State v. Davis
| Decision Date | 12 March 2013 |
| Docket Number | 2 CA-CR 2011-0360 |
| Parties | THE STATE OF ARIZONA, Appellee, v. RONDRIC D. DAVIS, Appellant. |
| Court | Arizona Court of Appeals |
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 DECISIONNot for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
and Amy M. Thorson
Tucson
Attorneys for Appellee
Peter A. Kelly
Palominas
Attorney for Appellant
¶1 Rondric Davis was convicted by a jury of armed robbery, aggravated robbery, aggravated assault, and two counts of disorderly conduct. He was sentenced tominimum, concurrent terms of imprisonment, the longest of which was seven years. On appeal, Davis argues the evidence was insufficient to sustain the guilty verdicts; the trial court erred in denying his post-trial motion for the production of a witness's mental health treatment records; the trial court erred in denying Davis's motion for a new trial; the state committed a Brady1 violation; and, the trial court erred in refusing to give Davis's proposed jury instruction. We affirm for the reasons stated below.
¶2 We view the facts in the light most favorable to sustaining Davis's convictions. See State v. Rivera, 226 Ariz. 325, ¶ 2, 247 P.3d 560, 562 (App. 2011). The manager (R.D.) of an athletic shoe store located in the Sierra Vista Mall, was robbed in the mall parking lot while en route to make the nightly cash deposit at a nearby bank. Three men wearing hoods, black clothing, and bandanas over their faces approached R.D. The man in the lead was armed with an AK-47 assault rifle. He pointed the weapon at R.D.'s abdominal region, demanding he "[e]mpty [his] pockets." R.D. handed over the deposit bag, which contained approximately $1,100 in cash and a check for about $100. The three men then fled the scene.
¶3 Davis lived with his uncle and two older brothers in Sierra Vista. A witness testified that, before the date of the robbery, she had seen the Davis brothers handling an AK-47 and overheard co-defendants planning a robbery. Michael McKoy testified that he, Davis, and Davis's brother Darrick were the three men who robbed R.D.and that co-defendant Wesley Hollis had driven them to and from the mall. McKoy said Darrick held an AK-47 during the robbery, while he and Davis carried BB guns.
¶4 Davis was charged with armed robbery, aggravated robbery, two counts of aggravated assault, and two counts of disorderly conduct. He was convicted as charged for all but one aggravated assault count. Davis filed a motion for a new trial. The court then sentenced Davis as described above. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) and 13-4033(A).
¶5 Davis first argues the evidence was insufficient to sustain guilty verdicts because the state's primary witnesses were inconsistent and not credible. Whether evidence is sufficient to sustain a verdict is a question of law, which we review de novo. See State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). "In reviewing sufficiency of the evidence, we examine the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
¶6 There must be substantial evidence to support the jury verdict. State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913 (2005). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial evidence "may be either circumstantial or direct." State v.Henry, 205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003). We will reverse a conviction "only if 'there is a complete absence of probative facts to support [the jury's] conclusion.'" State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988). If "'reasonable minds may differ on inferences drawn from the facts,'" the conviction must be upheld. See West, 226 Ariz. 559, ¶ 18, 250 P.3d at 1192, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).
¶7 Davis argues the state's primary witnesses were not credible, and their testimony did not constitute substantial evidence. M.K. testified that she heard two of the co-defendants discussing the robbery; she saw Davis and the three other participants leave together from the Charles Drive residence on the evening of the robbery; she later saw Davis and the two co-defendants return to the residence, take out a lot of money, and divide the cash among them. M.K. had seen Davis handling an AK-47 before the date of the robbery and one of the co-defendants carrying an AK-47 when Davis and the co-defendants returned to the house. McKoy testified that he was present during the robbery; that Davis, with a BB gun, and two other co-defendants participated in the robbery; that he, Davis, and a co-defendant approached a man and demanded money from him; and, that he, Davis, and the co-defendants returned to the residence, emptied a bag of cash, and divided it up.
¶8 Davis contends that M.K. gave conflicting testimony and that McKoy's testimony, standing alone, was insufficient. Credibility of witnesses is a matter for thejury. State v. Cañez, 202 Ariz. 133, ¶ 39, 42 P.3d 564, 580 (2002); State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284 (App. 1983). The jury, as demonstrated by the verdict, believed the bulk of the witnesses' testimony despite any inconsistencies or memory lapses while testifying. Davis essentially asks us to reweigh the evidence, which we will not do. See State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995) ().
¶9 In addition, other evidence corroborated the testimony of M.K. and McKoy. Another witness identified an AK-47 recovered by police as similar to an AK-47 carried by a man leaving the scene of the robbery. R.D. also testified that a check was in the deposit bag along with the cash. M.K. and McKoy both testified that a check was in the cash divided among the participants. Furthermore, another witness testified he had heard McKoy and the co-defendants refer to the athletic shoe store while they were discussing the robbery. Co-defendant Hollis testified at trial that he was previously employed by the athletic shoe store. Hollis indicated he was familiar with the store's deposit procedure and that he had performed it with R.D. "plenty of times."
¶10 The jury was properly instructed regarding the credibility of witnesses and material portions of M.K.'s and McKoy's testimony were corroborated by independent evidence. Thus, the jury heard sufficient evidence to conclude Davis was guilty beyond a reasonable doubt.
¶11 Davis argues the trial court abused its discretion in denying his post-trial motion for production of M.K.'s mental health records. "[W]hether a criminal defendant is entitled to discover certain evidence is a matter within the trial court's discretion." State v. Roberts, 139 Ariz. 117, 120, 677 P.2d 280, 283 (App. 1983). We find no abuse of discretion here.
¶12 During cross-examination of M.K., defense counsel elicited testimony that M.K. was bipolar and had Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD). M.K. said she controlled these conditions with medication. She also admitted that she had used alcohol and drugs, including marijuana and cocaine.
¶13 After the trial concluded, Davis filed a motion for production of M.K's mental health treatment records arguing he had recently obtained information suggesting M.K.'s mental health problems were "likely much more serious than she admitted to during her court testimony." Attached to the motion was an affidavit from Davis's brother, M.K.'s former boyfriend. The affidavit stated that he had observed and had been told about M.K.'s mental health issues such as ADHD, bipolar disorder, panic attacks, insomnia, and mood swings. The trial court denied the motion, finding the affidavit did "not present facts sufficient to overcome [M.K.'s] privacy interests." Davis filed a motion for reconsideration, which was also denied.
¶14 The state argues Davis's "post-trial motion for disclosure of [M.K.'s] mental health treatment records was untimely." We agree. Any motion, defense, or request not raised twenty days prior to trial is precluded. See Ariz. R. Crim. P. 16.1(c). Davis waived discovery of M.K.'s mental health records by failing to make his discovery motion within these time limits. See State v. Piper, 113 Ariz. 390, 392, 555 P.2d 636, 638 (1976). Moreover, there was no suggestion that Davis could not have obtained before trial the information on which he now relies. Davis's "failure to so move prior to trial precludes him from raising this issue on appeal." Id.
¶15 Davis's argument also fails on its merits. Davis has offered no authority or particular facts suggesting M.K.'s mental health records would have been subject to pretrial disclosure. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Ariz. R. Crim. P. 15.1(b); Ariz. R. Crim. P. 15.6(c). Discovery rules are subject to broad interpretation, but there should also be a demonstration of "substantial need" for materials not otherwise covered by Rule 15.1, which includes health records of a witness. See State v. Kevil, 111 Ariz. 240, 243, 527 P.2d 285, 288 (1974); see also ...
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