State v. Harrison

• Decision Date: 16 July 1998
• Docket Number: No. 1 CA-CR 97-0471.,1 CA-CR 97-0471.
• Citation: 985 P.2d 513,195 Ariz. 28
• Parties: STATE of Arizona, Appellee, v. Elbert HARRISON, Jr., Appellant.
• Court: Arizona Court of Appeals

985 P.2d 513

195 Ariz. 28

STATE of Arizona, Appellee, v. Elbert HARRISON, Jr., Appellant.

No. -0471.

Court of Appeals of Arizona, Division 1, Department D.

July 16, 1998.

Review Granted December 7, 1998.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel Criminal Appeals Section and Diane M. Ramsey Assistant Attorney General Attorneys, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender Attorneys, Phoenix, for Appellant.

OPINION

WEISBERG, Judge.

¶ 1 Elbert Harrison, Jr. ("defendant") appeals from his convictions and sentences on one count of unlawful flight from a law enforcement vehicle and three counts of aggravated assault. For the following reasons, we affirm the convictions, vacate the sentences imposed by the trial court, and remand this case for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Department of Public Safety ("DPS") Motorcycle Officer Brian Swanty ("Officer Swanty") was patrolling U.S. Route 60 on July 1, 1996, when defendant's vehicle approached from behind at approximately 100 miles per hour, forcing Officer Swanty's motorcycle onto the emergency shoulder of the highway. Defendant's vehicle then swerved across several lanes of traffic and proceeded up the Alma School Road exit ramp. Officer Swanty activated his lights and siren and pursued defendant's vehicle. Defendant turned left through a red light and drove north on Alma School Road at high speed for approximately four tenths of a mile. He then turned east on Grove Avenue and north into a bank parking lot where he came to a stop.

¶ 3 Defendant emerged from the car and charged at Officer Swanty, yelling obscenities. Officer Swanty drew his pistol and ordered defendant to stop, which he did, although he continued shouting obscenities and threatened to forcibly insert Officer Swanty's sidearm into his rectum. Believing that the danger had subsided, Officer Swanty holstered his pistol. Defendant shouted additional obscenities and threats.

¶ 4 Defendant refused to comply with Officer Swanty's continuing commands to desist, and approached Officer Swanty a second time. Officer Swanty removed a canister of pepper spray from his belt and threatened to spray defendant with it if defendant did not drop to the ground. Defendant continued to approach and stated his intention to forcibly insert the pepper spray canister into Officer Swanty's rectum. Officer Swanty sprayed defendant's face with pepper spray. At this point, defendant "went ballistic" and reiterated some of the graphic threats he had made earlier. Fearing a physical confrontation, Officer Swanty retrieved a baton, which defendant threatened to forcibly insert into Officer Swanty's rectum along with the other weapons.

¶ 5 Although defendant's eyes were watering and beginning to shut, he returned to his car, put the transmission into reverse, and accelerated toward Officer Swanty. Officer Swanty took refuge behind some trees, then returned to his motorcycle and pursued defendant, who had fled in his vehicle a second time.

¶ 6 During the second chase, defendant went north on Alma School Road, driving erratically and reaching speeds of 80 to 85 miles per hour. Defendant "slammed on the brakes," reversed direction, drove south on Alma School Road, and turned into an apartment complex parking lot. When defendant's car reached a dead end, defendant exited the vehicle, scaled a locked gate, and fled on foot. Other police officers arrived, joined in the pursuit, and caught up with defendant on an apartment patio.

¶ 7 After brawling with and cursing at the police officers, defendant calmed down and agreed to handcuff himself. Although it was against policy, the arresting officers permitted defendant to put the handcuffs on in front of his body. Police brought defendant to a DPS station where defendant performed a "rap" song which featured the words, "fuck the police."

¶ 8 Police later transported defendant to the Identification Bureau facility of the Phoenix Police Department. There, Officer Swanty and DPS Officer Arias were standing with defendant when an altercation developed nearby involving other police officers and another arrestee. Defendant spoke with the other arrestee, and when a Phoenix Police Sergeant tapped defendant on the arm and indicated that he should move away from the fight, defendant told him, "Fuck you."

