State v. Patterson

Decision Date02 August 2016
Docket NumberNo. 2 CA-CR 2015-0294,2 CA-CR 2015-0294
CourtArizona Court of Appeals



See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20143465001

The Honorable Scott Rash, Judge



Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Jonathan Bass, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Michael J. Miller, Assistant Public Defender, Tucson

Counsel for Appellant


Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Brennan Patterson was convicted of aggravated driving under the influence (DUI) and aggravated driving with an alcohol concentration of .08 or more, both while his license was suspended and revoked. The trial court sentenced him to concurrent, 3.5-year terms of imprisonment. On appeal, Patterson argues the court erred in various evidentiary rulings. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Patterson's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2, 326 P.3d 339, 341 (App. 2014). In May 2014, Tucson Police Department officer Mark Holderness stopped a vehicle he had continuously observed, driven by Patterson with one passenger, after it pulled out of a convenience store parking lot at a "high rate of speed" and run a stop sign. After Holderness activated his lights and siren, he saw a cup "thrown out of the vehicle." Patterson then returned to the parking lot and stopped. When Holderness approached the vehicle, Patterson provided his name but no driver's license. Holderness immediately noticed that Patterson had "slurred speech, bloodshot and watery eyes, and an odor of intoxicants." As Patterson stepped out of the vehicle, he had to "lean on [it] to keep his balance." According to Holderness, Patterson's "clothes were disorderly" and his "pants were saggy and falling down."

¶3 When Holderness asked if he was willing to perform field-sobriety tests, Patterson responded with profanities and refused. Patterson subsequently agreed to the tests, exhibiting six of eight cues for impairment on one and two of four on another. Bythat time, another officer had arrived at the scene and was about to administer the horizontal gaze nystagmus test, but Patterson became "very aggressive and angry." The officers decided to arrest Patterson for DUI, but Patterson would not "turn around and put his hands behind his back." A struggle ensued, and the officers had to "take [Patterson] to the ground" to detain him. Although Patterson sustained minor injuries, he declined medical attention.

¶4 Holderness transported Patterson to a nearby police station, where he obtained a warrant to draw Patterson's blood. A trained phlebotomist then completed the blood draw. Subsequent testing revealed a .309 alcohol concentration. A records check also showed that Patterson's license had been "[s]uspended and revoked."

¶5 A grand jury indicted Patterson for aggravated DUI and aggravated driving with an alcohol concentration of .08 or more, both while his driver's license was suspended or revoked. The jury convicted him as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Preclusion of Defense Witness

¶6 Patterson argues the trial court erred by precluding the testimony of a defense investigator who would have explained that the officers failed to obtain "potentially helpful" video evidence from the convenience store. We review the preclusion of evidence for an abuse of discretion. State v. Moody, 208 Ariz. 424, ¶ 135, 94 P.3d 1119, 1152 (2004); State v. Davis, 205 Ariz. 174, ¶ 23, 68 P.3d 127, 131 (App. 2002).

¶7 Four days before Patterson's trial, defense counsel disclosed Harry Goss as a witness. The prosecutor interviewed Goss the day before trial and then filed a motion to preclude his testimony. On the first day of trial, defense counsel explained that Goss, a former police officer, would testify the convenience store where the encounter had occurred had surveillance cameras and the store would only allow police to access the video. Defense counsel maintained that "[t]he police failed to get [the] video," which wasonly available for thirty days. He further asserted that the video was relevant because it "might contain exculpatory evidence and it might not, but just like Willits,1 somebody was in control of it and that person allowed it to be destroyed." The prosecutor argued Goss had not been disclosed in a timely manner, but defense counsel asserted, "[T]he Office of Court-Appointed Counsel was slow to approve funding to hire [him]." The court granted the state's motion to preclude based on untimely disclosure, also noting "the testimony [was not] relevant at this point."

¶8 On appeal, Patterson argues, "[T]he trial court erred when it found that Goss was disclosed too late." He maintains that "defense [counsel] provided a sufficient explanation of why Goss could not have been disclosed at an earlier time." He also points out that the state "still had an opportunity to interview Goss prior to trial."

