Opinion
No. 1 CA-CR 14-0720
02-09-2016
STATE OF ARIZONA, Appellee, v. DAVID M. PECARD, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2013-114845-001
The Honorable M. Scott McCoy, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 David M. Pecard appeals his conviction for theft claiming the superior court abused its discretion and violated his constitutional rights by limiting cross-examination of a detective about his efforts to determine whether Pecard was an attorney licensed to practice law in a jurisdiction other than Arizona. Because such evidence was irrelevant to the theft offense and proceedings here, and would have been misleading and confusing to the jury, we find no abuse of discretion, and no error, fundamental or otherwise. We affirm Pecard's conviction and sentence.
FACTUAL AND PROCEDURAL HISTORY
¶2 The victims, Husband and Wife, contacted Pecard in an effort to stop an adoption proceeding in the superior court in Arizona. Pecard told the victims not only that he could stop the adoption, but guaranteed he would do so. Over the course of events, Pecard explained to the victims what he would do on their behalf, including how he would prepare and file documents and appear in court.
Pecard was a regular customer at the convenience store where Wife worked and had introduced himself as an attorney several years earlier. Wife heard Pecard discuss legal matters with store employees and customers. He also assisted Wife with the preparation of legal pleadings for a matter she ultimately did not pursue.
Pecard told the victims it was his "job" to win and that he practiced criminal, constitutional, and federal law. Pecard told the victims he called in his office staff on the weekend so they could assist him on the case. He also claimed he had investigators monitoring the child's whereabouts.
¶3 The victims paid Pecard $12,000 because they believed he was a licensed attorney who had the legal authority to prepare and file pleadings on their behalf and otherwise represent them in the adoption proceedings in superior court in Arizona. Pecard presented documents to the victims to sign and claimed he would file the documents at the courthouse. Pecard, however, never filed any documents nor made an appearance in the adoption case. Despite Pecard's assurances that he could represent the victims as their attorney in this matter, the Arizona Supreme Court has never licensed Pecard to practice law in Arizona, nor did the superior court admit him to appear pro hac vice in the adoption case or any other case.
¶4 The State charged Pecard with theft pursuant to Arizona Revised Statutes ("A.R.S.") section 13-1802(A)(3) (Supp. 2015). At trial, Pecard sought to cross-examine a detective regarding his investigation into what Pecard repeatedly called Pecard's membership in "the federal bar." The court sustained the State's hearsay objection. The court later sought clarification about the purpose of the proposed cross-examination. Pecard claimed the detective had contacted "the federal bar" and learned Pecard "was a listed bar licensed attorney at that time." Pecard argued this was relevant because the State claimed he misrepresented that he was an attorney, and he wanted to challenge the detective's "due diligence" investigating Pecard's potential licensure in other jurisdictions.
We cite the current version of applicable statutes unless revisions material to this decision have occurred since the events in question. Section 13-1802(A)(3) provides in relevant part that a person commits theft if the person without lawful authority, knowingly "[o]btains . . . property of another by means of any material misrepresentation with intent to deprive the other person of such property."
¶5 The State clarified that the detective did not contact "the federal bar," but rather contacted the Federal Bar Association ("FBA") and learned that Pecard had been a member at some point in time. The FBA informed the detective that the FBA does not verify whether members who claim to be attorneys are actually licensed in any jurisdiction. The superior court found Pecard sought to introduce the evidence to prove he was an attorney in some other jurisdiction, and also opined it might be relevant to the thoroughness of the detective's investigation. Though the examination of the witness eventually ended without further discussion of the issue, the court agreed to discuss the matter the next day.
¶6 The next day, Pecard sought to recall the detective and examine him about his contact with "the federal bar" to challenge the adequacy of the detective's investigation into Pecard's licensure outside Arizona. Pecard then claimed the detective learned through the FBA that Pecard "was at some time licensed with the federal bar," but when the court sought clarification, stated he meant he was a member of the FBA organization.
¶7 The State maintained the detective learned from an FBA representative that Pecard was a member at some point, but the FBA does not require proof of licensure as an attorney to be a member of the organization. The State maintained the evidence is hearsay, and would be misleading because it suggested that Pecard was a member of a "federal bar," when there is no such entity that licenses attorneys. The superior court agreed that the thoroughness of an investigation is "fair game as a general proposition" but concluded that because FBA membership does not prove a person is an attorney, licensed or otherwise, in any jurisdiction, the evidence would mislead the jury.
The jurors had asked questions including whether it mattered if Pecard was not an attorney; whether Pecard is or ever was "federally registered as an attorney;" whether he was an attorney "of any kind" and if not in Arizona, if he was an attorney "anywhere else in the USA;" and if he was previously an attorney, but no longer licensed. One question also noted that Pecard's counsel used the term "federally registered" attorney.
¶8 Pecard countered with the possibility of being an attorney elsewhere, but still identifying and calling oneself an attorney while in Arizona. However, when the court inquired, Pecard stated he only intended to offer his own testimony to prove any past or present licensure in any jurisdiction. The court noted if there was such evidence, it might allow the examination. Pecard re-urged his argument about the FBA and the detective's investigation, but the court noted FBA membership is not evidence of licensure to practice law anywhere.
Pecard ultimately did not testify.
¶9 The court determined any probative value of Pecard's proposed examination was substantially outweighed by the potential to confuse the jury, especially "[b]ecause the jury [was] clearly confused already on the issue." The court stated: "This will not help them. This will make it worse . . . or certainly has a strong danger of doing that." Pecard eventually stipulated that the Arizona Supreme Court never issued him a license to practice law in Arizona. Nor was any evidence introduced that Pecard had been permitted to appear in Arizona as an attorney pro hac vice.
