Summary
In Smith, however, the victim had already been treated by hospital staff at a hospital before she was transported by police officers to an advocacy center where she underwent a sexual assault examination and made statements to an examiner whose only responsibility was "conducting forensic examinations on crime victims."
Summary of this case from State v. ShayanOpinion
No. 2 CA-CR 2016-0206
01-05-2018
THE STATE OF ARIZONA, Appellee, v. VAN WILLIS SMITH, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Flores & Clark, PC, Globe By Daisy Flores Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201501431
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Flores & Clark, PC, Globe
By Daisy Flores
Counsel for Appellant
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred. EPPICH, Judge:
¶1 After a jury trial, Van Smith was convicted of aggravated assault and assault, both domestic violence offenses, and was sentenced to concurrent prison terms, the longer of which is ten years. On appeal, he challenges the admission at trial of several of his prior convictions for impeachment purposes, as well as hearsay statements made by the victim to a forensic nurse examiner. Additionally, he asserts the trial court erred by denying his request to represent himself without a hearing. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Wright, 239 Ariz. 284, ¶ 2 (App. 2016). In March 2015, Smith moved into the victim B.S.'s apartment. Shortly thereafter, B.S. "saw a scary side, a very angry side to him," and asked him to move out because of his "very volatile, angry disposition."
¶3 On April 5, 2015, an argument between Smith and B.S. escalated into violence. Smith struck B.S., knocked her to the ground, and pinned her down. While on top of her, Smith strangled and taunted B.S. She escaped from him briefly, only to be again struck and knocked down before she could exit the apartment. Smith dragged B.S. away from the door, armed himself with a hunting knife, and put it to her throat, threatening, "I'll kill you if you say anything."
¶4 Eventually B.S. convinced Smith to release her by promising not to tell anyone about the attack, and convinced him to let her go to the hospital by assuring him she would tell everyone that her injuries were the result of a fall. Once at the hospital, B.S. told staff and law enforcement she had been assaulted by Smith. After being released from the emergency room, B.S. underwent a physical examination with J.M., a forensic nurse examiner who had been contacted by a detective with the Pinal County Sheriff's Office. J.M. diagnosed B.S. with "domestic violence by history. Physical assault by history. Strangulation by history. Suffocation by history. Minor physical injury by exam and crime lab results pending," and prepared a report. J.M. would later testify about the examination, including B.S.'s statements, at trial.
¶5 Smith was indicted on one count each of aggravated assault/dangerous instrument, aggravated assault/temporary but substantial disfigurement, aggravated assault/strangulation, disorderly conduct, and two counts of kidnapping. After a six-day trial Smith was convicted of aggravated assault/temporary but substantial disfigurement and the lesser-included offense of misdemeanor assault on the aggravated assault/strangulation charge, but acquitted of the remaining counts. He was sentenced to an enhanced, presumptive prison term of ten years for aggravated assault, and time-served for misdemeanor assault. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Smith was initially indicted on two counts of kidnapping, but the trial court granted the state's pretrial motion to dismiss one count.
Discussion
Prior Convictions
¶6 Smith contends that the trial court abused its discretion by allowing the state to impeach him with prior convictions for a 2007 battery on law enforcement, a 2005 misdemeanor assault on a family member, and 1997 misdemeanor assaults. He advances two arguments regarding the alleged improper introduction of these prior convictions: that the state failed to disclose them before trial as required by Rule 15.6, Ariz. R. Crim. P.; and that their probative value was substantially outweighed by the risk of unfair prejudice due to their age. "When reviewing a ruling on the admissibility of prior convictions, this court will overturn the trial court's determination only if it proves to have been a clear abuse of discretion." State v. Green, 200 Ariz. 496, ¶ 7 (2001).
¶7 Generally, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith." Ariz. R. Evid. 404(a). However, "[w]hen a person's character or character trait is an essential element of a charge, claim, or defense . . . the character or trait may . . . be proved by relevant specific instances of the person's conduct." Ariz. R. Evid. 405(b).
¶8 As a preliminary matter, Smith is incorrect that the state failed to disclose his 2007 battery conviction. That prior conviction was disclosed on August 14, 2015, long before the Rule 15.6 deadline of March 21, 2016. The state then requested a Rule 609 hearing, whereby it asked that it be permitted to impeach Smith with his prior convictions should he choose to testify, listing, as one of the pertinent prior convictions, the 2007 offense.
