Opinion
2 CA-CR 2020-0040
10-05-2021
The State of Arizona, Appellee, v. Shaun Christopher Nelson, Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Jacob R. Lines, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20180386001 The Honorable James E. Marner, Judge
Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jacob R. Lines, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Shaun Nelson appeals from his convictions and sentences for unlawful imprisonment and sexual abuse, arguing that the trial court erred in denying his motion to continue. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against Nelson. See State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). In January 2018, while Nelson was staying at a motel, he followed S.L., a housekeeper, into three different rooms as she cleaned. He forcibly held her against a wall in two of the rooms. In a third room, he forced her onto a bed and simulated intercourse. S.L. got away from Nelson by agreeing to meet him in his room later, and she sought assistance from the motel's assistant manager, who called 9-1-1.
¶3 The jury acquitted Nelson of one charge of kidnapping but found him guilty on two of six counts: the lesser-included offense of unlawful imprisonment and one count of sexual abuse. It failed to reach verdicts on the four remaining charges, and Nelson subsequently pled guilty to kidnapping for purposes of sexual gratification. He was sentenced to concurrent terms of incarceration, the longest of which was five years, and four years of probation. 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
¶4 On appeal, Nelson argues the state had a duty under both Rule 15, Ariz. R. Crim. P., and Brady v. Maryland, 373 U.S. 83 (1963), to disclose the prosecutor's observation that S.L. was "low functioning." Nelson further contends that the disclosure was untimely, given it occurred four days prior to trial and was raised with the court on the first day of trial, and effectively prevented him from cross-examining S.L. He therefore asserts that the trial court erred when it denied his motion to continue.
To the extent Nelson seeks to challenge the trial court's denial of his motion to dismiss, he has failed to adequately develop this argument on appeal, and the issue is therefore waived. See State v. Johnson, 247 Ariz. 166, ¶ 91 (2019); Ariz. R. Crim. P. 31.10(a)(7) (appellant's opening brief must provide "supporting reasons for each contention").
¶5 We review the denial of a motion to continue for an abuse of discretion, which we will not find unless the defendant demonstrates prejudice. State v. Tucker, 157 Ariz. 433, 439 (1988) (defendant must demonstrate prejudice from a failure to remedy a discovery violation). Prejudice exists only if we are unable to say "beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Krone, 182 Ariz. 319, 321 (1995) (quoting State v. Bible, 175 Ariz. 549, 588 (1993)). We review an alleged Brady or confrontation clause violation de novo. See State v. Jessen, 130 Ariz. 1, 4 (1981) (Brady imposes due process obligation); State v. Sanders, 245 Ariz. 113, ¶ 89 (2018) (de novo review of alleged constitutional violations).
¶6 At trial, the party moving for a continuance bears the burden of showing "extraordinary circumstances exist and that delay is indispensable to the interests of justice." State v. Forde, 233 Ariz. 543, ¶¶ 18, 20 (2014) (quoting Ariz. R. Crim. P. 8.5(b)). This could include to remedy a Rule 15 disclosure violation "if necessary in the interests of justice," see Ariz. R. Crim. P. 15.7, or to protect a constitutional right, see State v. McWilliams, 103 Ariz. 500, 501-02 (1968).
¶7 On the first day of trial, the prosecutor offered a "heads-up" to the court and explained,
[S.L.] has a lower level of functioning. She is not in the category that the State will be proceeding on without consent based on mental defect. We are not over here. She has a lower level of functioning. So it might be, if she has to read a portion of her transcript, she is a slow reader, so she will need a little extra time. She might not understand my question and I might have to rephrase it. We have had that conversation and I told her it is perfectly okay if she doesn't
understand, ask me to rephrase. If she doesn't understand, it is very okay for her to say that. I wanted to make the Court aware of her function.
Nelson requested that the court dismiss the case or grant a continuance in order to "evaluate the victim for brain competency issues." Nelson explained that he had spoken with the prosecutor four days earlier and that, with the additional disclosure that morning, he believed the "full nature" of S.L.'s mental function might be an issue subject to disclosure under Brady.
¶8 The prosecutor clarified that she had no "concerns about [S.L.'s] competency" and that S.L. could articulate what took place. The prosecutor told the trial court that S.L. is "slower at reading" and "in terms of her expressions." She reported she had no concerns about S.L.'s ability to understand the nature of "what is going on and what she has disclosed," and that S.L. would be able to testify truthfully. In response to the court's inquiry, the prosecutor said that her observations were based on "maybe five to ten" meetings with S.L. over the last year. The court denied both the motion to dismiss and the motion to continue.
