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State v. Bravo

ARIZONA COURT OF APPEALS DIVISION TWO
Aug 8, 2019
No. 2 CA-CR 2018-0053 (Ariz. Ct. App. Aug. 8, 2019)

Opinion

No. 2 CA-CR 2018-0053

08-08-2019

THE STATE OF ARIZONA, Appellee, v. KENROY KEAN BRAVO, Appellant.

COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public 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NOT FOR PUBLICATION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. CR20170080001
The Honorable Kenneth Lee, Judge

AFFIRMED

COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant

MEMORANDUM DECISION

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:

¶1 Kenroy Bravo appeals from his convictions and sentences for dangerous unlawful imprisonment and misdemeanor assault, stemming from two incidents of domestic violence in September and October 2016. Bravo argues the trial court: (1) improperly instructed the jury regarding unlawful imprisonment as a lesser-included offense of kidnapping and what constitutes a dangerous offense, and improperly denied his motion for acquittal of that offense; (2) abused its discretion in denying his mistrial motion after the state repeatedly elicited improper propensity evidence; and (3) abused its discretion in both denying a continuance and precluding alibi evidence as a discovery sanction for his untimely disclosure of witnesses. For the reasons that follow, we affirm.

Factual and Procedural Background

¶2 The state charged Bravo with nine counts of domestic violence and sexual assault, stemming from two separate incidents. A jury acquitted him of five of the charged counts, but convicted on two counts of misdemeanor assault and one count of unlawful imprisonment, a lesser-included offense of kidnapping. Additionally, the jury found that the unlawful imprisonment was "a dangerous offense involving the use and/or threatening exhibition of a dangerous instrument to wit a pocket knife."

The jury acquitted Bravo of one count of misdemeanor assault, one count of kidnapping, two counts of aggravated assault with a deadly weapon or dangerous instrument, and one count of attempted sexual assault. Additionally, one count of aggravated assault, involving use of a cleaver, was dismissed with prejudice during trial for insufficient evidence.

¶3 We view the evidence in the light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, ¶ 2 (2003). The state's primary witness at trial was the victim T.L., Bravo's former girlfriend. T.L. testified that the first incident occurred in late September 2016. When T.L. told Bravo she would not pay the next month's rent for the apartment they shared, he became upset and "started to beat [her]." She tried to run out the door and called for help, but Bravo "drug [her] back into the apartment and slammed the door and continued to kick [her]." Then Bravo punched T.L, which "knocked [her] to the floor," and "kicked [her] in [her] face" and side. At some point, Bravo told T.L. he would take her to the hospital.

¶4 As Bravo and T.L. left the apartment, they noticed a police officer, who was responding to a call from a neighbor who had heard T.L. call for help. Bravo and T.L. got in the car and Bravo sped away. Police eventually located their stopped car, questioned them separately about the incident, and released them. Before questioning Bravo, police performed a Terry frisk on him, apparently finding no weapons.

See Terry v. Ohio, 392 U.S. 1, 27-30 (1968).

¶5 At trial, T.L. originally testified that no part of the September incident involved a weapon. However, in response to later questioning from the state, she testified that Bravo had poked her in the torso with a sharp pocket knife during the September incident and that he did so any time he became upset with her. She also testified that he had "made a mistake" and cut her upper right thigh when she pushed the knife away from her torso.

¶6 The second incident occurred approximately a week later, in early October 2016. T.L. testified that she and Bravo had another disagreement about who would pay rent, this time via text message. After T.L. refused to pay, Bravo told her to "come and get [her] things, to get out of his house." When T.L. arrived, Bravo was there and demanded she hand over her key to the apartment. When she did not immediately do so, he snatched the keys to her car and the apartment from her hand and punched her in the face. As T.L. gathered her belongings, Bravo continued to hit her. She crawled into a hallway closet seeking shelter. Bravo followed her, pulled out his pocket knife, and "started poking" her. T.L. further testified that Bravo commonly carried the knife and that "[a]ny time he would get upset, he would always poke [her] with the knife." Bravo then ordered T.L. to perform oral sex on him. When T.L. refused, he began to "poke [her] on the side with the knife," then pointed it at her face, "slit[ting] [her] hand between [her] thumb and [her] index finger" when she tried to cover her face. Bravo then "stuck the knife to [her] neck" and threatened to chop her head off if she "thought [she] could just leave him for another man." After she repeatedly refused to take her clothes off, Bravo cut them off her body with the knife and forced a gun between her legs, threatening to shoot her if she refused to have sex with him. T.L. did refuse, and Bravo started beating her again, including kicking her in the back as she lay on the ground. After T.L. said something that angered him, Bravo choked her with both of his hands, and T.L. momentarily lost consciousness.