¶9 Secondarily, the state was not required to disclose the 2005 and 1997 misdemeanor assault convictions before the trial. Rule 15.1, Ariz. R. Crim. P., requires the state to disclose a list of all prior felony convictions and all prior acts of the defendant which the prosecutor intends to use at trial. Here, the state could not have used the misdemeanor convictions for any purpose during its case-in-chief. See Ariz. R. Evid. 609(a) (allowing impeachment of a criminal defendant's credibility with prior convictions punishable by death or imprisonment for more than one year and prior convictions, regardless of punishment, which involved a dishonest act or false statement).
¶10 Only when Smith took the stand and declared that he "tr[ies] to be peaceful in [his] heart" did his prior misdemeanor convictions, of which he was undoubtedly aware, become relevant and admissible. See Ariz. R. Evid. 404(a)(1) (allowing admission of evidence by prosecution to rebut a pertinent trait of character offered by an accused), 405(b) (allowing introduction of specific instances of defendant's past conduct to disprove character trait that is essential element of defense); State v. Tovar, 187 Ariz. 391, 393 (App. 1996) (prosecutor's impeachment of defendant with prior convictions a "permissible means of demonstrating that the defendant had lied to the jury"); cf. State v. Binford, 120 Ariz. 86, 89 (App. 1978) (trial court did not err by allowing three undisclosed witnesses to testify in rebuttal to defendant's testimony that was the "product of his last minute decision to take the stand"). Under the circumstances, the state was not required to disclose the convictions before Smith testified.
Rule 15.1(h), Ariz. R. Crim. P., requires the state to disclose rebuttal witnesses and their statements in response to a defendant's disclosure of defenses under Rule 15.2(b), Ariz. R. Crim. P. Such requirement was arguably triggered upon Smith's disclosure that he intended to argue self-defense, although in theory he could have testified that he was defending himself in this instance without claiming a generally peaceable nature. In any event, Rule 15.1(h) does not require the disclosure of prior convictions used for rebuttal.
¶11 Smith's argument that the misdemeanor convictions were prejudicial due to their age also fails. As Smith concedes, there is no bright-line test for when the probative value of such evidence is outweighed by the risk of unfair prejudice. See Green, 200 Ariz. 496, ¶ 12. The age of Smith's prior convictions is but one factor to consider. Id. Additional factors include "the nature of the prior [conviction], the length of the former imprisonment, the age of the defendant, and his conduct since the prior offense." Id., quoting State v. Noble, 126 Ariz. 41, 43 (1980). The nature of each of these three priors was directly relevant, both to rebut Smith's claim of a peaceful nature, and to impeach his credibility. Smith was sentenced to at least seven years of incarceration in between his 1997 conviction and the present offense, including three years for a 2001 felony assault which was not used at trial, and three and a half of those years were between his 2007 conviction and the present offense. Including the unused 2001 assault felony, Smith's criminal history shows an unbroken pattern of violent crimes spanning two decades. In this case, we cannot conclude that the trial court abused its discretion in permitting the state to question Smith about the convictions.
Hearsay
¶12 Smith next argues that the trial court erred by admitting B.S.'s hearsay statements to the forensic nurse examiner. He asserts the court incorrectly determined the statements were admissible as statements made in furtherance of medical care. See Ariz. R. Evid. 803(4). We review a trial court's ruling on the admissibility of evidence under exceptions to the rule against hearsay for an abuse of discretion. State v. Tucker, 205 Ariz. 157, ¶ 41 (2003).
¶13 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible at trial. Ariz. R. Evid. 801(c), 802. However, otherwise inadmissible hearsay may be admitted if it "(A) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause." Ariz. R. Evid. 803(4) (emphasis added). "The rationale underlying the Rule 803(4) exception . . . is that doctors will seek and patients will give reliable information to further necessary medical treatment." State v. Robinson, 153 Ariz. 191, 199 (1987). This court applies a two-part test to determine admissibility under Rule 803(4): first, it determines whether the declarant's apparent motive was consistent with receiving medical care; second, it determines whether it was "reasonable for the physician to rely on the information in diagnosis or treatment." Robinson, 153 Ariz. at 199, quoting State v. Jeffers, 135 Ariz. 404, 420-21 (1982). "The statement need not be made to a physician." State v. Lopez, 217 Ariz. 433, ¶ 8 (App. 2008).
¶14 Here, B.S. was interviewed by J.M., a forensic nurse examiner, following her discharge from the emergency room. J.M. testified at trial about specific statements B.S. made during that examination. The state has conceded that this testimony constituted hearsay. The only question before us is whether J.M.'s testimony falls under the Rule 803(4) exception.
