Coppess v. Ryan

• Court: U.S. District Court — District of Arizona
• Writing for the Court: Cindy K. Jorgenson
• Decision Date: 18 April 2011
• Docket Number: No. CIV 09-176-TUC-CKJ (HCE),CIV 09-176-TUC-CKJ (HCE)
• Citation: Coppess v. Ryan, No. CIV 09-176-TUC-CKJ (HCE) (D. Ariz. Apr 18, 2011)
• Parties: WELLINGTON SPENCER COPPESS, Petitioner, v. CHARLES L. RYAN, et al., Respondents.

WELLINGTON SPENCER COPPESS, Petitioner, v. CHARLES L. RYAN, et al., Respondents.

No. CIV 09-176-TUC-CKJ (HCE)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: April 18, 2011

ORDER

On February 2, 2011, Magistrate Judge Hector C. Estrada issued a Report and Recommendation (Doc. 29) in which he recommended that the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Wellington Spencer Coppess ("Coppess") be dismissed in part and denied in part. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b). Coppess has filed an objection.

Factual and Procedural Background

The Court of Appeals of Arizona summarized the facts as follows:

... In March 2002, after a night of drinking, Coppess and his ex-wife, L., left a bar sometime between 1:00 and 1:30 a.m. L. was driving when they left the bar, but they began to argue on the way home, stopped at a park, and got out of the vehicle briefly. When they left the park, Coppess drove and headed east on Prince Road. A witness testified that Coppess was traveling between 100 and 120 miles per hour. Instead of stopping for a red light, Coppess attempted to pass other vehicles stopped at the light by swerving into the oncoming, westbound lanes of traffic. He lost control of the vehicle and struck an oncoming car.

During the collision, L. was thrown from the vehicle, and Coppess landed in the back seat. Coppess left the vehicle and started walking away from the scene. When a witness asked where he was going, he ran away. Police later found him hiding in a nearby yard. Coppess was arrested, and subsequent testing of his blood established he had an alcohol concentration of.117 percent.

The driver of the other car sustained bruising and deep lacerations. A female passenger in that vehicle suffered a crushed left foot and ankle, broken pelvis, severed aorta, and brain damage. Her fifteen-month-old son, who was riding in the back seat, was killed. L. was rendered paraplegic and also sustained a punctured lung and broken ribs and vertebrae.

Answer, Ex. I, pp. 3-4.¹ Coppess was subsequently convicted of one count of second degree murder, five counts of aggravated assault, one count of leaving the scene, two counts of DUI, and two counts of criminal damage. Coppess was sentenced to 44.5 years of imprisonment. On May 27, 2005, the Court of Appeals affirmed Coppess' convictions, but ordered that Coppess be resentenced. On February 28, 2006, upon remand from the Supreme Court of Arizona, the Court of Appeals vacated its May 27, 2005, decision and affirmed Coppess' convictions and sentences.

On February 16, 2006, while Coppess' direct appeal was pending on remand, Coppess sought post-conviction relief on grounds that counsel was ineffective and that a dismissed juror's conduct had tainted the remaining jurors such that his right to a fair and impartial jury was violated. The post-conviction court denied relief and, on March 25, 2008, the Court of Appeals granted review but denied relief.

On or about March 20, 2009, Coppess filed a Petition for Writ of Habeas Corpus.

Report and Recommendation²

On February 20, 2011, the magistrate issued his Report and Recommendation in this case. This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

Timeliness of Petition

The "AEDPA imposes a one-year statute of limitations on habeas corpus petitions filed by state prisoners in federal court." Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001), citing 28 U.S.C. § 2244(d)(1)), footnote omitted. In this case, the magistrate judge determined that the Petition had been filed no later than March 23, 2009, and, therefore, was timely filed. No objection having been made as to this determination, the Court adopts this finding.

Claim I-Violation of Confrontational Rights Regarding Witness Voss

The magistrate judge determined that Coppess had exhausted this claim in the state courts and addressed this issue on the merits. As to this claim, the Court of Appeals stated:

Coppess next argues the trial court erred when it "permitted a witness to testify that, at the accident scene, [L.] stated Coppess was driving." According to Coppess, that evidence sabotaged "the heart of the defense's theory that [he] was not the driver."

Tucson Police Officer Charles Foley testified at trial that he had arrived on the accident scene at 1:55 a.m., only minutes after it had occurred. He saw L. still lying in the road, went to check her condition, and found her conscious. In response to the officer's question, L. stated that Coppess had been driving. Coppess's objection to that testimony on the ground of hearsay was overruled.

