Summary
In Turner, we determined that mere speculation that destroyed evidence might have been exculpatory is insufficient to demonstrate a violation of due process.
Summary of this case from State v. CurranOpinion
No. 2 CA-CR 2019-0276
05-05-2021
The STATE of Arizona, Appellee, v. David Eagle Bear TURNER, Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee
Emily Danies, Tucson Counsel for Appellant
Judge Brearcliffe authored the opinion of the Court, in which Chief Judge Vásquez and Vice Chief Judge Staring concurred.
BREARCLIFFE, Judge:
¶1 David Turner appeals from his convictions after a jury trial for one count each of first-degree murder, kidnapping, first-degree burglary, and aggravated assault with a deadly weapon or dangerous instrument. The trial court imposed sentences of life imprisonment with the possibility of parole after twenty-five years for first-degree murder, 10.5 years of imprisonment each for kidnapping and first-degree burglary, and 7.5 years of imprisonment for aggravated assault; the latter three to run concurrent with each other, but consecutive to the life sentence. On appeal, Turner contends the court erred by: (1) denying his motion to dismiss for a due process violation; (2) granting the state's motion to preclude evidence of the victim's firearm; (3) denying his request for alterations to the manslaughter jury instruction; and (4) admitting an audio recording of the state's interview of the defense expert witness. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We review the facts in the light most favorable to upholding the convictions and sentences. State v. Robles , 213 Ariz. 268, ¶ 2, 141 P.3d 748 (App. 2006). Turner, Eva, and a mutual friend, Byron, began living together in February 2018. By March 2018, Eva and Turner had been dating for approximately four years. During their relationship, Turner had accessed Eva's phone more than once, and tracked her location without her knowledge by changing settings on her phone and using a location-tracking application called "Find My iPhone." Unbeknown to Turner, Eva had been in a relationship with a man named Jorge, the victim, since before March 2018.
The victim and non-police witnesses are identified throughout the opinion by pseudonyms.
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¶3 On March 24, 2018, Eva and Jorge planned to go to his apartment in mid-town Tucson after they finished work at around 9:15 p.m. Eva had told Turner she would be spending the night with friends in Rita Ranch. Eva and Jorge arrived at his apartment just before 10 p.m., and, about an hour later, while they were in Jorge's living room, Turner "broke down the door" to the apartment and yelled, "what the f---?" When Turner entered the apartment, Jorge jumped up and crossed to the other side of the living room. Eva told Turner that her relationship with him was over and repeatedly told him to leave, but he remained in the apartment. After Turner told Jorge that he knew about Eva's relationship with him, Jorge apologized to Turner and "offered to have [Turner] beat him up if he needed to."
¶4 An ensuing "standoff" between Turner and the couple lasted about an hour, during which time Eva and Byron exchanged text messages. Eva told Byron that Turner was at Jorge's apartment, and Byron asked if she wanted him to come over. Eva asked Turner if he wanted Byron to come over, and Turner said no; but Eva told him that either Byron would come over or she would call the police. Eva then asked Jorge for his address so she could text it to Byron.
¶5 Before Jorge could respond, Turner pulled a gun from a holster behind his back. When Jorge saw the gun, he put his hands up and said, "no, no, no." Turner then held a couch pillow in front of the gun and began shooting at Jorge. As Jorge was struck, he backed into a wall and then fell on his side onto a loveseat. Turner then approached Jorge and shot him in the back of the head. After he shot Jorge, Turner pointed the gun at Eva and said "don't," referring to her cellphone, which was still in her hand. Eva gave Turner her cellphone, and they stayed in the apartment talking for about two hours.
¶6 The security guard on duty at Jorge's apartment complex that night heard gunshots and screaming, and called 9-1-1 shortly after midnight. Tucson Police Department Officers Kevin Knight and Jacob Fraley responded to the call. When they arrived at the complex, the guard directed them to the apartment he believed the noises had come from, and they contacted the resident of that apartment, who had no information about the disturbance the guard had heard. They then walked around the complex but, neither seeing nor hearing anything unusual, they left after about fifteen or twenty minutes.
