Opinion
No. 2 CA-CR 2018-0126
07-03-2019
THE STATE OF ARIZONA, Appellee, v. MAKIA DAVID TINNELL, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
No. CR20172392001
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
James Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Makia Tinnell was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI) and two counts of aggravated driving with a blood alcohol concentration (BAC) of .08 or more. The trial court suspended the imposition of sentence, placed Tinnell on concurrent five-year terms of probation, and ordered him to serve four months in prison. On appeal, Tinnell argues the trial court erred in precluding his statements to an officer that "he was not impaired and not feeling the effects of alcohol." For the following reasons, we affirm.
Factual and Procedural Background
¶2 We review the evidence and all reasonable inferences therefrom in the light most favorable to affirming Tinnell's convictions. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). One night in May 2017, Tucson Police Department Officer William Bonanno, while on patrol with Officer Nathan Stout, observed the car Tinnell was driving drift across a lane divider three times. The officers conducted a records check, which revealed Tinnell's car registration had expired. Because of the "two [traffic] violations," the officers stopped the vehicle. As Bonanno approached Tinnell's car, he smelled "a moderate odor of intoxicants." Upon questioning, Tinnell admitted he had been drinking. The officers then conducted field-sobriety tests, during which Tinnell exhibited cues of intoxication, and had Tinnell complete a DUI worksheet. The officers concluded that "[s]igns and symptoms . . . consistent with alcohol consumption" were present and arrested Tinnell. Bonanno then performed a blood draw, which later revealed a BAC of .115.
¶3 A grand jury indicted Tinnell for one count of aggravated DUI with a suspended, revoked, or restricted license, one count of aggravated driving with a BAC of .08 or more with a suspended, revoked, or restricted license, and one count each of aggravated DUI and aggravated driving with a BAC of .08 or more, having committed or been convicted of two or more prior DUI violations. He was convicted as charged and sentenced as
described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Complete the Story
¶4 Tinnell argues the trial court erred by precluding "his responses to the officer's questions about his impairment in order to clarify" his self-rating of "two" on the DUI worksheet's one-to-ten scale of alcohol impairment. He contends he was entitled to present this evidence to complete the story under Rule 106, Ariz. R. Evid. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Lehr, 227 Ariz. 140, ¶ 36 (2011).
¶5 While conducting the field-sobriety tests, Stout asked Tinnell if he had been drinking and Tinnell responded that he had three drinks (vodka and soda water). Stout then asked him to circle a number on a scale from one to ten on the DUI worksheet, indicating the extent to which Tinnell was feeling the effects of alcohol when he was driving. Stout described the scale to Tinnell as "one being not feeling the effects of alcohol in any way, ten being you're falling-down drunk, you can't even stand." Tinnell circled "two" and initialed his response. Stout then asked Tinnell two additional questions from the DUI worksheet: (1) "[d]o you feel the [e]ffects of alcohol or drugs—or alcohol that you have drank" and (2) "[d]o you feel the alcohol you drank has affected your driving to the slightest degree." Tinnell answered no to both.
¶6 At trial, Tinnell informed the court that he planned to ask Stout during cross-examination about Tinnell's two additional answers that he was not impaired. He maintained the state had opened the door to those questions by eliciting his response on the one-to-ten scale of impairment. And he argued his responses to the two additional questions should be admitted "in order to complete the statement," as they were related and "all about impairment." The state argued the two questions, coincidentally listed below the impairment scale, did not make them a continuation of the earlier question and would be self-serving hearsay.
¶7 The trial court precluded the questioning. It reasoned that there was a difference between the first question, which related to impairment at the time of driving, and the two additional questions, which more generally asked if Tinnell was feeling the effects of alcohol. The court noted that the time of driving was "the only relevant time"; thus, the answer to the first question was the only one of the three that had "any relevance or connection" to the issue to be decided by the jury. As to the
second question, the court also explained that whether Tinnell "fe[lt] any [e]ffects from the alcohol," generally, was not necessary to complete his answer that he was impaired when he was driving. And apparently referring to Tinnell's answer to the third question, which did relate to impairment while driving, the court stated the answer had already been given when Tinnell circled "two" on the one-to-ten scale, and his additional statement was precluded as "self-serving hearsay."