T.L. testified Bravo also threatened that, if she was not quiet, he would kill her with a kitchen knife.

T.L. testified Bravo "would always carry a knife and a gun."

¶7 T.L. eventually ran out the front door, but Bravo caught her as she exited, "took his hand around [her] neck," and "pushed [her] head through the window" next to the door. When Bravo saw that T.L. was bleeding from a cut caused by the shattered glass, he "ran off" and drove away. T.L. then called the police. They arrived and conducted an investigation, taking photographs of T.L.'s body, her cut-up clothing, broken window, and damaged items, many of which were exhibits submitted to the jury during trial.

¶8 The court denied Bravo's post-verdict request for a judgment of acquittal on the dangerous unlawful imprisonment verdict. The court sentenced him to a 1.5-year prison term for unlawful imprisonment and to time served on the two misdemeanor assault convictions. Bravo timely filed the instant appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

The court also denied Bravo's alternative request that the court dismiss the dangerousness allegation as unsupported by the evidence.

Discussion

Unlawful-Imprisonment Conviction

¶9 Bravo challenges his conviction for dangerous unlawful imprisonment on two grounds. First, he argues that as a matter of law, dangerous unlawful imprisonment cannot be a lesser-included offense of kidnapping. He observes that the factor in the dangerousness allegation the jury found proven—the use of a knife—is the same factor that, in this case, distinguishes the lesser-included offense of unlawful imprisonment from the greater charge of kidnapping. Thus, Bravo argues the court erroneously instructed the jury that it could find him guilty of dangerous unlawful imprisonment, leading to an illegal verdict. Second, Bravo argues that even assuming a conviction for dangerous unlawful imprisonment were possible under the law, he was entitled to acquittal on this charge because "[n]o evidence supports the conclusion that [he] used his pocketknife to restrain T.L. when she tried to leave the apartment." As we discuss below, both arguments fail.

Unlawful Imprisonment as a Lesser-Included Offense of Kidnapping

¶10 "We review de novo whether jury instructions correctly state the law." State v. Prince, 226 Ariz. 516, ¶ 77 (2011). We "read the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision." State ex. rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8 (2005).

¶11 The trial court instructed the jury on the elements of kidnapping, and the verdict form included the following:

The crime of kidnapping domestic violence requires proof that the defendant knowingly restrained another person with the intent to:

1. Inflict physical injury on the person; or

2. Aid in the commission of a felony; or

3. Place the victim in reasonable fear of immediate physical injury to the victim; and

The offense was a domestic violence offense.

(You must unanimously agree on the way or ways in which the kidnapping occurred.)
At Bravo's request, the jury was further instructed that kidnapping "includes the lesser offense of unlawful imprisonment," which the jury could consider if it found Bravo not guilty of kidnapping or could not agree on his guilt. The court also instructed that "[t]he crime of unlawful imprisonment requires proof that the defendant knowingly restrained another person." With regard to the dangerousness allegation, the court instructed the jury that the state alleged the kidnapping was a dangerous offense because it "involved the use or threatened use of a dangerous instrument: to wit a knife and/or cleaver."

In its allegation of dangerousness, the state noted "[t]he defendant is put on notice that, if at the time of trial, a lesser included offense is given, that the State alleges the lesser included offense is of a dangerous nature." Bravo states "the court did not have the corrected verdict form ready for counsel to review prior to reading them to the jury," which prevented him from objecting to the dangerousness interrogatory given as part of the unlawful imprisonment verdict form.

¶12 An offense is dangerous if it involves "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person." A.R.S. § 13-105(13). Although kidnapping is not inherently dangerous, State v. Larin, 233 Ariz. 202, n.6 (App. 2018), a knife is considered an inherently dangerous instrument, see State v. Gordon, 161 Ariz. 308, 310 (1989) (knife "inherently dangerous as a matter of law").

