Opinion
No. 2 CA-CR 2013-0313
09-17-2014
THE STATE OF ARIZONA, Appellee, v. JAMARI EUGENE CARTER, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Joseph L. Parkhurst, Assistant Attorney General, and Hoyt S. Hoyt, a student certified pursuant to Rule 38(d), Ariz. R. Sup. Ct., Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Erin K. Sutherland, 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 NOT FOR PUBLICATION See Ariz.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); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County
No. CR20122647001
The Honorable Howard Hantaan, Judge
AFFIRMED AS MODIFIED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Joseph L. Parkhurst, Assistant Attorney General, and
Hoyt S. Hoyt, a student certified pursuant to
Rule 38(d), Ariz. R. Sup. Ct., Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Vásquez concurred. ECKERSTROM, Chief Judge:
¶1 Following a jury trial, appellant Jamari Carter was convicted of pandering and receiving the earnings of a prostitute. The trial court suspended the imposition of sentence and placed Carter on concurrent, four-year terms of probation. On appeal, he challenges the admission of certain evidence, the denial of his request for a mistrial, and the legality of his terms of probation. The state concedes the terms of probation exceed the maximum authorized by law. We modify the disposition but affirm the convictions for the reasons that follow.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Carter's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). On July 5, 2012, an undercover police officer responding to an online escort advertisement met a prostitute, J.G., at a motel room in Tucson. In exchange for her agreement to provide sexual services, the officer gave J.G. $100 in cash that previously had been identified and photocopied. After transferring the money, the officer immediately left the room on a pretext. When other officers entered the room shortly thereafter, they found Catherine Mendez, who is Carter's wife and codefendant, there with J.G. Mendez was holding the $100 in cash along with the cell phone that the undercover officer had called to arrange the encounter.
¶3 Carter was in the motel room next door with his and Mendez's two young children. He initially lied to a police officer about his relationship to Mendez, saying he had met her and J.G. only the day before at a barbeque. J.G.'s effects were in the room with Carter, and he was carrying her credit card in his pocket. He also had two cell phones, one of which contained numerous text messages encouraging prostitution. At trial, Carter testified that this cell phone belonged to Mendez and that she had given it to him so he could transfer photographs of their children from the phone to a computer. The jury convicted Carter of both counts with which he was charged, and this appeal followed the entry of judgment and disposition. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Text Messages
¶4 Carter first contends the trial court erred in admitting text messages sent and received on the cell phone taken from him at the time of his arrest, arguing there was inadequate evidence he had authored or received those messages. We generally review a trial court's evidentiary rulings for an abuse of discretion. State v. Salamanca, 233 Ariz. 292, ¶ 8, 311 P.3d 1105, 1107-08 (App. 2013). However, Rule 103(a)(1), Ariz. R. Evid., requires that an objection be made with specificity so as "'to allow the adverse party to obviate the objection and to permit the trial court to intelligently rule on the objection and avoid error.'" In re Tiffany O., 217 Ariz. 370, ¶ 5, 174 P.3d 282, 284 (App. 2007), quoting Thompson v. Better-Bilt Aluminum Prods. Co., 187 Ariz. 121, 129, 927 P.2d 781, 789 (App. 1996). If an appellant challenges the admission of evidence on a ground that was not specified in a timely objection below, then we review only for fundamental, prejudicial error. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008).
¶5 In response to the state's pretrial notice that it intended to introduce evidence from the cell phone taken from Carter, he filed a pretrial motion to preclude its text messages under Rule 901, Ariz. R. Evid., stating they lacked authentication. Carter also characterized the messages as other-act evidence falling within Rule 404(b), Ariz. R. Evid., and he argued there was "no evidence available to suggest who had control or possession of the phone when those messages were being sent and received."
¶6 In support of these general arguments, Carter pointed to evidence tending to show that Mendez had used the phone, including an incoming message that said, "Catherine, call me." He thus maintained there was insufficient evidence the phone "was attributed to . . . Carter." He did not argue that any specific conversations or messages from any particular dates or times should be precluded.
¶7 The trial court indicated there was adequate evidence that Carter had possessed and used the cell phone, and the court therefore denied his pretrial motion. During trial, the court did not specify under which rule or rules of evidence the text messages were admitted. A police officer then read to the jury various text messages that had been sent and received on the phone.
¶8 On appeal, Carter highlights a group of text messages with a woman named Shannon, asserting this correspondence was inadmissible other-act evidence lacking authentication. Assuming arguendo that Carter's general objections to the cell phone messages presented this specific issue to the court for resolution, we find no abuse of discretion in the trial court's evidentiary ruling.