¶9 At trial, S.L. testified she was "a slow learner." In her testimony, she referred to her "private part," and, when asked to which part of her body she was referring, she said she "forgot the other word." She testified that "[i]t helps me go to the bathroom down here." On both direct and cross-examination, S.L. explained the discrepancies between what she had told the police and what she testified to at trial. These discrepancies went to whether the incidents occurred in two or three rooms and what those rooms' numbers were. She testified that, at the time of the incident, she was nervous, crying, upset, and talking too fast, skipping words in an effort to provide the police with information.
¶10 We first address whether Nelson has met his burden of showing prejudice for the denial of the motion to continue as a sanction under Rule 15. We then turn to whether the alleged late disclosure violated Brady or otherwise denied Nelson an opportunity to effectively cross-examine S.L., such that the trial court abused its discretion in denying the motion.
Rule 15, Ariz. R. Crim. P.
¶11 Nelson argues that the state's late disclosure violated Rule 15, "precluding] the defense from challenging S.L.'s competency before trial and from preparing a trial strategy based on this crucial information," and that the trial court should have granted a continuance as a sanction. The state contends it had no legal duty to disclose the prosecutor's perceptions of S.L. and there were no grounds to find S.L. incompetent to testify.
The state contends that Nelson failed to offer any rule-based argument in support of the motion to continue at trial and that the argument is thus waived for all but fundamental error review. But because we conclude that Nelson has failed to establish prejudice in any event, we need not address the issue of waiver. Cf. State v. Jones, 185 Ariz. 471, 482 (1996) (noting defendant had not preserved an issue but analyzing the issue and finding argument without merit).
¶12 Rule 15 requires the state to disclose "all existing material or information that tends to mitigate or negate the defendant's guilt or would tend to reduce the defendant's punishment," within its control or possession, "at least 7 days before trial." Ariz. R. Crim. P. 15.1(b)(8), 15.6(c). If the court determines that a discovery obligation was violated, it must impose an "appropriate sanction," "unless . . . the failure to comply was harmless." Ariz. R. Crim. P. 15.7(b). Assuming, without deciding, that the state was required under Rule 15 to disclose the prosecutor's lay opinion regarding S.L.'s reading and comprehension levels, the failure to disclose was harmless and Nelson is unable to show prejudice because a challenge to S.L.'s competency would not prevail, no matter the time of disclosure. See Tucker, 157 Ariz. at 439.
¶13 A party requesting a continuance must state "the specific reasons for the request." Ariz. R. Crim. P. 8.5(a). At trial, Nelson requested a continuance to "actually evaluate the victim for brain competency issues." "[E]very person is competent to be a witness" in a criminal trial. A.R.S. § 13-4061. "Competency has to do with a witness' capacity to observe, recollect and communicate the subject of the testimony." State v. Roberts, 139 Ariz. 117, 121 (App. 1983). A witness' competency is a legal matter within the discretion of the trial court. Id.
¶14 Here, S.L. had invoked her right under the Victims' Bill of Rights to refuse discovery. See Ariz. Const. art. II, § 2.1. On appeal, Nelson does not clarify how he would have challenged or assessed S.L.'s competency. The prosecutor's disclosure of her observations that S.L. had a "lower level of functioning," describing that she was a slow reader who might need a question to be re-worded, did not go to S.L.'s capacity to observe, remember, or testify about the charged crime, see Roberts, 139 Ariz. at 121, and Nelson failed to meet his burden of showing necessity for a court-ordered examination, see Murphy v. Superior Court, 142 Ariz. 273, 276-77 (1984) (party requesting witness' examination must show necessity, which generally arises when witness' condition impacts "her veracity").
¶15 To the extent Nelson also contends the trial court's denial of the continuance prevented him from challenging S.L.'s credibility, the record does not support this assertion. S.L. testified that she was a "slow learner." The jury witnessed that she was unable to remember a correct anatomical term. They observed her ability to read transcripts during her testimony. Discrepancies between S.L.'s version of events when she first reported them and her testimony at trial were thoroughly explored by both the prosecution and the defense during her testimony. S.L. gave answers responsive to the questions asked of her during trial, apparently having little, if any, difficulty understanding. Thus, the jury was informed of the matters within the prosecutor's knowledge that "affect[ed]" S.L.'s credibility. Roberts, 139 Ariz. at 121 ("[M]ental deficiency" is a factor relevant to witness credibility, and a jury should be informed of all matters which "may in the slightest degree affect a witness' credibility"). Nelson has not established prejudice warranting reversal.