¶10 A jury convicted Pecard of theft as charged and he was sentenced to five years' imprisonment. Pecard timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
DISCUSSION
"We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998). We do not weigh the evidence and resolve any conflicts in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293 (1989).
I. There is sufficient evidence of a material misrepresentation to support Pecard's theft conviction.
Pecard's opening brief is not a model of clarity. However, in arguing that Pecard was prejudiced by prohibiting the cross-examination of the detective on the thoroughness of his investigation, we construe Pecard's argument to be that without that cross-examination, the evidence was insufficient to prove a material misrepresentation.
¶11 Pecard claims the State prosecuted him for theft based on Pecard's holding himself out as an "attorney" or a "lawyer." He argues this was the State's primary theory of prosecution, as opposed to the theory that Pecard held himself out as an attorney who could represent the victims in a matter in an Arizona court.
¶12 Pecard's contentions are belied by the record. From pretrial proceedings to closing argument, the State emphasized how Pecard presented himself as an attorney authorized to appear as counsel for the victims in an adoption matter in an Arizona court. The State consistently acknowledged that it did not know if Pecard was licensed as an attorney in any other jurisdiction, but that he did not have authority to appear as an attorney for the victims in the adoption proceedings in an Arizona court.
¶13 Apart from the State's arguments or theories, the facts and evidence presented to the jury support the elements of theft. By commission or omission or a combination thereof, Pecard materially misrepresented his authority to provide legal representation in a specific matter in an Arizona court; services for which the victims paid $12,000. See supra ¶ 3. That Pecard may be an attorney or have a license to practice elsewhere is irrelevant based on the facts establishing the theft here. II. Limiting cross-examination to relevant evidence that would not mislead the jury was not an abuse of discretion and did not violate Pecard's constitutional rights.
¶14 After determining any probative value was substantially outweighed by the danger of misleading or confusing the jury, the superior court did not let Pecard cross-examine the detective about the FBA or investigation of Pecard's licensure outside Arizona. Pecard argues this limitation was an abuse of discretion and also violated his constitutional rights to confront the witness, due process and compulsory process, present a complete defense, and claims it shifted the burden of proof and created a permissive inference that Pecard made a material misrepresentation unless Pecard proved he did not. Despite his arguments to the contrary, Pecard did not object to the exclusion of the evidence on these grounds nor otherwise present these issues below, thus, they are waived absent fundamental error. See State v. Bolton, 182 Ariz. 290, 297 (1995); State v. Hamilton, 177 Ariz. 403, 408 (App. 1993) ("objection to the admission of evidence on one ground will not preserve issues relating to the admission of that evidence on other grounds").
"To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of [the] case, takes away a right that is essential to [the] defense, and is of such magnitude that [the defendant] could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568, ¶ 24 (2005). After a defendant establishes fundamental error, the defendant must also prove the error caused prejudice. Id. at ¶ 26.
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¶15 We find no abuse of discretion and no error, fundamental or otherwise. It was well within the superior court's discretion to determine that any probative value of the proffered testimony was substantially outweighed by the danger of misleading and/or confusing the jury. See State v. Robinson, 165 Ariz. 51, 57-58 (1990) ("scope of cross-examination is committed to the sound discretion of the trial court"). As explained above, evidence about Pecard's licensure in a jurisdiction other than Arizona is irrelevant to his material misrepresentation that he could represent the victims in a matter in an Arizona court and his collection of the victims' money to do so. Pecard stipulated that the Arizona Supreme Court never issued him a license to practice law in Arizona. He also has not contested that he was not authorized to practice law in Arizona pro hac vice in the adoption matter. It follows then that the detective's investigation of Pecard's licensure outside Arizona is also irrelevant. We find no abuse of discretion based on relevancy alone, and accordingly, also agree with the superior court that the probative value of such evidence was wholly outweighed by its potential to confuse and mislead the jury. See State v. Robinson, 153 Ariz. 191, 199 (1987) ("can affirm [the superior court] on any basis supported by the record").
¶16 For these same reasons, we also reject Pecard's contentions about a violation of his right to confront the witness and present a complete defense. See State v. Hardy, 230 Ariz. 281, 291, ¶ 49 (2012) (right to complete defense "limited to the presentation of matters admissible under ordinary evidence rules . . . evidence must be relevant, Ariz. R. Evid. 401, and its probative value must not be substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, Ariz. R. Evid. 403." (internal quotation marks and citations omitted)); State v. Oliver, 158 Ariz. 22, 30 (1988) (stating right to present defense including rights to confrontation and compulsory process, "limited to evidence which is relevant and not unduly prejudicial").
¶17 Finally, the superior court did not shift the burden of proof nor create a permissive inference when it told Pecard it might permit the desired cross-examination if Pecard presented evidence he was authorized to practice law anywhere. For the reasons already discussed, the State did not bear the burden to prove Pecard was licensed or authorized to practice law somewhere. Based on the facts and circumstances here, and specifically that the victims paid Pecard to represent them in a legal matter in an Arizona court, it was enough that the State proved Pecard was not licensed or authorized to practice law in Arizona. It was up to Pecard to rebut this evidence. Moreover, we presume the jury followed the instructions it received that the State carries the burden of proof and must prove beyond a reasonable doubt every element of theft, and that Pecard is presumed innocent and need not provide any evidence at all. See State v. Dunlap, 187 Ariz. 441, 461 (App. 1996).
CONCLUSION
¶18 Having concluded there is no abuse of discretion or other error, we affirm Pecard's conviction and sentence.