Opinion
1 CA-CR 11-0028
03-20-2012
STATE OF ARIZONA, Appellee, v. JON ANTHONY SCHWEDER, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee Christian C. Ackerley, Attorney at Law by Christian C. Ackerley Attorneys for Appellant
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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Navajo County
Cause No. CR2009-633
The Honorable Carolyn C. Holliday, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Craig W. Soland, Assistant Attorney General
Attorneys for Appellee
Phoenix
Christian C. Ackerley, Attorney at Law
by Christian C. Ackerley
Attorneys for Appellant
Lakeside PORTLEY, Judge
¶1 Jon Anthony Schweder challenges his convictions and sentences on five counts of sexual conduct with a minor, each a class two felony and dangerous crime against children. He argues that the trial court violated his due process rights when it refused to review the victim advocate's materials in camera, and refused his subsequent request to have the prosecutor divulge "new or different" information that he had learned during his interview with the victim. He also argues that the court erred when it refused to order the victim and her mother to testify at a hearing pursuant to Arizona Rule of Evidence 404(b).
FACTS AND PROCEDURAL BACKGROUND
We review the facts in the light most favorable to sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (citation omitted).
¶2 Schweder was indicted on one count of unlawfully misrepresenting his age and five counts of sexual conduct with a minor. Schweder approached the victim on MySpace and they became online friends and spent time talking on the telephone. They eventually met in person when he picked her up and took her to a scenic lookout, where they French-kissed and he "groped" her breasts. She testified that by then, she had told him that she was only thirteen years old, and that she had learned that he was not in his twenties, but was forty-one years old.
¶3 She testified that when they spent the night at his house just outside Show Low two or three weeks later, they had sexual intercourse three times and performed oral sex on each other. She also testified that Schweder had referred to that night as their "wedding night."
¶4 Schweder denied that they had spent the night together or engaged in any sexual activity. He, however, testified that after she told him she was eighteen, he fell in love with her and planned to marry her. In fact, he testified that they had only met three times: they kissed during the first visit; they talked and he borrowed a book from her on the second; and they had dinner with her parents on the third visit. He testified that she told him for the first time that she was only thirteen right before the dinner.
¶5 The jury convicted Schweder of five counts of sexual conduct with a minor, and he was subsequently sentenced to five consecutive thirteen-year sentences.
The judge acquitted him on the age misrepresentation count.
DISCUSSION
Prosecutor's "New or Different" Information
¶6 The day before trial, the prosecutor informed defense counsel that the victim had provided him with "new or different information" that had not been disclosed. Schweder filed a motion to get the information because he did not have the ability to interview the victim.
¶7 The prosecutor told the court that the victim had not recanted or provided any exculpatory information that needed to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In addition to arguing that his interview was part of his pretrial preparation, the prosecutor stated that "if [the victim] supplies us with additional inculpatory information, then it is not necessarily discloseable if there's no report and no recording and there's no new 404(b) evidence that we're going to admit on that basis."
¶8 Schweder argued that because he was not entitled to interview the victim, he should be entitled to see any statement that the victim made that was different from what had previously been disclosed, "and I would encourage the Court to inquire" and to order the "new or different" information disclosed for effective representation. The motion was denied because the trial court found that the victim's statements were made as part of the prosecutor's "trial preparation," and that there was:
no exculpatory information provided, no inculpatory information that is going to be used, and no additional 404(b) evidence which is going to be used. So the Court finds it is not required under the rules, and, further, a review of [Arizona] Rule [of Criminal Procedure] 39, which is the victim's rights rule, and specifically Section 11, addresses the victim's right to refuse an interview or other discovery.The prosecutor informed the court, however, that he would be introducing additional inculpatory information provided by the victim during the interview.
¶9 When the victim testified, Scheweder objected to her statement that he had referred to the night they had sex as their "wedding night" because the statement had not previously been disclosed. He also moved for a mistrial because the characterization of the evening had not been disclosed. The court overruled the objection and denied the mistrial motion. After he was convicted, Schweder argued that non-disclosure of the "new or different" information violated Arizona Rule of Criminal Procedure 15.1(b)(2) as well as his due process rights, and he moved to vacate the judgment. The motion was denied.