¶13 A lesser-included offense instruction is appropriate when a "jury could rationally fail to find the distinguishing element of the greater offense." State v. Detrich, 178 Ariz. 380, 383 (1994) (quoting State v. Noriega, 142 Ariz. 474, 481 (1984)). In other words, the jury must be able to rationally conclude the state proved each element of the lesser-included offense but failed to prove the defendant completed at least one element of the greater offense.

¶14 Here, to find Bravo guilty of unlawful imprisonment, the jury had only to find beyond a reasonable doubt that he "knowingly restrain[ed]" T.L. A.R.S. § 13-1303(A). To find him guilty of kidnapping, the jury had to find beyond a reasonable doubt that he (1) knowingly restrained T.L. (2) with the intent to inflict death or physical injury on her or to place her "in reasonable apprehension of imminent physical injury." A.R.S. § 13-1304(A)(3), (4). Thus, "[t]he distinguishing element between kidnapping and unlawful imprisonment is the perpetrator's state of mind," specifically whether Bravo intended to inflict death or physical injury on T.L. or to place her in reasonable apprehension of imminent physical injury. Detrich, 178 Ariz. at 383.

¶15 Bravo argues the jury could not have rationally found both that he lacked the requisite intent element of kidnapping—intent to inflict death or physical injury on T.L. or to place her in a reasonable apprehension of imminent physical injury—and that he used a knife while knowingly restraining her. We disagree.

¶16 The evidence presented by the state did not require the jury to find that Bravo's use of the knife demonstrated a clear intent to harm T.L. She testified that he routinely "poked her" with the knife, whenever he was upset with her, and that on the incident in question, he poked her with the knife on her clothed torso. She did not testify that this routine conduct resulted in routine injury. Further, although she testified that Bravo cut her on the leg during the September incident, she specifically stated that he did so by mistake. Her overall testimony regarding the knife was contradictory, which may have led the jury to conclude that the evidence did not support a finding that Bravo intended to harm T.L. with the knife. She first testified Bravo used no weapon during the September incident, then that he used a knife but did not injure her, then that he accidentally cut her in the leg. Finally, T.L. also testified that Bravo promptly drove her to the hospital when he believed he had seriously injured her. On this record, the jury could have rationally concluded that Bravo used his knife while restraining T.L. on September 30, but that he did not actually intend to kill her, injure her, or cause her to fear imminent injury.

Although Bravo and T.L. never reached the hospital because they were diverted by the police, T.L. testified that Bravo told her he would take her to the hospital.

¶17 And even if we agreed that the jury's dangerousness determination was necessarily inconsistent with its determination that Bravo did not intend to harm T.L., "inconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant's expense." United States v. Powell, 469 U.S. 57, 65 (1984). "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." Dunn v. United States, 284 U.S. 390, 393 (1932) (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)). Settled Arizona law provides that when a single jury in a single trial returns multiple verdicts, consistency between the verdicts is not necessary. State v. Helmick, 112 Ariz. 166, 169 (1975). Although we have found "contradictory verdicts returned on a single count" to be "impossible in the sense that they cannot be given simultaneous effect," State v. Hansen, 237 Ariz. 61, ¶ 21 (App. 2015), we have upheld "a special verdict on an element of the offense" that was internally inconsistent with the predicate offense within a single count, State v. Parsons, 171 Ariz. 15, 16 (App. 1991) (trial court did not err in submitting dangerousness allegation to jury on aggravated assault charges, even though jury convicted on aggravated assault but inconsistently found dangerousness allegation not proven). See also State v. Cordova, No. 1 CA-CR 2014-0807, ¶¶ 7-9, 2016 WL 503227 (Ariz. Ct. App. Feb. 9, 2016) (no error when jury found during guilt phase that defendant committed aggravated assault by using dangerous weapon or instrument, but then found dangerousness allegation not proven during aggravation phase).

¶18 Here, the jury's conclusion that Bravo unlawfully imprisoned T.L. while using a knife, but that he did not intend to harm her or put her in apprehension of immediate harm, can be given simultaneous effect, even if they were arguably "rationally incompatible." Hansen, 237 Ariz. 61, ¶ 21 (quoting United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012)) (distinguishing rationally incompatible verdicts from impossible verdicts, such as those convicting defendant on greater offense but acquitting on lesser-included offense).

