State v. Todd

• Decision Date: 09 April 2018
• Docket Number: No. 2 CA-CR 2016-0414,2 CA-CR 2016-0414
• Citation: State v. Todd, 418 P.3d 1147 (Ariz. App. 2018)
• Parties: The STATE of Arizona, Appellee, v. Wendy Gail TODD, Appellant.
• Court: Arizona Court of Appeals

418 P.3d 1147

The STATE of Arizona, Appellee,

v.Wendy Gail TODD, Appellant.

No. 2 CA-CR 2016-0414

Court of Appeals of Arizona, Division 2.

Filed April 9, 2018

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By David A. Sullivan, Assistant Attorney General, Tucson, Counsel for Appellee

Abrams and Brereton, PLC, Tucson, By Ivan S. Abrams and Nicholas Brereton, Counsel for Appellant

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Eppich concurred.

OPINION

ECKERSTROM, Chief Judge:

¶ 1 Alleging numerous errors, Wendy Todd appeals from her convictions and sentences for six counts stemming from an incident in which she fired a gun at a home. For the reasons that follow, we affirm.

Factual and Procedural History

¶ 2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles , 213 Ariz. 268, ¶ 2, 141 P.3d 748 (App. 2006). In December 2013, Todd became estranged from her friend, F.O., following a dispute over a "dolly and pickaxe" she had loaned him. In January 2014, F.O. telephoned Todd and asked her to come to his home to talk. During the visit, the two struggled over a gun that Todd had brought with her and, at another point, Todd broke the glass door on F.O.'s microwave by punching it. F.O. asked Todd to leave, and less than one minute after she left, a bullet penetrated his wall, shattering the glass of a picture frame. When deputies reviewed video footage captured by surveillance cameras that F.O. had installed on his property, they saw Todd had fired two shots as she rode by on a motorcycle.

¶ 3 After leaving F.O.'s house, Todd went to the home of another friend, M.O., where deputies found and arrested her. During the arrest, Todd became argumentative, began hitting the partition and window of a patrol vehicle, and spit in a deputy sheriff's face. Upon release after her arrest, Todd admitted to M.O. that she had fired a gun in the air as she drove by F.O.'s house.

¶ 4 Following trial, the jury found Todd guilty of two counts each of knowingly discharging a firearm at a residential structure, intentionally discharging a firearm from a motor vehicle at an occupied structure, and aggravated assault.¹ The trial court sentenced Todd to a combination of consecutive and concurrent prison terms totaling 35.25 years. Todd appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).

Impeachment Evidence

¶ 5 Todd first complains the trial court erred by precluding certain impeachment evidence, arguing the credibility of F.O. and M.O. was central to the case. Specifically, she complains the court should have allowed evidence of M.O.'s "15-year-old conviction," should not have sanitized F.O.'s convictions, and should have allowed evidence of pending and potential charges against both men. We review a trial court's evidentiary rulings for an abuse of discretion, State v. Uriarte , 194 Ariz. 275, ¶ 21, 981 P.2d 575 (App. 1998), including the admissibility of prior convictions, State v. Beasley , 205 Ariz. 334, ¶ 19, 70 P.3d 463 (App. 2003).

Fifteen-Year-Old Conviction

¶ 6 Todd argues the trial court should have allowed her to impeach M.O.'s testimony with evidence of his then-fifteen-year-old conviction for trafficking methamphetamine. Rule 609(a), Ariz. R. Evid., permits litigants to attack a witness's character for truthfulness with evidence of a criminal conviction. However, "if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later," admissibility is more narrowly restricted. Ariz. R. Evid. 609(b). Such evidence is admissible only if its probative value "substantially outweighs its prejudicial effect," admission is "supported by specific facts and circumstances," and the proponent gives the adverse party reasonable written notice. Id. These requirements are "consistent with the notion that a criminal conviction's probative value regarding a witness' credibility declines as it becomes more remote in time." Joseph M. Livermore et al., Arizona Law of Evidence § 609:2, at 359 (4th ed. 2008). Consequently, " Rule 609(b) permits the admission of remote prior convictions ‘very rarely and only in exceptional circumstances.’ " State v. Green , 200 Ariz. 496, ¶ 20, 29 P.3d 271 (2001), quoting S. Rep. No. 93-1277, at 15.

¶ 7 Here, evidence of M.O.'s fifteen-year-old conviction does not meet the elevated requirements of Rule 609(b). First, the offense was of low probative value because it occurred over ten years before M.O. testified and the record does not contain specific facts or circumstances indicating the probative value of that conviction substantially outweighs its prejudicial effect. See Ariz. R. Evid. 609(b)(1) ; Green , 200 Ariz. 496, ¶¶ 8-9, 29 P.3d 271. Also, the record does not indicate Todd served the state with written notice of her intent to impeach M.O. with that conviction as required.

