State v. Freeney, 1 CA-CR 07-0448.
| Citation | 220 Ariz. 435,207 P.3d 688 |
| Decision Date | 20 November 2008 |
| Docket Number | No. 1 CA-CR 07-0448.,1 CA-CR 07-0448. |
| Parties | STATE of Arizona, Appellee, v. Mark Allen FREENEY, Appellant. |
| Court | Court of Appeals of Arizona |
Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Captial Litigation Section, and Melissa A. Parham, Assistant Attorney General, Phoenix, Attorneys for Appellee.
Kessler Law Offices by Eric W. Kessler, Mesa, Attorney for Appellant.
¶ 1 Mark Allen Freeney ("Appellant") appeals from his conviction and sentence for aggravated assault. He contends that his conviction should be vacated because the trial court violated his Sixth Amendment right to notice in allowing the State to amend the indictment before jury voir dire on the first day of trial, changing the theory of the underlying assault from "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury" to "[i]ntentionally, knowingly or recklessly causing any physical injury to another person." For the following reasons, we affirm.
¶ 2 On November 6, 2006, a grand jury issued an indictment, charging Appellant with aggravated assault, a class three dangerous felony and domestic violence offense, in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1203 (2001) and 13-1204 (Supp.20082).3 The allegation of dangerousness in the indictment stated as follows:
The State of Arizona further alleges that the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a METAL BAR or PIPE, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [the victim], in violation of A.R.S. § 13-604(P).
(Emphasis added.)4
¶ 3 On March 9, 2007, at the Final Trial Management Conference, the parties prepared a joint pretrial statement, in which the State listed as a witness the emergency room physician who had treated the victim. The joint pretrial statement also provided a brief statement of the case as follows:
The state alleges that on October 24, 2006 the defendant hit the victim [] several times in the head and body with a metal bar while threatening to kill her. The victim received a head injury from the beating and was transported to the hospital. At the time of the assault the victim and defendant had been residing together for approximately one year.
The Defendant denies these allegations.
(Emphasis added.)
¶ 4 On Thursday, March 15, 2007, the first day of trial, before jury selection, the State moved to amend the indictment to change the theory of the underlying assault from A.R.S. § 13-1203(A)(2)—intentionally placing another person in reasonable apprehension of imminent physical injury—to A.R.S. § 13-1203(A)(1)—intentionally, knowingly, or recklessly causing any physical injury to another person.5 Defense counsel objected based on the timing of the motion, but admitted he had been aware the victim was injured because the reports he had received referenced the injuries. The prosecutor noted without objection that defense counsel had received notice not only through the police reports, but also through the victim's medical records and photographs of her injuries. Based on defense counsel's acknowledgement that he knew about the injuries and the police reports referencing the injuries, the trial court concluded that the Sixth Amendment notice requirement had been sufficiently met and allowed the State to amend the indictment. The court further determined that Appellant was not prejudiced by the amendment.
¶ 5 Opening statements and witness testimony commenced on Monday, March 19, 2007. The following evidence was presented: On the evening of October 24, 2006, Angel G. and her son were in the laundry room of their mobile home complex. Angel heard a woman outside the laundry room crying and saying, "Please stop." Angel went to the window and observed Appellant hit the victim, his girlfriend, with a large metal bar or pipe. Angel then heard the victim scream, Angel observed blood gushing from the victim's head, and she also heard Appellant say that he was going to kill the victim. Angel told her son to run to her house and retrieve her cell phone and a wet rag. After he returned, she called the police from inside the laundry room.
¶ 6 Angel also observed another man standing outside with Appellant and the victim, and Appellant told the man to not allow the victim to escape through the courtyard gate. Appellant proceeded to strike the victim several more times with the metal bar. The victim and Appellant eventually entered their home, and then came back outside. Angel called the victim over to the laundry room window and asked her if everything was "okay." The victim responded affirmatively, and Angel gave the victim the rag to wipe some of the blood from her head.
