Opinion
2 CA-CR 2011-0328
01-10-2013
THE STATE OF ARIZONA, Appellee, v. WILLIAM EDWARD WRIGHT, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Myles A. Braccio Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin
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Not for Publication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. CR20102590001
Honorable Christopher Browning, Judge
AFFIRMED IN PART AS MODIFIED;
VACATED IN PART AND REMANDED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Myles A. Braccio
Phoenix
Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin
Tucson
Attorneys for Appellant
ECKERSTROM, Presiding Judge. ¶1 Following a jury trial, appellant William Wright was convicted of theft and second-degree burglary. The trial court suspended the imposition of sentence and placed him on concurrent, five-year terms of probation. On appeal, Wright relies primarily on State v. Stevens, 228 Ariz. 411, 267 P.3d 1203 (App. 2012), to contend the prosecutor committed fundamental, prejudicial error by presenting evidence of Wright's refusal to consent to a search of his residence and then mentioning that refusal multiple times during closing argument. Wright further contends the court erred in permitting an eyewitness to testify about his own hearsay statement over Wright's objection and then precluding Wright from impeaching the witness with a prior inconsistent statement. For the reasons that follow, we affirm the burglary conviction and disposition, affirm the theft conviction as modified to reflect a class four rather than a class three felony, consistent with the verdict, and vacate the probationary term imposed for theft, remanding this matter for resentencing on that count.
Factual and Procedural Background
¶2 We view the evidence presented at trial in the light most favorable to upholding the verdicts. Stevens, 228 Ariz. 411, n.1, 267 P.3d at 1205 n.1. Wright, his sister, and her boyfriend, Terry Black, were young adults who lived together in a house near the University of Arizona. The victims in this case, Abraham and Scott, lived in the house next door, which was very close to the Wrights' house. The victims were on friendly terms with Wright's sister but had little interaction with either Wright or Black. ¶3 Wright and his sister had "daily" arguments about money. On the morning of May 2, 2008, Wright and Black approached Scott as he was leaving his house, around 8:15 a.m., and asked him if he "want[ed] to buy an iPod." Scott declined and drove to work. Abraham then left the house around 10:00 a.m., leaving it unoccupied. When he returned, around noon, he saw Wright and Black outside their house. Once Abraham entered his home, he noticed that some items were missing and others were out of place. As he walked through the residence to see what else had been taken, Black knocked at the door asking "if everything was okay." This struck Abraham as "weird," given that the two had "never really talked that much." Before the visit, Abraham had not alerted Black that he was distressed. ¶4 After Abraham called Scott, he, too, returned and observed Wright and Black still standing outside their home. Scott asked Wright and Black if they had seen anything, and they responded they had not. Suspecting the two had taken the missing property, Scott subsequently went to their house and told them that if they had committed the burglary but simply returned the property they had taken, he would not call the police. Both Wright and Black appeared "jumpy" and denied taking anything from inside the house. Wright was holding roses in his hand and repeatedly said, "[L]ook, this is why we were at your house right now. We were picking roses." This comment seemed "extremely strange" and "didn't make sense" to Scott, because he had informed his neighbors previously that if they wanted roses from the bush in his front yard, they needed only to ask him so that he could cut the flowers properly. ¶5 A construction worker who had been working nearby had seen two young men moving back and forth between the Wrights' residence and the victims' house during the time the burglary had been committed. After a police officer responded to the victims' call, he asked Wright for permission to search his house. Wright declined to consent to a search of the residence and told the officer he would need either a warrant or consent from his sister, who was renting the house, or his mother, who actually owned it. The officer subsequently asked Wright's sister, who had been at work, if he could search the house, and she consented. While searching the house, the officer moved an access panel in the ceiling of the master bedroom; the victims' digital camera fell from the crawl space. Wright's fingerprint was found on the camera. After law enforcement officers obtained and executed a search warrant, they found more of the victims' property hidden in the crawl space of the Wrights' house. No fingerprint evidence linked Black to the burglary. ¶6 At trial, Wright did not object when the state elicited testimony from the police officer about Wright having refused to consent to a search of his residence. During closing argument, the prosecutor noted three times, again without objection, that Wright had refused to consent to the search. The prosecutor maintained that this refusal demonstrated Wright knew the stolen property was in his house, and she argued he would have consented to a search if he had "nothing to hide." ¶7 Wright presented a partial alibi and mere presence defense. He argued that Black had committed the burglary and, although Wright had known about it and had touched the stolen camera, he did not "have any[] part of" the burglary, he did not want to be "associated with it," and he was not a participant in or accomplice to the crime. The jury found Wright guilty of second-degree burglary and theft of property with a value of at least $3,000 but less than $4,000. This timely appeal followed the entry of judgment and disposition.
