Opinion
No. 1 CA-CR 13-0609
04-28-2015
STATE OF ARIZONA, Appellee, v. MARCOS RENE MENDOZA, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Louise Stark 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-118889-001
The Honorable Robert L. Gottsfield, Retired Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Louise Stark
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Marcos Rene Mendoza appeals his convictions and sentences for second-degree murder and criminal trespass in the first degree. Mendoza contends that the trial court erred when it allowed certain impeachment evidence to be presented at trial. For the reasons that follow, we affirm Mendoza's convictions but modify his sentences to add 35 days of presentence incarceration credit.
FACTS AND PROCEDURAL HISTORY
¶2 Mendoza was convicted of second-degree murder after he shot and killed an acquaintance in a convenience-store parking lot. On the morning of the shooting, Mendoza let his friend Danny borrow his car to drive their mutual friend, Steven, to a casino. After dropping Steven off, Danny took the car to go meet his friend Patrice. Danny and Patrice went to Patrice's friend Sabrina's apartment and picked her up as well. When Sabrina realized that Danny was driving Mendoza's car, she attempted to steal a pair of shoes belonging to Mendoza from the backseat of the car. Danny told Sabrina that she could not take the shoes, and Danny put them in the trunk of the car so she would not have access to them. Patrice also made clear to Sabrina that, regardless of any conflict she might have with Mendoza, she could not take the shoes. When Danny gave the car back to Mendoza, however, the shoes were gone.
¶3 When Mendoza drove Danny home later that morning, he asked him what had happened to the shoes. Danny did not want to tell Mendoza that Sabrina might have taken them. At that point, Quincy, another acquaintance, got into the car with Danny and Mendoza. The three of them drove back to Patrice's house to pick Patrice up so that she could talk to Sabrina and "rectify the problem with the shoes." They all drove to Sabrina's apartment, where Patrice retrieved the shoes from Sabrina and came back out to the car. Mendoza and Sabrina then agreed that Patrice would retain possession of the shoes until Mendoza gave Sabrina her cell phone back, at which point Patrice would give the shoes back to Mendoza.
¶4 As they drove home, Sabrina's boyfriend ("the victim") and a passenger, Steven, pulled up behind Mendoza's car. The victim was driving aggressively, he almost hit Mendoza's car, and he seemed to be trying to "start some type of trouble." Mendoza pulled over into a convenience-store parking lot where the victim approached Mendoza's car and yelled at Mendoza about "burning" his girlfriend. The victim stated that "he [could not] keep letting it happen." Mendoza tried to explain that everything had been resolved between him and Sabrina, and that he was on his way to get Sabrina's phone, but the victim would not listen. The victim began threatening to fight Mendoza, and he motioned as if he was going to hit Mendoza through the open car window with his fist. Mendoza responded by taking out a gun and shooting the victim five times from inside his car. After the shooting, Danny and Patrice got out of the car and Mendoza and Quincy drove away. When the police arrived, Danny told them that Mendoza had shot the victim.
¶5 At trial, Danny, Quincy and Patrice testified that Mendoza was the shooter. The gun was never recovered. The state also presented videos taken by exterior surveillance cameras at a nearby convenience store. The videos showed the two cars pulling into the parking lot, the victim and Steven getting out of the car and speaking to the driver of Mendoza's car, and the victim falling to the ground. It was not clear from the videos, however, who was the driver in Mendoza's car.
¶6 Mendoza proffered three witnesses, who testified that Mendoza was not at the convenience store on the day of the shooting. The first witness, Steven, testified that he had returned home from the casino when the victim came over to the house to borrow some money. Steven told the victim to drive him to a convenience store and Steven would lend him $20 and then walk home. Steven stated that when the victim pulled into a convenience-store parking lot, he saw Mendoza's car and went to greet him, but Mendoza was not in the car. In fact, according to Steven, Danny was sitting in the backseat and Steven jokingly said to him, "So you still haven't took [Mendoza] his car back, huh?" Steven testified that he did not see who was driving Mendoza's car, and he stated that Danny was the only person he recognized. Steven further testified that he began walking away toward the convenience store when he heard gunshots and turned around and saw the victim on the ground.