¶9 "To authenticate an item of evidence, the 'proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.'" State v. Forde, 233 Ariz. 543, ¶ 74, 315 P.3d 1200, 1220 (2014), quoting Ariz. R. Evid. 901(a). "The trial court 'does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic.'" State v. King, 226 Ariz. 253, ¶ 9, 254 P.3d 938, 942 (App. 2011), quoting State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). When making this determination, "a flexible approach is appropriate" that "allow[s] a trial court to consider the unique facts and circumstances in each case - and the purpose for which the evidence is being offered." State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App. 2008).
¶10 As previously noted, the cell phone that contained the text messages was taken from Carter at the time of his arrest, in July 2012. A conversation with Shannon from the prior week begins with a message received from her, asking, "How are you doing stud?" The discussion then turns to various matters relating to her employment and compensation as a prostitute. After receiving advice and reassurance on the topic, Shannon replies, "Thanks baby." A message sent toward the end of the conversation from the phone taken from Carter provides: "Let me be your adult industry daddy? Lol." In addition to these messages, the same cell phone contained various photographs of Carter, Mendez, and their children.
¶11 Although the totality of the evidence from the cell phone confirms that Mendez had shared the phone with Carter and had sometimes received messages on it, there is no indication that any man other than Carter had used the phone during this exchange of messages. Accordingly, there was evidence from which a reasonable jury could conclude that Carter had been the interlocutor with Shannon. See Rodriguez v. State, 273 P.3d 845, 849 (Nev. 2012) (recognizing "[c]ircumstantial evidence corroborating the sender's identity may include the context or content of the messages themselves"); Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011) (same). The messages from this conversation were therefore adequately authenticated and properly admitted under Rule 901.
¶12 For the same reasons, the trial court could have found "by clear and convincing evidence," State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997), that the outgoing messages had been authored by Carter, as required for a defendant's "other crimes, wrongs, or acts" to be admitted under Rule 404(b). See Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d at 37 n.5 (noting presumption that trial court found facts necessary to support evidentiary ruling). The incoming messages sent by Shannon were not "acts" committed by Carter or Mendez, and were thus exempt from Rule 404(b). See Terrazas, 189 Ariz. at 582, 944 P.2d at 1196 ("[F]or prior bad acts to be admissible in a criminal case, the profferer must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts."). The rule does not apply to the conduct of third parties. See State v. Machado, 226 Ariz. 281, ¶¶ 13-16, 246 P.3d 632, 634-35 (2011). But even if the incoming messages were subject to a similar, heightened evidentiary standard, the trial court did not abuse its discretion in implicitly finding by clear and convincing evidence that Carter had received these messages. See Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d at 37 n.5.
On appeal, Carter does not argue that the cell phone exchange ran afoul of either the purpose or prejudice limitations set forth in Rule 404(b). We therefore do not address those aspects of the rule.
¶13 Except for the foregoing group of messages, Carter has not articulated why other messages from the phone were erroneously admitted. As he did below, he makes a blanket challenge to the messages from the cell phone on the grounds that he was not shown to be their author or recipient. It is not the role of this court, however, to comprehensively audit a trial court's evidentiary rulings. Rather, it is an appellant's burden to develop and support a legal argument demonstrating that the trial court erred. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Edwards, 1 Ariz. App. 42, 44, 399 P.2d 176, 178 (1965). Given the lack of specific arguments below or on appeal concerning the numerous messages admitted, we decline to further address Carter's general challenge to the evidence from the cell phone. Cf. State v. Anderson, 210 Ariz. 327, ¶ 33, 111 P.3d 369, 381 (2005) (addressing only statements specifically identified as objectionable, and ignoring general challenge to interrogation).
Although Carter asserts in passing that the text messages constitute inadmissible hearsay unless they were admitted under the party-opponent exception to the hearsay rule, he provides no citations either to any legal authorities or to the appellate record that would enable a meaningful review of the issue. The argument is therefore waived on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Moreover, Carter joined in Mendez's pretrial motion which asserted that "[t]he text messages are not inadmissible . . . as hearsay because they would not be offered to prove the truth of the matter they asserted, but would be used as circumstantial evidence that . . . Carter was acting as a pimp," citing State v. Chavez, 225 Ariz. 442, ¶ 9, 239 P.3d 761, 763 (App. 2010), for this proposition. To the extent he now advances a hearsay argument, this error was invited below and cannot be challenged on appeal. See State v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d 631, 632-33 (2001).
