's case-in-chief so as to avoid delay and surprise at trial." State v. Armstrong, 208 Ariz. 345, 353, ¶ 38 (2004) (quoting State v. Dodds, 112 Ariz. 100, 102 (1975)). After providing its initial disclosure to the
defense, the State maintains a continuing duty to disclose any information subject to disclosure. Ariz. R. Crim. P. 15.6. We review a trial court's "assessment of the adequacy of disclosure for an abuse of discretion." State v. Roque, 213 Ariz. 193, 205, ¶ 21 (2006), abrogated on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267, ¶¶ 13-14 (2017). We also review the trial court's imposition of a discovery violation sanction for an abuse of discretion. State v. Moody, 208 Ariz. 424, 454, ¶ 114 (2004).
¶10 Mathis does not assert that the State committed a discovery violation or that the trial court abused its discretion by finding that no discovery violation occurred. Mathis nonetheless argues for the first time on appeal that the trial court should have precluded the testimony because it involved an inherently suggestive and prejudicial identification in violation of due process. Because Mathis raised no such assertions at trial, we will review whether Mathis has demonstrated fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To prevail on a claim of fundamental error, a defendant must first demonstrate that trial error exists. Id. at 142, ¶ 21. If trial error exists, we must determine based upon the totality of the circumstances whether the error is fundamental and prejudicial. Id.
¶11 If an in-court identification is not challenged at trial, we conclusively presume that the prior identification procedure did not taint the in-court identification. State v. Dessureault, 104 Ariz. 380, 384 (1969). To establish that identification testimony violated due process, a defendant must "establish (1) that the circumstances surrounding the pretrial identification 'created substantial likelihood of irreparable misidentification' and (2) that the state bore sufficient responsibility for the suggestive pretrial identification to trigger due process protection." State v. Williams, 166 Ariz. 132, 137 (1987) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). "To establish that admission of identification testimony violated due process, a defendant must first show that the state was responsible for the pretrial identification." State v. Goudeau, 239 Ariz. 421, 455, ¶ 131 (2016). Without state action, a trial court is not required to analyze the reliability of an identification. Id.; see State v. Forde, 233 Ariz. 543, 556-57, ¶¶ 31-33 (2014) (holding that victim's in-court identification of the defendant at a pretrial hearing was not state action, and thus a hearing to determine the reliability of the identification was not required under due process).
¶12 Here, state action was not sufficiently present in the witness's identification to implicate due process protections. Moreover, no pretrial identification procedure of any form took place. Contrary to several of
Mathis's factual assertions on appeal, the record confirms that the identification did not result from the meeting with the prosecutor or from watching the trial testimony; the witness merely reported the information in a meeting. The record instead establishes that the witness's recognition of A.S. and Mathis originated from their mutual attendance at a pretrial hearing.
¶13 The record contains no evidence suggesting that the State arranged the pretrial hearing circumstances for identification or participated in its occurrence, much less conducted a formal identification procedure such as a photo lineup or a show-up. The witness's recognition was the product of a contemporaneous court encounter with other trial participants. This type of identification does not trigger due process concerns. Goudeau, 239 Ariz. at 456-57, ¶¶ 136-40.
¶14 Assuming arguendo that Mathis's identification claims on appeal are not precluded, we find no trial error, much less fundamental error. The trial court was not required to conduct sua sponte a reliability analysis of the identification, and it thus did not violate due process.
II. The Trial Court Did Not Err by Admitting A.S.'s Prior Identification Statements.
¶15 A.S. did not want to cooperate with the prosecution or testify at trial. At trial, A.S. provided testimony that was inconsistent with his prior out-of-court statements identifying Mathis as the shooter. Over Mathis's objection, the State impeached A.S. during direct examination with his prior identification statements and further admitted his previous statements into evidence through the testimony of the detective to whom he reported them. Mathis contends the trial court erred by permitting the State to admit the statements. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). "Evidentiary rulings that implicate the Confrontation Clause, however, are reviewed de novo." Id.