One item, an antique silver coin that belonged to Scott, was found in the dresser of the master bedroom, which Wright's sister shared with Black. Not all of the stolen property was recovered.
Consent Evidence
¶8 Analogizing his case to Stevens, Wright first contends fundamental error occurred when the state elicited testimony from the police officer that Wright had refused to consent to a warrantless search of his residence and repeatedly argued this refusal was evidence of his guilt. In Stevens, this court held that the trial court had erred by allowing "the State to introduce as direct evidence of guilt" the defendant's refusal to consent to a search of her home without a warrant and that this error was fundamental because "it went to the foundation of the case . . . and deprived Stevens of her right to invoke the protection of the Fourth Amendment with impunity." Stevens, 228 Ariz. 411, ¶ 16, 267 P.3d at 1209. We based this conclusion on both the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 228 Ariz. 411, ¶¶ 6-7, 267 P.3d at 1206. The state maintains Stevens was wrongly decided— as was State v. Palenkas, 188 Ariz. 201, 212, 933 P.2d 1269, 1280 (App. 1996), which likewise held the admission of such evidence to be prohibited by the constitution—and it urges us to depart from these precedents. ¶9 We will adhere to the prior decisions of this court unless they are based on clearly erroneous principles or conditions have changed so as to render the decisions inapplicable. State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009); Castillo v. Indus. Comm'n, 21 Ariz. App. 465, 471, 520 P.2d 1142, 1148 (1974). In other words, we will follow our earlier decisions unless we are presented with "the most cogent of reasons" for a departure, Neil B. McGinnis Equip. Co. v. Henson, 2 Ariz. App. 59, 62, 406 P.2d 409, 412 (1965), which the state has not presented here. ¶10 The state insists that Stevens "misconstrued constitutional principles" and that the question of admissibility should be decided by ordinary evidentiary rules, as advocated by at least one legal scholar. Yet the state has not pointed to any case in which a court has held, much less persuasively explained why, a person's refusal to consent to a warrantless search should be admissible as substantive evidence of guilt. Indeed, even under normal evidentiary rules, a person's refusal to consent to a search may be categorically precluded on the ground that "exercising one's privilege to be free from warrantless searches is simply not probative (or has low probative value) to a determination of guilt, and is unfairly prejudicial." State v. Thomas, 766 N.W.2d 263, 270 (Iowa Ct. App. 2009); see Ariz. R. Evid. 401 through 403; see also Palenkas, 188 Ariz. at 212, 933 P.2d at 1280 ("[A] defendant's invocation of constitutional rights is probative of nothing except the defendant's awareness of his or her constitutional rights."). And Stevens took care to note that our general constitutional rule prohibiting the admission of this evidence is qualified, meaning a defendant's refusal to consent to a warrantless search is "[s]ubject to the rules of evidence . . . [and] may be 'admitted as a fair response to a claim by the defendant or for some other proper purpose.'" 228 Ariz. 411, n.7, 267 P.3d at 1209 n.7, quoting United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999). ¶11 In our view, Stevens created a presumptive, bright-line rule regarding the admissibility of evidence of a person's refusal to consent to a search that offers more utility and predictability than a case-by-case approach that balances competing interests under Rule 403. The Stevens rule also finds support in article II, § 8 of the Arizona Constitution, which specifically "preserv[es] the sanctity of homes and . . . creat[es] a right of privacy," State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984), guaranteeing both a "sense of security," id. at 265, 689 P.2d at 524, and "'repose'" in one's dwelling. Wilson v. Layne, 526 U.S. 603, 609 (1999), quoting Semayne's Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 (K.B.). If a person's mere invocation of privacy rights could be considered a ground for a search warrant or evidence of guilt, these constitutional rights would be greatly impaired and diminished. Thus, as this court concluded in Stevens, we again conclude that evidence of a defendant's refusal to consent to a warrantless search is generally inadmissible, and when such evidence is admitted and relied on by the state repeatedly as evidence of guilt, as it was here, the resulting error is fundamental. ¶12 The question we must consider is whether Wright has suffered prejudice entitling him to relief on appeal. Because Wright did not object below, he has the burden of demonstrating that the fundamental error that occurred here was prejudicial. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). "[T]he showing necessary to demonstrate prejudice will vary on a case-by-case basis." State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009). Again we turn to Stevens for guidance. There, we found the error prejudicial as to the charge of possession of dangerous drugs and reversed that conviction because the prosecutor had "prejudiced Stevens in presenting her mere presence defense." 