Opinion
No. 2 CA-CR 2015-0091
04-11-2017
THE STATE OF ARIZONA, Appellee, v. DIJON TREVAR YOUNG, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Law Firm of Richard Luff, LLC, Tucson By Richard Luff 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201300632
The Honorable Henry G. Gooday Jr., Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Law Firm of Richard Luff, LLC, Tucson
By Richard Luff
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Dijon Young was convicted of manslaughter. The trial court imposed an aggravated, enhanced sentence of seventeen years' imprisonment. On appeal, Young contends the court erred by denying his request for an instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), admitting demonstrative evidence, and allowing expert testimony from a police detective. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Young's conviction. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). In April 2013, Young was in an "on-again, off-again" relationship with V.V., with whom he had a two-year-old daughter and three-year-old son. The two had recently broken up, and they exchanged a series of text messages in which V.V. requested Young return the key to her apartment and Young asked about his belongings. That same day, Young purchased a .357 Taurus Tracker revolver from a friend and went to V.V.'s apartment. Young shot V.V. while they were sitting on the couch in the same room as the children, who were watching television. V.V. was transported to a nearby hospital, where she underwent surgery and later died.
¶3 A grand jury indicted Young for second-degree murder. At trial, Young admitted he shot V.V. but claimed it was an accident. The jury found him guilty of the lesser-included offense of manslaughter. He was sentenced as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Willits Instruction
¶4 Young argues the trial court erred by denying his request for a Willits instruction. We review the decision to give a Willits instruction for an abuse of discretion. State v. Carlson, 237 Ariz. 381, ¶ 38, 351 P.3d 1079, 1091 (2015).
For each of the three issues raised on appeal, Young asks this court to "review the evidence and the law (de novo) for fundamental error." We understand this to be a general request that we search the record for fundamental error. Although we will not ignore fundamental error if we find it, we will not search the record as Young has requested. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007); State v. Scott, 187 Ariz. 474, 478 & n.5, 930 P.2d 551, 555 & n.5 (App. 1996).
¶5 Officers recovered the .357 Taurus Tracker revolver from between the box spring and mattress in V.V.'s bedroom. They sent the gun for testing, but the criminalist misread the request and mistakenly performed a "destructive test" that resulted in the revolver no longer being able to fire in single-action mode.
The test damaged the sear, which holds the hammer back in single-action mode, and, consequently, the revolver could no longer function in that mode. In single-action mode, the hammer of the gun is pulled back manually, rotating the cylinder. When the trigger is pulled, the hammer releases, causing the firing pin to strike the cartridge, and the gun fires. By contrast, in double-action mode, pulling the trigger causes the hammer first to pull back and then to release to fire the gun. Double-action mode requires more pressure because the trigger pull moves the hammer, rotates the cylinder, and allows the firing pin to go forward.
¶6 Before trial, Young filed a motion for a Willits instruction based on the "irreparable damage to the firearm." He admitted that he did not recall if the revolver was in single- or double-action mode at the time of the shooting. He nevertheless argued it was in single-action mode, which, "depending on the nature of the trigger, . . . the sear, and the force needed to be applied to the trigger to discharge the firearm," made his defense that this was an accident "more plausible." Young maintained that he was prevented from testing the revolver in single-action mode because of the broken sear.
¶7 The state responded that Young essentially wanted "to prove that this was a hair trigger, or that there was some kind of alteration to it which made the gun easier to go off" in single-action mode. It reasoned that Young's argument was based on speculation because "[t]here [was] no evidence to show that any alterations to the gun made it a hair trigger, or made it a light trigger, or anything like that." In reply, Young explained that he was not asserting "it had to have been a hair trigger condition" and that the revolver could have been "unintentionally or inadvertently discharged . . . while . . . in single-action mode." The trial court denied Young's motion.
¶8 "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." State v. Glissendorf, 235 Ariz. 147, ¶ 8, 329 P.3d 1049, 1052 (2014), quoting State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). "To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful." Id. ¶ 9. Put another way, "a defendant is entitled to an instruction if he can demonstrate that the lost evidence would have been material and potentially useful to a defense theory supported by the evidence." Id. ¶ 10 (citation omitted).
