State v. Stewart

• Decision Date: 26 August 2011
• Docket Number: 2 CA-CR 2010-0281
• Parties: THE STATE OF ARIZONA, Appellee, v. BRIAN CURTIS STEWART, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. BRIAN CURTIS STEWART, Appellant.

2 CA-CR 2010-0281

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Date: August 26, 2011

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 DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20091212002

Honorable Clark W. Munger, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani and Laura P. Chiasson

Tucson

Attorneys for Appellee

Manch Law Firm, PLLC

By Eric S. Manch

Tucson

Attorneys for Appellant

KELLY, Judge.

¶1 Appellant Brian Stewart was initially charged with first-degree murder. After the charge was amended at trial, he was convicted of second-degree murder. On appeal, Stewart contends the trial court erred when it denied his motion to suppress statements he had made to law enforcement officers. Stewart also challenges the court's denial of his motion for a new trial based on the following: the state improperly relied on a theory of culpability that was inconsistent with the theory it had presented in his codefendant's trial; the state violated his due process rights by not providing him notice until the day of trial of its intent to pursue a felony-murder theory on the first-degree murder charge; and, the prosecutor improperly commented on his decision not to testify at trial. For the following reasons, we affirm.

Background

¶2 We view the facts in the light most favorable to sustaining the verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In September 2006, Brian Peterson saw two men attack Q. Peterson photographed the two before they walked away and he called 9-1-1. Q. died from multiple stab wounds. Using Peterson's photographs, police officers located and arrested Stewart and his codefendant, Maxamillano Paredes. Blood on a knife found in Stewart's possession matched Q.'s DNA.¹

¶3 Although Stewart was initially charged with first-degree murder, before closing arguments the parties stipulated to dismiss that charge and proceed on second-degree murder and its lesser-included offenses. The jury found Stewart guilty of second-degree murder and the trial court sentenced him to a sixteen-year term of imprisonment.² This appeal followed.

Discussion

I. Motion to suppress statements

¶4 Stewart asserts that certain statements he made to a police detective were involuntary, irrelevant, and unfairly prejudicial and the trial court therefore erred in denying his motion to suppress them.³ We disagree. In reviewing and determining the propriety of a ruling on a motion to suppress, we review the trial court's factual findings for an abuse of discretion, but we review de novo the ultimate legal question whether the evidence was obtained in violation of the constitution. State v. Davolt, 207 Ariz. 191, ¶ 21, 84 P.3d 456, 467 (2004). We consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the court's ruling. State v. Fornof, 218 Ariz. 74, ¶ 8, 179 P.3d 954, 956 (App. 2008). Statements a defendant makes to law enforcement officers are presumed involuntary and the state has the burden of demonstrating, by a preponderance of evidence, that they were voluntary when made. State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988).

¶5 Tucson police detective Stephen Wilson testified at the suppression hearing that he had responded to a call regarding the stabbing and saw Stewart and Paredes walking near the area where it had occurred. Wilson ordered them to stop and asked whether they had any weapons. Stewart admitted he had a knife in his pocket, which Wilson secured as evidence as another officer placed handcuffs on Stewart. Wilson described Stewart as "highly agitated" and "going through mood swings." Stewart asked why he had been handcuffed, and Wilson informed him he was "investigating a fight" that had occurred nearby. Wilson did not ask Stewart any questions. While detained, Stewart said he was "off [his] medication" and that he was "homicidal, suicidal, and psychotic."⁴

¶6 Stewart claims his statements were involuntary, noting he had told Wilson "he was unstable when he was off his medication" and "it was apparent . . . that [he] was suffering from [a] mental disorder making him incapable of understanding his statements." But, "„[c]oercive police activity is a necessary predicate'" before a trial court can find a statement involuntary. State v. Smith, 193 Ariz. 452, ¶ 14, 974 P.2d 431, 436 (1999), quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986). Stewart does not point to any act of coercion by law enforcement, and we find none in the record. Contrary to his apparent contention, Stewart's mental state, although relevant to determining susceptibility to coercion, cannot alone render the statements involuntary. Id.; see also Connelly, 479 U.S. 157, 167.