Although the order is not in the record, a motion is deemed denied if a court did not rule on it. State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993) (citation omitted).
¶10 We review a trial court's rulings on discovery issues for an abuse of discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6, 161 P.3d 596, 600 (App. 2007) (citation omitted). "To the extent [d]efendant sets forth a constitutional claim in which he asserts that the information is necessary to his defense, however, we will conduct a de novo review." Id. (citation omitted). The burden is on the defendant to demonstrate that his due process and confrontation rights conflict with the victim's rights. See id. at 558, ¶ 11, 161 P.3d at 601.
¶11 The Victims' Bill of Rights and its implementing statutes provide that crime victims may refuse to be interviewed or deposed by a defendant. Ariz. Const. art. 2, § 2.1(A)(5); Ariz. Rev. Stat. ("A.R.S.") § 13-4433(A) (West 2012); Ariz. R. Crim. P. 39(b)(11). In fact, in State v. O'Neil (James), our supreme court held that an order requiring the State to record all victim interviews and provide transcripts to defense counsel infringed on these rights. 172 Ariz. 180, 182, 836 P.2d 393, 395 (1991); see also Ariz. R. Crim. P. 15.1(b) (prosecutor must disclose various categories of evidence "[e]xcept as provided by Rule 39(b)"); Ariz. R. Crim. P. 39(b)(11) (victim has "[t]he right to refuse an interview, deposition, or other discovery request by defendant"). But, we determined that if the communications with the prosecutor are recorded "or otherwise reveal information that is discoverable, they must be disclosed." James, 172 Ariz. at 182, 836 P.2d at 395.
¶12 Moreover, in State ex rel. Romley v. Superior Court (Roper) , we recognized that there may be circumstances when a defendant's right to due process, a fair trial, and confrontation under the federal constitution might supersede a victim's right to be free from discovery under the state constitution. 172 Ariz. 232, 236-41, 836 P.2d 445, 449-54 (1992). In Roper, the defendant claimed self-defense in an aggravated assault on her husband. Id. at 237, 836 P.2d at 450. The defendant presented evidence that her husband had multiple personalities, some of which were violent, that he had received psychiatric treatment for this disorder for several years, and that he had been arrested for assaulting her on several occasions. Id. at 234, 237, 836 P.2d at 447, 450. We authorized the superior court to conduct an in camera inspection of the victim's medical records and to order disclosure to the defendant if the records contained exculpatory information essential to establishing that she had acted in self-defense, or information necessary to prepare for an effective cross-examination or impeachment of the victim. Id. at 240-41, 836 P.2d at 453-54 (citations omitted). We concluded:
The Victim's Bill of Rights was appropriately amended to the Arizona Constitution as a shield for victims of crimes. However, the amendment should not be a sword in the hands of victims to thwart a defendant's ability to effectively present a legitimate defense. Nor should the amendment be a fortress behind which prosecutors may isolate themselves from their constitutional duty to afford a criminal defendant a fair trial.Id. at 241, 836 P.2d at 454 (citation omitted).
¶13 Here, the victim did not agree to an interview with defense counsel and the defense only had the police statements. The prosecutor then told the defense that he had learned "new or different" information from the victim but refused to disclose the nature of the information. Although the disclosure may have been akin to athletes who engage in "trash talking," because the defense did not otherwise have access to the information we find the tantalizing tip to be unseemly and inappropriate.
Although "new or different" represents the defendant's characterization of the prosecutor's description, the prosecutor did not dispute the characterization. Cf. Ariz. R. Crim. P. 15.6(a) ("[E]ach party shall make additional disclosure, seasonably, whenever new or different information subject to disclosure is discovered.").
