Opinion
No. 2 CA-CR 2018-0284
12-10-2019
THE STATE OF ARIZONA, Appellee, v. ALEXANDER JOSEPH BONDY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20163700001
The Honorable Michael Butler, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Alexander Bondy appeals from his convictions and sentences for two counts of second-degree murder and one count each of criminal damage, endangerment, and driving under the influence (DUI). We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Bondy. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015).
¶3 On August 11, 2016, Bondy was driving on a six-lane road in Pima County at a much higher rate of speed than the flow of traffic. At one point, he attempted to pass W.R., who was riding a motorcycle in the middle lane. W.R. heard Bondy's car revving behind him and when Bondy passed him on his right, Bondy's car drifted into W.R.'s lane, nearly colliding with him. Bondy continued at a high rate of speed, weaving through traffic "erratically" without using a turn signal. He was in the far left lane when he attempted to change to the far right lane; in doing so, he lost control of his car, hit a guardrail on the right-hand side of the road, "bounced off" the guardrail, and went left towards the median. Seconds before reaching the median, Bondy's car was traveling eighty-nine miles per hour—nearly twice the forty-five mile-per-hour speed limit. His car hit the median and became airborne, reaching a height of twelve or thirteen feet. Bondy's car landed in the southbound lanes on top of another car, shearing off its roof and coming to a stop facing south.
¶4 The two occupants of that car, J.C. and M.C., died instantly. The medical examiner testified that J.C. died from blunt force injuries to the head and neck, and that M.C. died from multiple blunt force injuries, including decapitation.
¶5 Bondy was found in his car with minor injuries; he was disoriented, speaking incoherently, and was looking for his glasses, which he needed in order to drive. First responders extracted Bondy from his car and placed him in an ambulance, where a police officer conducted a horizontal gaze nystagmus (HGN) test. Bondy exhibited four out of six cues on the HGN test when he was in the ambulance and six out of six cues during a subsequent HGN test at the hospital.
¶6 At the hospital, a detective read Bondy his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), after which Bondy said he had taken at least ten of his father's prescription Fiorinal pills. Bondy displayed signs consistent with ingesting central-nervous-system depressants, including slow and slurred speech, difficulty with short-term memory, flaccid muscle tone, bloodshot eyes, and droopy eyelids. A subsequent blood test confirmed the presence of butalbital and codeine in Bondy's system at the time of the accident.
Fiorinal is a combination medication made of butalbital, codeine, acetaminophen, and caffeine. It is commonly used to treat migraines. Butalbital is a barbiturate that causes sleepiness and muscle relaxation. Codeine is an opioid pain reliever that can cause drowsiness, slurred and slowed speech, and slowed reflexes and thought processes.
¶7 Bondy was charged with second-degree murder of both J.C. and M.C. in violation of A.R.S. § 13-1104(A)(3), criminal damage, DUI, and felony endangerment of the motorcyclist, W.R. After a five-day jury trial, Bondy was convicted as charged. The trial court sentenced him to terms of imprisonment totaling twenty years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
Photograph of Deceased Victims
¶8 Bondy argues the trial court abused its discretion by allowing the state to admit a photograph showing a bird's-eye view of J.C. and M.C.'s car "without requiring a black bar to fully cover the head area of the two corpses." We review the court's admission of the photograph for an abuse of discretion. See State v. Sanders, 245 Ariz. 113, ¶ 51 (2018).
¶9 Before trial, Bondy moved "to limit [the] use of gruesome photographs" at trial pursuant to Rule 403, Ariz. R. Evid. Specifically, he sought to preclude photographs of M.C.'s decapitated torso, M.C.'s head after it had been run over by another vehicle, J.C.'s brain matter, and graphic autopsy photographs. Bondy argued that "while a limited number of photos should be admissible to establish the basic facts of the case, additional and extremely gruesome photos only serve to inflame the jury . . . beyond the probative value allowed under Rule 403." The state said it intended to admit only one photograph of the deceased victims and noted it could redact areas of the photographs to "minimize the prejudicial effect."
¶10 At the hearing on the motion, Bondy ultimately disputed the admission of only one photograph on the basis that it was too gruesome. That photograph showed M.C.'s headless body in the passenger seat, tire marks on her shirt, a piece of skull and brain matter in the backseat, and a lifeless J.C. in the driver's seat, with only his chin and the left side of his face visible. The state argued the photograph and the tire marks on M.C.'s shirt, in particular, were relevant to "show[ing] the manner in which the crash happened." The trial court reviewed the unredacted photograph and said redaction of the left side of the photograph, which showed M.C.'s headless body, was needed "below the headrest and above the chest . . . just on that side," but said the right side of the photograph, showing J.C.'s body, was not "problematic." The court also said it would later revisit the issue and agreed to review the redacted photographs in chambers the day before trial.
