Opinion
No. 1 CA-CR 13-0809
07-08-2014
STATE OF ARIZONA, Appellee, v. COREY JAMES IVY, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2012-140225-001
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge John C. Gemmill delivered the decision of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined. GEMMILL, Judge:
¶1 Corey James Ivy appeals from his conviction and sentence of aggravated assault, a class 5 felony. Ivy's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law and requesting that this court examine the record for reversible error. Ivy was afforded the opportunity to file a pro se supplemental brief and he has done so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm.
BACKGROUND
¶2 Defendant Corey James Ivy was charged with aggravated assault, a class five felony, for knowingly touching a police officer with intent to injure, insult, or provoke him in violation of A.R.S. §§ 13-1203, 13-1204, 13-701, 13-702, and 13-801. Prior to trial, defense moved to dismiss the charge based on violation of due process. The trial court conducted an evidentiary hearing based on defense counsel's motion. At the hearing the evidence showed that Officer Brooks encountered Ivy on July 27, 2012. Officer Brooks testified that Ivy had spit on his pants while being escorted to the patrol car. A picture was taken of Officer Brooks's pants but no other steps were taken to preserve the spit. Defense claimed that Ivy's due process rights had been denied because the spit was destroyed when the pants were washed, thus depriving Ivy access to potentially exculpatory evidence. The trial court denied the motion to dismiss but did, however, agree to give a jury instruction on the destruction of evidence pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
¶3 Jury selection was held on September 3, 2013. During selection, the State moved to strike potential juror number six who was Hispanic. Ivy challenged the State's elimination of the potential juror on the grounds that the State struck him for racial reasons. The State provided two race-neutral reasons for its preemptory strike: (1) the juror had a son who was a convicted rapist, and (2) Officer Brooks might have known the potential juror. Additionally, the trial court noted that there were two other potential jurors who were Hispanic which tended to rebut the assertion that the State was systematically eliminating Hispanic jurors. The court decided that the State had provided a race-neutral reason for exercising its preemptory challenge and therefore ruled that Ivy had not met his burden of showing purposeful discrimination.
¶4 The following evidence, taken in the light most favorable to sustaining the conviction, was presented at trial. See State v. Carrasco, 201 Ariz. 220, 221, ¶ 1, 33 P.3d 791, 792 (App. 2001). Officer Brooks was on duty and in uniform on July 27, 2012. Brooks was investigating an unrelated matter when he and the officers with him were approached by a woman claiming that Ivy might have some information about the incident. When Ivy saw Officer Brooks and the others, he began running in the other direction. Ivy claimed that this was because he was afraid about a fifty dollar ticket. When Brooks caught up to Ivy, he knocked him over in an effort to restrain him and struck him in the face causing a bloody nose. On the way back to the patrol car, Brooks testified that Ivy turned towards him and spit on his leg. The other officers did not see Ivy spit, but they did hear Brooks exclaim that Ivy had spit on him. Officer Larson photographed a substance on Brooks's pants that Brooks testified was Ivy's spit. After the picture was taken, the pants were washed.
¶5 Brooks submitted an incident report about the unrelated incident and a use of force report. When questioned about the time frame to submit an incident report, Officer Brooks stated that he had to submit the incident report before the next morning because it involved a felony charge. Defense counsel moved for a mistrial claiming that Brooks had prejudiced the jury by mentioning punishment. The trial court denied the motion because it found that the jury would not connect the unrelated incident to Ivy and thus, Ivy could not be prejudiced by the remark.
¶6 Ivy testified that he did spit on the way back to the patrol car but did not intend to spit on Officer Brooks. He claimed that when Brooks knocked him over and punched him, he started bleeding and the blood was running down the back of his throat and he spit to clear his throat. Ivy stated that he intended to spit on the ground and not Brooks. Ivy sought to introduce a photograph of him taken by police while he was in a hospital bed. Ivy claims that this picture also showed him on oxygen and would have bolstered his claim that he was having trouble breathing and spit to clear his throat. The trial court allowed the picture to be used to refresh Officer Brooks' memory but did not allow it as evidence. After a jury trial, Ivy was convicted.
¶7 Ivy timely appeals, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033.