¶8 Rule 106 provides, "If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time." See State v. Steinle, 239 Ariz. 415, ¶ 8 (2016) (describing Rule 106 as "rule of completeness"). The rule is "equally applicable to oral statements." State v. Ellison, 213 Ariz. 116, n.9 (2006). However, it "does not create a rule of blanket admission for all exculpatory statements simply because an inculpatory statement was also made." State v. Cruz, 218 Ariz. 149, ¶ 58 (2008); see State v. Barger, 167 Ariz. 563, 567 (App. 1990) (exculpatory statements tend to "justify, excuse, or exonerate" a party from fault). Rule 106 only allows admission of the portion of a statement "necessary to qualify, explain or place into context the portion already introduced." Cruz, 218 Ariz. 149, ¶ 58 (quoting State v. Prasertphong, 210 Ariz. 496, ¶ 15 (2005)).
¶9 Relying on Prasertphong, 210 Ariz. 496, ¶ 22, Tinnell argues the trial court erred by not admitting his answers on the basis they were inadmissible hearsay. In Prasertphong, our supreme court discussed the introduction of hearsay statements under the "rule of completeness," as Tinnell contends. Id. But the court stated that a hearsay statement introduced under "the rule of completeness," pursuant to Rule 106, is "admissible on a nonhearsay theory," provided the admitted evidence is "so closely connected to the part the proponent contemplates introducing that it furnishes integral context for that part." Id. (quoting McCormick on Evidence § 56, at 250-52 (5th ed. 1999)).
¶10 Tinnell's answers to the two questions are not so closely connected to his answer on the impairment scale that they furnish integral context to explain his answer, "two," on the impairment scale. See id. The scale parameters were unambiguously explained by Officer Stout—"one being not feeling the effects of alcohol in any way, ten being you're falling-down drunk, you can't even stand." Tinnell's answer was complete and explained how the alcohol had affected him at that time. His inculpatory answer did not entitle him to the "blanket admission," Cruz, 218 Ariz. 149, ¶ 58, of his exculpatory following answers, as he suggests. The two
additional statements were not "necessary to qualify, explain or place into context" the former. Id. (quoting Prasertphong, 210 Ariz. 496, ¶ 15). Absent a nonhearsay basis for admitting these exculpatory statements, they are inadmissible hearsay. Accordingly, we cannot say the trial court abused its discretion in precluding the cross-examination of Stout concerning the questions and Tinnell's two answers following the impairment scale. See Lehr, 227 Ariz. 140, ¶ 36.
¶11 Even assuming there was any error in precluding Tinnell from questioning Stout about his answers to the additional DUI worksheet questions, such error was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (improper denial of the opportunity to cross-examine subject to harmless-error analysis). An error is harmless if we are confident, beyond a reasonable doubt, that the error did not affect or contribute to the verdict. State v. Romero, 240 Ariz. 503, ¶ 7 (App. 2016).
¶12 The officers stopped Tinnell's vehicle because they had observed it drifting "across the lane divider" three times. Bonanno and Stout noticed a "moderate odor of intoxicants" coming from Tinnell's car and breath during the stop. His eyes were "bloodshot and watery," he had body tremors, his speech was slow, and he was swaying. Tinnell exhibited six out of six cues of impairment on the HGN (horizontal gaze nystagmus) test. During the other field-sobriety tests, Stout noted four out of eight cues of intoxication during the walk-and-turn test, and three out of four during the one-leg stand test. Finally, Bonanno obtained a sample of Tinnell's blood, and subsequent testing showed a BAC of .115. We are thus satisfied beyond a reasonable doubt that, even were we to have agreed there had been error, it did not contribute to or affect the verdicts. See id.
Disposition
¶13 For the reasons stated above, we affirm Tinnell's convictions and sentences.