¶14 Once defense counsel was alerted to the existence of new or different information from the victim, implicitly indicating that the information was important enough to dangle before the defense, the better course of action was for the trial court to hold an in camera discussion with the prosecutor and then determine whether the information should be revealed. We review evidentiary issues for an abuse of discretion because the court is generally the gatekeeper of the evidence. See State v. Damper, 223 Ariz. 572, 577, ¶ 20, 225 P.3d 1148, 1153 (App. 2010) (citation omitted). Moreover, our supreme court has remarked that "a trial court should exercise its discretion in favor of seeing that the accused is furnished with every fact necessary to prepare the best possible defense." State v. Ford, 108 Ariz. 404, 409, 499 P.2d 699, 704 (1972). Consequently, if the defense does not have access to new information from a victim who did not consent to an interview, whether inculpatory or exculpatory, the court may remove all doubt as to whether the information should be disclosed — and potentially prevent any reversible error — by holding an in camera proceeding and, pursuant to Ford, ensure that the defense receives any "new or different" information subject to disclosure.
¶15 We need not decide whether the trial court erred by failing to conduct an in camera proceeding, however, because we will reverse the conviction and remand for a new trial only if we determine beyond a reasonable doubt that the error contributed to the jury's verdict. State v. Van Adams, 194 Ariz. 408, 416, ¶ 23, 984 P.2d 16, 24 (1999) (citation omitted). Here, the prosecutor learned, but did not disclose, that the victim said Schweder told her that he considered the night they had sex their "wedding night." Although Schweder was surprised to hear the victim attribute to him a characterization of an evening that he testified never occurred, he cross-examined her about the term and attempted to impeach her. He, moreover, does not point to any prejudice suffered as a result of first learning of the characterization when she testified.
¶16 The jury, as a result, heard all of the testimony and had to determine each witness's credibility and which version of the events to believe — the victim's testimony or Schweder's testimony denying any sexual misconduct. Because it is the province of the jury to determine the operative facts and apply the law, the failure to disclose the information in this case was harmless.
Victim's Advocate Materials
¶17 Schweder also argues that the trial court erred when it denied his motion for an in camera review of the victim advocate materials, and when it failed to revisit the denial sua sponte after Schweder sought disclosure of the "new" information. We find no merit in this argument.
¶18 Before trial, Schweder filed a motion for an in camera review of the victim advocate materials pursuant to A.R.S. § 13-4430(D) (West 2012) because "the victim advocate is not an attorney and as such cannot know what material it possesses is exculpatory as defined by the law . . . [or] whether or not the alleged victim has committed the crime of perjury." The judge denied the motion because there was "no basis alleged upon which the Court could find reasonable cause to believe the material is exculpatory as required pursuant to A.R.S. § 13-4430."
Unless otherwise noted, we cite to the current version of a statute if no revisions material to this decision have since occurred.
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¶19 We review a trial court's discovery rulings for an abuse of discretion. Connor, 215 Ariz. at 557, ¶ 6, 161 P.3d at 600 (citation omitted). We review issues of statutory interpretation and constitutional law de novo. State ex rel. Thomas v. Klein (Simpson), 214 Ariz. 205, 207, ¶ 5, 150 P.3d 778, 780 (App. 2007) (citation omitted). The burden is on defendant to demonstrate that his due process and confrontation rights conflict with the victim's rights. See id. (citation omitted); Connor, 215 Ariz. at 558, ¶ 11, 161 P.3d at 601.
¶20 The contents of the victim advocate's file are generally privileged pursuant to A.R.S. § 13-4430(A) and (B). The privilege, however, is lost if the advocate "knows that the victim will give or has given perjured testimony or if the communication [between the victim and the advocate] contains exculpatory evidence." A.R.S. § 13-4430(C). If the court "finds there is reasonable cause to believe the material [in the victim advocate's file] is exculpatory," it must conduct an in camera review of the file and order the State to disclose any exculpatory material to the defendant. A.R.S § 13-4430(D).