¶ 8 On appeal, Todd maintains the trial court abused its discretion because it did not conduct the balancing required by Rule 609(b) and did not set forth on the record the reasons for its ruling. Although the court did not explicitly balance the probative and prejudicial value of the prior conviction, it is apparent that the court considered the age of the offense and whether it was particularly probative of M.O.'s character for untruthfulness. Given the apparently low probative value of M.O.'s fifteen-year-old conviction and the reasonable risk of wasting time and confusing the issues, we cannot say the court abused its discretion by precluding Todd from this line of inquiry. See Green , 200 Ariz. 496, ¶¶ 7-9, 29 P.3d 271.

Sanitized Conviction

¶ 9 Todd next complains the trial court erred in sanitizing F.O.'s prior felony convictions. Whether to sanitize a witness's prior conviction is within a trial court's sound discretion, and "[o]ur case law has consistently approved of sanitization as a means of limiting prejudicial effect." State v. Montano , 204 Ariz. 413, ¶ 66, 65 P.3d 61 (2003).

¶ 10 Relying on the trial court's statements that receiving stolen property is a crime involving moral turpitude—and therefore, apparently one involving dishonesty—Todd insists she should have been allowed to question F.O. about the offense. But even assuming arguendo that a court is barred from sanitizing prior convictions that involve dishonesty, receiving stolen property is not such an offense. See A.R.S. § 13-1802(A)(5) ; State v. Malloy , 131 Ariz. 125, 127, 639 P.2d 315, 317 (1981) ("the phrase ‘dishonesty or false statement’ should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification," and not crimes such as theft or robbery); see also State v. Winegardner , 243 Ariz. 482, ¶ 17, 413 P.3d 683 (2018). Because F.O.'s prior convictions did not involve dishonesty or false statements and because—as Todd acknowledges—F.O.'s prior felony history "was discussed at length at trial," we cannot say the court erred by sanitizing his convictions. See Malloy , 131 Ariz. at 127, 639 P.2d at 317.

Pending and Potential Criminal Charges

¶ 11 Todd also argues the trial court erred by precluding her from impeaching F.O. and M.O. with evidence of their pending and potential charges, respectively. She contends such evidence demonstrated each man's motive to fabricate with the hope that the state would show him leniency by cooperating against Todd. See Ariz. R. Evid. 607 ; State v. McElyea , 130 Ariz. 185, 187, 635 P.2d 170, 172 (1981).

¶ 12 As a general matter, criminal defendants are entitled to confront witnesses concerning their potential bias or hope of reward. See McElyea , 130 Ariz. at 187, 635 P.2d at 172. In our system of justice, "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska , 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although trial courts retain broad discretion to preclude "repetitive and unduly harassing interrogation," the opportunity to impeach or discredit a witness, rather than merely test his perceptions and memory, is fundamental to confrontation under the Sixth Amendment. Id.

¶ 13 Accordingly, some cross-examination regarding pending or potential charges should be allowed when circumstances demonstrate a witness's testimony may be influenced by a promise, hope, or expectation of leniency in his own case. State v. Reynolds , 104 Ariz. 149, 150, 449 P.2d 614, 615 (1969), overruled in part on other grounds by State v. Harvill , 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970) ; see State v. Little , 87 Ariz. 295, 300-01, 350 P.2d 756 (1960). Consequently, precluding cross-examination that would "clearly show" such a motive "is error and ... ground for a new trial." McElyea , 130 Ariz. at 187, 635 P.2d at 172, quoting State v. Holden , 88 Ariz. 43, 55, 352 P.2d 705 (1960). The test is one of relevance: whether the defendant has "been denied the opportunity of presenting to the trier of fact information which bears ... on the credibility of the witness." Id. , quoting State v. Fleming , 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977).

¶ 14 Here, F.O.'s pending charge was relevant to whether he had a motive to fabricate because the very same agency prosecuting Todd had also brought a charge against him arising from an unrelated incident. This is especially so considering emails in the record between the prosecutor and F.O.'s attorney discussing both whether the state would bring additional charges and whether F.O. intended to plead the Fifth Amendment in response to any questions about his pending charge. Although we do not determine the level of detail to which the jurors should have been privy, at a minimum, they were entitled to know not only that F.O. was facing a charge, but also to hear directly from F.O. whether his testimony was animated by a promise, hope, or expectation of leniency in his own...