228 Ariz. 411, ¶ 17, 267 P.3d at 1209. But we affirmed the defendant's conviction for possession of drug paraphernalia because the physical evidence and testimony presented was more probative of her guilt than her invocation of her Fourth Amendment rights. Stevens, 228 Ariz. 411, ¶ 18, 267 P.3d at 1209. In other words, to the extent the defendant's invocation of her rights suggested knowledge there was contraband in her house, that evidence was merely cumulative of other evidence that established her knowledge and guilt. Id. ¶13 Here, the physical and other circumstantial evidence of Wright's guilt was overwhelming and far outweighed any prejudicial evidentiary effect of the improperly admitted evidence that he had refused to consent to the search of the home. The admissible evidence established Wright had acted in concert with Black at all times on the day of the offense; Wright apparently had a pecuniary motive for committing the burglary; he had the knowledge and opportunity to commit the crime; he lied about his knowledge or involvement when confronted by a victim; and stolen property was recovered from a hiding place inside his residence, with his fingerprint on one of the items. ¶14 As in Stevens, the evidence that Wright had refused to permit law enforcement officers to search his home without a warrant was largely cumulative evidence of Wright's knowledge that stolen property was in his house. Moreover, this knowledge was actually consistent with Wright's defense, not prejudicial to it. As defense counsel emphasized during opening statement, Wright's theory of the case turned on "the difference between someone being present and knowing somebody else is committing a crime and actually being part of it." Counsel added during closing argument that "W[right] did not give consent to search the house . . . [because h]e kn[ew] that [Black] ha[d] done something wrong." In defending against the charges, Wright had to respond to compelling circumstantial evidence of guilt that was independent of the evidence that he had refused to consent to the search. The defense strategy was not to refute the evidence that Wright had known about the burglary and theft and had handled some of the stolen property, but rather to take the position that he had not been forthright during the investigation because of a misguided sense of family loyalty. Thus, to the extent the jury drew the inculpatory inference that Wright was trying to hide something when he refused consent to search, Wright had conceded that was precisely his motivation. Under these circumstances, we find no prejudice resulted from the error.
See generally Kenneth J. Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901 (2002).
Witness Statements
¶15 Wright next argues the trial court erred in improperly admitting hearsay evidence relating to the observations of the construction worker and then precluding Wright from presenting a prior inconsistent statement to rebut that hearsay. We agree with Wright that an error occurred, at least in the court's limitation of cross-examination and impeachment with a prior inconsistent statement, but we conclude beyond a reasonable doubt that the error was harmless in this case. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) ("Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict."). ¶16 The construction worker who testified had made inconsistent statements before Wright's trial about what he had seen. On the day of the offense, he told a police officer that he had seen two young men walking between the houses, but they were not carrying anything. In a pretrial interview conducted more than two years later, he said he had seen the men moving between the houses carrying things. ¶17 At trial, the construction worker testified he had seen the young men moving between the houses. He further testified he could not remember if he saw them carrying anything. The witness explained that his memory of the incident was not clear, partly due to the passage of time and partly because he had suffered a head injury from a work-related accident predating the offense. When the state initially attempted to introduce the witness's interview statement under the recorded recollection exception to the hearsay rule, the trial court sustained Wright's hearsay objection to it. After the state attempted to refresh the witness's recollection using a transcript, the court overruled Wright's hearsay objection and allowed the witness to say, "From what I was said [sic] to you guys in the interview, they were carrying stuff . . . ." The witness could not recall what kind of "stuff" he saw being carried, nor could he remember anything else about it. ¶18 The trial court later prohibited Wright from eliciting the prior inconsistent statement the witness had made to a police officer on the day of the offense. Wright correctly explained that he was attempting to use the statement for impeachment purposes, in light of the witness's testimony at trial, see Ariz. R. Evid. 801(d)(1)(A), and we conclude the court abused its discretion in precluding it for this purpose. See State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App. 2006) (evidentiary rulings reviewed for abuse of discretion). ¶19 However, neither of the errors complained of had an effect on the case. According to Wright's defense, he had gone back and forth between the houses because he was getting flowers. Thus, even the portion of the witness's testimony admitted over objection was consistent with Wright's theory of the case, as well as with his original statement to Scott upon being confronted. Wright also pointed out during closing argument, "[W]e know somebody had to have had something in their hands because the stuff went from [the victims'] house to [Black]'s room." In the context of this case, therefore, we conclude beyond a reasonable doubt that the error here neither contributed to nor affected the verdict. See Bible, 175 Ariz. at 588, 858 P.2d at 1191.