¶19 In sum, the jury's finding of dangerousness is not necessarily internally inconsistent with its acquittal of the predicate offense of kidnapping, and we find no error in the court's instructions. The record supports the provision of an instruction for unlawful imprisonment as a lesser-included offense of kidnapping—an instruction Bravo specifically requested. Thus, we conclude that the trial court did not err in its jury instructions.

Substantial Evidence Supported Bravo's Dangerous Unlawful-Imprisonment Conviction

¶20 Bravo also argues the trial court erred in denying his Rule 20 motion for a judgment of acquittal because the evidence was insufficient to support a verdict that he unlawfully imprisoned T.L. while using a knife. "We review a 'trial court's denial of a Rule 20 motion for an abuse of discretion and will reverse a conviction only if there is a complete absence of substantial evidence to support the charges.'" State v. Tillmon, 222 Ariz. 452, ¶ 18 (App. 2009) (quoting State v. Carlos, 199 Ariz. 273, ¶ 7 (App. 2001)). Similarly, we will not reverse a jury's finding that an offense was dangerous if it is "supported by substantial evidence." State v. Cordova, 198 Ariz. 242, ¶ 4 (App. 1999). "Substantial evidence is evidence that a reasonable jury could accept as sufficient to establish guilt beyond a reasonable doubt." Id. "In determining whether substantial evidence exists, we view the facts in the light most favorable to sustaining the jury verdict and resolve all inferences against" Bravo. State v. Stroud, 209 Ariz. 410, ¶ 6 (2005). Evidence is substantial if reasonable jurors could differ on whether the evidence establishes a fact at issue. See State v. Guerra, 161 Ariz. 289, 293 (1989).

¶21 We find that the evidence was sufficient to support the jury's verdict. As discussed above, the state presented evidence, largely through T.L.'s testimony, that Bravo carried a pocket knife, that he poked T.L. with that knife during the September incident, and that he restrained her by pulling her back into the apartment when she attempted to leave. Although Bravo plausibly challenged the veracity of T.L.'s testimony at trial and does so on appeal, it is the jury's role to assess witness credibility. If the jury found even a portion of T.L.'s testimony credible, that testimony was enough to establish Bravo's guilt beyond a reasonable doubt. For that reason, we affirm the trial court's denial of Bravo's motion for a judgment of acquittal due to insufficient evidence.

Denial of Mistrial over Admission of Other-Act Evidence

¶22 Bravo also argues the trial court abused its discretion by denying his motion for a mistrial after the state "repeatedly elicited accusations of improper propensity testimony" from T.L. Specifically, T.L. testified more than once that Bravo "always" poked her with a knife "any time" he became upset with her.

¶23 After the third such statement, Bravo moved for a mistrial in a bench conference, arguing the testimony constituted undisclosed other-act evidence and that it was "the prosecutor's fault" T.L. had so testified. The state responded that it had "cautioned [T.L.] she was not to talk about any other incidents prior to the 30th. She was not allowed to talk about any other occasions in which he beat her." The trial court denied Bravo's motion and directed the prosecutor to tether further questions regarding the knife to specific dates. Bravo did not request, and the court did not provide, a curative jury instruction or any other remedial action. Because Bravo preserved this issue by moving for mistrial, we review for harmless error. State v. Henderson, 210 Ariz. 561, ¶ 18 (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." Id.

We disagree with the state that because Bravo did not object to each instance of this testimony individually, he preserved only the final such statement. In his motion for mistrial, Bravo noted that T.L. had testified several times that Bravo routinely poked her with a knife. Thus, the court had the opportunity to address this issue on its merits, disinclining us to apply the forfeiture doctrine. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[The] trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal.").

¶24 "We review the admission of evidence and the denial of a mistrial for an abuse of discretion." State v. Burns, 237 Ariz. 1, ¶ 56 (2015). A declaration of mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Dann, 205 Ariz. 557, ¶ 43 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)). "We give great deference to the trial court's decision [whether to grant a motion for mistrial after inadmissible testimony is unexpectedly interjected] because the trial court 'is in the best position to determine whether the evidence will actually affect the outcome of the trial.'" State v. Doty, 232 Ariz. 502, ¶ 17 (App. 2013) (quoting State v. Jones, 197 Ariz. 290, ¶ 32 (2000)). "[T]he trial court should consider: (1) whether the remarks called to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks." State v. Stuard, 176 Ariz. 589, 601 (1993).