¶16 Several times before trial, and then during his direct examination by the State at trial, A.S. confirmed that he was unwilling to participate in the prosecution. A.S. then testified that he did not remember what he reported about the shooter's identity to the investigating detective in either the interview at the hospital or on August 3, 2016. He further testified, contrary to his statements in the interviews, that he was uncertain if Mathis was the shooter and that he did not see who shot him.
¶17 During direct examination of the investigating detective after the conclusion of A.S.'s testimony, the State asked the detective what A.S. had stated regarding the identity of the shooter in the interview at the hospital. Mathis objected, asserting that evidence of A.S.'s statements was inadmissible hearsay. The trial court overruled the objection and permitted the detective to answer the State's question. The detective testified that A.S. identified Mathis as the shooter (he stated he was shot by "my baby momma's boyfriend, Flo [Mathis]."). The detective had recorded A.S.'s statements.
¶18 Subsequently, the State asked the detective about A.S.'s statements in the August 3, 2016, interview, and Mathis objected. In response, at a bench conference, the State argued A.S. had "a feigned lack of recollection and this would be appropriate impeachment for that." Overruling Mathis's hearsay objection at the bench conference, the trial court made a specific finding that A.S. was "feigning" memory loss as a "very reluctant" and "uncooperative" witness. The detective then testified that A.S. identified Mathis as the shooter from a photograph that the detective presented to him. The detective further testified that A.S. stated without equivocation that Mathis shot him; he saw Mathis shoot him; he saw Mathis with the gun; and Mathis fired from the driver's side of the SUV by pointing the gun out of the window. The detective had also recorded these statements.
¶19 In general, out-of-court statements offered to prove the truth of the matter asserted are inadmissible unless an exception to the rule against hearsay applies. Ariz. R. Evid. 801(c), 802. A prior inconsistent statement by a testifying witness subject to cross-examination, however, is not hearsay. Ariz. R. Evid. 801(d)(1)(A). Prior inconsistent statements may be admitted both for substantive evidence and impeachment. State v. Hernandez, 232 Ariz. 313, 323, ¶ 47 (2013). The trial court must first determine that the statements are inconsistent as a precondition to admissibility. Id. at 322, ¶ 41.
¶20 "For purposes of Rule 801(d)(1)(A), Arizona law draws a distinction between a true and a feigned loss of recall. When the asserted loss is genuine, the prior statement is deemed not inconsistent under this rule, but if the loss is mere fakery, the statement falls within the rule." State v. Joe, 234 Ariz. 26, 29, ¶ 14 (App. 2014) (quoting State v. Anaya, 165 Ariz. 535, 538 (App. 1990)). "A claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements." State v. Hausner, 230 Ariz. 60, 76, ¶ 58 (2012) (quoting State v. King, 180 Ariz. 268, 275 (1994)).
¶21 An otherwise admissible prior inconsistent statement may be excluded under Rule 403. State v. Sucharew, 205 Ariz. 16, 24, ¶ 20 (App. 2003). Five factors help inform the trial court to assess the danger of unfair prejudice when determining whether Rule 403 should bar admission of a prior inconsistent statement: (1) the impeached witness denies making the statement; (2) the witness presenting the impeaching statement has an interest in the proceeding, and there is no other corroboration for the statement; (3) there are other factors affecting the reliability of the impeaching witness, such as age or mental capacity; (4) the real purpose of the offer is for substantive evidence rather than impeachment; and (5) the impeachment evidence is the only evidence of guilt. State v. Allred, 134 Ariz. 274, 277 (1982).
¶22 As described above, A.S. was an unwilling, adverse witness. Based upon A.S.'s uncooperative nature and the absence of a reasonable explanation for his reported memory loss regarding the August 3, 2016, interview, the trial court found that A.S. was feigning his loss of memory. Contrary to Mathis's assertion on appeal, Rule 607 permits a party to impeach its witness. Because A.S.'s testimony contradicted his prior statements in the August 3, 2016, interview and in conjunction with the trial court's feigned memory loss finding, the previous inconsistent statements were not hearsay and thus admissible under Rule 801(d)(1)(A) for substantive and impeachment purposes.