Steven's attorney advised him that he should not testify, and should instead invoke his Fifth Amendment right against self-incrimination; there was a possibility that Steven would be charged with misconduct involving weapons because a gun was found in the victim's car near where Steven was sitting. Steven nevertheless decided to testify.
¶7 The second witness, Mia, provided an alibi for Mendoza, testifying that on the morning of the shooting, Mendoza called her boyfriend, Salvadore, and asked for a ride. Mia stated that Mendoza needed a ride because someone had taken his car and he was stranded. Mia testified that she and Salvadore picked Mendoza up and brought him back to their house. She testified that Mendoza was with her and Salvadore most of the day, and that Mendoza left at sundown.
¶8 Salvadore also testified as an alibi witness, stating that on the morning of the shooting Mendoza had called Mia's phone and asked for a ride. Salvadore stated that Mendoza needed a ride because his car would not start. Salvadore testified that he saw Mendoza's car in a parking lot and tried starting the car himself. Salvadore said that he and Mia picked Mendoza up and took him back to their house, and that Mendoza left after sundown that evening.
¶9 Ultimately, the jury found Mendoza guilty of second-degree murder and criminal trespass in the first degree, and he was sentenced to 22 years' imprisonment.
The facts underlying the criminal trespass charge are not discussed here because the validity of that conviction is not disputed on appeal.
DISCUSSION
¶10 Mendoza raises three issues on appeal. First, he argues that the trial court committed fundamental error when it permitted the state to impeach his witnesses with extrinsic evidence of specific instances of conduct probative of their character for truthfulness, in violation of Ariz. R. Evid. 608(b). Second, Mendoza argues that the state's impeachment of his witnesses with the testimony of a gang expert also violated Ariz. R. Evid. 608(b), and was so unfairly prejudicial that it deprived him of a fair trial. Finally, Mendoza argues that he is entitled to an additional 35 days of presentence incarceration credit. We address each argument in turn. I. Improper Impeachment Evidence
¶11 Mendoza contends that in nine separate instances at trial, the prosecutor introduced improper impeachment evidence that was sufficiently prejudicial to deprive him of due process and a fair trial.
¶12 Because Mendoza failed to object to seven of the nine evidentiary "violations" at trial, we review the admission of those seven issues for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Fundamental error "involve[s] 'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Id. (citation omitted).
¶13 Instance 1. On cross-examination, the prosecutor asked Salvadore if he tried to avoid restitution obligations while in prison by having his girlfriend, Mia, deposit money for him into another inmate's "books." After Salvadore denied that he had done so, the prosecutor then played a recorded phone call for the jury in which Salvadore said to Mia, "Just wire it to somebody else's books who don't get restitution."
¶14 Mendoza now argues that this recording was inadmissible under Ariz. R. Evid. 608(b), which provides that "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack . . . the witness's character for truthfulness." This rule allows a witness to be cross-examined regarding past misconduct; however, the examiner will be bound by the witness's answer and may not produce extrinsic evidence to show the falsity of such answer. U.S. v. Martz, 964 F.2d 787, 789 (8th Cir. 1992); U.S. v. Ling, 581 F.2d 1118, 1120-21 (4th Cir. 1978).
The Arizona Rules of Evidence have been amended to conform to the Federal Rules of Evidence and federal court decisions interpreting the federal rules are persuasive. See Ariz. R. Evid. Prefatory Cmt.
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¶15 Although this phone call was extrinsic evidence used to contradict Salvadore's testimony, the evidence was admissible as a prior inconsistent statement -- it was not character evidence. Ariz. R. Evid. 613(b) provides that "[e]xtrinsic evidence of a witness's prior inconsistent statement is admissible . . . if the witness is given an opportunity to explain or deny the statement." Here, the prosecutor asked Salvadore if he told Mia to put money on another inmate's "books" so that he could avoid paying restitution, and Salvadore denied the accusation. Therefore, the court properly admitted the phone call as extrinsic evidence of a prior inconsistent statement that contradicted Salvadore's testimony. See U.S. v. Feliciano, 761 F.3d 1202, 1209-10 (11th Cir. 2014) (holding that the district court properly allowed the prosecution to play a recording of a phone call between a witness and the defendant as extrinsic evidence of a prior inconsistent statement after the witness, on cross-examination, denied having ever spoken with the defendant on the phone).
