Opinion
No. 1 CA-CR 11-0323
03-29-2012
STATE OF ARIZONA, Appellee, v. KAZUHIKO MATSUMOTO WILSON, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Coconino County
Cause No. CR2010-00088
The Honorable Dan R. Slayton, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Phoenix
David Goldberg
Attorney for Appellant
Fort Collins, CO HALL, Judge
¶1 Kazuhiko Matsumoto Wilson appeals his convictions and sentences for first-degree murder, first-degree burglary, armed robbery, theft, possession of marijuana for sale, possession of narcotic drugs, and solicitation to hinder prosecution. He argues on appeal that the trial court improperly deprived him of his right to a complete defense by denying him discovery of confidential informant records and by precluding him from submitting evidence of other persons' motive and opportunity to commit the murder. He also argues that the trial court committed several instances of evidentiary error, which, considered cumulatively, deprived him of a fair trial. He further argues that the evidence was insufficient to convict him of the charged offenses. Finally, he argues that the trial court abused its discretion in sentencing him to a term of natural life imprisonment. For the reasons that follow, we find no reversible error and accordingly affirm.
¶2 The evidence introduced at trial, viewed in the light most favorable to supporting his convictions, was as follows. Both Wilson and the victim, Zachary Morgan, sold heroin in Flagstaff. Both also were heroin addicts. Shortly before the murder, Wilson talked about robbing Morgan.
State v. Moody, 208 Ariz. 424, 435, ¶ 2 n.1, 94 P.3d 1119, 1130 n.1 (2004).
Wilson was referred to throughout trial as "Hiko."
¶3 Police found Morgan dead in his bed on December 23, 2009, from two gunshot wounds, one to his head and one to his neck, both inflicted at close range, probably while he was asleep. Morgan's roommates reported that Wilson had been with the victim in his bedroom the night before, and had left through the front door around midnight or 1 a.m. The back door of the bedroom was open to the backyard. Within hours, police had arrested Wilson and found in the trunk of his car the victim's backpack containing a half-pound of marijuana, and a gun case for the Kahr 9-millimeter semiautomatic handgun used to kill Morgan. Police also found .28 grams of heroin in the vehicle.
¶4 Shortly afterward, in Wilson's bedroom, police found the Kahr 9-millimeter handgun used to murder the victim, with the victim's blood in the barrel. The handgun had been in the possession of the victim. A few days before the murder, Wilson had persuaded the victim to leave it at Wilson's apartment.
¶5 Several witnesses testified that Wilson had told them that day that he had killed a man earlier in the day by shooting him in the head. A few days after he was arrested, Wilson told another witness, a jail inmate whom Wilson had known before, that he had killed Morgan by shooting him in the head through a pillow, and then shooting him again after he gasped and tried to get up. This witness testified that Wilson told him that he did it because he wanted the victim's drugs and money, "so he can go down to Phoenix and live with his fiancee, or his wife, or his girl." When the inmate was about to be released, on December 30, 2009, Wilson told him that the murder weapon was in his house, and asked him to do him a favor by getting it from his roommates (not realizing that police already had found and impounded it). The inmate instead called Silent Witness, and ended up telling what happened to police.
¶6 Wilson denied shooting Morgan. He testified that three members of a Mexican drug cartel who supplied him with heroin-known by their nicknames of Guero, Chicho or Hercules, and Poncho-had given him the victim's backpack with the handgun and the half-pound of marijuana the day he was arrested. Chicho and Guero both denied giving Wilson the victim's backpack and the handgun. Poncho had testified earlier that he had never met the victim, but that Wilson had told him earlier on the day he was arrested that he had shot someone in the head once or twice, killing him.
"Chicho" and "Hercules" were nicknames used by Alejandro Alvarez.
"Poncho" was a nickname used by Jorge Amaya.
¶7 The jury convicted Wilson of the submitted crimes. The judge sentenced Wilson to natural life on the first-degree murder conviction and presumptive terms on the remaining convictions. He ordered that the sentences for the convictions on possession of narcotic drugs and solicitation to hinder prosecution be served consecutively to the term for first-degree murder, and the others to be served concurrently with the term of first-degree murder. Wilson filed a timely notice of appeal.