¶9 A defendant must disclose "[t]he names and addresses of all persons . . . whom the defendant intends to call as witnesses at trial" either "40 days after arraignment or within 10 days after the prosecutor's disclosure . . . , whichever occurs first." Ariz. R. Crim. P. 15.2(c)(1), (d). The duty to disclose is a continuing duty, and a defendant must "make additional disclosure, seasonably, whenever new or different information subject to disclosure is discovered." Ariz. R. Crim. P. 15.6(a). Generally, disclosure must be completed at least seven days before trial. Ariz. R. Crim. P. 15.6(c). A defendant "seeking to use material and information not disclosed at least seven days prior to trial shall obtain leave of court by motion, supported by affidavit, to extend the time for disclosure and use the material or information." Ariz. R. Crim. P. 15.6(d).

¶10 Because there were less than seven days before trial when Patterson disclosed Goss as a witness, he had to seek leave of the court to extend the time for disclosure under Rule 15.6(d). However, Patterson failed to do so—he filed neither a motion to permit the untimely disclosure nor a supporting affidavit.

¶11 A trial court has discretion to fashion an appropriate remedy for a Rule 15 violation. State v. Scott, 24 Ariz. App. 203, 205, 537 P.2d 40, 42 (1975). And "Rule 15.7(a)(1), Ariz. R. Crim. P., provides that one of the sanctions available to the court for a [defendant's] failure to disclose evidence is preclusion of that evidence." State v. Aguilar, 217 Ariz. 235, ¶ 20, 172 P.3d 423, 429 (App. 2007). The court was thus within its discretion in granting the motion to preclude based on the untimely disclosure. See id. ¶ 21 (when state failed to file "proper request to permit untimely disclosure" or "proper motion or affidavit" explaining why evidence could not have been discovered earlier, trial court was within its discretion to preclude untimely disclosed evidence); Scott, 24 Ariz. App. at 205, 537 P.2d at 42 (trial court acted within its discretion in precluding testimony of two defense witnesses not disclosed pursuant to Rule 15.2(c)(1)).

¶12 Patterson points out that preclusion is "rarely an appropriate sanction for a discovery violation" and should be used as a "last resort." State v. Delgado, 174 Ariz. 252, 257, 848 P.2d 337, 342 (App. 1993); see also State v. Valencia, 186 Ariz. 493, 502, 924 P.2d 497, 506 (App. 1996) (preclusion should be rarely used because it impinges on defendant's Sixth Amendment right to present witnesses). However, even if we assume the trial court erred in precluding Goss's testimony, "[s]uch error is subject to a harmless error analysis." Delgado, 174 Ariz. at 260, 848 P.2d at 345. "Error is harmless if we can conclude, beyond a reasonable doubt, that the error did not contribute to or affect the jury's verdict." State v. Davolt, 207 Ariz. 191, ¶ 64, 84 P.3d 456, 474 (2004).

¶13 We conclude that any error in precluding Goss's testimony was harmless. See State v. Carlos, 199 Ariz. 273, ¶ 24, 17 P.3d 118, 124 (App. 2001) (preclusion of cumulative testimony constitutes harmless error). Defense counsel elicited the same testimony he sought to introduce from Goss through his cross-examination of Holderness and another officer. The trial court admitted two photographs—taken by Goss—that showed the convenience store's surveillance camera, and Holderness acknowledged the camera existed and he had requested to see video from the store in the past. The officers also admitted that they didnot request any video in this case. Holderness was not certain whether the "camera specifically would have caught the DUI investigation," but notably neither was Goss. For that matter neither could have been certain whether the video supported or, as Patterson argues for the first time on appeal, contradicted Holderness's testimony that he had seen Patterson driving the vehicle. Defense counsel nevertheless argued in closing that the convenience store had used a surveillance camera that must have recorded "everything [that] happened," but the officers had "never even bothered to go look" at the video. Goss's testimony thus "would have been merely cumulative," id., and we are confident that any error in precluding it did not contribute to or affect the jury's verdicts, see Davolt, 207 Ariz. 191, ¶ 64, 84 P.3d at 474.2

¶14 As part of this argument,...

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