¶25 "As a general rule, evidence that defendant committed other bad acts is not admissible to show either that defendant acted in conformity with the other bad acts, or that defendant is a 'bad' person worthy of conviction." State v. Correll, 148 Ariz. 468, 476 (1986) (citation omitted) (citing Ariz. R. Evid. 404(b)). However, "[w]hen a witness unexpectedly volunteers an inadmissible statement, the action called for rests largely within the discretion of the trial court which must evaluate the situation and decide if some remedy short of mistrial will cure the error." Adamson, 136 Ariz. at 262. "Arizona has long recognized that testimony about prior bad acts does not necessarily provide grounds for reversal." Jones, 197 Ariz. 290, ¶ 34.

¶26 Here, we agree with Bravo that T.L.'s references to his use of a knife on occasions other than those charged constitute improper propensity evidence. However, we do not find the trial court abused its discretion in refusing to grant a mistrial. T.L.'s statements did not carry a heightened level of authority, as has been true in many cases reversed when law enforcement officers or court officials have volunteered improper testimony. See, e.g., State v. Smith, 123 Ariz. 243, 250 (1979) ("In general, the volunteered testimony of an officer, which indicates serious unrelated prior bad acts of the defendant that would otherwise be inadmissible, merits a mistrial."). To the contrary, the jury may already have been inclined to discredit T.L.'s testimony, as indicated by its acquittal on the majority of the state's charges, each of which T.L. testified about at length. See Jones, 197 Ariz. 290, ¶ 35 ("When the statements are made by a witness, whose credibility is already at issue, they do not carry the same weight or effect as a statement from a court official, who is presumed to uphold the law."); see also State v. Lamb, 142 Ariz. 463, 469-71 (1984) (no error in denial of mistrial when state's witness repeatedly referred to "other" murders, in part because "jury could easily disregard [witness's] testimony" because her bias against defendant "was evident").

¶27 Nor did the prosecutor elicit the improper testimony. All of T.L.'s references to Bravo's routine poking occurred without solicitation by the state, and the prosecutor specifically sought to limit T.L.'s knife references to the specific dates in question. See State v. Serrano, 17 Ariz. App. 473, 474-77 (1972) (reversible error to deny mistrial after prosecutor repeatedly elicited improper testimony and made related improper statements in opening and closing arguments, contravening court's pretrial instruction to avoid doing so). And, even if T.L.'s suggestion that Bravo routinely "poked" her with a knife tended to show his propensity toward domestic violence, it was cumulative to other admissible evidence. T.L. specifically testified that Bravo cut her with a knife during both incidents at issue.

¶28 Further, contrary to Bravo's suggestion that only T.L.'s testimony corroborated the charges against him, the jury received other evidence supporting T.L.'s claims that she was cut with a knife. Specifically, the state introduced photographic evidence from the night of the October 2016 incident. These photographs corroborated T.L.'s testimony that she received a cut on her thigh sometime prior to that night and that she had a relatively fresh cut on her hand the night the photos were taken. Because this physical evidence supported T.L.'s claims that Bravo used a knife, and because T.L's testimony about the prior knife use was cumulative to admissible testimony of similar credibility, we find the error was harmless and the court did not abuse its discretion in denying Bravo's request for a mistrial.

Denial of Continuance and Preclusion of Bravo's Proposed Alibi Evidence

¶29 Bravo also argues the trial court abused its discretion and violated his constitutional right to present a defense when it denied his motion to continue and precluded his alibi defense.

