Opinion
No. 1 CA-CR 12-0550 No. 1 CA-CR 14-0246
06-17-2014
STATE OF ARIZONA, Appellee, v. CHIP MORAY SMITH, Appellant.
Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee Mohave County Legal Defender's Office, Kingman By Diane S. McCoy Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR20011143
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
Mohave County Legal Defender's Office, Kingman
By Diane S. McCoy
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined. NORRIS, Judge:
¶1 Chip Moray Smith appeals his conviction and sentence for second degree murder. On appeal, he argues the superior court should have vacated his convictions, should not have admitted certain evidence, deprived him of a fair trial because of prosecutorial misconduct, and imposed an illegal aggravated sentence. We disagree with all of Smith's arguments and affirm his sentence and conviction.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Smith. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 On August 12, 2001, A.H. and S.R. were waiting for the victim at his home with the expectation that the victim would give them a ride. While they were waiting, Smith arrived with J.B. Smith had a rifle and was "really mad." Smith said he wanted to talk to the victim and the victim "better have his drugs or his money." A.H. and S.R. asked Smith for a ride. Before A.H. and S.R. got into Smith's car, the victim drove past in his truck without stopping. Smith aimed his rifle at the victim but did not shoot.
¶3 Smith, A.H., S.R., and J.B. then got into Smith's car and left the victim's home. As they started to drive away, they saw the victim's truck driving towards them, and both Smith and the victim stopped. Smith got out of his car with his rifle and approached the victim, who was still in his truck. Smith and the victim fought, and Smith struck the victim several times with his rifle. Smith started to return to his car but then turned around and shot the victim in the head. The victim's truck rolled into a ditch and onto its side.
¶4 Subsequently, a passerby reported a "motor vehicle accident." First responders found the victim under the truck with massive head injuries and pronounced him dead at the scene. Investigators did not realize the victim had been shot until an autopsy was conducted later that morning.
¶5 A grand jury indicted Smith on one count of first degree murder. His first trial ended in a mistrial. Following his second trial, the jury convicted Smith of the lesser-included offense of second degree murder. This court reversed his conviction. State v. Smith, 1 CA-CR 03-0887 (Ariz. App. Dec. 8, 2005) (mem. decision). In May 2012, a third jury convicted Smith of second degree murder, and the court sentenced him to an aggravated sentence of 22 years in prison with credit for 2,968 days of presentence incarceration. Smith then moved to vacate the judgment, arguing he had been denied a fair trial because the State had failed to disclose exculpatory impeachment evidence. The superior court denied the motion, finding the evidence was not constitutionally material.
¶6 Smith timely appealed from the judgment of conviction and sentence, and we subsequently granted leave for him to file a delayed appeal from the denial of his motion to vacate the judgment. On this court's own motion, we consolidated the two appeals.
DISCUSSION
I. Motion to Vacate the Judgment
¶7 Smith first argues the superior court should have granted his motion to vacate the judgment because the State failed to disclose exculpatory evidence in violation of his constitutional rights. Reviewing for an abuse of discretion and finding none, we disagree. See State v. Nordstrom, 200 Ariz. 229, 255, ¶ 90, 25 P.3d 717, 743 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012).
¶8 Arizona Rule of Criminal Procedure 24.2 allows the superior court to vacate a judgment if "the conviction was obtained in violation of the United States or Arizona Constitutions." In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Non-disclosure of evidence that affects credibility falls within the Brady rule. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, [however,] does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342 (1976). Instead, evidence is "material" under Brady only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).
¶9 In moving to vacate the judgment, Smith argued the State had failed to disclose that it had offered one of its witnesses, N.S., a favorable plea agreement in an unrelated matter. N.S. testified at Smith's trial that the day before the victim's murder, Smith and the victim had arranged for a truck belonging to another person to be towed and held until an unspecified debt was paid. The State theorized -- and presented additional testimony in support of its theory -- that Smith was angry with the victim because the victim had returned the truck to its owner the following day.
¶10 The superior court denied the motion to vacate the judgment, finding that although the State should have disclosed the plea agreement, the non-disclosed evidence was not material under the principles discussed above. The court explained, inter alia, that "the importance of the [witness's] testimony pales in comparison to the other evidence proving the defendant's guilt, such as the eye witness accounts of the defendant shooting the victim." Based on our review of the record, we agree with the superior court.
¶11 "To warrant a new trial, impeachment evidence must 'substantially undermine[] testimony that was of critical significance at trial.'" State v. Arvallo, 232 Ariz. 200, 206, ¶ 36, 303 P.3d 94, 100 (App. 2013) (alteration in original) (quoting State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995)). Thus, "where a prosecuting witness is not key to the government's case, his credibility is not material; hence the failure to reveal impeachment evidence concerning a minor witness does not violate Brady." United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989) (citation omitted).