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Expert Testimony
¶14 Carter next challenges the admissibility of testimony from the state's "'cold' expert" witness on prostitution. Rule 702, Ariz. R. Evid., allows so-called "'cold' experts" to offer "general, educative testimony to help the trier of fact understand evidence or resolve fact issues." State v. Salazar-Mercado, 234 Ariz. 590, ¶ 6, 325 P.3d 996, 998 (2014). A trial court may admit such testimony if "'(1) the expert [is] qualified; (2) the testimony address[es] a subject matter on which the factfinder can be assisted by an expert; (3) the testimony [is] reliable; and (4) the testimony 'fit[s]' the facts of the case.'" Id. ¶ 10, quoting Fed. R. Evid. 702 advisory committee notes, 2000 amends. (alterations in Salazar-Mercado).
¶15 On appeal, Carter does not dispute the expert's qualifications or the helpfulness of much of his testimony, which the state explains in its answering brief. "'By and large, the relationship between prostitutes and pimps is not the subject of common knowledge,'" and the expert's testimony here "helped place other witnesses' testimony into context and provided the jury a means to assess their credibility." United States v. Brooks, 610 F.3d 1186, 1196 (9th Cir. 2010), quoting United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001). Indeed, Carter acknowledges that the expert was offered "to explain the circumstantial evidence" in a case where Carter, an alleged pimp, was asserting a mere-presence defense based on his lack of direct involvement with the prostitution observed by law enforcement officers.
¶16 Carter nevertheless maintains the trial court should have precluded certain testimony that "did not fit the facts of the case," specifically the testimony relating to the "typical pimp/prostitute organization" involving a pimp and a "bottom girl." According to the expert witness, a bottom girl is a woman who is highly trusted by a pimp and who facilitates transactions and collects money from the pimp's other prostitutes. The expert further specified that a bottom girl "has to be a prostitute that is also working for the pimp," and the expert admitted he never had encountered a case in which two pimps were "working the same girls." Carter maintains that, by the expert's own standards, this testimony concerning bottom girls had no bearing on the facts here, because Carter and Mendez were "acting as 'co-pimps'" and no evidence suggested Mendez had engaged in prostitution herself. We reject this argument.
¶17 Carter's contention is based on an unduly narrow view of the "fit" required for evidence to be admitted under Rule 702. As our supreme court recently explained, the "'fit' pertains to Rule 702(a)'s 'helpfulness' standard." Salazar-Mercado, 234 Ariz. 590, n.1, 325 P.3d at 999 n.1. Thus, "[e]xpert testimony 'fits' if it is 'sufficiently tied to the facts of the case [so] that it will aid the jury in resolving a factual dispute.'" Id., quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (alteration in Salazar-Mercado). Despite any dissimilarities between the organizational structure testified to and that of Carter's own operation, the challenged expert testimony fit the present case insofar as it provided a helpful example of how male pimps often make arrangements to "insulate [themselves] from law enforcement" by having another trusted woman interact with their prostitutes and collect their money, which the evidence supports in this case. The trial court therefore did not abuse its discretion in finding the evidence admissible and denying Carter's motion to preclude. See Salazar-Mercado, 234 Ariz. 590, ¶ 13, 325 P.3d at 1000 ("We review a trial court's admission of expert testimony for an abuse of discretion.").
¶18 When making an admissibility determination under Rule 702, "[t]he trial court's gatekeeping function is not intended to replace the adversary system." Ariz. R. Evid. 702 cmt. Ultimately, Carter's attempt to distinguish his circumstances from the expert's testimony concerns the weight of this evidence rather than its admissibility; his argument is primarily a factual one that is most appropriate for a jury. See id. (identifying cross-examination and presentation of contrary evidence as "traditional and appropriate means of attacking" expert testimony). Under Rule 702, general, educative testimony from a qualified expert witness need not be "tied to the particular facts of the case," and such evidence is admissible unless it is barred by the dangers listed in Rule 403, Ariz. R. Evid. Salazar-Mercado, 234 Ariz. 590, ¶ 21, 325 P.3d at 1001. A trial court has broad discretion to determine the admissibility of evidence under the latter rule. See State v. Rose, 231 Ariz. 500, ¶ 62, 297 P.3d 906, 919 (2013). Accordingly, we find no abuse of discretion in the admission of the evidence under Rule 403, even though Carter has not squarely presented an appellate argument under that specific rule.
Mistrial
¶19 Carter also contends the trial court abused its discretion by denying his motions for mistrial after the court erroneously allowed the state's prostitution expert to "inject[] . . . race into the . . . trial." Carter maintains this ruling violated his due process right to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as article II, §§ 4 and 24 of the Arizona Constitution. We generally review the denial of a mistrial motion for an abuse of discretion, State v. Dann, 205 Ariz. 557, ¶ 43, 74 P.3d 231, 570 (2003), but we review constitutional issues de novo. State v. Naranjo, 234 Ariz. 233, ¶ 73, 321 P.3d 398, 413 (2014).