Untimely Disclosure under Brady v. Maryland
¶16 Nelson also argues that the state's late disclosure violated Brady and its progeny and that therefore the trial court abused its discretion in denying his motion to continue. Brady established that a defendant's right to due process under the Fifth and Fourteenth Amendments includes "access to any evidence favorable to the defense and material to either guilt or punishment." State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 238 (App. 1992).
¶17 To establish a Brady violation, a defendant must show that the evidence at issue is favorable to the accused either because it is exculpatory or impeaching, that it was unavailable at trial, and that prejudice ensued. See Banks v. Dretke, 540 U.S. 668, 691 (2004); United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). Although the Arizona Victims' Bill of Rights places limitations on a defendant's discovery rights, a victim's right to refuse discovery must yield if the defendant shows there is a reasonable probability that the evidence sought would be material to a defendant's due process right to present a complete defense. R.S. v. Thompson, 251 Ariz. 111, ¶¶ 21, 30 (2021).
¶18 The state argues the prosecutor had no duty to disclose her assessment of S.L.'s intellectual capacity. Nelson cites no cases indicating that a prosecutor's lay opinion is discoverable, and we have found none requiring disclosure under Brady. But see Silva v. Brown, 416 F.3d 980, 982-83, 986-88 (9th Cir. 2005) (co-defendant's plea deal including an agreement not to have a psychological evaluation was Brady evidence); Benn v. Lambert, 283 F.3d 1040, 1054-56 (9th Cir. 2002) (undisclosed information that a crucial government witness used drugs during defendant's trial was material under Brady); United States v. Serv. Deli Inc., 151 F.3d 938, 943 (9th Cir. 1998) (prosecutor's handwritten notes that witness' memory was affected by a stroke was a Brady violation). Although these cases involve much different circumstances, for the purposes of our analysis, we assume, without deciding, that the state had a duty to disclose.
¶19 Exculpatory information "must be made at a time when [the] disclosure would be of value to the accused." Aichele, 941 F.2d at 764 (quoting United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)). "When previously undisclosed exculpatory information is revealed at the trial and is presented to the jury, there is no Brady violation." Jessen, 130 Ariz. at 4; see United States v. Bender, 304 F.3d 161, 164-65 (1st Cir. 2002) (no Brady violation despite late disclosure if defense has notice of mental disability); see also Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (eve-of-trial disclosure of witness' identity and information was Brady violation because defense must be allowed sufficient opportunity to make use of evidence, but noting "disclosure prior to trial is not mandated").
¶20 Here, the prosecutor did disclose her opinion to Nelson, albeit on the Friday before a Tuesday trial, and again on the first day of trial. However, earlier disclosure would not have made the information more valuable to Nelson. As explained above, Nelson did not have grounds to challenge S.L.'s competency, and thus the sole value of the prosecutor's opinion to him was as to S.L.'s credibility. Therefore, the disclosure was "made at a time when [it] would be of value" to him, Aichele, 941 F.2d at 764 (quoting Gordon, 844 F.2d at 1403), and was presented to the jury, Jessen, 130 Ariz. at 4. Accordingly, there was no Brady violation, and Nelson has not shown the court erred in denying the motion to continue. See Tucker, 157 Ariz. at 438; Forde, 233 Ariz. 543, ¶¶ 18-22 (belated disclosure may not always be "extraordinary circumstances" warranting a continuance).
Denial of Right to Cross-Examination
¶21 Nelson separately argues the denial of his motion to continue deprived him of his right to cross-examine S.L. Assuming that this argument was preserved below, Nelson has again failed to establish prejudice. He does not explain how he may have questioned S.L. differently had he been afforded a continuance. And, as explained above, he was able to thoroughly question S.L. regarding discrepancies in her statements and her ability to perceive and recall the events in question, thereby subjecting her testimony to "the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61 (2004).
The state additionally argues Nelson failed to preserve a claim regarding his right to confrontation below.
Disposition
¶22 For the foregoing reasons, we affirm Nelson's convictions and sentences.