¶ 7 Appellant continued to "fight" with the victim for a moment, but then he and the other man left the property. Angel told the victim to sit down and wait until the police arrived. After the police arrived, Angel showed them the pipe that Appellant had used, as well as a box cutter that Appellant had briefly wielded to threaten the victim, while saying that "he was going to slice her up" and kill her.
¶ 8 Angel testified that she knew and recognized both Appellant and the victim because they rented a home together at the complex, and Angel was a friend of the victim's and had known Appellant for a long time. Angel also testified that she never observed the victim strike Appellant or fight back against him.
¶ 9 Officers Yoder and Galus of the Phoenix Police Department responded to Angel's emergency call. Officer Yoder testified that, upon arriving at the scene, he spoke to the victim, who was bleeding profusely from the side of her head and had blood running down onto her neck. The victim seemed "distraught," "shaken up," and "hysterical," and she initially behaved as though she was "in a daze." Although she was at first uncooperative, she eventually told Officer Yoder that she had been at home with Appellant and some friends, having a party. She and Appellant began to argue, and Appellant grabbed a metal pipe and struck her approximately ten times—approximately four blows struck her head and six struck her body. The victim stated that Appellant left the area before the police arrived, but she provided a physical description of him and the weapon that he used. Officer Yoder recovered a metal pipe on the property.
¶ 10 Officer Galus testified that he noticed the victim had a "substantial" head injury and was bleeding. He also heard the victim state that Appellant had struck her with a metal pipe or bar approximately ten times and that Appellant left the scene before officers arrived. Additionally, the victim told Officer Galus that Appellant had brandished a box cutter, held it to her throat, and stated that he was going to kill her.
¶ 11 Officer Yoder summoned the Phoenix Fire Department, whose members administered first aid and then transported the victim to the hospital. In the emergency room, the victim told the treating physician that she had been involved in a fight and been hit on the head, face, left wrist, and left side with a metal bar or pipe. The victim was crying and bleeding, and the physician observed that she had a large laceration on the back of her scalp approximately four inches long and very deep, penetrating all the way down to her skull. The physician also noted that the victim was in pain and had bruising and swelling on her left wrist and face, including over her eye.
¶ 12 The physician determined that the injuries to the victim's head and body were highly suggestive of blunt force trauma and consistent with being hit with a metal bar. The large cut on the victim's scalp required approximately one dozen staples to close the wound.
¶ 13 Two days later, on October 26, 2006, Officers Yoder and Galus spoke with Appellant. Appellant admitted that he lived with the victim; he had been at their home on October 24, 2006; and he and the victim had an "argument." Appellant also told Officer Yoder that he was not worried about the case going to trial, because he knew that the victim would not testify against him. Officer Yoder believed throughout the interview that Appellant maintained an attitude demonstrating that he was not at all concerned.
¶ 14 At trial, the victim testified, but, after stating that the two were still involved in a relationship, she recanted her previous statements against Appellant. She claimed that, on the evening of October 24, she and Appellant were at home "[g]etting high" on crack cocaine, but Appellant left, and "someone else" came in and attacked her.6 She stated that she could not remember speaking to the police or being injured, although she remembered passing out in the emergency room.
¶ 15 The jury found Appellant guilty of aggravated assault and found that the offense was a dangerous offense and a domestic violence offense. The trial court found Appellant in automatic violation of his probation on another case.
¶ 16 At sentencing, the trial court determined that Appellant had at least two historical prior felony convictions and sentenced him to a presumptive term of 11.25 years' imprisonment in the Arizona Department of Corrections ("ADOC"). The court also credited him for 201 days of pre-sentence incarceration. For Appellant's probation violation, the court sentenced him to one year's imprisonment in ADOC, to run consecutive to his sentence in the instant case, and credited him for 304 days of pre-sentence incarceration.
¶ 17 We have jurisdiction over Appellant's timely appeal. See Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), -4033(A) (2001).
¶ 18 Appellant contends...
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