¶7 At the hearing on his motion to suppress, Stewart also argued his statements were irrelevant and should be suppressed on this basis. The trial court rejected that claim and Stewart challenges this ruling on appeal. Evidence is relevant 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. Our standard for concluding evidence is relevant under Rule 401 "is not particularly high." State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988). To convict Stewart of second-degree murder, the jury was required to find he had acted with a particular mental state. See A.R.S. § 13-1104(A) (requiring intent to cause death or knowledge conduct will cause death or serious physical injury); State v. Walton, 133 Ariz. 282, 289, 650 P.2d 1264, 1271 (App. 1982) (same). His statements, made shortly after the offense, were relevant to his state of mind and therefore "fact[s] . . . of consequence to the determination of the action." Ariz. R. Evid. 401.

¶8 Finally, Stewart argues the statements should have been suppressed as unfairly prejudicial. Rule 403, Ariz. R. Evid., provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Relevant evidence generally will adversely affect the party against whom it is offered and Rule 403 is meant only to preclude evidence that "has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). Although Stewart argues the statements were prejudicial, he has not demonstrated they were unfairly so. See State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (finding mere prejudice not basis forexclusion of evidence under Rule 403; acknowledging evidence can be harmful but not unfairly prejudicial).

II. Motion for a new trial

¶9 We next address Stewart's challenges to the trial court's denial of his motion for a new trial. We review the denial of a motion for a new trial for abuse of discretion. State v. Mills, 196 Ariz. 269, ¶ 6, 995 P.2d 705, 707 (App. 1999).

a. Inconsistent trial theories

¶10 Stewart claims, as he did in his motion for a new trial, that because the state was permitted to pursue inconsistent theories about which defendant had possessed the murder weapon, he was "denied . . . a fair trial and effective assistance of counsel"⁵ At Stewart's trial, Jeffrey Gastelum testified he had been with Stewart, Paredes, and Q. at a bus station on the day of the stabbing. Stewart and Paredes had been drinking and were "acting drunk." Paredes and Q. had argued, Q. had struck Paredes in the face, and Gastelum had argued with Stewart. Gastelum testified he had offered to sharpen a hunting knife for Paredes,⁶ and "[a]t some point [Paredes had taken] the knife out and . . . chas[ed Q.] around with it." Because Gastelum was "worried about" Q.'s safety, he had asked Q. to leave with him, but Q. had refused.

¶11 After Gastelum testified, Stewart asked the trial court to preclude the state from impeaching Gastelum with his statement to police officers that he had sharpened the knife for Stewart. Stewart asserted that because the state had argued the knife had been sharpened for Paredes in Paredes's trial, it should not be permitted to argue otherwise in his trial. Stewart maintained the state was "developing contradictory and irreconcilable positions" on "the issue of who was in possession of the . . . murder weapon." The court denied the motion and Tucson police officer Randy Lucero then testified that on the day of the stabbing, Gastelum had told him he "had sharpened a knife for . . . [Stewart]" rather than Paredes.

¶12 Stewart argues the state "selectively stressed testimony in each trial to point blame at each defendant." He asserts that during Paredes's trial, the state "'aggressively impeached' Gastelum to show . . . Paredes . . . owned the knife . . . [and] had it sharpened."⁷ But, he claims the state used Lucero's testimony in Stewart's trial "in an attempt to show it was more likely that Stewart owned the knife."⁸ He claims this "conflicting evidence . . . effectively made it impossible to assert . . . vital defenses . . . including the defense of mere presence."

¶13 The prohibition against inconsistent theories is based on the duty of prosecutors to present evidence that is accurate and truthful. See Nguyen v. Lindsey, 232F.3d 1236, 1240 (9th Cir. 2000). Thus, "a prosecutor's pursuit of fundamentally inconsistent theories in separate trials against separate defendants charged with the same murder can violate due process if the prosecutor knowingly uses false evidence or acts in bad faith" by manipulating the evidence in a disingenuous manner or failing to correct the record with respect to admitted...