¶15 We previously discussed the admissibility under Rule 803(4) of victim statements made to a forensic nurse examiner in Lopez, 217 Ariz. 433. There, we analyzed each hearsay statement under the Robinson standard, and concluded the statements were either properly admitted under Rule 803(4), or constituted harmless error. Id. ¶¶ 12-13, 19. However, Lopez and the cases it cites differ from the instant case in a very significant way. In all of those cases the forensic examinations were conducted at hospitals by staff nurses following the victims' admittance to the emergency room. Id. ¶¶ 2, 10-11, 17; see also Opio v. State, 642 S.E.2d 906, 908 (Ga. Ct. App. 2007); Miles v. State, 777 N.E.2d 767, 771 (Ind. Ct. App. 2002); People v. Matuszak, 687 N.W.2d 342, 346 (Mich. Ct. App. 2004); State v. Janda, 397 N.W.2d 59, 62 (N.D. 1986); State v. Burroughs, 492 S.E.2d 408, 411 (S.C. Ct. App. 1997); State v. Williams, 920 S.W.2d 247, 255 (Tenn. Crim. App. 1995); Torres v. State, 807 S.W.2d 884, 886-87 (Tex. Crim. App. 1991).
¶16 Here, B.S. went directly from the scene of the assault to the hospital, where she was treated in the emergency room. At the hospital, she reported the assault to hospital staff and multiple law enforcement officers, including a detective who was called in specifically to investigate the assault. After B.S. was released from the emergency room, that detective drove her from the hospital to the Mesa Family Advocacy Center, formerly known as the Center Against Family Violence in Mesa, and waited while J.M. conducted the forensic examination, before finally driving B.S. home. Further, J.M. is not a full-time nurse, but an "on-call" nurse, whose only responsibility is conducting forensic examinations on crime victims. J.M. testified that law enforcement "almost always" accompany her patients to the Advocacy Center, and that it would be "highly unlikely" that she would have seen B.S. absent law enforcement's involvement. She also testified that her employer, Honor Health, is reimbursed for the cost of her services by the Pinal County Attorney.
¶17 Smith argues that, on these facts, B.S.'s statements "were not made to allow [J.M.] to provide medical care, but were made in an evidence gathering forum and should have been precluded." The state counters that the examination occurred shortly after the assault, and immediately after B.S.'s discharge from the emergency room, included a full examination above the waist, and was conducted in a typical examination room. Additionally, J.M. explained that she asked B.S. about her medical history, in part to guide her physical examination and diagnosis, and ultimately, at the conclusion of the exam, provided B.S. with discharge instructions, a safety plan, and a diagnosis.
¶18 B.S. was not examined by J.M. until she had already been discharged from the hospital, J.M.'s services were provided by a law enforcement agency, and B.S. attended that examination at the express direction of the detective, all suggesting that the purpose of that examination was to collect evidence, investigate a crime, and provide advice to a victim. While these are appropriate and laudable law enforcement tasks, they are not primarily medical ones. For this reason, we are skeptical that, under these circumstances, B.S.'s hearsay statements satisfy the two-part test for admissibility under Rule 803(4) articulated in Robinson. However, we need not decide the issue. Assuming arguendo the statements were inadmissible hearsay, their introduction was harmless error.
¶19 "The test for determining harmless error is 'whether there was reasonable probability . . . that a verdict might have been different had the error not been committed." State v. Williams, 133 Ariz. 220, 225 (1982), quoting State v. McVay, 127 Ariz. 450, 453 (1980). In this case, we believe the jury would have convicted Smith even if the hearsay statements had not been admitted. The hearsay statements introduced by J.M. were nearly identical to the testimony B.S. provided at trial, and the erroneous admission of cumulative evidence is harmless error. Id. at 226; see also State v. Granados, 235 Ariz. 321, ¶ 35 (App. 2014); Lopez, 217 Ariz. 433, n.2.
Requests for Self-Representation
¶20 Smith's final argument is that the trial court abused its discretion by failing to address his requests to represent himself. "Under both the federal and Arizona constitutions, a defendant has a right to waive representation by counsel." State v. Gunches, 240 Ariz. 198, ¶ 6 (2016). Rule 6.1(c), Ariz. R. Crim. P., states, "[a] defendant may waive the right to counsel if the waiver is in writing and if the court finds that the defendant's waiver is knowing, intelligent, and voluntary." We review a trial judge's decision denying a defendant the right to proceed pro se for an abuse of discretion. State v. McLemore, 230 Ariz. 571, ¶ 15 (App. 2012). "A court's refusal or failure to exercise its discretion may be treated as an abuse of discretion." Id., quoting State v. Garza, 192 Ariz. 171, ¶ 16 (1998). However, "regardless of the standard of review, an erroneous failure to accord a defendant his properly asserted right to represent himself when he is competent to waive counsel in a criminal case is structural error requiring reversal without a showing of prejudice." Id.