¶21 Schweder sought an in camera review of the victim advocate's file only because the victim advocate might not know what material might be exculpatory. The argument did not give the trial court reasonable cause to believe that any material in the file was exculpatory, as required by the governing statute. Id. Accordingly, the court did not abuse its discretion when it denied the in camera review request.
¶22 Moreover, we cannot conclude that the trial court erred when it did not reconsider its ruling, sua sponte, based on Schweder's attempt to compel disclosure of the "new or different" evidence. That the prosecutor may have learned "new or different" information during his interview does not provide a reasonable ground to believe that the victim advocate's file contained exculpatory information, especially after the prosecutor told the court that the information was not exculpatory.
¶23 Finally, we are not persuaded that the court's failure to conduct an in camera review somehow violated Schweder's due process or confrontation rights. As a result, we find no error.
Victim's Testimony at 404(b) and (c) Hearing
¶24 Schweder issued subpoenas requiring the victim and her mother to appear and testify at a Rule 404(b) hearing, so that the court could consider whether to admit evidence that he and the victim had a "make-out" session two or three weeks prior to the charged offenses. Schweder argues that the court abused its discretion when it granted the State's motion to quash his subpoenas. We disagree.
¶25 The State moved to quash the subpoenas on the ground that Schweder was not entitled to an evidentiary hearing under Rule 404(b), and, therefore, could not compel the victim to testify. The court agreed and granted the motion. The court, however, subsequently allowed evidence of the "make-out" session pursuant to Rule 404(c) after hearing from the detective who had interviewed Schweder, watching a videotape of the victim's pretrial interview, and hearing the testimony of two of her friends.
¶26 We review the ruling on the motion to quash subpoenas for an abuse of discretion. Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996). We review issues of statutory interpretation and constitutional law de novo. Klein, 214 Ariz. at 207, ¶ 5, 150 P.3d at 780. The burden is on a defendant to demonstrate that his due process and confrontation rights directly conflict with and override the victim's rights. See Connor, 215 Ariz. at 558, ¶ 11, 161 P.3d at 601.
¶27 We find no reversible error. The victim's testimony was not necessary to determine that evidence of the "make-out" session was admissible pursuant to Rule 404(c). See State v. LeBrun, 222 Ariz. 183, 186-87, ¶¶ 10-15, 213 P.3d 332, 335-36 (App. 2009). Moreover, Schweder was not entitled to an evidentiary hearing under Rule 404(b) or (c). See id. at 186, ¶ 10, 213 P.3d at 335. Because he failed to make any showing that the testimony of the victim and her mother was essential to a fair hearing on the admissibility of the evidence under either Rule 404(b) or (c), he did not have a due process or constitutional right to require the victim and her mother to appear for a pretrial examination. See Mendez v. Robertson, 202 Ariz. 128, 130-31, ¶¶ 8-10, 42 P.3d 14, 16-17 (App. 2002); Connor, 215 Ariz. at 558, ¶ 11, 161 P.3d at 601; cf. Roper, 172 Ariz. at 236-41, 836 P.2d at 449-54. Although Schweder was free to argue that the evidence presented was not "clear and convincing," he was not entitled to use the Rule 404(b) hearing as a vehicle to force the victim to submit to pretrial discovery. See id.
¶28 Moreover, any error in precluding Schweder from calling the victim and her mother to testify at the Rule 404(c) hearing was harmless. We will not reverse on the basis of an evidentiary error if there is no reasonable probability that the verdict would have been different had the error not occurred. Van Adams, 194 Ariz. at 416, ¶ 23, 984 P.2d at 24 (citation omitted). Schweder made no offer of proof to the trial court and does not argue on appeal that any testimony he might have elicited from the victim or her mother would have resulted in a different ruling, or that the jury's verdict would have been different if the admitted evidence had been precluded. Based on the record, any error in quashing the subpoenas was harmless.
CONCLUSION
¶29 Based on the foregoing, we affirm Schweder's convictions and sentences.
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MAURICE PORTLEY, Presiding Judge
CONCURRING:
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ANN A. SCOTT TIMMER, Judge
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ANDREW W. GOULD, Judge