¶7 Because Turner had Eva's cellphone, she could not text Byron. When Byron did not hear from her, he tried to contact Turner, who did not respond. Byron then searched Turner's room for Turner's handgun, which he usually kept under his mattress, but noticed the gun and two magazines were missing. Byron then contacted Eva's mother, who gave him Jorge's address. When Byron arrived, he saw Turner's car in front of the apartment complex. Byron called 9-1-1 and began looking for Jorge's apartment. Eva's parents arrived about twenty minutes later.
¶8 Byron eventually heard yelling from an upstairs apartment from which Eva emerged. Concerned for their safety, Byron took Eva to hide behind a large van. Officers Knight and Fraley and other officers responded to Byron's 9-1-1 call at around 2:30 a.m. When the officers entered the complex, they encountered Turner and others in the parking lot; Turner raised his hands and then laid on the ground. Turner told Knight he had come from unit 2046, and five or six officers then went into the apartment. While several officers cleared the rest of the apartment, two officers attempted to render aid to Jorge, but determined no aid could be given.
¶9 Turner was charged with the offenses of conviction noted above and, following a five-day jury trial, was found guilty on all counts and then sentenced as described. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Analysis
Body-Worn Camera Footage
¶10 Turner argues that the trial court abused its discretion by denying his motion to dismiss. He claims, as he did below, that his due process rights were violated because the police officers at the scene on March 25 muted, removed, or turned off their body-worn cameras ("BWC" or "body camera") during or before their response. We review the denial of a motion to dismiss for an abuse of discretion. State v. Villegas , 227 Ariz. 344, ¶ 2, 258 P.3d 162 (App. 2011).
¶11 Under these circumstances, to show that a failure to preserve potentially useful evidence amounts to a due process violation, a defendant must prove the officers were acting in bad faith, not in accordance with normal police practices. State v. Hulsey , 243 Ariz. 367, ¶ 18, 408 P.3d 408 (2018). If the defendant cannot "show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ; see also State v. Dunlap , 187 Ariz. 441, 452, 930 P.2d 518, 529 (App. 1996). Absent bad faith on the part of the officers, due process is violated only when the evidence possessed an obvious exculpatory value and is of such a nature that the defendant would not be able to obtain comparable evidence by other reasonable means. See Hulsey , 243 Ariz. 367, ¶ 18, 408 P.3d 408.
¶12 Turner asserts that Officers Fraley, Knight, and Matt Marcotte did not comply with Tucson Police Department procedure, demonstrating bad faith. And the lost evidence from these body cameras, Turner argues, was "potentially exculpatory to [Turner] because not only did they hide mistakes that may have helped [him], but they also lost audio of witnesses, one of whom could not be identified afterwards."
¶13 Turner relied on the Tucson Police Department "General Operating Procedures" governing the use of body cameras in support of his motion to dismiss. The policy states that "The primary function of the BWC system is to document contact between [Tucson Police] Department members and members of the public." It directs that, once a body camera is activated, officers "will continue to record until the completion of the encounter or action, or until they have left the scene." However, the policy prohibits recording in certain circumstances, including "[w]hen discussing a case with other Department members." The policy also permits officers to stop recording at "an incident where serious injury or death occurs ... when the scene is secured" and a supervisor or Incident Commander has "provide[d] direction to stop recording of any BWC worn by an involved member."
¶14 Officers Marcotte and Knight primarily only muted their body cameras while they were speaking with or around other officers at the scene. Marcotte, Knight, and Fraley also muted their body cameras in Jorge's apartment, and only did so once it was secured and they were instructed to do so, as the body camera policy permits. Fraley had his body camera muted and covered the lens throughout his time on the scene because he "got volunteered ... to hang out in [Jorge's] apartment." The only member of the public Fraley interacted with at the scene was Jorge's sister, and when he did, he unmuted his body camera and uncovered the lens.