Because there was no resulting prejudice here even under a harmless error standard, we need not address the state's contention that the more stringent fundamental error standard applies to this issue.
From the trial court's explanation of its ruling, it appears that the uncertain nature of the witness's testimony and his impaired memory had created some confusion around this evidentiary issue. Defense counsel, for instance, later stated during closing argument, without objection, that the worker had "said at the time that he was interviewed by . . . law enforcement the day of this event, he said he never saw either one of them with anything in their hands."
Theft
¶20 The state concedes Wright was erroneously placed on probation for a five-year period as a result of his theft offense incorrectly being designated a class three felony. The indictment had charged Wright with theft of miscellaneous property with a value of at least $4,000, a class three felony. See 2006 Ariz. Sess. Laws, ch. 195, § 2 (former A.R.S. § 13-1802(E)). But in its verdict, the jury found the stolen property was worth less than $4,000 but at least $3,000, which makes the offense a class four felony. See id. Wright therefore is correct that he is entitled to be resentenced for a class four felony, for which the maximum probationary period is four years. See A.R.S. § 13-902(A)(3); State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App. 1989) (illegal term of probation equivalent to illegal sentence); cf. State v. McPherson, 228 Ariz. 557, ¶ 4, 269 P.3d 1181, 1183 (App. 2012) (illegal sentence constitutes fundamental, prejudicial error). ¶21 Wright also argues the state presented insufficient evidence supporting even this valuation. He maintains that because he was charged only with "theft by control" under § 13-1802(A)(1) and controlling the property of another under § 13-1802(A)(5), but "not . . . theft by conversion under § 13-1802(A)(2)," he could only be found guilty of possessing the stolen items recovered in the Wrights' house, which were not valued above $2,000. ¶22 This argument fails for two reasons. First, as defined by § 13-1802, theft is a single, unified offense. State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985); State v. Paredes-Solano, 223 Ariz. 284, ¶ 14, 222 P.3d 900, 905-06 (App. 2009); State v. Winter, 146 Ariz. 461, 464-65, 706 P.2d 1228, 1231-32 (App. 1985), abrogated on other grounds by State v. Kamai, 184 Ariz. 620, 623, 911 P.2d 626, 629 (App. 1995); State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 508 (App. 1980). Wright's argument distinguishing theft by conversion from theft by control, therefore, finds little support in the law. ¶23 Second, the jury was not limited to considering only the property recovered by police. The substantial evidence necessary to support a conviction under the constitution and Rule 20, Ariz. R. Crim. P., can be either direct or circumstantial. See State v. West, 226 Ariz. 559, ¶¶ 11, 15-16, 250 P.3d 1188, 1191 (2011); see also State v. Scott, 20 Ariz. App. 211, 212, 511 P.2d 655, 656 (1973) ("[C]ircumstantial evidence . . . bears the same weight as direct evidence."). Thus, in addition to considering the value of the items recovered by police, jurors also could have inferred that Wright had controlled all the property taken from the victims' house, even that which was not recovered. The verdict is therefore supported by substantial evidence in the record.
We cite the version of the statute applicable at the time of the 2008 offense.
We cite the current version of this statute, as it has not changed in relevant part since the 2008 offense. See 2007 Ariz. Sess. Laws, ch. 290, § 4.
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Disposition
¶24 Finding no prejudice from the trial errors, we affirm Wright's conviction and disposition for burglary. We also affirm the theft conviction as modified to reflect the class of felony for the offense is class four, not class three. We therefore vacate the probationary term imposed on that count and remand this matter for resentencing consistent with this decision.
________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ____________
JOSEPH W. HOWARD, Chief Judge
____________
GARYE L. VÁSQUEZ, Judge