¶30 Less than a week before the trial was scheduled to begin, Bravo requested a continuance to provide both parties the opportunity to interview several witnesses, none of whom had been disclosed in pretrial proceedings. Bravo planned to potentially call these witnesses to support an alibi defense, which had also not been previously disclosed. At the continuance hearing the following day, Bravo suggested six witnesses could potentially help establish his alibi defense. The defense stated that one witness, A.W., was unavailable for the scheduled trial but was willing to testify that T.L. did not own a key to Bravo's apartment. Defense counsel explained that he hoped to advance the theory that Bravo was not in Tucson at the time of the October incident, that T.L. did not have a key to the apartment, and that she broke in and untruthfully told police Bravo had attacked her there. Defense counsel also noted that he did not know whether the other potential witnesses were "legitimate witnesses," and that he was seeking a continuance to ensure he was "not missing important witnesses for Mr. Bravo." He explained he had been unable to make contact with the potential witnesses until just before he filed the motion to continue. One witness, Bravo's employer, was in Tucson and "would possibly be available to testify about the alibi," but defense counsel had not yet been in contact with her to determine what her testimony would be.

In his motion to continue, Bravo requested a continuance because, although three witnesses he wished to call had been disclosed, "it will not be possible, in fairness to the State, to be prepared for the current trial date."

¶31 The trial court denied Bravo's request for continuance and then precluded any testimony regarding an alibi defense from all but one of the defense's potential new witnesses. The court allowed A.W. to appear telephonically, but limited her testimony to two questions: whether the witness had a key to Bravo's apartment and whether, to the witness's knowledge, T.L. had a key to Bravo's apartment. As to Bravo's remaining proposed witnesses, the court observed that they were "folks that the defendant certainly knew about and could have helped provide them, make them available" over the eight months preceding trial. Specifically, the court reasoned that defense counsel should not be allowed to disregard his disclosure obligations by calling late-disclosed witnesses because Bravo could have connected his attorney to the witnesses much earlier, but they had been unknown, unavailable, or uncooperative with defense counsel. Moreover, the court noted that Bravo was uncertain what they would testify to.

¶32 Rule 15.2, Ariz. R. Crim. P., requires criminal defendants in superior court to "provide written notice to the State specifying all defenses the defendant intends to assert at trial" and, for each listed defense, "specify each person" the defendant "intends to call as a witness at trial in support of the defense" by the earlier of "40 days after arraignment" or "10 days after the State's disclosure" unless the court orders otherwise. Bravo was arraigned in late January 2017, the same day the state provided its initial disclosure. The state provided supplemental disclosures later in January and again in late June 2017. Bravo's disclosures under Rule 15.2 were therefore due no later than mid-August. Thus, his late November disclosure of an alibi defense, and the names of possible witnesses, were well outside the deadline contemplated by Rule 15.2.

¶33 The determination of "whether a disclosure violation has occurred and the propriety of sanctions are within the sound discretion of the trial court." State v. Trujillo, 227 Ariz. 314, ¶ 25 (App. 2011). We review the court's determination for an abuse of discretion, granting "considerable deference to the trial court's perspective and judgment." Id. (quoting State v. Meza, 203 Ariz. 50, ¶ 19 (App. 2002)). "[W]e will find an abuse of discretion only when 'no reasonable judge would have reached the same result under the circumstances.'" State v. Naranjo, 234 Ariz. 233, ¶ 29 (2014) (quoting State v. Armstrong, 208 Ariz. 345, ¶ 40 (2004)).

¶34 A discovery sanction "must be proportional to the violation and must have 'a minimal effect on the evidence and merits.'" State v. Payne, 233 Ariz. 484, ¶ 155 (2013) (quoting State v. Towery, 186 Ariz. 168, 186 (1996)). Rule 15.7(c)(1), Ariz. R. Crim. P., specifically lists "precluding or limiting a witness" as an available sanction for a party's untimely disclosure. However, "preclusion is rarely an appropriate sanction for a discovery violation." State v. Delgado, 174 Ariz. 252, 257 (1993). "Whenever possible, trial courts should try to handle disclosure violations in some way other than precluding a witness." Naranjo, 234 Ariz. 233, ¶ 38. Preclusion may be appropriate, however, "when a party engages in 'willful misconduct, such as an unexplained failure to do what the rules require.'" Id. ¶ 34 (quoting State v. Killean, 185 Ariz. 270, 271 (1996)); see also ¶ 35 (defendant's "failure to locate [witness] before trial did not stem from investigative difficulties or a last-minute oversight, but rather from a pervasive lack of diligence stretching over a four-year period" constituting willful misconduct); Killean, 185 Ariz. at 271 (preclusion appropriate when defendant's "unexplained failure" to timely disclose evidence constituted willful misconduct). We will also uphold a court's decision to preclude a witness if "the record demonstrates it could have found lesser sanctions insufficient." Naranjo, 234 Ariz. 233, ¶ 47.