¶16 Instance 2. On cross-examination, the prosecutor asked Salvadore how much time he had left in prison, and Salvadore responded that he had four years and ten months remaining. Mendoza argues -- for the first time -- that this was improper impeachment evidence under Ariz. R. Evid. 403, which provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice." However, a Rule 403 objection not argued to the trial court is waived and may not be asserted on appeal. State v. Montano, 204 Ariz. 413, 425, ¶ 58 (2003); Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 214 (App. 1984). Moreover, even in the absence of a waiver, we cannot say that the trial court abused its discretion when it permitted this testimony because defense counsel had already elicited -- on direct examination -- the fact that Salvadore was serving a seven-year prison term [which began some months after the shooting].
¶17 Instance 3. On cross-examination, the prosecutor asked Mia, "Who is Jose Herrera?" Mia responded that he was a friend. The prosecutor then asked if she was dating him when he was arrested, and Mia said that she was. Mendoza objected on relevance grounds but the trial court overruled the objection.
¶18 Mendoza argues that this testimony was irrelevant and the only purpose was to "smear[ ] Mia's character by pointing out that she had yet another man who subsequently got arrested." Although we agree that the evidence appears to be of questionable relevance, "the trial court has broad discretion to decide what evidence is relevant in cross-examination," State v. Riley, 141 Ariz. 15, 20 (App. 1984), and "such discretion will not be disturbed on appeal unless it clearly has been abused," State v. Spoon, 137 Ariz. 105, 111 (1983). We cannot say that the admission of this evidence was an abuse of discretion. Accordingly, we will not disturb the trial court's ruling.
¶19 Instance 4. The prosecutor asked Mia on cross-examination if she remembered telling Mendoza over the phone that she spoke with his defense investigator. Mia replied that she did not remember saying anything to Mendoza himself, but that she might have told his girlfriend, Elida, who could in turn have told him. The prosecutor asked Mia if she thought hearing a portion of that recorded phone call might refresh her memory, and Mia said that it would. The prosecutor then played a tape recording of the phone call for Mia outside the presence of the jury.
¶20 Mendoza now argues error based on the improper admission of extrinsic evidence in violation of Rule 608(b). This argument fails, because the evidence was not admitted or presented to the jury.
¶21 Instance 5. On cross-examination, the prosecutor asked Mia if Salvadore was her boyfriend. Mia said that he was previously, but was not anymore. Then the prosecutor asked if she visited him in prison a few weeks earlier and signed in as his girlfriend. Mia responded, "No, I put friend, I didn't sign in as girlfriend." The prosecutor then showed Mia a copy of the prison visitation sheet from earlier in the month, which showed that Mia was listed as Salvadore's girlfriend.
¶22 Mendoza argues that this was extrinsic evidence of a specific instance of conduct to prove Mia's character for truthfulness, in violation of Rule 608(b). But like Salvadore's phone conversation with Mia, this was merely extrinsic evidence of a prior inconsistent statement. See Ariz. R. Evid. 613(b). This evidence was not being offered to attack her character for truthfulness or to prove the truth of the matter asserted -- that Mia actually was Salvadore's girlfriend -- rather, it was offered as circumstantial evidence that she had identified herself as his girlfriend as recently as a few weeks before trial, despite her denial of that fact on the stand.
¶23 Instance 6. During the state's cross-examination of Steven, the prosecutor pointed out that Steven was awaiting trial for a charge that involved the use of a weapon. The prosecutor then suggested that Steven had asked his niece to ask his step-daughter, Crystal, to "take the rap for the gun" in a phone call from prison. Steven denied having done so multiple times. Instead of initially introducing the phone call to contradict this denial, the prosecutor asked Steven questions about the information contained in the police report from the day he was arrested. The relevant questioning proceeded as follows:
Q: [D]o you see here where it says what Crystal is saying about whether or not you had a gun at that point in time? Do you see these words on this page?