1. Denial of Disclosure of Confidential Informant Records
¶8 Wilson argues that the trial court abused its discretion and improperly deprived him of his right to present a complete defense by denying him discovery of records memorializing a critical witness's role after the murder as a confidential informant. Wilson has asked this court to review the sealed confidential informant records "in the context of the entire record and determine whether the trial court erred in precluding their discovery and later use at trial."
¶9 The constitutional rights to due process, compulsory process, and confrontation guarantee a criminal defendant "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986). A defendant's right to present evidence is subject to restriction, however, by application of reasonable evidentiary rules. See United States v. Scheffer, 523 U.S. 303, 308 (1998). We will not disturb a trial court's ruling on discovery matters absent an abuse of discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App. 1999).
¶10 The background on this issue is as follows. Wilson moved before trial to compel disclosure of the confidential informant records involving John Haughton, who was expected to testify at trial that Wilson had called him after the murder and confessed to it. Wilson argued that the records contained information that would tend to mitigate or negate his guilt, and he had substantial need of them to support his third-party culpability defense and to evaluate Haughton's credibility, citing Arizona Criminal Procedure Rules 15.1(b)(8) and (g). Wilson reasoned that he was entitled to know the identity of the targets of Haughton's undercover investigation to show the "interconnectedness of the victim, Haughton, the defendant and the heroin suppliers," because he believed that the targets of Haughton's undercover investigation were members of the Mexican drug cartel who had supplied Wilson with drugs and were the actual murderers, and it was "also conceivable that Haughton was involved with the murder and the framing of the defendant."
¶11 The State responded that it had previously disclosed Haughton's confidential informant agreement, with redactions, and had disclosed the reports on the charges that Haughton faced before signing the agreement. The State argued that the records on Haughton's role as a confidential informant were unrelated to the murder, and requested a Protective Order under Arizona Criminal Procedure Rule 15.5(a), on the ground that disclosure would jeopardize Haughton's life, as evidenced by an affidavit from his control officer, filed ex parte under seal. The State argued in the alternative that the court could conduct an in camera review of the records "to confirm that they relate to a wholly separate drug transaction and do not tend to exonerate Defendant for the murder." At a hearing on Wilson's motion the first day of trial, Haughton's control officer, Jolene Coules, testified that Haughton became a confidential informant following his drug-related arrest sometime after this murder, that disclosure of the records generated by Haughton's work as a confidential informant created a risk of harm to him, and that nothing in the files involved the murder or the witnesses to the murder.
¶12 The trial court admitted as exhibits at the hearing recently disclosed summaries of interviews conducted by police of six persons, including three (Jorge Amaya ("Poncho"), Rene Lugo-Lopez ("Guero"), and Alejandro Alvarez ("Chicho")) whom Wilson has identified as members of the drug cartel who supplied him with heroin, and on whom he believed Haughton had informed. The interviews contained the three men's statements on where they were the date of the murder, their relationship with each other, defendant, and the victim, if any, and any information they might have had of the murder.
In police reports, Lugo-Lopez is attributed the nickname "Weto."
¶13 After reviewing the sealed confidential informant records in camera, the trial court denied Wilson's motion to compel disclosure, reasoning:
Upon review, none of the documents make any reference to either Zachary Morgan or Kazuhiko Wilson. None of the documents reference the address where the murder took place. None of the reports reveal any information that either is exculpatory, or would tend to lead to exculpatory information, nor is any of the information contained therein inculpatory. The Court further finds, based on the testimony of Agent Coules, that release of the confidential informant agreement, the reports generated as a result of the confidential informant's work, and the affidavit of Agent Coules, the confidential informant's safety would be compromised.Haughton testified at trial that he knew that Wilson had bought drugs from some "Mexican guys," and that after the murder of Zachary Morgan, he purchased heroin from the same suppliers.
¶14 Wilson argues that if the records revealed a link "prior to the murder" between Haughton and the members of the Mexican cartel who supplied Wilson with drugs and whom he blamed for the murder, or revealed information regarding their opportunity and motive to murder the victim, then the records should have been disclosed as relevant to show Haughton's bias and motive to fabricate, and to support Wilson's defense that the Mexican cartel was responsible for the murder. We have reviewed the sealed confidential informant records, and considered them in light of the evidence in the entire record, and find no error in the trial court's refusal to compel their disclosure. Nothing in the records reveals a link "before the murder" between Haughton and the members of the Mexican cartel who supplied Wilson with drugs and whom he blamed for the murder. Nor does anything in the records reveal information regarding the opportunity and motive of the Mexican cartel members identified by Wilson to murder the victim. Nor do the records reveal any exculpatory evidence, or any material evidence relating to the murder. Moreover, any relationship between the members of the drug cartel whom Wilson accused of murdering Morgan and the murder itself was detailed in summaries of interviews by police of those persons Wilson had identified in his pleadings as members of the drug cartel on whom he believed Haughton had informed, summaries that were disclosed before trial. On this record, we find no merit in Wilson's claim that the confidential informant records were necessary to his presentation of a complete defense to the charges, and should have been disclosed.
