State v. Bland
| Decision Date | 25 February 2015 |
| Docket Number | No. 2 CA-CR 2014-0065,2 CA-CR 2014-0065 |
| Parties | THE STATE OF ARIZONA Appellee, v. GUSTAV RAY BLAND, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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 Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
Presiding Judge Miller authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
¶1 Gustav Bland was convicted after a jury trial of one count of aggravated assault with a deadly weapon/dangerous instrument, and one count of aggravated assault causing serious physical injury. The offenses arose from an altercation in which Bland brandished a weapon at A.S. and his father, M.S, and then shot M.S. Bland was sentenced to concurrent terms totaling fifteen years' imprisonment. He contends the trial court made several errors pertaining to a potential witness he met in jail. First, he argues the court improperly rejected his request to secure immunity for the witness or, alternatively, to require the witness to invoke his constitutional rights in the jury's presence. Second, he maintains the court improperly precluded an earlier statement by the witness. Finally, he contends the court erred in rejecting his "no duty to retreat" instruction. For the following reasons, we affirm Bland's convictions on both counts and the sentence as to count two, but vacate his sentence on count three1 and remand for resentencing.
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. See State v. Haight-Gyuro, 218 Ariz. 356,¶ 2, 186 P.3d 33, 34 (App. 2008). In April 2012, Bland went to M.S.'s apartment. M.S.'s son, A.S., was there with M.S., and his other son, J.S. J.S. left shortly after Bland arrived.
¶3 Bland and A.S. had a disagreement that resulted in A.S. telling Bland to leave. As M.S. followed Bland out the door, arguing with him, Bland pulled a gun from his waistband and pointed it at M.S. A.S. then walked out of the apartment and Bland pointed the gun at him. M.S. punched Bland in the face, knocking him down. As M.S. was turning to walk away, Bland shot him in the back. Bland ran away when he heard police sirens, but was found nearby and arrested.
¶4 Bland was charged with attempted first degree murder and four counts of aggravated assault. He was convicted and sentenced as described above, and this timely appeal followed.
¶5 Bland argues he was denied his constitutional right to present a complete defense because the trial court refused to order immunity for a defense witness.2 We review a trial court's decision to admit evidence for an abuse of discretion. See State v. McCurdy, 216 Ariz. 567, ¶ 6, 169 P.3d 931, 935 (App. 2007). Constitutionalquestions are reviewed de novo.3 See State v. McGill, 213 Ariz. 147, ¶ 53, 140 P.3d 930, 942 (2006).
¶6 Pursuant to statute, the state has the authority and discretion to grant immunity. See A.R.S. § 13-4064 (immunity statute); State v. Axley, 132 Ariz. 383, 388, 646 P.2d 268, 273 (1982) (); see also United States v. Quinn, 728 F.3d 243, 253 (3d Cir. 2013). Although the state has no obligation to grant witness immunity, Arizona and federal courts recognize that due process may require the state to grant immunity to a defense witness if: (1) the defendant would otherwise be prevented from presenting clearly exculpatory evidence, or (2) the prosecutor engages in misconduct. Axley, 132 Ariz. at 388, 646 P.2d at 273; see also Quinn, 728 F.3d at 258, 262.
¶7 Bland argues he was prevented from presenting clearly exculpatory evidence from A.E., whom he met in jail after his arrest. While Bland was looking at photographs related to the case, A.E. told Bland that he had been involved in the events before and after the shooting. Later, in a taped interview, A.E. told a defense investigator that he knew the victim and his sons because he had sold heroin to them and they owed him money. A.E. reported that on the night of the shooting, either the victim or one of his sons had called A.E. to say they had a truck to give him, but the owner was "causing problems" so A.E. needed to "come over and help . . . with him." A.E. said that when he arrived, J.S. met him in the back of the apartment complex and told A.E. to meet him at a nearby coffee shop, where J.S. showed A.E. a gun and asked him to hold it. Bland argues A.E.'s statement is exculpatory because it indicates there was a gun in M.S.'s apartment at the time of the shooting, and that"[Bland's] fears about the gravity of the situation when [A.S.] came out of the apartment to assist his father . . . were not unfounded."
