State v. Smith

CourtCourt of Appeals of Arizona
PartiesSTATE OF ARIZONA, Appellee, v. CHIP MORAY SMITH, Appellant.
Docket NumberNo. 1 CA-CR 14-0246,No. 1 CA-CR 12-0550,1 CA-CR 12-0550,1 CA-CR 14-0246
Decision Date17 June 2014


No. 1 CA-CR 12-0550
No. 1 CA-CR 14-0246


FILED: June 17, 2014


Appeal from the Superior Court in Mohave County
No. S8015CR20011143
The Honorable Rick A. Williams, Judge



Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee

Mohave County Legal Defender's Office, Kingman
By Diane S. McCoy
Counsel for Appellant

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Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Maurice Portley joined.

NORRIS, Judge:

¶1 Chip Moray Smith appeals his conviction and sentence for second degree murder. On appeal, he argues the superior court should have vacated his convictions, should not have admitted certain evidence, deprived him of a fair trial because of prosecutorial misconduct, and imposed an illegal aggravated sentence. We disagree with all of Smith's arguments and affirm his sentence and conviction.


¶2 On August 12, 2001, A.H. and S.R. were waiting for the victim at his home with the expectation that the victim would give them a ride. While they were waiting, Smith arrived with J.B. Smith had a rifle and was "really mad." Smith said he wanted to talk to the victim and the victim "better have his drugs or his money." A.H. and S.R. asked Smith for a ride. Before A.H. and S.R. got into Smith's car, the victim drove past in his truck without stopping. Smith aimed his rifle at the victim but did not shoot.

¶3 Smith, A.H., S.R., and J.B. then got into Smith's car and left the victim's home. As they started to drive away, they saw the victim's truck driving towards them, and both Smith and the victim stopped. Smith got out of his car with his rifle and approached the victim, who was still in his truck. Smith and the victim fought, and Smith struck the victim several times with his rifle. Smith started to return to his car but then turned around and shot the victim in the head. The victim's truck rolled into a ditch and onto its side.

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¶4 Subsequently, a passerby reported a "motor vehicle accident." First responders found the victim under the truck with massive head injuries and pronounced him dead at the scene. Investigators did not realize the victim had been shot until an autopsy was conducted later that morning.

¶5 A grand jury indicted Smith on one count of first degree murder. His first trial ended in a mistrial. Following his second trial, the jury convicted Smith of the lesser-included offense of second degree murder. This court reversed his conviction. State v. Smith, 1 CA-CR 03-0887 (Ariz. App. Dec. 8, 2005) (mem. decision). In May 2012, a third jury convicted Smith of second degree murder, and the court sentenced him to an aggravated sentence of 22 years in prison with credit for 2,968 days of presentence incarceration. Smith then moved to vacate the judgment, arguing he had been denied a fair trial because the State had failed to disclose exculpatory impeachment evidence. The superior court denied the motion, finding the evidence was not constitutionally material.

¶6 Smith timely appealed from the judgment of conviction and sentence, and we subsequently granted leave for him to file a delayed appeal from the denial of his motion to vacate the judgment. On this court's own motion, we consolidated the two appeals.


I. Motion to Vacate the Judgment

¶7 Smith first argues the superior court should have granted his motion to vacate the judgment because the State failed to disclose exculpatory evidence in violation of his constitutional rights. Reviewing for an abuse of discretion and finding none, we disagree. See State v. Nordstrom, 200 Ariz. 229, 255, ¶ 90, 25 P.3d 717, 743 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012).

¶8 Arizona Rule of Criminal Procedure 24.2 allows the superior court to vacate a judgment if "the conviction was obtained in violation of the United States or Arizona Constitutions." In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Non-disclosure of evidence that affects credibility falls within the Brady rule. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct.

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763, 766, 31 L. Ed. 2d 104 (1972). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, [however,] does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342 (1976). Instead, evidence is "material" under Brady only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

¶9 In moving to vacate the judgment, Smith argued the State had failed to disclose that it had offered one of its witnesses, N.S., a favorable plea agreement in an unrelated matter. N.S. testified at Smith's trial that the day before the victim's murder, Smith and the victim had arranged for a truck belonging to another person to be towed and held until an unspecified debt was paid. The State theorized -- and presented additional testimony in support of its theory -- that Smith was angry with the victim because the victim had returned the truck to its owner the following day.

¶10 The superior court denied the motion to vacate the judgment, finding that although the State should have disclosed the plea agreement, the non-disclosed evidence was not material under the principles discussed above. The court explained, inter alia, that "the importance of the [witness's] testimony pales in comparison to the other evidence proving the defendant's guilt, such as the eye witness accounts of the defendant shooting the victim." Based on our review of the record, we agree with the superior court.

¶11 "To warrant a new trial, impeachment evidence must 'substantially undermine[] testimony that was of critical significance at trial.'" State v. Arvallo, 232 Ariz. 200, 206, ¶ 36, 303 P.3d 94, 100 (App. 2013) (alteration in original) (quoting State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995)). Thus, "where a prosecuting witness is not key to the government's case, his credibility is not material; hence the failure to reveal impeachment evidence concerning a minor witness does not violate Brady." United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989) (citation omitted).

¶12 Here, the undisclosed evidence would have been used solely to impeach the witness's testimony that Smith had a motive to kill the victim. Three other witnesses, however, identified Smith at trial and testified they saw Smith get out of the vehicle with a gun and heard a

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shot. One of those witnesses also testified Smith "turned back around and went back to the window and he shot [the victim]." The undisclosed evidence could not have impeached or undermined this testimony.

¶13 Further, considering the totality of the evidence, N.S.'s testimony pertaining to Smith's motive for the murder was a rather inconsequential part of the State's case. Indeed, even if Smith had been able to use the undisclosed evidence to eliminate all probative value of N.S.'s testimony regarding motive, there would have been overwhelming evidence of Smith's guilt because motive is not an element of second degree murder. See Ariz. Rev. Stat. ("A.R.S.") § 13-1104(A) (2010);2 State v. Hunter, 136 Ariz. 45, 50, 664 P.2d 195, 200 (1983) ("Motive is not an element of the crime of murder." (citation omitted)).

¶14 On this record, the superior court did not abuse its discretion in denying Smith's motion to vacate the judgment.3

II. Other Act Evidence

¶15 Smith next argues the superior court should not have admitted other act evidence that he had arranged for the truck to be towed as "intrinsic evidence." The State properly concedes this evidence was not "intrinsic evidence," see Ferrero, 229 Ariz. at 242, ¶ 13, 274 P.3d at 512, but argues it was nonetheless admissible under Arizona Rule of Evidence 404(b). We agree with the State.

¶16 Rule 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith" but may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

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knowledge, identity, or absence of mistake or accident." When...

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