¶15 While Officer Marcotte initially had his body camera unmuted while speaking with Eva's stepfather, he briefly muted it, but then quickly unmuted it when Jorge's sister approached them. Marcotte said he did not remember why he briefly muted his body camera, but explained that he had "made mistakes ... before ... thinking that it was muted and hitting that button and thinking that [he was] unmuting it." Furthermore, at that point, Marcotte had already recorded a statement from Eva's stepfather, who ultimately testified at trial. Officer Knight muted his body camera while speaking with the security guard at the apartment complex and briefly while speaking to Eva's mother. But, like Marcotte, Knight had already recorded a statement from Eva's mother at that point, and the apartment security guard testified at trial. Knight also had his body camera muted for about thirty seconds when Jorge's sister and her boyfriend approached Knight and the officers he was with. The period during which Knight had his body camera muted here was brief. Furthermore, when Knight unmuted his body camera, all that is heard is an officer explaining to Jorge's sister that they cannot give her any more information, and her boyfriend asking if an ambulance is coming.
¶16 In denying the motion to dismiss, the trial court determined that Turner had failed "to establish that the police officers who muted the audio or obscured the camera lens acted in bad faith." It further determined that he had failed "to establish that the unavailable audio and video portions of the body worn camera footage ... contained exculpatory or potentially exculpatory evidence."
¶17 We agree that Turner has failed to establish, here or below, a due process claim. The officers involved acted substantially in accord with department policies for body cameras, only muting or covering their cameras when they were with other officers and, to the extent the officers did so when they were with members of the public, the record shows that those moments were inadvertent and brief. As the trial court concluded, such brief and inadvertent failures were at worst negligent, not rising to the level of bad faith. See Youngblood , 488 U.S. at 58, 109 S.Ct. 333. Given the lack of bad faith, Turner needed to demonstrate, but cannot, that the missing footage had obvious exculpatory value. See Hulsey , 243 Ariz. 367, ¶ 18, 408 P.3d 408. Turner can only speculate as to its content and value, and such speculation is insufficient to support his argument. See California v. Trombetta , 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (evidence must be expected to play significant role in defense and exculpatory value must have been apparent before its destruction). Because Turner failed to show either bad faith or the exculpatory value of the missing video or audio, the court did not abuse its discretion in denying his motion to dismiss.
Motion to Preclude Evidence of Victim's Gun
¶18 Before trial, the state filed a motion in limine to preclude Turner from introducing evidence that Jorge owned a firearm, kept a firearm in his bedroom, and occasionally carried a firearm. The state urged that such evidence only served to "inflame the passion of the jury," and, because Turner had not raised a justification defense, the evidence was irrelevant. It argued that such evidence was unfairly prejudicial, would confuse the issues and mislead the jury. Turner responded that, even though he was not asserting a "self-defense case," the fact that there was another weapon in Jorge's apartment was "essential" to his defense. Ultimately, after Turner explained how he would introduce and use the evidence, the trial court granted the motion, concluding that, given the lack of a disclosed justification defense, the "purported evidence is not relevant and it's simply being offered to inflame the passion of the jury [and] ... confuse the issues."
¶19 Turner argues the trial court abused its discretion and violated his Sixth Amendment right to present a complete defense by granting the state's motion. He asserts "[i]n this case, evidence that the victim had a weapon in his home should have been admitted as relevant to [Turner's] state of mind when the murder was committed." We review a court's decision to preclude evidence for an abuse of discretion. See State v. Gamez, 227 Ariz. 445, ¶ 25, 258 P.3d 263 (App. 2011). Constitutional claims are reviewed de novo , State v. Smith , 250 Ariz. 69, ¶ 34, 475 P.3d 558 (2020) ; however, because Turner failed to raise the Sixth Amendment argument below, we will only review that claim on appeal for fundamental, prejudicial error, see State v. Henderson , 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601 (2005).
¶20 Only relevant evidence is admissible at trial. Ariz. R. Evid. 402. Evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence" and the fact is "of consequence in determining the action." Ariz. R. Evid. 401. However, relevant evidence may still be excluded if its probative value is "substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid. 403.
¶21 This court has concluded that "specific instances of the victim's possession of a gun, of which the defendant was aware ... [is] relevant to the defendant's state of mind at the time of the incident." State v. Zamora , 140 Ariz. 338, 341, 681 P.2d 921, 924 (App. 1984). However, our decision in Zamora is distinguishable. The trial court's ruling in Zamora —which was affirmed on appeal—was that the defendant could support a claim of self-defense with specific instances of the victim's possession of a gun that the defendant was aware of. Id. at 340-41, 681 P.2d at 923–24. But Turner, unlike Zamora, did not claim self-defense or raise any other justification defense. Accordingly, it was not an abuse of discretion for the trial court to find evidence of Jorge's gun irrelevant. We cannot, therefore, conclude the court abused its discretion in determining that any probative value was substantially outweighed by a risk of unfair prejudice and confusing of the issues.