ANALYSIS
¶8 Ivy raises seven arguments in his supplemental brief. I. Trial Court did not Err when it Rejected Ivy's Batson challenge
¶9 Ivy argues that the trial court erred in rejecting his challenge of the State's striking of potential juror number six under Batson v. Kentucky, 476 U.S. 79 (1986). This court reviews a trial court's decision regarding the State's motives for a excluding a potential juror for clear error. State v. Bustamante, 229 Ariz. 256, 260-61, ¶ 15, 274 P.3d 526, 530-31 (App. 2012). A Batson challenge consists of three steps: (1) the challenger must make a prima facie showing that the potential juror was struck for race; (2) the striking party must provide a race neutral reason for striking the potential juror; and (3) if the striking party provides a race-neutral reason, the court must determine whether the challenger has carried his burden of proving purposeful discrimination. Id. at 260, ¶ 14. The presence of members of a minority group on a jury undermines a contention that the prosecution exercised its challenges in a discriminatory fashion. State v. Thompson, 190 Ariz. 555, 557, 950 P.2d 1176, 1178 (App. 1997).
¶10 Ivy objected to the State striking potential juror six, a Hispanic male. During jury selection, the State provided two race-neutral explanations for striking the juror. First, the State expressed concerns about whether juror six could be impartial when his son had been convicted of rape. Second, the State claimed that Officer Brooks might have known the potential juror. On these facts, the trial court reasonably concluded that Ivy did not meet his burden of proving purposeful discrimination. We conclude the trial court did not err when it denied Ivy's Batson challenge.
II. Ivy was not denied due process or equal protection by the makeup of the jury
¶11 Ivy raises a new argument in his supplemental brief that he was denied due process and equal protection because the jury included no members of his race. Ivy claims that since the jury members were "predominately older [white] members of society", the jury did not reflect a representative cross-section of the community and was not a jury of his peers. Because he did not raise this argument during jury selection, we review the jury makeup for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶12 Criminal defendants are entitled to a jury that is a representative cross-section of the community as a matter of due process. State v. Reid, 114 Ariz. 16, 21, 559 P.2d 136, 141 (1976). A defendant is not entitled, however, to have members of his race on the jury. Id. "All the Constitution forbids is systematic exclusion of identifiable classes from jury panels and from the juries ultimately drawn from those panels." Reid, 114 Ariz. at 21, 559 P.2d at 141.
¶13 We conclude that the makeup of the jury did not violate Ivy's rights. While Ivy was entitled to a jury that was a representative cross-section of society, he was not entitled to "adequate minority representation." There is no indication anywhere in the record that the process by which potential jurors were drawn was in any way discriminatory or did not represent the community. Additionally, in response to Ivy's Batson challenge, the State brought up the fact that two of the potential jurors were Hispanic to rebut Ivy's contention that potential juror six was struck for racial reasons. Both of these potential jurors were included as jurors or alternates at trial. Thus, while the jury did not include any members of Ivy's race, it did include at least two minority jurors. This weighs against Ivy's contention that the prosecution engaged in any purposeful discrimination in exercising its challenges. On this record, we find no fundamental error. III. The trial court adequately protected Ivy's rights by granting a Willits instruction
¶14 Ivy also argues that he was denied due process because the State destroyed evidence that might have exculpated him and the trial court did not dismiss his case. Ivy claims that law enforcement should have taken steps to preserve the spit on Officer Brooks's pants. A photograph of the pants was taken after the incident but no other steps were taken. Ivy claims that the substance on the pants could have exculpated him from the charge. The trial court found that the evidence was not apparently exculpatory and the officers acted in good faith, and denied the motion on that basis.
¶15 The State's duty to preserve evidence extended only to evidence that might be expected to play a significant role in Ivy's defense. See State v. Schad, 163 Ariz. 411, 415, 788 P.2d 1162, 1166 (1989) (citing California v. Trombetta, 467 U.S. 479, 488-89 (1984)), aff'd, 501 U.S. 624 (1991). In order to pass this materiality test, the evidence must "(1) possess an exculpatory value that was apparent before the evidence was destroyed and (2) be such that the defendant would be unable to obtain comparable evidence by other reasonable means." Id. The trial court may instruct the jury that if they find that the State destroyed the evidence, the jury may infer that the true fact is against the State's interest. See Willits, 96 Ariz. at 191, 393 P.2d at 279. Even assuming that the State had a duty to preserve evidence, a Willits instruction adequately protects a defendant's rights "unless the State has acted in bad faith or connivance or the defendant is prejudiced by the loss." See State v. Tucker, 157 Ariz. 433, 442, 759 P.2d 579, 588 (1988).