¶9 On appeal, Young again maintains that, because single-action mode requires less pressure on the trigger pull, "[i]t is far more likely that an accidental discharge . . . would have occurred in single-action mode than double-action." He also asserts that additional "testing may have indicated that the gun had a defect or hair trigger in the single-action mode." Young reasons that "[t]his evidence would have substantially aided the defense showing that [he] did not intend to fire the gun" and that he was "highly prejudiced by the loss of the gun's functionality."
¶10 The state does not dispute that the revolver had a "damaged sear" caused by the criminalist's test. However, the state argues, "[T]here is no evidence that the gun had a hair trigger, and [Young's] argument to the contrary is based simply on speculation." On this point, we agree. The revolver's previous owner, who had given Young the gun just hours before the shooting, testified that it had no "modifications or changes." The criminalist confirmed that, based on his initial examination of the gun, it performed as it was originally "manufactured or designed to do." And Young did not offer any evidence to the contrary. Cf. State v. Williamson, 236 Ariz. 550, ¶ 38, 343 P.3d 1, 12 (App. 2015) (value of lost messages speculative where "there was no evidence suggesting any of the alleged discrepancies were evident in those messages"). Young's assertion that the gun had a hair trigger was based on speculation and was insufficient to warrant a Willits instruction. See Glissendorf, 235 Ariz. 147, ¶ 9, 329 P.3d at 1052.
¶11 Young also argues, however, that an accidental shooting was more likely in single-action mode because the revolver required less pressure to pull the trigger in that mode than in double-action mode. And because of the damaged sear, Young explained below that he was unable to test the revolver in single-action mode to show "the relative amount of pressure, measured in pounds, needed to be applied to the trigger for it to discharge." Young therefore demonstrated that the evidence was "potentially useful to a defense theory." Id. ¶ 10, quoting State v. Glissendorf, 233 Ariz. 222, ¶ 17, 311 P.3d 244, 251 (App. 2013).
¶12 But whether that theory was "'supported by the evidence'" and, thus, had a "tendency to exonerate," id., quoting Glissendorf, 233 Ariz. 222, ¶ 17, 311 P.3d at 251, is a closer question because in his pretrial motion for a Willits instruction, Young admitted that he "d[id] not know" if the gun was in single-action mode at the time of the shooting, id. ¶ 9 (defendant must do more than simply speculate). See also State v. Speer, 221 Ariz. 449, ¶ 41, 212 P.3d 787, 795 (2009) (defendant must show how evidence would have exonerated or mitigated his participation in crime); Smith, 158 Ariz. at 227, 762 P.2d at 514 (speculation about how evidence might have benefitted defendant insufficient); State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (observing defendant presented no evidence on how missing evidence would have helped his defense). As the court noted in Glissendorf, to have a "tendency to exonerate" there must be a real likelihood that the evidence would have had evidentiary value. 235 Ariz. 147, ¶ 9, 329 P.3d at 1052. Young has not made this showing.
Although Young stated in his motion requesting a Willits instruction that he "d[id] not know" if the gun was in single-action mode, evidence presented at trial—specifically, his post-arrest interview with officers—showed that he "believe[d] maybe it was." However, neither below nor in his opening brief on appeal did Young argue that his post-arrest interview further supported his single-action theory. See State v. Edmisten, 220 Ariz. 517, ¶ 19, 207 P.3d 770, 776-77 (App. 2009) (recognizing arguments waived when raised for first time at oral argument). In any event, we fail to see how Young's equivocal statements rise to more than speculation. Cf. Glissendorf, 235 Ariz. 147, ¶ 19, 329 P.3d at 1054 (defendant met "tendency to exonerate" standard where affirmatively identified discrepancies in victim's story between police report and trial testimony).