Our supreme court "strongly encourage[s] trial courts . . . to fully explore on the record other options, procedural safeguards, and alternative means of alleviating any prejudice before precluding witnesses as a sanction for disclosure violations." Naranjo, 234 Ariz. 233, ¶ 48.

¶35 Before precluding a witness under Rule 15.7, a trial court must "specifically consider[] the following factors: (1) how vital the precluded witness is to the proponent's case; (2) whether the witness's testimony will surprise or prejudice the opposing party; (3) whether bad faith or willfulness motivated the discovery violation; and (4) any other relevant circumstances." Naranjo, 234 Ariz. 233, ¶ 30.

¶36 Bravo argues the trial court failed to appropriately balance these factors when it denied his motion to continue and precluded the proposed alibi witnesses. We disagree. Although the court did not specifically enumerate the factors supporting its preclusion, it did consider each factor during the continuance hearing. As to the importance of the potential alibi witnesses, the court noted Bravo had not yet spoken with them, so Bravo could not be "sure that they're going to say what [he] think[s] they might say," and, regardless, some number of them were unavailable. Further, the state argued that a continuance—the only sensible alternative to preclusion—would inconvenience the victim, as she was traveling from outside Arizona to testify.

¶37 The court observed Bravo should have known of the existence of the alibi defense and the witnesses who could support it "since day one," it was his obligation to disclose the defense, and he "should suffer the consequences of his failure to comply with what he is required to comply with." The court further noted the case had been pending for some time and at least one of the witnesses lived and worked in town. In response, defense counsel offered only that "phone numbers change" and despite his best efforts, he had been unable to make contact with any of the proposed witnesses until that week.

¶38 Under these circumstances, we find no abuse of discretion in the trial court's preclusion of Bravo's last-minute alibi witnesses. As the court below reasoned, Bravo should have known at the outset of the case that he had an alibi defense; at a minimum, the potential existence of witnesses supporting such a defense could have been disclosed within the time prescribed by Rule 15.2(d)(1), Ariz. R. Crim. P. Bravo failed to articulate any specific testimony the precluded witnesses could have presented.

¶39 We recognize that criminal defendants have a right, protected by the Sixth Amendment, to present a defense and produce witnesses in support of that defense. And, we caution our trial courts to preclude witnesses based on late disclosure only as a last resort. Naranjo, 234 Ariz. 233, ¶ 38. But here the court could reasonably conclude that granting a relatively last-minute continuance or allowing the local late-disclosed witnesses to fully testify would cause considerable prejudice to the state. Given these circumstances, the court acted within its discretion to preclude Bravo's alibi witnesses.

Our prior jurisprudence suggests that our trial courts have generally been willing to impose considerable inconvenience on opposing parties to allow the presentation of important evidence. See, e.g., State v. Zuck, 134 Ariz. 509, 514 (1982) (no error in allowing state witness to testify despite state's disclosure of witness two days before trial, providing defense little time to prepare response).

Bravo also contends this discovery sanction deprived him of his constitutional right to present a defense. Specifically, he argues that because he was not allowed to present his alibi claim, the state was relieved of proving an element of the offense: that Bravo was present in Tucson on October 6. However, otherwise proper preclusion of witness testimony supporting an alibi does not violate a defendant's constitutional right to present a defense. Taylor v. Illinois, 484 U.S. 400, 412 (1988) ("The 'State's interest in protecting itself against an eleventh-hour defense' is merely one component of the broader public interest in a full and truthful disclosure of critical facts." (quoting Williams v. Florida, 399 U.S. 78, 81 (1970))). --------

Disposition

¶40 For the foregoing reasons, we affirm.


Summaries of

State v. Bravo

ARIZONA COURT OF APPEALS DIVISION TWO
Aug 8, 2019
No. 2 CA-CR 2018-0053 (Ariz. Ct. App. Aug. 8, 2019)
Case details for

State v. Bravo

Case Details

Full title:THE STATE OF ARIZONA, Appellee, v. KENROY KEAN BRAVO, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Aug 8, 2019

Citations

No. 2 CA-CR 2018-0053 (Ariz. Ct. App. Aug. 8, 2019)