Coppess argues that the trial court should have sustained his hearsay objection and that the court also committed fundamental error by violating his "constitutional rights to confront the witnesses against him." U.S. Const. amend. VI; Ariz. Const. art. II, 24. We review the court's evidentiary ruling for an abuse of discretion, State v. Daniel, 169 Ariz. 73, 74, 817 P.2d 18, 19 (App. 1991), but review any confrontation clause issues raised below de novo. State v. Bronson, 204 Ariz. 321, ¶ 14, 63 P.3d 1058, 1061 (App. 2003). We address the hearsay issue first in order to possibly avoid addressing the constitutional issue Coppess now raises. See State v. Korzuch, 186 Ariz. 190, 195, 920 P.2d 312, 317 (1996) ("In general,... we should resolve cases on non-constitutional grounds in all cases where it is possible and prudent to do so.").

Citing Rule 801, Ariz. R. Evid., Coppess argues Foley's testimony was "paradigmatic hearsay." the state, however, maintains L.'s statement was admissible as an excited utterance under Rule 803(2), Ariz. R. Evid. That rule defines an "[e]xcited utterance" as a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Our supreme court has said that "[t]he exception requires proof of three elements: (1) a starling event, (2) a statement made soon after the event to ensure the declarant has no time to fabricate, and (3) a statement which relates to the startling event." State v. Rose, 198 Ariz. 571, ¶ 20, 12 P.3d 796, 802 (2000).

L. made her statement to Officer Foley minutes after a fatal, high-speed automobile accident, while she still lay seriously injured in the street, reporting that "she could not feel below her waist." When Foley arrived on the scene, some bystanders "were trying to calm her down." The statement thus related to the event, the event was certainly startling, and the statement was made very shortly after the event. See State v. parks, 211 Ariz. 19, ¶¶10-11, 18, 39, 116 P.3d 631, 634-35, 639 (App. 2005) (trial court did not abuse its discretion in finding statements made by defendant's son to deputy att scene of shooting were excited utterances). As the state correctly points out, "a statement is not necessarily inadmissible because it is made in response to a question," even a police officer's question. State v. Whitney, 159 Ariz. 476, 483, 768 P.2d 638, 645 (1989). In addition, "'[t]he modern trend is toward a liberal interpretation of [the excited utterance] exception, leaving admissibility largely to the discretion of the trial court.'" Id. att 484, 768 P.2d at 646, quoting State v. Rivera, 139 Ariz. 409, 410, 678 P.2d 1373, 1374 (1984); see also State v. Alvarez, 210 Ariz. 24, ¶ 13, 107 P.3d 350, 354 (App. 2005). We cannot say, therefore, that the trial court abused its discretion in overruling Coppess's hearsay objection to Foley's testimony.

With respect to Coppess's Confrontation Clause argument, we first note he did not object below to Foley's testimony on that ground. Coppess's hearsay objection did not preserve this new argument. See State v. Hernandez, 170 Ariz. 301, 306-07, 823 P.2d 1309, 1314-15 (App. 1991). Because Coppess failed to challenge Foley's testimony on Sixth Amendment grounds below, he "forfeit[ed] the right to obtain appellate relief unless he "establish[es] both that fundamental error exists and that the error in his cases caused him prejudice." State v. Henderson, 210 Ariz. 561, ¶¶ 19, 20, 22, 115 P.3d 601, 607, 608 (2005); see also State v. Martinez, 210 Ariz. 578, n.2, 115 P.3d 618, 620 n.2 (2005). And, fundamental error analysis is unnecessary absent an initial finding "that the trial court committed some error." State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991).

Coppess argues the trial court fundamentally erred because he "could not confront [L.] about the statement she allegedly made to Foley." L., however, testified at trial, albeit before Foley. Therefore, Coppess had an opportunity to cross-examine her on all material topics, including her statement to Foley.

Foley testified that he had made an investigative report that specifically referred to L.'s statement. Pursuant to Rule 15.1, Ariz. R. Crim. P. 16A A.R.S., the state was required to disclose that report to Coppess before trial. Nothing in the record suggests the state failed to do so or that Coppess was otherwise unaware of L.'s statement before Foley testified. Thus, he could have cross-examined her about that statement. Likewise, although L.'s testimony preceded Foley's, Coppess could have called L. in his case-in-chief after the

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