2. Preclusion of Third-Party Culpability Evidence
¶15 Wilson also argues that the trial court improperly denied him the opportunity to present his complete third-party culpability defense, by precluding him from offering evidence that the victim had stolen marijuana from others, and that they or their friends had threatened to kill him as a result. The admission of third-party culpability evidence is governed by Arizona Rules of Evidence (Rule) 401 through 403, not by Rule 404(b). State v. Machado, 226 Ariz. 281, 284, ¶ 16, 246 P.3d 632, 635 (2011) (citations omitted). To be relevant, third-party culpability evidence "need only tend to create a reasonable doubt as to the defendant's guilt." State v. Gibson, 202 Ariz. 321, 324, ¶ 16, 44 P.3d 1001, 1004 (2002) (emphasis omitted). A defendant may not, however, "in the guise of a third party culpability defense, simply 'throw strands of speculation on the wall and see if any of them will stick.'" Machado, 226 Ariz. at 284, ¶ 16, n.2, 246 P.3d at 635 (citations omitted). Moreover, third-party culpability evidence may be precluded on the ground it is inadmissible hearsay. Cf. Machado, 226 Ariz. at 284-85, ¶¶ 17-23, 246 P.3d at 635-36. We review a trial court's ruling concerning the admissibility of third-party culpability evidence for abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21, 52 P.3d 189, 193 (2002). We will affirm the trial court's ruling if it is legally correct for any reason. State v. Canez, 202 Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002).
¶16 The background on this issue is as follows. Before Wilson formally disclosed that he would assert a defense based on third-party culpability, the State moved to preclude Wilson from offering testimony that the victim had stolen marijuana from drug dealers and other unknown persons, on the grounds the evidence lacked relevance and relied on inadmissible hearsay. Wilson responded that such evidence was relevant to his defense that numerous others had motive and opportunity to murder the victim, but he asked the court to delay ruling on this issue to allow him to complete his investigation and file a separate motion under Evidence Rules 404(a)(2) and (b) and 701. The judge provisionally precluded this evidence, explaining, "I say provisionally, because I will allow Mr. Sheffield [Wilson's counsel] to reargue if he brings a motion under third party culpability, and I will consider it under that motion. I will reconsider it under that motion." Wilson subsequently formally disclosed that he would defend on the basis of third-party culpability, and notified the court again that he would be filing a Motion to Admit Third-Party Culpability Evidence, but that he did not intend to do so until certain "requested records are received and reviewed," and asked leave to file any such motion and reply under seal. Wilson, however, did not subsequently file a Motion to Admit Third-Party Culpability Evidence, even under seal.
¶17 The first category of evidence that Wilson argues that he was improperly precluded from presenting consisted of the following: 1) testimony from a witness on where the victim had told her he had obtained the more than two pounds of marijuana she saw him with a few weeks before he was murdered; 2) a witness's testimony on what he had heard about the victim having large amounts of cash, what the victim had said about where he had obtained his marijuana, and what this witness had heard about the victim stealing marijuana from other people; 3) testimony from a witness elaborating on his comment that he overheard the victim telling his brother that he wanted to steal some marijuana.
¶18 In each of these incidents identified by Wilson to which the trial court sustained an objection, the trial judge precluded the evidence in pertinent part on grounds of hearsay, or lack of foundation because the witness did not personally observe the incident. This testimony was properly precluded on grounds of hearsay, and Wilson did not suggest that any exception was applicable. Cf. Machado, 226 Ariz. at 284-85, ¶¶ 17-23, 246 P.3d at 635-36. We find no reversible error on this ground.