¶13 Even assuming there was some evidence the gun was in single-action mode when the shooting occurred and the trial court thus erred in denying Young's request for a Willits instruction, we will not reverse if the error was harmless. See Glissendorf, 235 Ariz. 147, ¶ 23, 329 P.3d at 1055; see also State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005) ("Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence."). As we have noted, Young's single-action theory was premised on showing that the revolver required less pressure to fire in that mode and was thus more likely to discharge accidentally. The state acknowledged that the revolver was capable of being fired in both single- and double-action mode when the shooting occurred. The criminalist who damaged the sear explained:
[W]ith a double action, it takes more energy from you pulling back everything, so there's going to be a trigger pull that's a heavier trigger pull, whereas [you are] doing some of the work ahead of time in single action by pulling back [the hammer] . . . , so that when you do pull the trigger, it takes less energy.An armorer employed by the Casa Grande Police Department similarly testified, "It requires a lot more pressure to fire any double action revolver as opposed to . . . when it's in single action function." Thus, Young's defense theory was already established by other evidence presented to the jury, despite his inability to test the gun. And the court did not preclude Young from arguing that the revolver was in single-action mode and accidentally discharged at the time of the shooting. Accordingly, any error in denying Young's request for a Willits instruction was harmless. See Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607.
Demonstrative Evidence
¶14 Young next contends the trial court erred in "allowing demonstrative evidence of a new revolver and allowing the jury to fire the new gun." Specifically, he maintains that allowing the jurors to handle the gun "only serve[d] to appeal to the[ir] emotions" and that the use of a different gun for the demonstration was inadmissible hearsay. Because Young objected to this evidence on different grounds below, we review solely for fundamental, prejudicial error. See State v. Brown, 233 Ariz. 153, ¶ 11, 310 P.3d 29, 34 (App. 2013). To prevail under this standard, Young must show "both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
¶15 Before trial, the state filed a motion to conduct "a demonstration of the operation of a hand gun" to "assist the jury in understanding the operation of the mechanics of guns" and "in determining the facts in this case." Young later filed a motion in limine to preclude "[t]he remains of the .357 revolver." He reasoned that the revolver was not relevant because it no longer functioned the same and, even if relevant, it "would tend to confuse the jury."
¶16 At a pretrial hearing, Young argued against the demonstration, contending it would not "provide the jury with any[thing] . . . they can't already figure out for themselves" because "most jurors have a purview and a knowledge of how a gun works." The state responded that "understanding the actions of the defendant on this day" was "critical" and that a "hands-on demonstration" would "assist the jurors in understanding the evidence." The trial court permitted the demonstration, which included the use of a "new" .357 Taurus Tracker revolver because Young's had been damaged.
¶17 At trial, the armorer testified that the new revolver was "[e]xactly the same weapon, except for the serial number," as Young's and that the two guns "should" require the same "pounds of pressure . . . to fire." Defense counsel did not object to this testimony. For the demonstration, the state asked all the jurors if they "would like the opportunity . . . to fire both" Young's revolver and the new one. Three jurors did so.
¶18 On appeal, Young argues, "To allow the jurors to physically handle the weapon of death only serves to appeal to the emotions of the jurors and excite their sympathy." But Young has failed to adequately develop and support this argument. See Ariz. R. Crim. P. 31.13(c) (opening brief shall contain appellant's contentions "with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"). We therefore deem the argument waived and do not address it further. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
¶19 Young also cites United States v. Martinez, 588 F.3d 301 (2009), for the proposition that demonstrative evidence offered for the truth of the matter asserted is inadmissible hearsay. He reasons that the new revolver in this case was introduced to show the truth of the matter asserted—"that both guns were functionally one and the same."
¶20 In Martinez, over the defendant's hearsay objection, the government played a video recording of a non-witness physician performing three nerve-block injection procedures similar to those at issue in the case. 588 F.3d at 309-10. After each video segment, another physician testified about "the procedure, including his views on how the procedure should be performed." Id. at 310. On appeal, the Sixth Circuit Court of Appeals concluded that the video was hearsay and should have been precluded. Id. at 311-12. The court explained that "the video was offered 'for the truth of the matter asserted'—that the procedures as performed in the video are properly performed, and that if [the defendant's] performance of those same procedures differed, it was improper." Id. at 311.
¶21 Martinez is distinguishable. Hearsay is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). A "statement" is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). In Martinez, the demonstrative evidence was a previously recorded, out-of-court video that included both verbal and nonverbal assertions intended collectively as a statement about proper medical performance. 588 F.3d at 311. It therefore satisfied the first element of the hearsay definition. Here, by contrast, the demonstration was conducted during the trial in the presence of and with participation by the jury. It therefore does not meet the definition of hearsay.