Rule 6.1 was recently amended. Because the changes do not affect our analysis, we cite the current version. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶21 Smith made three requests via pro se motions to represent himself: seven months before the trial, on the fifth day of trial, and after the trial but prior to the pronouncement of his sentence. There are no responses to these motions in the record. Although the court denied Smith's last motion, there is no indication that the trial judge ever ruled on the first two motions nor that Smith expressly withdrew his motions.
¶22 While it is typically the responsibility of the trial court to rule on pending motions, "if an accused wants to rely on the objections raised in those motions he or she has the responsibility of bringing them to the court's attention and seeing that a record of the rulings makes its way to the reviewing court." State v. Lujan, 136 Ariz. 326, 328 (1983). In Lujan, our supreme court stated, "Unless there is some record, an appellate court cannot be sure that the matter was 'brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived.'" Id., quoting State v. Briggs, 112 Ariz. 379, 382 (1975). However, where Lujan dealt with waiver by failing to remind the court of a pending motion in limine, id., "here we are dealing with a fundamental constitutional right of self-representation which the defendant cannot exercise until the court undertakes the necessary colloquy to ensure the waiver of counsel is constitutionally valid." McLemore, 230 Ariz. 521, ¶ 28. As such, rather than simply deeming Smith's motion for self-representation waived, "we must consider the totality of the circumstances to determine whether [Smith] ha[d] abandoned his . . . [motions for self-representation]." Id. ¶ 29. In addressing this issue, the factors we consider but are not limited to are:
the defendant's opportunities to remind the court of a pending motion, defense counsel's awareness of the motion, any affirmative conduct by the defendant that would run counter to a desire for self-representation, whether the defendant waited until after a conviction to complain about the court's failure to rule on his or her motion (thus indicating the defendant was gaming the system), and the defendant's experience in the criminal justice system and with waiving counsel.Id. ¶ 35. The record here is sufficient for us to conclude that Smith abandoned his first motion for self-representation.
¶23 After filing his first motion for self-representation, Smith appeared in court with his attorney nine times for pretrial hearings over a period of seven months. He did not mention his motion for self-representation in any of these hearings, but did move to withdraw from his examination ordered pursuant to Rule 11, Ariz. R. Crim. P., and requested a trial, participated in a Donald hearing where he rejected a plea offer and invoked his speedy trial right under Rule 8, Ariz. R. Crim. P. At the latter hearing, he expressly waived Rule 8 in order to allow for a trial date where the court, the prosecutor, and his attorney were all available, and remained silent at the final pre-trial hearing when the trial date was confirmed.
State v. Donald, 198 Ariz. 406 (App. 2000).
Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion.McLemore, 230 Ariz. 521, ¶ 31 (emphasis omitted), quoting People v. Kenner, 272 Cal. Rptr. 551, 555 (Ct. App. 1990) (when defendant had both time and opportunity to follow up on motion to represent himself but failed to do so, motion deemed abandoned). Smith abandoned his first motion for self-representation.
¶24 Smith's second motion for self-representation was made after the final pre-trial conference. Due to Smith's incarceration, the motion was not filed by the clerk of the court until April 1, 2016, the fifth day of his six-day trial, and the day that the defense rested its case. At no point during trial did Smith make it known that he wished to represent himself. He did, however, participate in the trial. After conferring with his attorney on the fourth day of trial, Smith stated on the record that he was not going to testify, and then, after further discussions with counsel, changed his mind and testified in his own defense, with his attorney conducting the examination. Smith abandoned his second motion for self-representation.
¶25 Smith's third motion for change of counsel, made after trial but before sentencing, was addressed by the trial court in its April 28, 2016 minute entry. This motion did not ask the court to grant a change of counsel or self-representation for sentencing. Rather, it was filed along with a premature notice of appeal, and requested a new attorney for his appeal and for an evidentiary hearing to determine whether Smith had received ineffective assistance of counsel. Ineffective assistance of counsel claims may only be raised in a post-conviction proceeding pursuant to Rule 32, Ariz. R. Crim. P. State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). As such, the trial court did not abuse its discretion in staying his request for new counsel until after sentencing.
Once Smith had been sentenced the trial court granted the request and appointed new counsel for his post-conviction proceedings. --------
Disposition
¶26 For the foregoing reasons, we affirm Smith's convictions and sentences.