¶19 The second category of evidence that Wilson argues he was improperly precluded from presenting was testimony from the lead detective on any investigation he might have undertaken regarding where the victim had obtained his marijuana and threats made by persons other than Wilson against the victim. The State objected on the ground that these questions were designed to elicit "rumors, speculation and hearsay about sources of the marijuana," which the court had previously ruled could not come in. Wilson responded that the source of the victim's marijuana was relevant "to figure out if someone murdered Mr. Morgan, either in retaliation for him stealing the marijuana or to get the marijuana," and whether police adequately investigated this issue.
¶20 The judge concluded that "[t]he source of the marijuana is really I think tangential to, and collateral to the issues," and precluded this line of inquiry with the proviso that Wilson could recall the witness if he could provide the judge with "more than just, well, someone could have, you know, Zach Morgan could have stolen it, or we were not able to determine if it was stolen." The judge also found insufficient to allow further questioning along this line Wilson's offer of proof that one witness had told Wilson that a couple of months before the murder he wanted to talk to the victim because the victim had robbed one of his friends, and another witness had said that another person had told her at some unspecified time that he would kill the victim if she told him where he was at, because the victim had robbed a friend. The judge reasoned, citing Prion and Machado, "I think there has to be something more than somebody a couple of months prior talking to the Defendant about robbing Mr. Morgan. I think there has to be something more than one telephone call."
¶21 We also find no abuse of discretion in the judge's ruling precluding this line of inquiry. Although admissible evidence that Morgan had in fact stolen the half-pound of marijuana that he had in his possession when he was murdered, and any recent threats to murder Morgan, might have been relevant to show that others had the motive to murder Morgan, we cannot say that the judge abused his discretion in finding that Wilson's offer of proof did not rise to that level. If Wilson had offered a witness who had first-hand knowledge of Morgan's theft of drugs, or had offered an exception to the preclusion of hearsay to admit the testimony regarding threats to murder Morgan, and the evidence showed that these were recent occurrences, the evidence might have been admissible. But Wilson proffered evidence that was not admissible on grounds of hearsay, and appeared to consist of little more than "strands of speculation," some of which he hoped would stick. Under these circumstances, we cannot say that the trial court abused its discretion in excluding the evidence under Machado. See Machado, 226 Ariz. at 284, ¶ 16, n.2, 246 P.3d at 635, n.2; State v. Bigger, 227 Ariz. 196, 209, ¶ 44, 254 P.3d 1142, 1155 (App. 2011) (holding that trial court did not abuse its discretion in excluding third-party culpability evidence because the timing of the incident at issue could not be sufficiently connected to the time of the murder and thus "offered only a possible ground of suspicion against another") (citation and internal punctuation omitted).
3. Admission of Victim's Comment on Defendant's Demeanor
¶22 Wilson argues next that the trial court fundamentally erred in allowing a witness to testify that the victim told him a few days before he died that Wilson "is acting weird," reasoning that the testimony describing what the victim said about Wilson's demeanor constituted hearsay inadmissible under any exception. He concedes that the observation was nearly contemporaneous with the statement, but argues that the victim's description of Wilson's demeanor was not a present sense impression because it described neither an "event" nor a "condition," as necessary for this hearsay exception.
¶23 We ordinarily review a judge's ruling on evidentiary issues for abuse of discretion. State v. Tucker, 205 Ariz. 157, 165, ¶ 41, 68 P.3d 110, 118 (2003). Because Wilson failed to object to this testimony, we limit our review of this claim to one for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Wilson thus bears the burden of establishing error, that the error was fundamental, and that the error caused him prejudice. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
¶24 We conclude that Wilson has not demonstrated any reversible error. The present sense impression exception to the rules against hearsay applies in pertinent part to "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Ariz. R. Evid. 803(1). Wilson concedes that the observation was nearly contemporaneous with the statement, and we agree. He does not argue that the victim did not perceive Wilson's demeanor. He argues only that the "demeanor" of a person is not a "condition" for purposes of Rule 803(1). We disagree, and find that the victim's statement that Wilson was "acting weird" constituted a statement describing Wilson's demeanor, or "condition," at the time, and thus the statement was admissible as a present sense impression. Moreover, Wilson has failed to persuade us that he was prejudiced to the extent that the jury could have reached a different verdict had this evidence not come in, as is his burden on fundamental error review. See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609. We accordingly concluded that the judge did not err in allowing this testimony. Moreover, even assuming that the testimony was erroneously admitted, any error was not so significant as to be fundamental. See Anderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at 608 (explaining that to establish fundamental error, defendant must show that the error "goes to the foundation of his cases, takes away a right essential to his defense, and is of such magnitude that he could not have received a fair trial."