¶8 In this context, clearly exculpatory evidence is that which would exonerate the defendant. Quinn, 728 F.3d at 262; cf. State v. Montano, 204 Ariz. 413, ¶ 52, 65 P.3d 61, 72 (2003) (). Testimony that is speculative, severely impeached by prior inconsistent statements or, even if believed would not exonerate the defendant, is not exculpatory. Quinn, 728 F.3d at 262. Additionally, testimony that is overwhelmingly undercut by the record lacks credibility and cannot be exculpatory. Id. at 263.
¶9 Here, A.E.'s statement was undermined by evidence in the record that J.S. was not present at the time of the shooting. J.S. told police that he was not there, his initial attempt to return was blocked by police, and he successfully returned to the apartment only after an officer told him that his father had been shot. At trial, M.S. testified that J.S. left the apartment before the shooting. An officer also testified that he telephoned J.S. to tell him about his father, and that it took J.S. twenty to thirty minutes to return to the scene. Additionally, neighbors did not mention seeing J.S. at the scene during or after the shooting, and police officers arrived within two minutes of the incident, in time to see Bland running away. No other witness placed J.S. outside the apartment or provided any evidence of an opportunity for him to retrieve a gun, call A.E., meet A.E. at the back of the apartment, and leave the scene in the presence of police.
¶10 Further, even if A.E.'s statements were not contradicted, they were not clearly exculpatory. To justify use of deadly physical force, the person must "believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force." A.R.S. § 13-405(A)(2). The question of belief is objective, based on whethera reasonable person would believe physical force was necessary. See State v. King, 225 Ariz. 87, ¶¶ 11-12, 235 P.3d 240, 243 (2010); A.R.S. §§ 13-404(A), 13-405(A).
¶11 Bland knew a gun had previously been in the house but never testified he saw one the night of the shooting. Existence of a gun that Bland did not claim to see that night was irrelevant to Bland's state of mind. Cf. State v. Fish, 222 Ariz. 109, ¶ 37, 213 P.3d 258, 270-71 (App. 2009) (). For the same reason, the existence of a gun learned long after the events cannot corroborate Bland's knowledge at the time of the events. Cf. State v. Turner, 92 Ariz. 214, 220-21, 375 P.2d 567, 571 (1962) (). A.E.'s statements about the gun were not clearly exculpatory.
¶12 Bland also argues the prosecutor engaged in misconduct by withholding immunity.5 In this context, prosecutorial misconduct occurs when the state takes action to interfere with judicial factfinding. See State v. Axley, 132 Ariz. 383, 388, 646 P.2d 268, 273 (1982) (), quoting State v. Stewart, 131 Ariz. 407, 409, 641 P.2d 895, 897 (App. 1982); Quinn, 728 F.3d at 258 (). For example, Axley relies on United States v. Morrison, 535 F.2d 223, 225-26 (3d Cir. 1976), in which the prosecutor repeatedly warned the defense witness she could be charged for drug crimes and perjury for testifying, even surrounding her with lawenforcement the night before her testimony to remind her further. Unlike the witness in Morrison, Bland does not contend A.E. was intimidated or refused to testify at the suggestion of the state. Rather, A.E. did not testify because he made clear his intent to invoke the Fifth Amendment if he was asked more about the events.6 See Axley, 132 Ariz. at 388, 646 P.2d at 273 (). The trial court did not err by denying Bland's motion to require the state to provide witness immunity.
¶13 Bland also argues the trial court erred by denying his motion for new trial on the issue of witness immunity. We review the denial of a motion for new trial for an abuse of discretion. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984). Bland does not provide any additional arguments in support of the motion for new trial. Rather, he argues the trial court erred by denying the motion based on its earlier findings regarding...
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