¶11 Subsequently, before trial, the parties and the trial court reviewed several redacted versions of the challenged photograph, and although Bondy objected to the admission of any of them, Exhibit 108 was "the one [Bondy] had least objection to." The state later offered into evidence Exhibit 108, which showed J.C. and M.C. in their car, but included a gray circle covering the area below the headrest of the passenger seat and above M.C.'s chest, where her head would have been. The piece of skull and brain matter in the backseat were also redacted. Bondy objected, arguing "there was instruction to explore further redaction." The court did not specifically address the redaction of M.C.'s body but did note that J.C.'s body was "not unduly gruesome the way it is," and overruled Bondy's objection.
¶12 At trial, the investigating detective described the scene and his reconstruction of the accident, using photographs to illustrate his testimony. The detective noted Exhibit 108 showed "an obvious tire mark going across [M.C.'s] chest area." In closing, the state referred to the photograph, saying:
And obviously, you heard and saw this picture. There was the tire mark on the back trunk of the car. There was another tire mark that you heard
about and you saw briefly. That tire mark was on the white shirt of [M.C.]'s right in the middle of her chest. Tire mark on the hood of the car, on her chest and on the trunk of the car tells you how this crash happened. It tells you how fast the defendant was going. It tells you how much energy he had. It tells you how extremely reckless this crash was.
¶13 "Whether the trial court abused its discretion in admitting a photograph turns on (1) the photograph's relevance, (2) its tendency to inflame the jury, and (3) its probative value compared to its potential to cause unfair prejudice." State v. Cota, 229 Ariz. 136, ¶ 46 (2012). "Photographs of the deceased are relevant in a murder case 'because the fact and cause of death are always relevant in a murder prosecution.'" State v. Hampton, 213 Ariz. 167, ¶ 18 (2006) (quoting State v. Spreitz, 190 Ariz. 129, 142 (1997)). And, photographs of deceased victims are admissible in murder prosecutions "to show the nature and location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed." State v. Chapple, 135 Ariz. 281, 288 (1983).
¶14 Relevant photographs may be admitted even though they "also have a tendency to prejudice the jury against the person who committed the offense." State v. Bocharski, 200 Ariz. 50, ¶ 21 (2001) (quoting Chapple, 135 Ariz. at 287-88). "When a relevant photograph is inflammatory, however, the court should not admit it without first determining whether the danger of unfair prejudice substantially outweighs the photograph's probative value." State v. Goudeau, 239 Ariz. 421, ¶ 153 (2016).
¶15 Bondy concedes Exhibit 108 was relevant to illustrating how the accident occurred but contends that the "gory factors" were not relevant because they were not cited by the state in its closing argument. Next, he argues the photograph was inflammatory because M.C.'s decapitated body is "deeply disturbing" and asserts the redactions made the photograph "only slightly less gruesome," as "[t]he absence of a head is still troubling" and the presence of brain matter on the backseat and J.C.'s "flattened head" were still visible. Bondy also argues the trial court erred in finding J.C.'s head did not need to be redacted. Finally, Bondy contends that a "black bar could have been placed so as to cover [M.C.]'s body above the tire marks, as the defense suggested, and [J.C.]'s flattened head and the brain matter" in order to "remove[] the horror and [make] it less likely for the jury to make a decision based on emotion." Therefore, Bondy argues, the court erred by not ordering further redaction of Exhibit 108. We disagree.
¶16 First, although Bondy did not dispute the manner of the accident or cause of death, the photograph was relevant to show how the accident occurred and to explain the cause of death. See State v. Rushing, 243 Ariz. 212, ¶ 27 (2017) (cause of death always relevant even where defendant does not dispute cause of death or how victim was injured). And, because Bondy was charged with second-degree murder, the issue was whether he acted recklessly "[u]nder circumstances manifesting extreme indifference to human life" when he caused the accident. See A.R.S. § 13-1104(A)(3). Exhibit 108 depicts the car with its roof shorn off by the impact and tire marks on M.C.'s shirt. Thus, the photograph reveals the extreme nature of the accident and resulting injuries. Exhibit 108 could help the jury determine the degree of the crime, corroborate the state's witnesses and explain their testimony, and support the state's theory that the accident was caused by Bondy acting recklessly. See Chapple, 135 Ariz. at 287-88. It was relevant.