A: Yes, I see that.
Q: And you were aware of this information, correct?
A: Yes. . . .
. . . .
Q: Does it say in the report that Crystal said she saw Steven go to the back room and then come out holding a gun by his side? Is that in the police report?
A: Yeah, that's in the police report, but that's not what happened.
Q: And then does she talk about what she saw you doing with the gun afterwards when she talked to the police?
A: I don't remember. I can't answer that.
. . . .
Q: [D]oes she then go on to tell police what she saw you do with the gun afterward?
A: Okay. If you look back in that page in the same report you got there -
. . . .
Q: In the police report, does it talk about the officer saying, when he turned and asked her if she said she wanted to tell the truth, and told him she saw you with a gun in your hand?
A: Like I said, that was after -- that was after they had asked her the same question eight times and she told them no, no, no. . . .
. . . .
Q: She told them she saw what you did with the gun, correct?
A: I can't answer that.
Q: Does it say in the police report that she talked to the officers about seeing you do something with the gun?
¶24 In the midst of this line of questioning, Mendoza objected on hearsay grounds, and the court overruled the objection. Mendoza now argues that the statements from the police report were hearsay and inadmissible extrinsic evidence under Rule 608(b). "We review a trial court's ruling on the admissibility of evidence over hearsay objections for abuse of discretion." State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App. 2010).
¶25 It is unclear what the prosecutor was trying to prove with this line of questioning. The information in the police report does not contradict Steven's response to the prosecutor's question about the conversation with his niece; therefore, it does not fall into the category of a prior inconsistent statement under Rule 613(b) or extrinsic evidence used to attack the witness's character for truthfulness under Rule 608(b). We conclude that the prosecutor's questioning contained two levels of inadmissible hearsay.
¶26 Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ariz. R. Evid. 801(c). Multiple levels of hearsay are not admissible unless each level meets a hearsay exception. Ariz. R. Evid. 805; State v. McGann, 132 Ariz. 296, 298 n.1 (1982).
¶27 Here, the police reports were hearsay. See United States v. Horned Eagle, 214 F. Supp. 2d 1040, 1042 (D.S.D. 2002) ("Inasmuch as Rule 803(8)(B) specifically excludes reports prepared by law enforcement officers from the public records exception to the hearsay rule if used against a criminal defendant, such records cannot be admitted under the business records exception [either].").
¶28 The prosecutor's questions regarding what Crystal said to the police constituted a second level of hearsay. See United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983) ("It is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted [in a civil case,] but [ ] statements made by third persons under no business duty to report may not."). The prosecutor offered statements Crystal made to the police to prove the truth of the matter asserted therein -- that she saw Steven with a gun. Because these statements do not fall within any of the exceptions to the hearsay rule found in Ariz. R. Evid. 803 or 804, this line of questioning was inadmissible.
¶29 "[E]rroneously admitted evidence is harmless in a criminal case only when the reviewing court is satisfied beyond a reasonable doubt that the error did not impact the verdict." State v. Bass, 198 Ariz. 571, 580, ¶ 39 (2000). And unless we are satisfied that the jury would have convicted Mendoza even without Crystal's out-of-court statements, we must reverse. Id. at 581, ¶ 39. Because this line of questioning had nothing to do with Mendoza or the charges in question, and because it did not bear on Steven's credibility, we are convinced beyond a reasonable doubt that this error did not impact the verdict and was therefore harmless.
¶30 Instance 7. On cross-examination, the prosecutor asked Steven if he had "an order of protection out against [him] by [his ex-girlfriend] in 2012[.]" He acknowledged the existence of such an order. Then the prosecutor asked him if he had asked Mendoza's defense investigator to contact her for him. Steven said that he had. Then the prosecutor asked him if that would have been in violation of the order of protection. And Steven said, "No, not that I know of."
¶31 Mendoza argues that the violation of an order of protection is not probative of truthfulness and that the evidence should therefore have been precluded under Rule 608(b). While we agree with this proposition, we find no prejudice sufficient to warrant relief on fundamental error review.