¶20 As noted above, the state called a detective from the Sacramento Police Department to testify as an expert on prostitution. During direct examination, the prosecutor asked the detective the meaning of the term "reckless eyeballing." The detective explained that reckless eyeballing is "when a prostitute, who's working for a pimp looks at . . . another black male in the eyes." At that point, Carter joined his codefendant's objection and request for a mistrial on the ground that the detective was "[i]njecting race into the issue." The prosecutor explained that the testimony gave context to the online advertisement for J.G.'s services that said "no black men." The court overruled the objection and denied the motion. The prosecutor then asked the detective to finish his answer, to which he stated: "Basically one of the main rules in . . . the pimping/prostitution lifestyle is that you don't look at another African American man." The trial court immediately sustained Carter's objection to this statement and ordered it stricken.
¶21 Later that day, Carter again moved for a mistrial based on the detective's statements. After hearing argument, the trial court denied the motion. The next day the court reviewed the transcript containing the detective's testimony and entertained another motion for mistrial. The court later denied the motion but instructed the jury to disregard the detective's testimony on reckless eyeballing.
¶22 On appeal, Carter argues a mistrial was necessary because the detective's comments "indicated that pimps are black men, and by referring to 'another' black m[a]n, . . . [the detective] imp[lied] that Carter was a black pimp." "A declaration of mistrial is the most dramatic remedy for trial error and is appropriate only when justice will be thwarted if the current jury is allowed to consider the case." State v. Lamar, 205 Ariz. 431, ¶ 40, 72 P.3d 831, 839 (2003), quoting State v. Nordstrom, 200 Ariz. 229, ¶ 68, 25 P.3d 717, 738 (2001). "To determine whether a mistrial is warranted, courts consider '(1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced [it].'" State v. Miller, 234 Ariz. 31, ¶ 25, 316 P.3d 1219, 1228 (2013), quoting State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996) (alteration in Miller). A trial court is in the best position to assess the effect of a witness's statements on the jury, Dann, 205 Ariz. 557, ¶ 43, 74 P.3d at 570, and consequently has broad discretion when ruling on a mistrial motion. See State v. Jones, 197 Ariz. 290, ¶ 32, 4 P.3d 345, 359 (2000).
¶23 Here, the issue of race was not injected solely by the detective's comments. Nor were they necessarily "racist" remarks caused by "incendiary racial animus," as Carter maintains. The online advertisement for J.G.'s escort services, which was admitted into evidence without objection, contains the proviso "NO Black Men!!!!" There was thus an evidentiary basis for an argument or inference that this racial exclusion represented an attempt to avoid J.G. being "recruit[ed]" by a black man who happened to be acting as a pimp.
¶24 In any event, the trial court struck the challenged comments from the record. The court also specifically instructed the jury with respect to the "reckless eyeballing" statement: "This opinion is not supported by research on the area of prostitution, and, therefore, is not admissible expert testimony." "[J]urors are presumed to follow the trial court's instructions, including curative ones." State v. Almaguer, 232 Ariz. 190, ¶ 29, 303 P.3d 84, 93 (App. 2013). Given this detailed curative instruction, see State v. Herrera, 203 Ariz. 131, ¶ 8, 51 P.3d 353, 357 (App. 2002), as well as the other evidence of Carter's guilt, see State v. Doty, 232 Ariz. 502, ¶ 18, 307 P.3d 69, 73 (App. 2013), we cannot conclude the trial court abused its broad discretion in denying his requests for a mistrial.
Probation
¶25 As to the conceded error regarding probation, Carter was convicted of two class-five felonies, see A.R.S. §§ 13-3204, 13-3209, and the trial court imposed concurrent, four-year probationary terms for both offenses. Pursuant to A.R.S. § 13-902(A)(4), however, probation for a class-five felony may continue for only three years. Both parties maintain the appropriate remedy is for this court to reduce Carter's terms of probation by one year. Given the parties' agreement on this point, as well as the fact that the trial court clearly intended to impose concurrent, maximum terms of probation, see State v. Kerr, 142 Ariz. 426, 435, 690 P.2d 145, 154 (App. 1984), we modify Carter's illegal terms of probation pursuant to A.R.S. § 13-4037(A) rather than remanding for resentencing. See State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234 (App. 1989); see also State v. Dawson, 164 Ariz. 278, 283-84, 792 P.2d 741, 746-47 (1990) (observing § 13-4037(A) "was intended to allow an appellate court to reduce an illegally severe sentence—that is, one beyond the maximum allowed by statute"); State v. Falco, 162 Ariz. 319, 321, 783 P.2d 258, 260 (App. 1989) (recognizing unauthorized term of probation as "unlawful sentence").
Disposition
¶26 For the foregoing reasons, we affirm Carter's convictions but modify his disposition by reducing his concurrent terms of probation to three years each. See § 13-4037(A).