4. Admission of Witness's Prior Statements Under
Arizona Rule of Evidence 106¶25 Wilson next argues that the trial court erred in allowing the prosecutor to elicit "Haughton's hearsay statements to the police under the improper guise of Rule 106 when [defense] counsel was simply impeaching the witness with his prior inconsistent statements to the police."
¶26 The rule of completeness, partially codified in Rule 106, requires the admission of those portions of a person's statement that are "necessary to qualify, explain or place into context the portion already introduced." State v. Prasertphong, 210 Ariz. 496, 499, ¶ 15, 114 P.3d 828, 831 (2005) (citation omitted); see Ariz. R. Evid. 106 (requiring admission of other portions of writing or recorded statement "which ought in fairness to be considered contemporaneously with it"); Fed. R. Evid. 106 advisory committee's note (noting that the rule is designed to prevent "the misleading impression created by taking matters out of context").
¶27 The rationale behind Rule 106 also applies to unrecorded oral statements. See State v. Ellison, 213 Ariz. 116, 131, ¶ 47, n.9, 140 P.3d 899, 914 n.9, cert. denied, 127 S. Ct. 506 (2006). Evidence otherwise inadmissible on hearsay grounds may be admissible under the rule of completeness. See Prasertphong, 210 Ariz. at 501, ¶ 22, 114 P.3d at 833 (citing with approval legal scholars and treatises that have rejected argument that hearsay rules trump rule of completeness). We review the court's ruling on the admissibility of evidence for abuse of discretion. See Tucker, 205 Ariz. at 165, ¶ 41, 68 P.3d at 118.
¶28 This issue arose during the impeachment by Wilson of Haughton, a critical witness at trial because he testified that Wilson called him shortly after the murder and confessed to shooting and killing Morgan. During Wilson's cross-examination of this witness, the prosecutor argued that Wilson was improperly attempting to impeach the witness by citing to prior consistent statements in the context of attempting to refresh the witness's recollection, but citing only to portions of his prior statement that were misleading, and that the statements that placed the portions in context should be read contemporaneously under Rule 106. The judge noted that the prior statements should not be read aloud to refresh the witness's recollection, but if counsel was attempting to impeach the witness with his prior inconsistent statements, under Rule 106, counsel would need to read the entire statement.
¶29 The final question Wilson asked this witness was whether he had told counsel in a pre-trial interview, citing to a specific line in that interview, that Wilson had told him that he had "shot Zach in the back." On re-direct, over Wilson's objection, the prosecutor read the entire 15-line description of what this witness had previously said with respect to shooting the victim in the back, and asked him if this was in fact what he had told counsel:
He [Hiko] said that he, him and Zach were getting high at the house, and then Hiko was going to leave and Zach was going to go to bed, and then Hiko left and came back, and he was knocking at the back door . . . or something like that, the glass sliding door, or the last I heard he was knocking on the door. And then Zach came and answered it, and Hiko said his car was stuck and he needed help getting it out.The witness agreed that that was what he had told counsel in his prior interview. Later on re-direct, referring to what defense counsel had asked him as to what he had told detectives about Wilson telling him the "entire story," but not being sure if Wilson had said he had dragged the victim into the bedroom, or had shot him there, the prosecutor asked the witness, again over Wilson's objection, if he did not say the following:
And Zach, Hiko said Zach turned around and walked into his room, and then as they were walking to his room[,] Hiko pulled the gun out on him, and Zach started screaming or something, so Hiko shot him in the back, that is what he told me, and he fell. Or, I don't remember, I don't remember if it was in his room or not.
He is like, fuck man, fuck man, I fucked up. I was like what did you do? He is like, I shot him, man, I shot him, or I killed him, I killed him. Something like that . . . And I asked him, I asked him, What the fuck happened, man? How did all this happen? . . .The witness agreed that he had.
Like, what the fuck happened. Like, how did all this happen? And then he told me, he told me the entire
story. He told me that he went back to the house, or he was hanging out there, he went back to the house, knocked on the back door, told Zach he was stuck, came into the house, shot Zach, or Zach started screaming or something like that, so he shot him and he dragged him to the bedroom, or something like that. I am not sure if he dragged him, or he shot him in the bedroom, or something like that. He said after that, he ran out of the house, got in his car and drove down the street real slow, with his lights off.