Jury Instruction on Manslaughter
¶22 Turner additionally argues the trial court erred by refusing to give Turner's requested manslaughter jury instruction. We review a trial court's decision to give or refuse a jury instruction for an abuse of discretion, but we will review the instructions, as a whole, de novo to determine if the instruction correctly reflects the law. State v. Solis , 236 Ariz. 285, ¶ 6, 339 P.3d 668 (App. 2014) ; see also State v. Dann , 220 Ariz. 351, ¶ 51, 207 P.3d 604 (2009). Turner asserts that the jury instruction given for provocation manslaughter incorrectly placed the burden of proof on the state to show the killing was the result of a sudden quarrel or in the heat of passion.
¶23 The written jury instructions, read aloud by the trial court, covered first-degree murder, second-degree murder, and then provocation manslaughter, in that order. After reciting the elements of first-degree murder, the court continued, stating:
The crime of first-degree murder includes the lesser offense of second-degree murder. You may consider the lesser offense of second-degree murder if either: One, you find the defendant not guilty of both forms of first-degree murder; or two, after full and careful consideration of the facts you cannot agree on whether to find the defendant guilty or not guilty of first-degree murder.
You cannot find the defendant guilty of second-degree murder unless you find that the State has proved each element of second-degree murder beyond a reasonable doubt.
....
You are first to consider the offense of first-degree murder.
If you cannot agree on a verdict on that charge after reasonable efforts, then you may consider whether the State has proven beyond a reasonable doubt that the defendant is guilty of the less serious offense of second-degree murder.
After stating the elements of second-degree murder, the court recited the elements necessary to find Turner guilty of manslaughter, including the "sudden quarrel" language to which Turner objects:
If you find the elements of second-degree murder proven beyond a reasonable doubt, you must consider whether the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If you unanimously find that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then you must find the defendant guilty of manslaughter rather than second-degree murder.
As Turner asserts, the trial court did include within the manslaughter jury instructions that the jury "must unanimously agree that the State has proven manslaughter by sudden quarrel or heat of passion beyond a reasonable doubt before you find the defendant guilty of manslaughter by sudden quarrel or heat of passion." Turner argues that this is a misstatement of the law because it "improperly placed the burden on the state to prove the mitigating circumstance," and that "[h]ad the jury been instructed properly on the elements of manslaughter, the jury may have found [Turner] guilty of a lesser charge." At the time of settling jury instructions, Turner had requested that the court give the following jury instruction: "In distinguishing second-degree murder and manslaughter, the State must prove, beyond a reasonable doubt, that the defendant did not act upon a sudden quarrel or heat of passion, and that the sudden quarrel or heat of passion did not result from adequate provocation by the person who was killed." The court determined that Turner's offered instruction would "confuse the jury more than help them decide."
¶24 Irrespective of the proper placement of the burden of proof regarding the manslaughter instruction, we can only conclude, beyond a reasonable doubt, that, even if erroneous, the trial court's instruction did not affect the verdict. See State v. Johnson , 205 Ariz. 413, ¶ 27, 72 P.3d 343 (App. 2003) (error in jury instruction harmless if we can conclude beyond reasonable doubt that it did not influence the verdict). As detailed above, the court instructed the jurors to first consider the first-degree murder charge, and to only consider other charges—second-degree murder or ultimately provocation manslaughter—if they found Turner not guilty of first-degree murder or could not agree on a verdict for first-degree murder. Here, of course, the jury convicted Turner of first-degree murder. Because it did, and because we presume juries follow their instructions, see State v. Jeffrey , 203 Ariz. 111, ¶ 18, 50 P.3d 861 (App. 2002), we have no basis to conclude that the jurors even considered the second-degree murder or manslaughter charges, let alone that their verdict was influenced by the recited burden of proof complained of.