¶32 Instance 8. On direct examination, the prosecutor asked Officer Udd, "In reviewing a number of jail calls between this defendant and Elida Perez, was there any discussion or anything about whether this defendant had been faithful to her prior to his incarceration for this case?" He responded, "Yes, numerous times." Then the prosecutor asked, "And this was an issue between the two?" And Ofc. Udd said, "Yes."
¶33 Mendoza argues that this was improper extrinsic evidence of a collateral matter admitted in violation of Rule 608(b). The state argues that because neither Elida nor Mendoza testified at trial, this testimony does not concern a witness's character for truthfulness, as required in Rule 608(b). We agree. Mendoza failed to object to this testimony at trial, and we find no error, much less fundamental error.
¶34 Instance 9. Finally, on direct examination, the prosecutor asked Ofc. Udd "[D]oes Elida even tell the defendant, 'Mia is milking this stuff, baby'?" Ofc. Udd responded, "Yes, she does." And the prosecutor asked, "And that's a quote from Elida to the defendant about Mia?" and Ofc. Udd said "Yes."
¶35 Mendoza once again argues that this was improper extrinsic impeachment evidence under Rule 608(b). The state argues that the purpose of this evidence was not to attack Mia's character for truthfulness, but was to demonstrate Mia's motive to assist Mendoza with her testimony. We agree. Evidence of bias is not prohibited character evidence, and we discern no error. II. Gang Testimony
¶36 Detective Clint Davis testified at trial about the Arizona Mexican Mafia. He stated that the Arizona Mexican Mafia is composed of criminal-street-gang members, and that members are expected to remain in the gang for life. Det. Davis stated that Mendoza is a member in good standing of the Arizona Mexican Mafia, and that Mendoza had tattoos that a person could only have with the permission of the Arizona Mexican Mafia. He also testified that Mendoza's uncle is a long-standing member of the Arizona Mexican Mafia. Det. Davis stated that Steven is an affiliate of the Arizona Mexican Mafia, and is a member of another street gang called the "South Side 7." He also stated that Salvadore was a member of "Mini Park," an active west-side criminal street gang affiliated with the Arizona Mexican Mafia.
¶37 Det. Davis stated that the Arizona Mexican Mafia maintains a written code of conduct that its members are required to follow. Included in that code are obligations that members are expected to carry out when asked, including harming people. Det. Davis said that if someone is "going to be doing significant time in the Arizona Department of Corrections, it's going to behoove them to do what the Mexican Mafia asked them to do." He further testified that if a Mafia superior says "I want you to do this for my nephew," the penalty for noncompliance is "[y]ou're usually going to either be severely beat down or, in some instances, actually killed."
¶38 Mendoza argues that this testimony was "extrinsic evidence as collateral impeachment" prohibited by Rule 608(b). He also argues that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, in violation of Ariz. R. Evid. 403. The state counters that Rule 608(b) does not block inquiry about conduct that is probative of bias, and does not preclude introduction of extrinsic evidence to prove such conduct. We agree.
¶39 Rule 608(b) does not bar evidence that tends to show bias or motive for a witness to testify untruthfully. United States v. Thorn, 917 F.2d 170, 176 (5th Cir. 1990). "Admission of evidence under Rule 608(b) or its bias exception is in the sound discretion of the [trial] court." Id. Det. Davis's testimony regarding Mendoza and two of his defense witnesses tended to show their bias and motive to testify untruthfully. Both Steven and Salvadore are serving substantial prison sentences, and the state offered the evidence to show that if they did not lie for Mendoza, a member in good standing of the Arizona Mexican Mafia, their fate in prison would be affected. We conclude that Det. Davis's testimony was admissible because it was probative of bias. III. Additional Presentence Incarceration Credit
¶40 Mendoza was arrested and incarcerated on April 9, 2012, and held until sentencing on August 23, 2013. He was therefore entitled to 501 days of presentence incarceration credit but was only given credit for 466 days. Accordingly, we modify Mendoza's sentence and add 35 days of presentence incarceration credit.
CONCLUSION
¶41 For the reasons set forth above, we affirm Mendoza's convictions and sentences, as modified.