State v. Todd
State v. Todd
Opinion of the Court
¶ 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 ,
¶ 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.
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, *1151she 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 ,
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.
¶ 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 ,
¶ 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 ,
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 ,
¶ 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 ,
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 ,
¶ 12 As a general matter, criminal defendants are entitled to confront witnesses concerning their potential bias or hope of reward. See McElyea ,
¶ 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 ,
¶ 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 case.
*1153¶ 15 However, because reliable evidence corroborating F.O.'s testimony predated his need for leniency, the probative value of those charges was surely minimal, and any error in precluding this line of cross-examination was therefore harmless. See State ex rel. Morrison v. Jay Six Cattle Co. ,
¶ 16 F.O. also testified regarding the charges arising from the shots Todd fired at his house. That testimony was corroborated by other evidence presented by the state: the 9-1-1 recordings confirm the fact and moment that shots were fired-less than a minute after Todd left by motorcycle. Furthermore, the video surveillance shows Todd leaving on a motorcycle and a motorcycle returning a minute later before two flashes are seen. Because F.O. had no motivation to fabricate at the time of his original statements to law enforcement, because his trial testimony closely tracked those statements, and because that testimony was strongly corroborated by direct and reliable evidence, no reasonable fact-finder would have doubted the substance of his testimony merely because he had acquired new charges in the interim for which he might have had a hope of leniency.
¶ 17 The state's other civilian witness in the case was M.O., who testified that Todd had acknowledged firing shots from her motorcycle as she passed F.O.'s house. Todd sought to confront M.O. with the possibility that his testimony was motivated by a hope that the state would not file certain charges against him. Indeed, the record establishes that sheriff's deputies had seized a number of firearms from M.O.'s house after it burned down eight months before trial. And, before testifying and outside the presence of the jury, M.O. admitted he was therefore worried about being charged as a prohibited possessor.
¶ 18 Accordingly, Todd argues that because the state could have brought prohibited-possessor charges against M.O., he may have believed he had a "sword of Damocles" hanging over his head, "which could certainly influence his testimony." In view of his admission about being worried, M.O. had a potential motive to fabricate. That M.O. denied that his testimony was influenced by the worry of prosecution does not resolve the issue. Because jurors weigh evidence and determine the credibility of witnesses, see State v. Cid ,
¶ 19 Even if we disregard M.O.'s testimony-that Todd had admitted to firing shots in the air as she rode past F.O.'s house-the remaining evidence overwhelmingly demonstrates not only that Todd fired the shots, but that she fired them at F.O.'s home. See State v. Dann ,
¶ 20 Furthermore, even without recourse to the improperly precluded line of questioning, the jury was confronted with issues regarding M.O.'s credibility, which further reduced the importance of the precluded impeachment testimony in the context of the overall case. In particular, M.O. frequently offered elusive answers and could not independently recall Todd's statements, despite having repeated them to the prosecutor less than a week before trial. Rather than suggesting he was cooperating in the hope of obtaining favorable treatment, M.O.'s evasive responses indicated otherwise. In view of the unique facts of this case, we can confidently say beyond a reasonable doubt that the error did not contribute to or affect the verdict.
Willits Instruction
¶ 21 Todd next complains the trial court should have granted her request for a Willits
¶ 22 "[A] defendant is entitled to an adverse-inference instruction when the state loses or destroys evidence that would have been useful to the defense, even if that destruction is innocent." Glissendorf ,
¶ 23 Here, the deputy did not record his interview with Todd. He did, however, take notes and produce a written report memorializing that interview. Todd insists that, had her statements been captured, they "likely could provide some insight to the jury into her state of mind and her version of the events." But Todd has failed to describe any concrete exculpatory evidence that a recording would have contained and that the deputy's notes did not. Assuming arguendo that failure to record an interview equates with destruction of evidence, Todd has not demonstrated that any lost evidence had a tendency to exonerate her. See State v. Speer ,
¶ 24 Similarly, the state's decision not to develop DNA or fingerprint evidence *1155from the gun deputies seized does not constitute a loss or destruction of evidence. See State v. Ramirez ,
Sentencing
¶ 25 Finally, Todd complains her sentences constituted "double punishment," arguing the court was required to impose concurrent sentences for each charge of knowingly discharging a firearm at a residential structure with its corresponding charge of intentionally discharging a firearm from a motor vehicle at an occupied structure. See A.R.S. § 13-116 ; State v. Gordon ,
¶ 26 As the state observes, the trial court did not impose consecutive sentences as Todd suggests, but rather "grouped" convictions for "the first shot" and did the same with "the second shot." Although the sentencing transcript and minute entry are not models of clarity, the court unquestionably intended to impose a combination of consecutive and concurrent sentences totaling 35.25 years. This is consistent with the total length that results from imposing concurrent sentences for counts related to "the first shot," concurrent sentences for "the second shot," and imposing those sentences consecutively both to each other and to the sentences for Todd's aggravated assault convictions.
¶ 27 Todd also insists the trial court did not properly consider her "mental and physical health as mitigating factors that would have made a lower sentence appropriate." "As a general rule, 'sentencing is the responsibility of the trial judge and, absent an abuse of discretion, the sentence will not be altered.' " State v. Fillmore ,
Disposition
¶ 28 For all the above reasons, we affirm Todd's convictions and sentences.
Todd also pled no contest to one count of misconduct involving weapons. That count is not at issue in this appeal.
In McElyea , our supreme court determined, under the particular facts of that case, that pending charges not yet the subject of a plea agreement lacked relevance to any potential motive the witness there might have had. The court, however, did not create a bright-line rule that pending charges are never relevant in the absence of a plea agreement. See
Relying on Rule 608(b), Ariz. R. Evid., the state argues the trial court properly precluded this line of cross-examination because "this evidence went to other acts that did not result in a conviction." Except for certain criminal convictions, Rule 608 prohibits attacking a witness's credibility concerning his character for truthfulness or untruthfulness with extrinsic evidence. But Todd did not seek to impeach F.O.'s character; rather, she sought to impeach him with his possible motives to fabricate.
Below, Todd alleged that F.O.'s new charges resulted from either having lied or having committed forgery in an application to the Department of Health Services for a license to grow marijuana. Arguably, this would have involved a false statement within the meaning of Rule 608(b) and, therefore, might have been admissible on that ground. But we have concluded that reference to the new offense was admissible at any rate and, to the extent the underlying nature of those charges would have allowed further questioning as to F.O.'s general honesty, Todd has abandoned this argument on appeal by failing to raise it. See State v. Carver ,
Below, Todd more forcefully argued that M.O. had recently fabricated his testimony. She alleged that despite having participated in four earlier interviews, M.O. only first mentioned Todd's inculpatory statements at a fifth interview, six days before trial. Todd also indicated that a deputy had threatened M.O. with a "prison mandatory prohibited possessor charge." But, Todd does not repeat these arguments on appeal; instead, she merely relies on the general impeachment value inherent to the possibility of facing charges. Although such facts, if true, would increase the likelihood that M.O. was motived to fabricate in the state's favor, they ultimately do not change our calculation in view of the overwhelming evidence of Todd's guilt. See Dann ,
State v. Willits ,
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In her reply brief, Todd claims her sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. This issue was not raised in Todd's opening brief. When an appellant raises a new substantive issue in a reply brief, this court may disregard that issue. State v. Aleman ,
Reference
- Full Case Name
- The STATE of Arizona v. Wendy Gail TODD
- Cited By
- 2 cases
- Status
- Published