Admission of State's Recorded Interview with Witness
¶25 Finally, Turner argues the trial court abused its discretion by admitting a portion of the state's recorded interview with the defense's expert witness. We review a trial court's decision to admit or preclude evidence for an abuse of discretion. See State v. Murray , 162 Ariz. 211, 214, 782 P.2d 329, 332 (App. 1989).
¶26 At trial, Turner called Weaver Barkman, a former law enforcement officer, to offer testimony on general police procedure and his examination of the evidence and crime scene. He testified, among other things, about the couch pillow Turner was alleged to have held in front of the gun while shooting Jorge. He opined that, despite the holes in the pillow, it did not bear characteristic signs of gunshots. Barkman stated that, had it been so used, he would have expected to see batting sticking out of the holes in the pillow. He ultimately testified that, based on his analysis and training, he could not say with certainty that the defects (or holes) in the pillow were caused by gunshots and further opined that the gun had not been placed directly against the couch pillow and fired three times.
¶27 During cross examination, the state questioned Barkman about his pretrial interview with prosecutors. He was asked if he recalled being questioned about whether he "had any alternative theory about how all the stuffing"—found in the bullet holes in the apartment wall—"got out of the pillow[.]" Barkman stated he did not recall having been asked that question and asked if he could look at the interview transcript to "refresh [his] recollection." The prosecutor then asked again: "Do you recall me asking you do you have any alternative opinion as to what it could be, or you just don't know? Do you remember that question?" He then offered to play a recording of the interview, and the trial court allowed Barkman to review the transcript. Barkman then said he recalled the question and, when asked what his answer was, he read from the transcript that his answer was " ‘No. But, you know, I'm sure there are things and I'll figure it out. I'll figure out what might do that.’ " When asked again about the accuracy of the transcript, Barkman stated, "I believe that it is accurate and I do have a recollection of the interview, but I'm under oath and testifying." The state again offered to play that portion of the audio recording of the interview, and Turner objected, asserting "The witness has already said he remembers, he believes that to be accurate. I believe there's an ulterior motive for playing this clip, that doesn't have to redact this from the video." The court allowed that portion of the recorded interview to be played.
¶28 On appeal, Turner argues the trial court erred in permitting the playing of the recorded interview under Rules 403, 802 and 803, Ariz. R. Evid. While Turner asserts that he "made a clear objection" below to this recording based "on both hearsay grounds and Rule 403 grounds," the record does not reflect such clear objections. We conclude his objection was sufficient to preserve his objection on hearsay grounds under Rules 802 and 803 —as to whether the statement qualifies as a prior recollection recorded—but it was not sufficient to preserve his Rule 403 prejudice argument. "[A]n objection on one ground does not preserve the issue on another ground." State v. Lopez , 217 Ariz. 433, ¶ 4, 175 P.3d 682 (App. 2008). Merely asserting that the state might have had "an ulterior motive for playing" the clip is not a sufficiently clear claim of undue prejudice or confusion. Because Turner did not preserve his Rule 403 objection, we review that claim for fundamental error. See Henderson , 210 Ariz. 561, ¶ 19, 115 P.3d 601. But, because Turner does not argue this alleged error under Rule 403 was fundamental by developing that argument in any meaningful sense, that argument is waived. See State v. Moreno-Medrano , 218 Ariz. 349, ¶ 17, 185 P.3d 135 (App. 2008) ; State v. Vargas , 249 Ariz. 186, ¶ 22, 468 P.3d 739 (2020) ("if the appellant fails to properly develop an argument, the court may consider it abandoned and waived.").
¶29 As to his hearsay objection, Turner argues the admission of the recorded interview was inadmissible under both Rules 802 and 803(5), Ariz. R. Evid. We need not resolve this question, however, because the admission of the recorded statement, even if in error, was harmless. The playing of the recorded interview was wholly cumulative of the reading by the witness himself of his response from the transcript. We do not find reversible trial error where the erroneously admitted evidence is entirely cumulative of other properly admitted evidence. See State v. Williams , 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) ("We have held that erroneous admission of evidence which was entirely cumulative constituted harmless error.").
Disposition
¶30 For the foregoing reasons, we affirm Turner's convictions and sentences.