Opinion
1 CA-CR 12-0202
02-12-2013
STATE OF ARIZONA, Appellee, v. TERMAINE LEE, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Angela C. Kebric, Assistant Attorney General Attorneys for Appellee Ballecer & Segal By Natalee E. Segal Attorney 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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. CR2011-007901-001
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Angela C. Kebric, Assistant Attorney General
Attorneys for Appellee
Phoenix Ballecer & Segal
By Natalee E. Segal
Attorney for Appellant
Phoenix NORRIS, Judge ¶1 Appellant Termaine Lee appeals from his convictions and sentences of first degree murder and assisting a criminal street gang. Ariz. Rev. Stat. ("A.R.S.") §§ 13-1105 (2012), -1321 (2012). Lee argues the superior court should not have allowed the State to play at trial a portion of a videotaped interrogation in which a detective accused him of lying. As he did in the superior court, Lee asserts this was improper, citing State v. Reimer, 189 Ariz. 239, 941 P.2d 912 (App. 1997). There, we held "neither expert nor lay witnesses assist the trier of fact to understand the evidence or to determine a fact in issue when they merely opine on the truthfulness of a statement by another witness." Id. at 241, 941 P.2d at 914. Although we agree the holding in Reimer remains "good law," that principle is inapplicable under the facts of this case. ¶2 In State v. Boggs, our supreme court held "a videotaped interrogation that includes accusations of a defendant's untruthfulness can be admitted." 218 Ariz. 325, 335, ¶ 39, 185 P.3d 111, 121 (2008). There, as here, the jury watched a videotape of the defendant's interrogation in which the detective accused the defendant of lying. Id. at 334, ¶ 37, 185 P.3d at 120. There, as here, the detective's accusations "were part of an interrogation technique and were not made for the purpose of giving opinion testimony at trial." Id. at 335, ¶ 40, 185 P.3d at 121. There, unlike here, the defendant failed to object to admission of the videotape and the court reviewed for fundamental error, while here, we review for harmless error. Id. at 334, ¶ 31, 185 P.3d at 120. The Boggs court held there was no error, thus, the State could introduce the videotaped interrogation for "the limited purpose of showing the context of the interrogation." Id. at 334, ¶ 35, 185 P.3d at 120. ¶3 In so holding the court relied on cases from other jurisdictions, principally Lanham v. Commonwealth of Kentucky, 171 S.W.3d 14 (Ky. 2005). In Lanham, the Supreme Court of Kentucky stated "[a]lmost all of the courts that have considered the issue recognize that this form of questioning is a legitimate, effective interrogation tool. And because such comments are such an integral part of the interrogation, several courts have noted that they provide a necessary context for the defendant's responses." Id. at 27. The court concluded "such recorded statements by the police during an interrogation are a legitimate, even ordinary, interrogation technique, especially when a suspect's story shifts and changes." Id. Further, as in Boggs, the Lanham court stated a court should provide the jury with a limiting instruction if one is requested. Id. at 28. ¶4 Given our supreme court's holding in Boggs, and the record before us, the superior court properly admitted the portion of Lee's videotaped interrogation in which the detective accused him of lying. For the foregoing reasons, we affirm Lee's convictions and sentences.
In the last two minutes of the interrogation, the detective and Lee had the following exchange:
Detective: "I believe that Termaine, you're not being very honest with me because I have [a] different kind of proof that's proving to me that you're not being honest with me . . . Just by some of the things that you say, I can tell that you're not being truthful with me and I'm giving you the opportunity to come clean because I know that you know that you're bullshitting me."
Lee: "I'm not bullshitting you."
Consistent with Boggs, the superior court offered to give a limiting instruction to the jury. See Boggs, 218 Ariz. at 335, ¶ 42, 185 P.3d at 121. Through counsel, Lee stated he "might" ask for it, but ultimately did not do so.
--------
____________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ____________________
ANDREW W. GOULD, Judge
____________________
RANDALL M. HOWE, Judge
After playing the videotape, the State asked the detective: "And towards the end of the video, you told [Lee] that you thought he wasn't being honest with you. Is that one of the interviewing techniques that you use in cases?" The detective responded: "Yes, that is."