¶12 Here, the undisclosed evidence would have been used solely to impeach the witness's testimony that Smith had a motive to kill the victim. Three other witnesses, however, identified Smith at trial and testified they saw Smith get out of the vehicle with a gun and heard a shot. One of those witnesses also testified Smith "turned back around and went back to the window and he shot [the victim]." The undisclosed evidence could not have impeached or undermined this testimony.
¶13 Further, considering the totality of the evidence, N.S.'s testimony pertaining to Smith's motive for the murder was a rather inconsequential part of the State's case. Indeed, even if Smith had been able to use the undisclosed evidence to eliminate all probative value of N.S.'s testimony regarding motive, there would have been overwhelming evidence of Smith's guilt because motive is not an element of second degree murder. See Ariz. Rev. Stat. ("A.R.S.") § 13-1104(A) (2010); State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983) ("Motive is not an element of the crime of murder." (citation omitted)).
Although the Arizona Legislature amended the statutes cited in this decision after the date of Smith's offense, the revisions are immaterial here. Thus, we cite to the current version of these statutes.
¶14 On this record, the superior court did not abuse its discretion in denying Smith's motion to vacate the judgment. II. Other Act Evidence
Smith also argues the State's non-disclosure of N.S.'s plea agreement violated his rights under the Confrontation Clause of the Sixth Amendment. However, the failure to disclose evidence, by itself, does not violate the Confrontation Clause. Pennsylvania v. Ritchie, 480 U.S. 39, 51-54, 107 S. Ct. 989, 998-1000, 94 L. Ed. 2d 40 (1987); Bagley, 473 U.S. at 676-78, 105 S. Ct. at 3380-81.
¶15 Smith next argues the superior court should not have admitted other act evidence that he had arranged for the truck to be towed as "intrinsic evidence." The State properly concedes this evidence was not "intrinsic evidence," see Ferrero, 229 Ariz. at 242, ¶ 13, 274 P.3d at 512, but argues it was nonetheless admissible under Arizona Rule of Evidence 404(b). We agree with the State.
¶16 Rule 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith" but may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." When other act evidence "is offered for a non-propensity purpose, it may be admissible under Rule 404(b), subject to Rule 402's general relevance test, Rule 403's balancing test, and Rule 105's requirement for limiting instructions in appropriate circumstances." Ferrero, 229 Ariz. at 242, ¶ 12, 274 P.3d at 512. In addition, commission of the other act must be proven by clear and convincing evidence. State v. Terrazas, 189 Ariz. 580, 584, 944 P.2d 1194, 1198 (1997).
¶17 First, a witness testified Smith and the victim had asked the witness to tow a truck to the victim's home. Another witness testified the truck had been taken. Thus, there was clear and convincing evidence of the other act.
¶18 Second, the other act evidence was offered to help establish Smith had a motive to kill the victim -- a proper, relevant, non-propensity purpose. See supra ¶ 9; State v. Williams, 183 Ariz. 368, 376, 904 P.2d 437, 445 (1995) ("Although motive is not an element of a crime, a trial court may admit evidence of a defendant's other misconduct if the misconduct furnished or supplied the motive for the charged crime." (citations omitted)).
¶19 Third, the evidence was not subject to exclusion under Rule 403, which allows the court to exclude relevant evidence if its probative value is "substantially outweighed" by the danger of unfair prejudice. Unfair prejudice may exist "if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997) (citation omitted). Given the non-violent nature of the other act, the evidence had no such tendency in this case.
¶20 Finally, although the superior court did not give a limiting instruction, its failure to do so was harmless because the State only used the other act evidence to establish motive, cf. State v. Lehr, 227 Ariz. 140, 147, ¶ 24, 254 P.3d 379, 386 (2011) (failure to specify purposes for which Rule 404(b) evidence admitted harmless when purpose apparent from record), and therefore Smith was not prejudiced. See State v. Salamanca, 233 Ariz. 292, 295-96, ¶ 14, 311 P.3d 1105, 1108-09 (App. 2013) (failure to give limiting instruction not reversible error when defendant not prejudiced). In closing, the prosecutor specifically stated that Smith's "motive . . . that night for shooting" the victim was, inter alia, that Smith and the victim had arranged for the towing of a truck and the victim had returned the truck to the owner. Thus, although not intrinsic evidence, the other act evidence was admissible under Rule 404, and Smith was not prejudiced by its admission into evidence. III. Prior Consistent Statement
¶21 Smith next argues the superior court should not have allowed the case agent to testify that a recorded statement by A.H. during the 2001 investigation was consistent with her trial testimony, asserting the testimony constituted an improper comment on A.H.'s credibility. We disagree.