¶22 Young also seems to suggest that the new revolver was not sufficiently similar to Young's revolver. "[T]he conditions of a demonstration must be similar to those being duplicated in order for the demonstration to be admissible." State v. Mincey, 130 Ariz. 389, 408, 636 P.2d 637, 656 (1981). However, "[t]he requirement of similarity is a relative one and should not be over-rigidly applied where the experiment is of substantial enlightening value to the jury." Id., quoting Morris K. Udall, Arizona Law of Evidence § 136 n.28 (1960) (alteration in Mincey). Here, the armorer testified that the guns were "[e]xactly the same." We recognize that there was no way of determining whether the amount of pressure needed to fire the demonstration gun in single-action mode was precisely the same as the actual weapon because of the broken sear on Young's revolver. Cf. Mincey, 130 Ariz. at 408, 636 P.2d at 656 (finding no abuse of discretion in allowing demonstration of firing positions based on assumption that defendant was stationary). However, the armorer made clear that the new revolver was only "similar" to Young's, explaining that "we don't really have a way of knowing if the pounds of pressure required for the trigger to discharge the weapon are the same . . . because one's used and one's new."
¶23 Even assuming the trial court erred in allowing the demonstrative evidence, Young has not met his burden of showing prejudice. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607; cf. Martinez, 588 F.3d at 312-13 (admission of video harmless). As discussed above, the jury heard evidence that the revolver used in the shooting was capable of being fired in single-action mode. Although it no longer functioned in that mode, both the criminalist and the armorer thoroughly explained that the revolver required less trigger pressure to fire in that mode. In addition, the court did not preclude Young from arguing that the revolver was in single-action mode and accidentally discharged at the time of the shooting. We thus fail to see how the demonstration offered any evidence to the jurors that they had not otherwise heard. See State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) (erroneous admission of entirely cumulative evidence harmless).
Expert Testimony
¶24 Young lastly contends the trial court erred in allowing "undisclosed and inadmissible 'expert' testimony" from a police detective. We review the admission of testimony for an abuse of discretion. State v. Speers, 209 Ariz. 125, ¶ 13, 98 P.3d 560, 564 (App. 2004).
¶25 In its initial disclosure statement, the state gave notice that it intended to call Detective Brian Martinez as a witness at trial. During direct examination, when describing his background, Martinez testified that he had "specialized training in kinesic interview and interrogation," meaning he is "trained to read body language." He then described his role as lead detective in the case, including his two post-arrest interviews with Young. Martinez explained that during the first interview Young claimed the "Chicago dudes," with whom he had a confrontation shortly before the incident, shot V.V. However, during his second interview, Young admitted shooting V.V. but claimed it was an accident, explaining that the gun "just went off." The state played video recordings of both interviews for the jury.
¶26 The state then asked Martinez about his training in kinesic interview and interrogation. After Martinez further described his training, Young objected on the basis that Martinez was "not qualified as an expert" in body language and truthfulness and should not be allowed to testify in that capacity. The court overruled the objection. Martinez then described several techniques for determining whether someone is lying and identified some of the techniques in the video recordings of his interviews with Young.
¶27 The next morning, Young renewed his objection to Martinez's testimony. Young explained that Martinez was "testifying as an expert . . . without being qualified as an expert" and without the state providing disclosure that he was an expert. He also argued that Martinez was improperly testifying "to the credibility of witnesses because he is saying this particular witness is not being truthful." The trial court again overruled the objection. Martinez's testimony continued with him discussing his kinesic interview techniques as identified in the video recordings.
¶28 On appeal, Young maintains he is entitled to a new trial because Martinez was not qualified or timely disclosed as an expert witness and therefore should not have been permitted to testify as such. Relying on case law that holds polygraph evidence to be inadmissible in Arizona, Young argues specifically that Martinez's testimony "as a sort of 'human lie detector' should . . . have been categorically inadmissible." At oral argument, the state conceded error as to the latter argument.