¶17 Second, although Exhibit 108 was disturbing, it was not inflammatory. Contrary to Bondy's assertion that M.C.'s vertebrae were merely "blurred" and that "it is still clear that her head is absent," the state placed a gray circle over M.C.'s body from below the headrest to the tire marks on her chest, thereby obscuring the area where M.C.'s head would have been. The state also redacted the piece of skull and brain matter in the backseat. Together, these redactions eliminated the chief elements that made the photograph gruesome, thus making it unlikely to inflame the jury. Further, the trial court was within its discretion when it determined J.C.'s head was not gruesome and did not require redaction. See Sanders, 245 Ariz. 113, ¶ 51. The court did not abuse its discretion in implicitly finding the photograph's probative value was not outweighed by the potential for unfair prejudice. See id.; see also Bocharski, 200 Ariz. 50, ¶ 21 (we will not disturb trial court's Rule 403 determination absent clear abuse of discretion); State v. Rienhardt, 190 Ariz. 579, 584 (1997) ("There is nothing sanitary about murder, and there is nothing in Rule 403, Ariz. R. Evid., that requires a trial judge to make it so.").
Moreover, there was overwhelming evidence of Bondy's guilt. See Spreitz, 190 Ariz. at 142 (admission of gruesome photographs harmless where evidence of guilt overwhelming). Bondy drove at nearly twice the posted speed limit, erratically weaving in and out of traffic. He almost struck a motorcyclist before the fatal collision. Bondy admitted to police that he had taken a large dose of his father's prescription Fiorinal, and he had butalbital and codeine in his system at the time of the accident. He also admitted he was in the "wrong state of mind" to drive. --------
Motion for Mistrial
¶18 Bondy also argues the trial court erred when it denied his motion for mistrial based on a witness mentioning precluded evidence. We review a court's refusal to grant a mistrial for an abuse of discretion. State v. Naranjo, 234 Ariz. 233, ¶ 73 (2014); see also McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) ("The decision whether to grant a mistrial is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.").
¶19 Before trial, Bondy moved to preclude references to drugs "not present in [his] system" and statements he made to a detective about his prior drug use. The state said it only intended to introduce evidence of the butalbital and codeine, and not the THC metabolite found in Bondy's blood, because the metabolite was non-impairing. The trial court granted Bondy's motion but said the presence of the THC metabolite and his prior drug use could become relevant if he argued he accidentally ingested the Fiorinal.
¶20 At trial, the state's toxicologist testified Bondy's blood "was positive for barbiturates, opiates, and THC." Bondy objected, and when the state offered to elicit "more of an explanation of [the] metabolite or leave it alone," Bondy asked that the state do nothing. The toxicologist did not mention THC again, and after she was dismissed, Bondy moved for a mistrial. The trial court denied Bondy's motion, concluded a stipulation and instruction would be "sufficient" to remedy the reference to THC, and ordered an instruction directing the jury not to consider any evidence of drugs other than the butalbital and codeine for purposes of determining impairment.
¶21 The next day, Bondy renewed his motion for mistrial, arguing a curative instruction would "just put[] a big spotlight on something that was supposed to be precluded from the trial." Specifically, Bondy argued the toxicologist's brief reference to THC was prejudicial because defense counsel was not able to ask the jurors about their opinions on marijuana during voir dire. The trial court noted that precluding THC was not part of Bondy's pretrial motion to suppress but rather was a stipulation of the parties, found the single reference to THC was not prejudicial, and denied Bondy's motion. THC was not mentioned again at trial, and the jury was instructed that DUI requires proof that the defendant "was under the influence of butalbital or codeine or a combination of these substances at the time of driving" and "was impaired to the slightest degree by reason of being under the influence of butalbital or codeine or a combination of these substances."
¶22 Granting a mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983). In determining whether to grant a mistrial based on a witness's testimony, the trial court must consider two factors: "(1) whether the testimony called to the jurors' attention matters that they would not be justified in considering in reaching their verdict and (2) the probability under the circumstances of the case that the testimony influenced the jurors." State v. Lamar, 205 Ariz. 431, ¶ 40 (2003). And, "the decision to deny a mistrial rests with the discretion of the trial court, and '[w]e will not reverse a conviction based on the erroneous admission of evidence without a reasonable probability that the verdict would have been different had the evidence not been admitted.'" State v. Almaguer, 232 Ariz. 190, ¶ 29 (App. 2013) (quoting State v. Hoskins, 199 Ariz. 127, ¶ 57 (2000)) (alteration in original); see also State v. Jones, 197 Ariz. 290, ¶ 32 (2000) ("trial [court]'s discretion is broad because [it] is in the best position to determine whether the evidence will actually affect the outcome of the trial" (citation omitted)).