¶ 9 Officer Swanty determined there was an outstanding misdemeanor warrant for defendant's arrest and informed defendant of that fact. Defendant became "upset and enraged" and "very aggressive and violent." When defendant noticed that Phoenix Police Sergeant Robert Seils was looking at him, he turned to him and said, "Fuck you, too, you cracker." Defendant constantly cursed nearby police officers, calling them "white devils," and using other racial epithets. Sergeant Seils directed Officers Swanty and Arias to handcuff defendant's hands behind his back, at which point defendant stated, "Fuck you, you ain't touching me.". Defendant—handcuffs still attached—refused to cooperate, "push[ed] and shov[ed]" the officers, made additional obscene comments, and threatened further violence.

¶ 10 Defendant then went after Officer Arias with clenched fists. Officer Arias punched defendant, and another brawl ensued. Officer Arias sprayed defendant with pepper spray, and defendant again "went ballistic," pushing Officer Arias into a counter and kicking and punching him. When Officer Swanty pulled defendant off Officer Arias, he and defendant fell to the ground. Defendant arose and commenced kicking and punching Officer Swanty.

¶ 11 The pepper spray had less effect on defendant than on other nearby police officers who were temporarily disabled but who eventually regrouped and pulled defendant off Officer Swanty. Defendant kicked Sergeant Seils three times. After more fighting, cursing, and threatening from defendant, four or five police officers gained control of defendant and restrained his legs with a set of "hobbles." Officers Swanty, Arias, and Seils all sustained minor physical injuries.

¶ 12 A Maricopa County grand jury returned an indictment charging defendant with one count of unlawful flight from a pursuing law enforcement vehicle and three counts of aggravated assault (one count each referring to defendant's actions against Officers Swanty, Arias and Seils) in violation of Arizona Revised Statutes Annotated ("A.R.S.") sections 28-622.01 and 13-1204(A)(5) (Supp.1997), respectively.¹ The case proceeded to a jury trial. Defendant developed a self-defense theory largely on the strength of his own testimony. He argued that the officers were the aggressors, that they overreacted and used excessive force, and that defendant was justified in using force to protect himself. The jury rejected defendant's theory and convicted him on all counts. The trial court sentenced defendant to aggravated, enhanced prison terms of three years on the unlawful flight conviction, and 2.25 years on the aggravated assault convictions,² all sentences to be served concurrently.

¶ 13 Defendant timely appealed. This court has jurisdiction to adjudicate the appeal. See Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1) (Supp.1997).

ISSUES

1. Whether the trial court was within its discretion in admitting defendant's statement, uttered while he was in custody and being transported to the police station, that if he had a gun, Officer Swanty would be bleeding in the parking lot;

2. Whether the prosecutor tainted the verdicts by implying in closing argument that defendant probably committed the aggravated assaults in this case because he had a prior conviction for aggravated assault; and

3. Whether the trial court failed to articulate any aggravating factors to support an aggravated sentence.

ANALYSIS

1. The trial court was within its discretion in admitting defendant's statement concerning what would have happened to Officer Swanty if defendant had been armed with a gun.

¶ 14 DPS Officer Richard Purvis ("Officer Purvis") was in the patrol car with defendant while defendant was being transported to the police station. Officer Purvis testified, over a defense objection, that while en route defendant:

made the statement in reference to the weapon, that if he had a gun, they'd [Defendant and Officer Swanty] both be bleeding in the [bank] parking lot at that point.

Defendant contends on appeal that the court abused its discretion in admitting this statement because the statement was irrelevant, and that even if relevant its potential for unfair prejudice clearly outweighs any probative value it may have. We disagree.

¶ 15 Relevant evidence is generally admissible. See Ariz. R. Evid. 402. Evidence is relevant, i.e., has "probative value," if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ariz. R. Evid. 401. The statement had probative value.

¶ 16 The State charged defendant with aggravated assault. His defense rested on the theory that police used excessive force and that his response—the actions charged as assault—was justified. Defendant's statement concerning what he would have done if he had possessed a gun was relevant because it showed his state of mind toward one of the victims shortly before the assaults. It evinced his desire to harm Officer Swanty. Accordingly, the statement made it more likely that he assaulted Officer Swanty and the other two victims and less likely that he was merely defending himself against the use of excessive force.

¶ 17 The case defendant cites, State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (App. 1981), is readily distinguishable. There, Division II of this court held that the trial court erred in permitting the prosecution to examine the defendant concerning his putative past affiliation with the Hell's...