In response, the state maintains it had "timely disclosed that [Martinez] could offer expert testimony" because its disclosure statement filed June 12, 2013, identified Martinez as a witness and stated: "Any police officer listed above may be called as an expert witness with respect to an area within the officer's training and experience . . . ." However, because we conclude the trial court otherwise erred in admitting Martinez's testimony, we need not address this issue or Young's related assertion that the state failed to show Martinez's testimony was reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). --------
¶29 "Arizona prohibits lay and expert testimony concerning the veracity of a statement by another witness." State v. Boggs, 218 Ariz. 325, ¶ 39, 185 P.3d 111, 121 (2008); accord State v. Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996); see also Carlson, 237 Ariz. 381, ¶ 29, 351 P.3d at 1089 (expert may not opine on defendant's truthfulness in confession). "Determining veracity and credibility lies within the province of the jury, and opinions about witness credibility are 'nothing more than advice to jurors on how to decide the case.'" Boggs, 218 Ariz. 325, ¶ 39, 185 P.3d at 121, quoting State v. Moran, 151 Ariz. 378, 383, 728 P.2d 248, 253 (1986).
¶30 Here, the only example of improper testimony cited in Young's opening brief was Martinez's statement, "It's a lie that [Young] just left the door open." Martinez explained that his opinion was based on testimony from two other witnesses that the door had been closed, not on his purported expertise in kinesic interview and interrogation. Although an officer may testify in limited circumstances as to "his reasons for not believing the defendant's story," that exception does not apply here. State v. Doerr, 193 Ariz. 56, ¶ 26, 969 P.2d 1168, 1175 (1998). Given the line of questioning as a whole, it is clear Martinez's statement was intended as a comment on Young's credibility.
¶31 Indeed, based on our own review of the record, Martinez made other statements directly commenting on Young's credibility. For example, he testified Young used "swearing oaths" to preface his statement that the shooting was an accident. Martinez explained that "[p]eople use swearing oaths to pre-qualify what they are about to tell you as the truth," for example, "I swear to God" or "truthfully." He added, "[A]s a general rule, in about 90 percent of its uses, when someone uses a swearing oath, whatever follows is not the truth." Martinez identified the following statement from Young as a swearing oath: "Oh, my God, I didn't mean to kill her. I didn't mean to kill her. It was an accident, I swear to God." Because Martinez's testimony about this statement was nothing more than advice on how to decide the case, it was improper. See Boggs, 218 Ariz. 325, ¶ 39, 185 P.3d at 121.
¶32 Nonetheless, we will not reverse a conviction for alleged trial error if we are satisfied beyond a reasonable doubt that the error did not contribute to or affect the verdict. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607. "A person commits manslaughter by . . . [r]ecklessly causing the death of another person." A.R.S. § 13-1103(A)(1). "Recklessly" means, "with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." A.R.S. § 13-105(10)(c).
¶33 Here, for the gun to go off accidently in single-action mode, the hammer had to have already been pulled back. Indeed, in his second interview, Young said he thought the revolver was cocked. He also recognized that "it's always been loaded." And despite having a loaded, cocked gun, Young sat with it in the apartment living room with V.V. and the two young children watching television. Young also admitted that he had smoked marijuana "all day" and acknowledged that he "do[es]n't play with [guns]" because of the potential for them to fire accidentally. See State v. Nieto, 186 Ariz. 449, 456, 924 P.2d 453, 460 (App. 1996) (where defendant had knowledge of guns and their danger, he clearly had knowledge of risk involved in his behavior, satisfying element of reckless manslaughter).
¶34 Thus, notwithstanding Young's defense that the gun discharged accidentally, his own characterization of the events demonstrated that he acted "recklessly" at minimum in disregarding a known risk of harm to others. See §§ 13-1103(A)(1), 13-105(10)(c). And, his admission that he was aware of the risks of handling a loaded gun around others precluded any reasonable jury from concluding he committed the lesser offense of negligent homicide: an offense predicated on the assumption that a defendant "fail[ed] to perceive a substantial and unjustifiable risk." See State v. Ruelas, 165 Ariz. 326, 328, 798 P.2d 1335, 1337 (App. 1990) ("[T]he element that distinguishes negligent homicide from manslaughter is the actor's 'awareness' of the risk occasioned by his or her conduct."). Accordingly, any error in allowing Martinez's testimony was harmless. See Doerr, 193 Ariz. 56, ¶ 33, 969 P.2d at 1176 (given overwhelming evidence of guilt, any error harmless).
Disposition
¶35 For the foregoing reasons, we affirm Young's conviction and sentence.