¶22 "Arizona prohibits testimony from an expert or a lay witness that opines as to the truthfulness of a statement by another witness." State v. Martinez, 230 Ariz. 382, 385, ¶ 11, 284 P.3d 893, 896 (App. 2012) (citation omitted). The case agent, however, gave no opinion regarding the truthfulness of either A.H.'s 2001 statement or her trial testimony. Instead, his testimony simply indicated the two were consistent. Although that testimony was arguably objectionable on hearsay grounds, Smith did not raise a hearsay objection at trial, and he has not argued on appeal that admission of the testimony constituted fundamental error. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008) (failure to argue fundamental error waives argument); State v. Hamilton, 177 Ariz. 403, 408-09, 868 P.2d 986, 991-92 (App. 1993) (objection on one ground does not preserve objection on another). IV. Rebuttal Witnesses
¶23 Smith next argues the superior court should not have allowed the State, during its rebuttal case, to recall a witness to testify on a topic the witness had already discussed in his trial testimony or to call a witness who had failed to appear in the State's case-in-chief. At trial, Smith presented expert testimony that the physical evidence did not support a claim that the victim had been shot while seated inside the truck. The expert's opinion was based, in large part, on the absence of blood spatters or other biological matter inside the victim's truck. Because both of the State's rebuttal witnesses testified in response to the defense expert's opinion and other evidence presented by Smith, the superior court did not abuse its discretion in allowing the rebuttal testimony. See State v. Moody, 208 Ariz. 424, 453, ¶ 107, 94 P.3d 1119, 1148 (2004).
¶24 The recalled rebuttal witness, who was the victim's brother, testified in the State's case-in-chief that he had cleaned the "blood and debris" from the truck before learning the victim had been shot because he "didn't want [his] parents to see anything like that." When recalled, he testified in greater detail about the condition of the truck's interior before he cleaned it to rebut Smith's contention the physical evidence did not support a claim that the victim had been shot inside the truck. Although the State could have asked the witness to provide more detail during its case-in-chief, the State was not precluded from recalling the witness when Smith raised the absence of blood and biological matter in the truck as an issue in his defense case-in-chief. See State v. Young, 116 Ariz. 385, 387, 569 P.2d 815, 817 (1977) (testimony offered in rebuttal will not be precluded just because it could have been included in case-in-chief).
¶25 The State subpoenaed the other rebuttal witness, A.W., to testify in its case-in-chief, but he failed to appear. After being arrested and brought to court, A.W. acknowledged making statements to investigators that Smith had admitted shooting "the guy" when he drove by and giving the gun to someone else to "get rid of it." But, he also testified that he had lied in making those statements. The superior court found the testimony constituted appropriate rebuttal testimony because it rebutted Smith's evidence that the victim could not have been shot in the truck and that Smith had never shown any violence toward the victim. On this record, we cannot say the court abused its discretion in making that finding.
Moreover, the superior court would not have abused its discretion in permitting the State to call the witness in its rebuttal case even if the witness had not offered rebuttal testimony. See State v. Taylor, 112 Ariz. 68, 83, 537 P.2d 938, 953 (1975) (trial courts have broad discretion in relation to order of proof and granting leave to reopen). A superior court does not abuse its discretion in permitting the prosecution to reopen unless the defendant is prejudiced, and to constitute prejudice, it must appear the defendant was deprived of a substantial right. State v. Cota, 99 Ariz. 237, 241, 408 P.2d 27, 29 (1965). Here, Smith has not argued he was prejudiced merely because the State called this witness in its rebuttal case instead of its case-in-chief.
--------
¶26 Smith also argues the court should have precluded A.W.'s rebuttal testimony under State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982). Because Smith did not raise this objection in the superior court, we review only for fundamental error. See State v. Hernandez, 232 Ariz. 313, 323, ¶ 45, 305 P.3d 378, 388 (2013).
¶27 In Allred, our supreme court held that a prior inconsistent statement admissible under Arizona Rule of Evidence 801(d)(1)(A) may be excluded under Rule 403 if it creates a danger of unfair prejudice when the impeaching testimony is used for substantive purposes. 134 Ariz. at 278, 655 P.2d at 1330. The court explained that, in addition to other relevant circumstances, a court should consider whether:
1) the witness being impeached denies making the impeaching statement, andId. at 277, 655 P.2d at 1329 (alteration in original). Here, only the fourth circumstance weighed against admission because the State sought to elicit the inconsistent statements for their substantive use rather than to impeach the witness. However, as the remaining factors all supported admission of the testimony, its admission did not constitute error, let alone fundamental error. See Hernandez, 232 Ariz. at 323-24, ¶¶ 48-49, 305 P.3d at 388-89. V. Prosecutorial Misconduct
2) the witness presenting the impeaching statement has an interest in the proceeding and there is no other corroboration that the statement was made, or
3) there are other factors affecting the reliability of the impeaching witness, such as age or mental capacity, . . .