¶30 We find no abuse of discretion in the judge's allowing the prosecutor to recite the statements in their entirety to show the context in which they were made, and to avoid misleading the jury. This witness's version of events, as recounted to police and defense counsel, was in its entirety obviously not a well-thought out story, but rather an impressionist series of details that he recalled Wilson telling him when he was under stress from hearing it as well. We find no abuse of discretion in the judge's ruling allowing the prosecutor to ask the witness if the statements that he made that Wilson had said he shot the victim in the back, and dragged him to the bedroom, were made in the context of other statements showing that what he had said Wilson told him was equivocal throughout, and not as perfectly clear as the jury might have been led to believe by the selection of these isolated statements to show their inconsistency with the physical evidence. See Prasertphong, 210 Ariz. at 501, ¶ 22, 114 P.3d at 833; Ariz. Evid. R. 106.
We find no merit in Wilson's argument that Rule 613(b), which governs the admissibility of extrinsic evidence of prior inconsistent statements, precluded the prosecutor's questions. The prosecutor was not attempting to introduce extrinsic evidence of prior inconsistent statements; rather, he was attempting only to place the witness's statements in the context in which they were made.
5. Preclusion of Evidence of Wilson's Prior Statements
¶31 Wilson next argues that the trial court improperly refused to permit him "to elicit portions of his police interrogation during examination of the lead detective and in his own testimony." He concedes that, generally, defense counsel is precluded from introducing at trial defendant's own hearsay statements. He argues, however, for the first time on appeal, that the questions he posed to the lead detective were not offered to elicit the truth of the matter "but to . . . put into context the nature of his investigation of [Wilson] versus other potential suspects and his [Wilson's] lack of knowledge about the crime scene and homicide." He argues that the questions to Wilson and his denials were also admissible under Rule 803(3), the state-of-mind exception to the rules precluding hearsay.
¶32 The background on this issue is as follows. At trial, the prosecutor objected on grounds of hearsay when Wilson asked the lead detective if he had interviewed Wilson, and "[D]id you learn from him consistent information?" The judge recessed trial for the day before ruling on the objection, and asked defense counsel to brief the issue, citing his legal authority, before the next trial date. Wilson did not do so. The following trial day, however, Wilson informed the judge that he had reconsidered, and he did not need to pursue that line of questioning, which was, in any case, designed only to ascertain "what areas he discussed with my client, how long he interviewed my client." He repeatedly avowed, "I am not trying to back door any statements in. I am just asking the detective if as part of his investigation he interviewed the Defendant. Period." The judge sustained the prosecutor's objection to Wilson's questioning of the detective on what he asked of Wilson, and what Wilson told him, on the grounds Wilson's responses were inadmissible hearsay, and the questions the detective asked Wilson would simply invite speculation as to the answers, and accordingly, would invite error.
¶33 The prosecutor again objected on hearsay grounds when defense counsel asked Wilson whether the officer who arrested him had accused him of killing Morgan, and Wilson responded, "Yeah, for a while. He kept asking me, 'Why did you kill Zach?' 'Why did you kill --.'" Defense counsel argued that the officer's question was not offered for the truth of the matter asserted, "but it is offered to show the effect on the [hearer], and it goes to his state of mind, and how it affected him, and why he answered the way he did." Defense counsel noted that "once he heard that, he started crying." The judge allowed defense counsel to ask Wilson his reaction to learning that Morgan was dead, finding that the testimony was admissible under Rule 803(3), the state-of-mind exception to the rule precluding hearsay, but prohibited him from asking Wilson why he reacted the way he did. Defense counsel subsequently asked Wilson what his reaction was to the officer's report that Morgan was dead, and he responded, "I started crying." We review a court's ruling on evidentiary issues for abuse of discretion. Tucker, 205 Ariz. at 165, ¶ 41, 68 P.3d at 118.
On cross-examination, the prosecutor asked Wilson if he had told the arresting officer that he lived with his mother, and was coming from a friend's house, rather than admit that he lived with roommates at the address where he had stashed the murder weapon. In rebuttal closing, the prosecutor referred only once to these statements, and argued that these lies reflected on Wilson's credibility. We find no error in the admission of these statements during the prosecutor's examination of Wilson, and his reference to them in rebuttal closing argument, as they clearly were not hearsay, but admissions of a party-opponent. See Ariz. R. Evid. 801(d)(2)(A). Moreover, Wilson did not object at the time, and although he refers to Rule 106 on appeal, he does not suggest how these statements were taken out of context and somehow misled the jury as to what he had told police. We find no error on this basis.