¶23 A jury is unlikely to be influenced by brief, isolated testimony referring to inadmissible evidence. See State v. Laird, 186 Ariz. 203, 207 (1996) (brevity of inadmissible testimony relevant to upholding denial of mistrial); Almaguer, 232 Ariz. 190, ¶ 29 (no reasonable probability jury influenced by testimony introduced in violation of court order where testimony was isolated and not mentioned again); see also State v. Gilfillan, 196 Ariz. 396, ¶ 38 (App. 2000) (no reasonable probability evidence materially affected outcome of trial where witness briefly referred to defendant requesting counsel to explain why police interview ended), abrogated on other grounds by State v. Carson, 243 Ariz. 463 (2018). And, because jurors are presumed to follow their instructions, a jury is unlikely to be influenced by inadmissible testimony when a curative instruction is given. See Almaguer, 232 Ariz. 190, ¶ 29; see also State v. Morris, 215 Ariz. 324, ¶ 55 (2007).
¶24 On appeal, Bondy argues the toxicologist's testimony improperly called to the jurors' attention the fact that Bondy had a THC metabolite in his system when such evidence "was not admissible, as the trial court ruled." The state counters that such evidence was not precluded because Bondy sought to preclude "references to drugs not in [his] system" and THC was present in his system. According to the state, the prosecutor "simply volunteered that the State would not introduce the THC evidence" and, therefore, the court did not rule the THC evidence was inadmissible. In his reply, Bondy contends that the jury should not have heard the THC evidence because "[c]learly the parties understood that the evidence . . . was not to be admitted."
¶25 As to the probability that the testimony influenced the jurors, Bondy argues: (1) because marijuana use is controversial, and because the parties were not able to ask the jurors in voir dire about their opinions on marijuana use, the jury may have been prejudiced against Bondy; and (2) evidence of THC in Bondy's blood suggested "polysubstance abuse" and that "[Bondy]'s character as a drug user should have made him more knowledgeable about the effects of Fior[i]nal." The state argues "no probability exists that the jury was influenced by the [toxicologist's] brief reference to THC" because it was not repeated, and the trial court "excluded THC as a potentially impairing substance by directing the jury that it could only find impairment based on the butalbital or codeine or a combination of these substances." We agree with the state's position.
¶26 The trial court did not expressly determine whether the single reference to THC called the jurors' attention to a matter they could not properly consider, or whether the jury could properly consider the presence of THC in Bondy's blood. Rather, the court found no prejudice to Bondy based on the single, brief reference to THC. Similarly, we need not address whether evidence of THC was precluded or improperly considered by the jury because there was no reasonable probability that the toxicologist's single reference to THC influenced the jury.
¶27 First, the reference to THC was brief, was made by one witness, and came on the second day of a five-day trial in which more than a dozen witnesses testified. Second, the toxicologist mentioned THC in the limited context of listing the substances found in Bondy's blood—it was not mentioned in connection with Bondy's prior drug use. Third, the toxicologist only said "THC"—she did not refer to it as a chemical found in marijuana or mention marijuana. Lastly, neither the toxicologist nor anyone else discussed THC any further or mentioned it again.
¶28 Furthermore, to avoid any prejudice to Bondy, the state offered and the trial court recommended a stipulation that the THC metabolite found in Bondy's blood was non-impairing. And, although Bondy declined the stipulation, the jury was ultimately instructed that it could only consider butalbital and codeine as impairing substances. Therefore, the court's curative instruction, without repeating and highlighting the term "THC," sufficiently overcame any probability that the jury would consider THC for purposes of determining impairment. See Lamar, 205 Ariz. 431, ¶¶ 40, 43; see also Morris, 215 Ariz. 324, ¶ 55 (jurors presumed to follow instructions).
¶29 Lastly, Bondy appears to assert the reference to THC was inadmissible other-act evidence, which prejudiced him because "THC indicated his use of other drugs." According to Bondy, because the issue in this case was whether Bondy was "extremely reckless" as required for second-degree murder, or "merely reckless or negligent," as required for the lesser-included offenses of manslaughter or negligent homicide, evidence of other drugs could have influenced the jury. We disagree.
¶30 Bondy initially told the detective he took ten or more of his father's Fiorinal pills prescribed for migraines even though he did not have a migraine, then said he did not remember how many he took, but insisted it was not more than five or six. He also told the detective he was "very tired" and "[n]ot in the best state to drive" when he decided to go for a drive. Based on Bondy's own admissions, the extensive evidence of his extreme speed and erratic driving behavior, and the catastrophic results of the accident, there is no reasonable probability that the verdict would have been different if the single reference to THC had not been made. See Almaguer, 232 Ariz. 190, ¶ 29. Accordingly, the trial court did not abuse its discretion in denying Bondy's motion for mistrial.
Disposition
¶31 We affirm Bondy's convictions and sentences.