Opinion
1 CA-CR 11-0115
06-14-2012
STATE OF ARIZONA, Appellee, v. DOUGLAS ARNOLD COULSON, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Angela Corinne Kebric, Assistant Attorney General Attorneys for Appellee Law Office of Nicole Farnum By Nicole T. Farnum 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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 Maricopa County
Cause No. CR2008-009335-001 DT
The Honorable Christopher T. Whitten, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Angela Corinne Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix
Law Office of Nicole Farnum
By Nicole T. Farnum
Attorneys for Appellant
Phoenix OROZCO, Judge
¶1 Douglas A. Coulson (Defendant) appeals his convictions and sentences for first degree murder, a class one dangerous felony, and burglary in the first degree, a class two dangerous felony. For the following reasons, we affirm.
FACTUAL BACKGROUND
¶2 Defendant gave Pete, the victim, $1000 to purchase methamphetamines for a third party. Pete was "taking his time getting [Defendant] the product," and Defendant was upset that Pete was not answering his calls. Defendant was leaving messages on Pete's telephone, saying "he wanted his money back or he wanted his stuff."
¶3 Defendant talked to his friend Brian about his dispute with Pete "numerous times" over the course of months. At one point, Defendant asked Brian to help him get a gun. Brian testified that Defendant said he was going to find out where Pete lived and "smoke" him. Brian's former girlfriend, Connie, testified that she set up a meeting between Defendant and a person she knew through drug dealing who would sell Defendant a gun.
¶4 On May 25, 2006, Pete and his girlfriend, Marie, were in the bedroom of Pete's apartment, when suddenly the bedroom window screen was pushed in and the blinds were thrown open. Defendant pointed a gun through the window and said, "You owe me a thousand dollars, mother fucker."
¶5 Marie testified that Pete and Defendant argued about the money. Defendant said, "You got to give me something." Pete responded, "I don't have anything for you." Defendant replied, "Don't make me shoot you, man," and Pete answered, "So shoot me." Defendant fired a shot, which missed, and Pete ducked and ran to the bedroom door. Defendant then began "shooting blindly." Pete was hit as he was running down the hall. A few seconds later, the shooting stopped. Marie checked on Pete and found that he was not breathing and did not have a pulse.
¶6 The morning after the shooting, Defendant stopped by Connie's house and told her "Pete's gone." As he was leaving, Defendant handed Connie a piece of paper with information on it regarding a storage facility and a truck. He told her, "[I]f anything happens . . . [y]ou can have all of this stuff. You have been good to me."
¶7 The next time Brian saw Defendant, after Pete was killed, Brian said to him, somewhat jokingly, "What's up, killer?" Defendant responded, "I told you I was going to get him. I told you I was going to smoke him, and I did."
¶8 Defendant also told his friend Nathan that he killed Pete because Pete owed him $1000. Defendant mentioned to Nathan that he planned to alter the murder weapon by melting it down using an acetylene torch. Approximately two months after the murder, Defendant asked Brian if he could borrow Brian's acetylene torch.
¶9 Defendant threatened Nathan and demanded that he tell police a man named Billy killed Pete. Accordingly, Nathan made an anonymous call to the police implicating Billy. Later, in April 2008, Nathan told police that Defendant had confessed to the murder. On December 17, 2008, Defendant was charged with first degree murder and burglary in the first degree.
¶10 During trial, Defendant was involved in an altercation with Nathan while both men were in a holding cell waiting for trial to resume. Deputy Sheriff Gonzalez testified that when he was moving prisoners, Defendant saw Nathan and "lunged right at him." Defendant threw a punch at Nathan but missed, and Nathan responded by punching Defendant "three or four times directly in the face." Defendant refused to obey commands to stop fighting until Deputy Sheriff Gonzalez tasered him. The trial court allowed this testimony to be admitted as evidence indicating Defendant's consciousness of guilt.
¶11 Defendant was convicted on both counts. The jury determined that both offenses were dangerous. The court imposed a sentence of natural life for first degree murder and an aggravated, concurrent term of twenty-one years for burglary.
¶12 Defendant filed a timely notice of appeal. 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 (2003), 13-4031 (2010), and -4033.A.1 (2010).
DISCUSSION
Admissibility of fight with witness
¶13 Defendant argues the court abused its discretion when it allowed the State to present evidence that Defendant fought with a witness in a holding cell as they waited for the trial to resume. We review the trial court's rulings on the admissibility of evidence for an abuse of discretion. State v. King, 213 Ariz. 632, 635, ¶ 7, 146 P.3d 1274, 1277 (App. 2006); see also State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (App. 1990) ("The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion.").
¶14 Testimony regarding any attempted intimidation of a witness is relevant and admissible evidence indicative of consciousness of guilt. State v. Valenzuela, 109 Ariz. 1, 2, 503 P.2d 949, 950 (1972); see also State v. Adair, 106 Ariz. 4, 6, 469 P.2d 823, 825 (1970) ("Attempts by a defendant to suppress or falsify testimony by bribes, threats, or other undue influence are admissible.").
¶15 In State v. Saiz, 104 Ariz. 407, 454 P.2d 152 (1969), an informant was placed in the same jail cell as the defendant while the defendant was awaiting trial. The defendant approached the informant, accused the informant of "ratting" on him, and punched the informant. Id. at 408, 454 P.2d at 153. The trial court allowed testimony about the fight. Id. On appeal, the defendant argued that the evidence of the fight was unrelated to the charges against him and was improperly admitted to "show that he was a 'bad man.'" Id. The supreme court disagreed and held that the testimony was admissible as evidence indicating a consciousness of guilt. Id.