¶23 A.S.'s identification of Mathis as the shooter at the hospital interview was likewise contrary to his testimony. The record does not make clear, however, whether the trial court admitted the statements under Rule 801(d)(1)(A) or otherwise. Before permitting the admission of the identification at the hospital, the trial court stated that the prosecutor had "set it up through the testimony" of A.S. but did not clarify if "set it up" referred to feigned memory loss by an uncooperative witness or a genuine inability to remember because of A.S.'s medical condition at the time. If the trial court was referring to A.S.'s feigned memory loss, the statement at the hospital was admissible under Rule 801(d)(1)(A).
¶24 If the trial court's "set it up" statement referred to genuine memory loss due to A.S.'s condition at the time, the statement remains admissible. At the bench conference following Mathis's hearsay objection, the record reflects a discussion that appears aimed at ascertaining whether the statement would constitute a dying declaration under Rule 804(b)(2) of the Arizona Rules of Evidence.
¶25 The trial court first inquired about the timing of A.S.'s statement, and the prosecutor provided that it was "relatively soon in time" (approximately five and a half hours) after the incident. The parties then discussed the severe extent of A.S.'s injuries and his uncertain treatment status in the intensive care unit following "surgery for multiple gunshot wounds." Counsel for Mathis explicitly stated that he saw "no indication" of a dying declaration. A.S. had previously testified that he believed he was going to die that night. The detective had also testified that she interviewed A.S. at the hospital because she was concerned that A.S.'s death was imminent. Therefore, the record sufficiently established that A.S.'s statement met the requirements of Rule 804(b)(2): in a prosecution for homicide, his statement concerned the cause or circumstances of the shooting in a condition and under a belief that his death may be imminent, and he was unavailable due to an inability to remember. Ariz. R. Evid. 804(a)(3), (b)(2); see State v. Adamson, 136 Ariz. 250, 254-55 (1983) (stating that a sense of impending death may be shown by express language or circumstances indicating the victim thought he was going to die).
¶26 Furthermore, we will affirm a trial court's ruling if it is legally correct for any reason. State v. Carlson, 237 Ariz. 381, 387, ¶ 7 (2015) (quoting State v. Perez, 141 Ariz. 459, 464 (1984)). Although not expressly discussed for admissibility purposes at trial, given their content, A.S.'s prior statements identifying Mathis as the shooter were also admissible as non-hearsay under Rule 801(d)(1)(C): A.S. testified at trial, was cross-examined, and identified Mathis as the shooter he had "perceived earlier." Ariz. R. Evid. 801(d)(1)(C).
¶27 Finally, we do not perceive any unfair prejudice that would require excluding the statements under Rule 403. Mathis did not deny making the statements; he claimed he did not remember making them. The statements were recorded and made to law enforcement. There was sufficient corroborating evidence from civilian witnesses, the SUV evidence, cell phone and Facebook records, and the remainder of A.S.'s testimony. Although the statements provided substantive evidence of guilt, the statements also impeached Mathis as a witness antagonistic to prosecution and feigning memory loss. The Allred factors thus substantially weighed in favor of admission under Rule 403, and accordingly, the trial court did not abuse its discretion by permitting A.S.'s prior statements.
¶28 Mathis further contends that admission of A.S.'s prior statements violated the Confrontation Clause. We reject this contention. First, a hearsay objection does not preserve for appellate review a claim that admission of the evidence violated the Confrontation Clause. State v.
Hernandez, 170 Ariz. 301, 306-07 (App. 1991); see also State v. Huerstel, 206 Ariz. 93, 102, ¶¶ 29-30 (2003) (stating that the hearsay rule and Confrontation Clause are not duplicates and they serve different purposes). By failing to object on Sixth Amendment grounds, Mathis has forfeited the right to obtain appellate relief unless he shows fundamental error occurred.
¶29 The Confrontation Clause does not bar testimonial hearsay when the declarant appears at trial and is subject to cross-examination. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) ("[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements."). Here, A.S. testified at trial and was subject to cross-examination. The Confrontation Clause protections were thus not implicated, and no error, fundamental or otherwise, occurred.
CONCLUSION
¶30 We affirm Mathis's convictions and sentences.