¶16 Here, we find no error. The trial court denied Ivy's motion to dismiss but granted a Willits instruction. The court found that the officers had no reason to think that the substance on the pants would be exculpatory. Thus, the evidence failed the first prong of the materiality test. Even if the evidence was exculpatory, the court also concluded that that the police officers acted in good faith. Both of these conclusions were reasonable based on the record. Therefore, the trial court acted properly in denying Ivy's motion to dismiss and adequately protected Ivy's rights by granting a Willits instruction.
IV. The trial court did not abuse its discretion by admitting the photograph of Officer Brooks's leg
¶17 Ivy claims that the trial court should not have admitted a photograph of Officer Brooks's leg because it "did not clearly identify the person being photographed, what side of the body was being pictured, what [the] date, time, and location of the picture," and because the picture was "blurry." Ivy argues that it is "unacceptable" to allow the introduction of evidence if its "validity can be challenged." One of Ivy's attorneys objected but Ivy through counsel had already stipulated to the admission of the photograph, and the court was not requested to relieve Ivy of the stipulation. Having stipulated to its admission, Ivy cannot maintain on appeal that the photograph should not have been admitted. See State v. Parker, 231 Ariz. 391, 405, ¶ 61, 296 P.3d 54, 68 (2013) ("Parker's stipulation to admit the videotaped interviews precludes him from asserting on appeal that their admission was error."). Furthermore, in accordance with the invited error doctrine, we will not conduct a fundamental error review on this issue. State v. Logan, 200 Ariz. 564, 565, ¶ 9, 30 P.3d 631, 632 (2001).
Even if we conducted a fundamental error review regarding the admission of the photograph, we would conclude that no fundamental error occurred. The picture was highly probative of whether the victim was spit on by Ivy. Thus, it was highly relevant to the action and was properly admitted. See Ariz. R. Evid. 403. Additionally, the photograph was properly authenticated by the testimony of Sergeant Eastman who testified that he took the picture and that it was a fair and accurate representation of the victim's pants on the night of the incident. See Ariz. R. Evid. 901(b)(1). The fact that the photograph might have been blurry goes to its weight not its admissibility.
V. Trial court did not err when it refused to admit evidence of Brooks's disciplinary record on cross-examination
¶18 Ivy contends that he was denied due process because the trial court did not allow him to cross-examine Officer Brooks using his disciplinary record. Ivy sought to introduce Officer Brooks's disciplinary record to cross-examine him about it. The record contained a single disciplinary incident where Brooks was suspended for twenty hours for failure to terminate a vehicle chase. Ivy contended that this incident was relevant to bias because Brooks would fear additional discipline and possibly distort his reports to make his use of force against Ivy appear more justified. The trial court did not allow the incident to be introduced or inquired into because the danger of unfair prejudice substantially outweighed any probative value.
¶19 "The right of confrontation and cross-examination of adverse witnesses is of fundamental importance, but it is not a right without limitation." State v. Jones, 110 Ariz. 546, 550, 521 P.2d 978, 982 (1974), overruled on other grounds by State v. Conn, 137 Ariz. 148, 151, 669 P.2d 581, 584 (1983). The scope of cross-examination is left to the sound discretion of the trial court. State v. Robinson, 165 Ariz. 51, 57-58, 796 P.2d 853, 859-60 (1990). Thus, the trial court's limitation of cross-examination will not be disturbed on appeal absent abuse of discretion. State v. Smith, 138 Ariz. 79, 81, 673 P.2d 17, 19 (1983). Additionally, under Arizona Rule of Evidence 403, the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury." Trial courts have a great deal of discretion in deciding whether to exclude evidence under Rule 403, and a ruling on 403 will not be disturbed on appeal unless the court abused its discretion.. State v. Cooperman, 232 Ariz. 347, 351, ¶ 17, 306 P.3d 4, 8 (2013).