¶34 We find frivolous Wilson's argument that his denials in response to the police officer's questions were admissible under Rule 803(3), the state-of-mind exception to the rules precluding hearsay. Rule 803(3) provides for an exception to the rules precluding hearsay only in pertinent part for "[a] declarant's then-existing state of mind . . ., but not including a statement of memory or belief to prove the fact remembered or believed." Wilson does not explain how his denials of culpability for Morgan's murder during police interrogation would not constitute a "statement of memory or belief to prove the fact remembered or belief." Wilson's recollection that he denied culpability for Morgan's murder when confronted by the lead detective is precisely that: a statement of memory to prove the fact remembered. Moreover, the trial court did allow defense counsel to elicit Wilson's reaction to learning Morgan was dead, i.e., that he started crying. We accordingly find no abuse of discretion on this ground.
¶35 Nor do we find any merit in Wilson's argument that the police interrogation and Wilson's responses were admissible to show, not the truth of the matter asserted, "but to . . . put into context the nature of his investigation of [Wilson] versus other potential suspects and his [Wilson's] lack of knowledge about the crime scene and homicide." Wilson's argument that his responses during the police interrogation were admissible for the non-hearsay purpose of showing his "lack of knowledge about the crime scene and homicide" fails on its face. This is because the purported purpose of showing "lack of knowledge about the crime scene and homicide" is identical to the hearsay purpose of showing "the truth of the matter asserted," that is, that he lacked knowledge, i.e., that he was innocent. See Ariz. R. Evid. 801(c). Moreover, because he failed to seek to introduce any evidence for the purpose of showing the context and nature of the investigation of Wilson versus other potential suspects below, and failed to make an offer of proof indicating what precisely he thought might be admissible and why, he has waived error with respect to this claim. See State v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301 (1996) ("When an objection to the introduction of evidence has been sustained, an offer of proof showing the evidence's relevance and admissibility is ordinarily required to assert error on appeal"). On this record, it is impossible to discern whether the evidence Wilson now argues should have been admitted was relevant or admissible. We decline to reverse on this basis.
6. Cumulative Error
¶36 Wilson argues that the evidentiary errors, considered cumulatively, deprived him of a fair trial and violated his right to present a complete defense. As Wilson concedes, Arizona does not recognize the doctrine of cumulative error. See State v. Prince, 160 Ariz. 268, 274, 772 P.2d 1121, 1127 (1989); Ellison, 213 Ariz. at 133, ¶ 39, 140 P.3d at 916. This "lack of recognition is based on the theory that something that is not prejudicial error in and of itself does not become such error when coupled with something else that is not prejudicial error." State v. Hughes, 193 Ariz. 72, 79, ¶ 25, 969 P.2d 1184, 1191 (1998) (citation and internal punctuation omitted). In other words, "several non-errors and harmless errors cannot add up to one reversible error." Hughes, 193 Ariz. at 79, ¶ 25, 969 P.2d at 1191. We have no authority to disregard or overrule decisions of the Arizona Supreme Court. See, e.g., State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). We accordingly decline to reverse on this basis.
7. Sufficiency of Evidence
¶37 Wilson argues that insufficient evidence supported his convictions because they relied on circumstantial evidence and the inconsistent testimony of convicted felons and drug addicts "who had every motive to lie." We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). In reviewing the sufficiency of evidence, we view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). In reviewing the sufficiency of the evidence, we do not distinguish between direct and circumstantial evidence. See State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). Credibility determinations are exclusively the province of the jury. See State v. Just, 138 Ariz. 534, 545, 675 P.2d 1353, 1364 (App. 1983). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted).
¶38 We find that the evidence was more than sufficient to support his convictions. When Wilson was arrested within hours of the murder, he had the victim's backpack containing a half-pound of marijuana in the trunk of his vehicle, and the murder weapon with the victim's blood in the barrel was found in his bedroom closet. Police also found heroin in his vehicle. Several witnesses testified that he had told him before the arrest that he had shot and killed the victim earlier that day. A jail inmate testified that Wilson asked him to go to his apartment to retrieve the murder weapon. On this record, the evidence was more than sufficient for Wilson to be convicted of the charged crimes.