¶16 Likewise, the evidence of the fight between Defendant and the witness was admissible as evidence indicating Defendant's consciousness of guilt. Although Defendant offers alternative explanations for the fight, such as "the politics of being in custody[] and the men's history of not getting along due to being involved with the same woman," such explanations go to the weight of the evidence, not its admissibility. See State v. Jeffers, 135 Ariz. 404, 415, 661 P.2d 1105, 1116 (1983) (holding that evidence of a defendant's escape may be admitted as evidence showing consciousness of guilt despite the existence of alternative reasons for the escape).
¶17 Furthermore, the jury was instructed: "Evidence that the defendant sought to influence the testimony of a witness may be considered as a circumstance tending to show consciousness of guilt. However, you may not consider any attempts to influence a witness as evidence of a defendant's bad character or violent disposition." We presume jurors follow their instructions. State v. Prince, 226 Ariz. 516, 537, ¶ 80, 250 P.3d 1145, 1166 (2011). The record provides no support for a claim that the jurors used the evidence of Defendant's fight with the witness as character evidence.
¶18 We conclude the trial court did not abuse its discretion in admitting Deputy Sheriff Gonzalez's testimony about Defendant's fight with Nathan.
Use of aggravating circumstances for sentencing
¶19 Defendant also argues that because he was denied his rights to a jury trial on the alleged aggravators and a trial to the court on his alleged prior felony convictions, the court imposed illegal sentences. Because Defendant did not object to the trial court considering his prior convictions and aggravating circumstances, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
¶20 In first degree murder cases, the trial court is not required to find any aggravating circumstances because the guilty verdict alone allows the court to impose a sentence of natural life imprisonment. State v. Fell, 210 Ariz. 554, 557-58, ¶ 11, 115 P.3d 594, 597-98 (2005). Therefore, the court did not err when it sentenced Defendant to a term of natural life imprisonment on the first degree murder count.
¶21 Nor did the court commit fundamental error in imposing an aggravated sentence for Defendant's burglary conviction. Under the Sixth Amendment to the United States Constitution, defendants have a right to a jury trial on alleged aggravating circumstances, which must be proved beyond a reasonable doubt. State v. Molina, 211 Ariz. 130, 134, ¶ 14, 118 P.3d 1094, 1098 (App. 2005) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
¶22 The State alleged "the infliction or threatened infliction of serious physical injury" as an aggravating circumstance for the first degree burglary charge. Infliction of a serious physical injury is not an essential element of first degree burglary. See A.R.S. § 13-1508 (2010). The jurors found Defendant guilty of first degree murder; thus, the jurors found that infliction of serious physical injury was proved beyond a reasonable doubt and that finding could be used to aggravate Defendant's burglary conviction. See State v. Martinez, 210 Ariz. 578, 585-86, ¶ 27, 115 P.3d 618, 625-26 (2005). Therefore, the court properly considered this alleged aggravating circumstance. See A.R.S. § 13-702.C.1 (West 2006) (providing that the court shall consider the infliction of serious physical injury as an aggravating circumstance when it is not an essential element of the offense).
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
¶23 Once the jury finds one aggravating circumstance, the court may find and consider additional aggravating circumstances relevant to the imposition of a sentence up to the maximum allowed by that statute, and any additional aggravating circumstances used in determining a sentence within the statutory range need to be proven only by a preponderance of the evidence. Martinez, 210 Ariz. at 585, ¶ 26, 115 P.3d at 625. Therefore, the court did not err in finding "planning the incident" and "bragging about the killing to others" to be aggravating circumstances under A.R.S. § 13-702.C.23. See State v. Schmidt, 220 Ariz. 563, 566, ¶ 11, 208 P.3d 214, 217 (2009) ("When one or more clearly enumerated aggravators are found . . . [s]ubsequent reliance on other factors embraced by a catch-all provision to justify a sentence up to the statutory maximum comports with the traditional discretionary role afforded judges in sentencing.").
¶24 Regarding Defendant's prior felony convictions, Defendant contends that "[a]bsolutely no evidence was admitted at trial with respect to [Defendant's] criminal history." However, his prior convictions were contained in the National Crime Information Center (NCIC) report and were discussed in the presentence report. Additionally, Defendant's prior felony convictions arose in Maricopa County Superior Court, the same court in which Defendant was tried and sentenced in this matter. Accordingly, the trial court had sufficient evidence to conclude the prior convictions were proven by a preponderance of the evidence and did not commit fundamental error. See United States v. Urbina-Mejia, 450 F.3d 838, 840 (8th Cir. 2006) (concluding that an NCIC report may be used to establish prior convictions unless there is evidence indicating the report is unreliable); State v. Astorga, 26 Ariz. App. 260, 261 n.1, 547 P.2d 1060, 1061 n.1 (1976) ("A court may take judicial notice of the record in another action tried in the same court.").
¶25 Because Defendant has not established fundamental error with respect to either sentence, we affirm both sentences.
CONCLUSION
¶26 For the foregoing reasons, we affirm Defendant's convictions and sentences.
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PATRICIA A. OROZCO, Presiding Judge
CONCURRING:
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JON W. THOMPSON, Judge
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SAMUEL A. THUMMA, Judge