4) the true purpose of the offer is substantive use of the statement rather than impeachment of the witness,
5) the impeachment testimony is the only evidence of guilt.
¶28 Smith next argues the prosecutor committed misconduct on four occasions, thereby denying him a fair trial. Because he did not raise this claim below, we review only for fundamental error. See State v. Dixon, 226 Ariz. 545, 549, ¶ 7, 250 P.3d 1174, 1178 (2011).
¶29 To prevail on a claim of prosecutorial misconduct, a defendant must "establish that '(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.'" Id. (alteration in original) (quoting State v. Velazquez, 216 Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007)). "The misconduct must be 'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007) (quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)).
A. Failure to Disclose Plea Agreement
¶30 First, Smith argues the prosecutor's failure to disclose N.S.'s plea agreement, see supra ¶ 9, constituted reversible error. We disagree. See supra ¶ 11.
B. Prior Inconsistent Statements
¶31 Second, Smith argues the prosecutor's introduction of prior inconsistent statements through A.W.'s rebuttal testimony constituted reversible error. We disagree. See supra ¶ 25.
C. Leading Questions
¶32 Third, Smith argues the prosecutor engaged in reversible misconduct by repeatedly asking leading questions, thereby depriving him of his right to confront the witnesses against him. Leading questions are those that suggest their own answer, State v. Payne, 233 Ariz. 484, 513, ¶ 119, 314 P.3d 1239, 1268 (2013), and, as a general rule, should not be used in direct examination. Ariz. R. Evid. 611(c). The prohibition is not absolute, however, and such questions may be used when "necessary to develop the witness's testimony." Id.; see also State v. King, 66 Ariz. 42, 49, 182 P.2d 915, 919 (1947) (court may permit leading questions when they will serve "the ends of justice").
¶33 Although the record reveals the prosecutor had a tendency to ask leading questions on direct examination, Smith presented no evidence the prosecutor deliberately asked leading questions with the intent to deprive him of a fair trial. Moreover, the superior court sustained many of Smith's objections to the leading questions, after which the prosecutor rephrased. The superior court instructed the jurors that "[i]f the Court sustained an objection to a lawyer's question, you must disregard it and any answer given," and, as directed by our supreme court, we are to assume the jury followed that instruction. See Payne, 233 Ariz. at 513, ¶ 120, 314 P.3d at 1268. Accordingly, Smith has failed to establish the requisite prejudice to obtain relief under fundamental error review.
D. Vouching
¶34 Fourth, Smith argues the prosecutor engaged in impermissible vouching when he asked A.H. whether she had told the case agent the truth in her pretrial statement and when he asked the case agent whether A.H.'s testimony was consistent with her pretrial statement. See supra ¶¶ 21-22. We disagree.
¶35 "There are 'two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; [and] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony.'" State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994) (alteration in original) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989)). Neither form is present here. First, the prosecutor did not place his "personal opinion and the weight and prestige of the County Attorney's office behind the witness[es]." See Vincent, 159 Ariz. at 423, 768 P.2d at 155. Instead, the prosecutor simply elicited testimony from A.H. that she told the truth in her pretrial statement and from the case agent that A.H.'s testimony was consistent with her pretrial statement. Second, although the prosecutor referenced A.H.'s pretrial statement in examining A.H. and the case agent, nothing about the questions asked or answers given suggested any unstated information to support the witnesses' testimony. VI. Sentencing
¶36 Finally, relying on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), Smith argues the jury, and not the superior court, should have made the finding he was on release when he committed the offense, and thus the court's imposition of an aggravated sentence was illegal. In Alleyne, the Supreme Court held that facts which increase the mandatory minimum sentence for an offense must be submitted to the jury. 133 S. Ct. at 2155. Because, pursuant to A.R.S. § 13-708(C) (Supp. 2013), a person convicted of a felony committed while on release "shall be sentenced to a term of not less than the presumptive sentence authorized for the offense," Smith's release status at the time he committed the murder was a fact that would have raised the mandatory minimum sentence. Accordingly, Alleyne required the court to submit that fact to the jury. Smith, however, was undisputedly on felony release when he committed the offense and was, thus, not prejudiced by the court, rather than the jury, finding that fact. See State v. Large, 234 Ariz. 274, 280, ¶ 19, 321 P.3d 439, 445 (App. 2014) (error harmless when no reasonable jury could conclude defendant not on release when crime committed).
CONCLUSION
¶37 For the foregoing reasons, we affirm Smith's conviction and sentence.