8. Sentencing Error
¶39 Wilson finally argues that the judge abused his discretion in sentencing him to life without parole on the first-degree murder conviction, because he refused to consider as a mitigating factor that he was under the influence of heroin, and impermissibly found as aggravating factors that the murder was "cold-blooded" and that he was a "danger to the community."
¶40 When a defendant is convicted of first-degree murder in a non-capital case, the trial court determines whether to impose a sentence of life or natural life. Arizona Revised Statutes (A.R.S.) section 13-752(Q)(2010). In making this determination, the court may consider "any evidence introduced before sentencing or at any other sentencing proceeding," and "[s]hall consider the aggravating and mitigating circumstances listed in § 13-701 and any statement made by a victim." A.R.S. § 13-752(Q). Although the sentencing court is required to consider all of the evidence offered in mitigation, it is not required to accept that evidence. State v. Stokley, 182 Ariz. 505, 519-21, 898 P.2d 454, 471-73 (1995). A conviction of first-degree murder allows the court to impose a term of natural life imprisonment without any additional finding of fact. State v. Fell, 210 Ariz. 554, 558, ¶ 15, 560, ¶ 19, 115 P.3d 594, 598, 600 (2005). We review a sentence within statutory limits for abuse of discretion, and will not overturn such a sentence unless the trial court "acted arbitrarily or capriciously or failed to adequately investigate the facts relevant to sentencing." State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App. 2003).
¶41 We find no such abuse of discretion in this case. In sentencing Wilson to life in prison without the possibility of parole, the judge considered evidence that Wilson was a friend of Morgan, watched a movie with him in his bedroom that night, and used heroin with him that night, before shooting him as he lay "in a helpless position, that he was in a defenseless position" sleeping off his heroin high. The judge reasoned:
[Y]ou were able to get so close to him that you were able to take one of his pillows . . . You were able to get so close to him that you shot him, the pillow was spackled with the gunshot residue. And then when he moved, you shot him again.The judge also considered "the danger that Mr. Wilson has presented to the community by his admitted sale of drugs, and the carrying of weapons." The judge also noted that although he found as a mitigating factor that Wilson was addicted to heroin, he found no evidence that Wilson was "under the influence of that drug" when he murdered Morgan. On this record, we cannot find that the judge acted arbitrarily in finding the killing "cold-blooded," and that Wilson posed a danger to the community, or in concluding that the evidence failed to show that he was "under the influence of" heroin at the time he murdered Morgan. See Cazares, 205 Ariz. at 427, ¶ 6, 72 P.3d at 357. We accordingly find no reversible error in the judge's sentencing decision.
I think, with all due respect to your attorney, that that does show a cold-bloodedness on your part to gain that kind of trust, and for a mere amount of ounces of marijuana and maybe some cash. The intent was simply to kill him. And you made a judgment that the amount of marijuana that he had could be had for two bullets. And again, I will never ever understand that.
Wilson's additional reliance on State v. Resendis-Felix, 209 Ariz. 292, 295, ¶ 9, 100 P.3d 457, 460 (App. 2004), for the proposition that the aggravators of the "cold-bloodedness" of the killing and Wilson's "danger to the community" were legally impermissible, is misplaced. First, on remand from the Arizona Supreme Court, this court vacated its opinion in Resendis-Felix. See State v. Resendis-Felix, 2005 WL 2787475 (Ariz.App. October 25, 2005). Second, and more importantly, we originally determined that the aggravated sentence based on factors found by the trial court was impermissible pursuant to Blakely v. Washington, 542 U.S. 296 (2004). Because, as between a life and natural life sentence, a life sentence is not the "presumptive" sentence, aggravating factors need not be found before a natural life sentence can be imposed; therefore, Blakely has no applicability. See State v. Fell, 210 Ariz. 554, 557-58, ¶¶ 11-15, 115 P.3d 594, 597-98 (2005); compare A.R.S. §§ 13-701(D), - 702(A) (2010) with A.R.S. 13-752(Q) (2010).
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Conclusion
¶42 For the foregoing reasons, we find no reversible error and accordingly affirm.
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PHILIP HALL, Judge
CONCURRING:
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PATRICIA A. OROZCO, Presiding Judge
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JOHN C. GEMMILL, Judge