¶20 The trial court did not abuse its discretion when it determined that the probative value of the victim's disciplinary record was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Ivy sought to introduce the victim's disciplinary record to prove that he had a subjective motive to distort his use of force report. The trial court did not allow Ivy to inquire about the specific incident, but he was allowed to inquire into the disciplinary procedures. This left Ivy with ample opportunity to argue to the jury that the victim distorted the use of force report for fear of possible discipline. The trial court reasonably concluded that the 2011 disciplinary incident had only slight probative value. The incident involved failure to terminate a high speed chase. This failure to terminate bears little relation to the victim's use of force against Ivy. Additionally, the possibility that the victim feared discipline and changed his report to make his actions look better was addressed by the court by allowing inquiry into the possibility of discipline. The trial court reasonably decided that there was a danger of unfair prejudice and the possibility of misleading the jury. We conclude that the trial court did not abuse its discretion by restricting the scope of cross-examination to exclude any reference to the victim's 2011 disciplinary incident.
VI. The trial court did not err in refusing to grant Ivy's request for a mistrial
¶21 Ivy argues that the trial court should have granted his motion for mistrial because one of the witnesses mentioned the word "felony" when asked about an incident report unrelated to the aggravated assault but involving the defendant. When Ivy spit on the victim, the police were there investigating an unrelated matter. Officer Brooks wrote an incident report detailing that unrelated matter. When asked about the procedures for submitting the report, Officer Brooks stated that the unrelated report would "have to be done before the morning because of the charge, because it is a felony charge." Defense counsel moved for a mistrial on the basis that this mention of the word "felony" improperly drew the jury's attention to punishment. The trial court concluded that the "felony" reference concerned the unrelated matter and the jury would not likely connect the unrelated matter to Ivy. Because the "felony" reference could not be prejudicial unless the jury connected it to the defendant, the trial court denied the motion for mistrial.
¶22 A mistrial is a dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless a new trial is granted. State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983) (citation omitted). The trial court has broad discretion when deciding whether to declare a mistrial because it is in the best position to determine what might affect the outcome of the trial. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000).
In deciding whether a mistrial is required the trial court should consider: (1) whether the remarks called to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks.State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993) (citation omitted). We will only overturn a trial court's denial of a motion for mistrial if it amounts to an abuse of discretion. Id.
¶23 We conclude that the trial court acted within its discretion by deciding that Ivy was not prejudiced by the "felony" reference. Although the "felony" remark, if connected to Ivy, could draw the jury's attention to punishment, it is improbable that the reference influenced the jury. The trial court determined that the reference to the unrelated report was unlikely to be connected to the defendant. This was a reasonable conclusion when viewed in light of the complete testimony of Officer Brooks. The trial court was in the best position to determine the possible effect, if any, that the "felony" reference would have on the jury, and it concluded that it did not warrant a mistrial.
VII. The trial court did not abuse its discretion by refusing to admit a photograph of Ivy at the hospital
¶24 Ivy argues that he should have been allowed to show the jury a photograph of him lying in a hospital bed hooked up to oxygen. The transcript of the proceedings does not indicate that the picture actually showed Ivy hooked up to oxygen, but even if it does, the trial court acted within its discretion in excluding the evidence. Ivy contends that this picture demonstrated that he was having breathing problems on the night of the incident and the picture would have enhanced his credibility with the jury. The State objected to its introduction on the grounds that it was unfairly prejudicial and there were other photographs detailing Ivy's injuries. The trial court sustained the State's objection to the photograph's admission but allowed defense counsel to refresh the witness's memory with the picture.
¶25 We find no error in the trial court's refusal to admit the picture. The Arizona Rules of Evidence state that the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury." Ariz. R. Evid. 403. As previously, noted, the trial court's refusal to admit evidence on 403 grounds will not be disturbed unless the court abused its discretion. Cooperman, 232 Ariz. at 351, ¶ 17, 306 P.3d at 8. Although the photograph had some probative value as to Ivy's injuries, the trial court reasonably concluded that the danger of unfair prejudice to the State substantially outweighed this value. Additionally, Ivy was free to argue his breathing problems and any other injuries to the jury, and he did so at trial. Nothing restrained him from presenting other evidence that he was on oxygen. In fact, the officer who took the photograph in question, Officer Larson, was a witness at trail and could have been questioned about whether Ivy was on oxygen when the picture was taken. Thus, Ivy's argument that he was denied the ability to submit critical evidence is meritless.
VIII. Conclusion
¶26 Based on our independent review of the record, we find no reversible error and affirm Ivy's conviction and sentence.