Opinion
No. 2 CA-CR 2018-0131
09-12-2019
THE STATE OF ARIZONA, Appellee, v. RALPH POPS CARTER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, 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NOT FOR PUBLICATION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. CR20165103001
The Honorable Danelle B. Liwski, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, 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 Eppich authored the decision of the Court, in which Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 After a jury trial, Ralph Carter was convicted of first-degree felony murder, armed robbery, theft of a means of transportation, and unlawful flight from a law enforcement vehicle. He now appeals, contending the trial court erred by failing to declare a mistrial due to juror misconduct, refusing to issue a jury questionnaire, and admitting a hearsay statement. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). In November 2016, M.C. met with his employer to plan that day's work. They agreed that M.C. would try to find a day laborer they had hired in the past. M.C. left for the job site around 8:45 a.m. in a company box truck. About twenty minutes later, M.C. told the employer by phone that he had not found the laborer they had discussed but had picked up another near a south-side church. Just before 9:30, M.C. called both the employer and one of the employer's sons to try to locate items he needed to complete the work.
¶3 At about 9:50, two of the employer's sons arrived at the work site and found the box truck missing, and M.C. unresponsive and lying face down in a pool of blood with blunt-force injuries to his head. Blood was spattered all over the room, and a bloody metal stake lay near the body. M.C. died from his injuries.
¶4 Later that day, a Tucson police officer investigating the homicide drove by a south-side church that was a well-known gathering place for day laborers and noticed a truck matching the description of the missing box truck driving in the area. He followed the truck. When the driver of the truck noticed he was being followed and other police vehicles joined the pursuit, the truck led police on a high-speed chase. Police were finally able to stop the truck after disabling it with spike strips, and Carter, the driver, was arrested.
¶5 Carter wore clothing later identified as a spare set of clothes M.C. kept in his work truck. In his pockets, Carter had M.C.'s identification and about $800 in cash, mostly in fifty-dollar bills, closely matching the $850 in fifties a tenant at one of the employer's properties had given M.C. as a rent payment the day before. Small spots of blood on Carter's face and shoes matched M.C.'s DNA. The bloody stake found at the scene tested positive for both M.C.'s and Carter's DNA.
¶6 Carter was indicted on counts of first-degree murder, armed robbery, theft of means of transportation, and fleeing from a law enforcement vehicle. The jury found him guilty on all counts, and the trial court sentenced him to concurrent and consecutive terms of imprisonment totaling natural life plus thirteen years. Carter timely appealed. We have jurisdiction under A.R.S. §§ 13-4031 and 13-4033(A)(1).
The jury was unable to reach a unanimous verdict as to premeditated first-degree murder, but found Carter guilty of first-degree felony murder.
Juror Misconduct
¶7 Carter argues that the court erred in denying his requests for a mistrial based on instances of juror misconduct. Juror misconduct warrants a new trial only if "the defense shows actual prejudice or if prejudice may be fairly presumed from the facts." State v. Prince, 226 Ariz. 516, ¶ 57 (2011) (quoting State v. Miller, 178 Ariz. 555, 558 (1994)). "We review the denial of a motion for a new trial based on alleged juror misconduct for an abuse of discretion." State v. Welch, 236 Ariz. 308, ¶ 17 (App. 2014).
¶8 One juror, who had told the court that jury service would be a hardship because he was a self-employed physician and because he had been hospitalized the previous week for appendicitis, was heard by the prosecutor cursing several times and complaining to the juror next to him after being empaneled. The juror called the judge's chambers and informed the court that he might need to stand during trial and take medication for the pain in his appendix. Before preliminary instructions and opening argument, Carter moved for a mistrial, arguing that the juror's outburst may have infected the entire jury pool. The court denied the motion for mistrial, and also denied Carter's alternative motion to dismiss the juror, in part out of concern that the jury would also lose another person who had talked to the bailiff at some length trying to avoid jury duty. Instead, the court told the parties it would keep an eye on the problem juror.
¶9 At the end of proceedings that day, the judge questioned the juror. He stated that he was taking narcotic pain medication and that it might affect his ability to focus. He also admitted he was angry because he felt he had been rushed in explaining his situation and had been "targeted" for jury service because he was a physician. The court then excused the juror.
¶10 Carter claims that this juror's conduct "poisoned the entire proceedings because a belief in the fairness of the judge and the proceeding is critical if the jurors are going to hold themselves to a high standard of fairness." In support of this assertion, Carter directs us only to another juror's subsequent attempt to avoid jury duty. Carter did not move to excuse that juror, nor does he cite to any evidence that this juror or any other would not be fair and impartial. Indeed, he concedes "there was no indication that any juror had undisclosed biases."
¶11 The court denied Carter's request that it individually question jurors about the disgruntled juror's effect on them. But in the absence of any significant evidence to prompt a belief that jurors had been affected by the disgruntled juror, it was within the court's discretion to deny the request. See State v. Apodaca, 166 Ariz. 274, 276 (App. 1990) ("Trial courts have considerable discretion to determine whether juror misconduct requires . . . corrective action . . . .").
¶12 And we see no reason to presume that the excused juror's frustration affected the jurors who sat on the case. Carter does not cite, nor are we aware of, any case presuming prejudice in similar circumstances. See Ariz. R. Crim. P. 31.10(a)(7). And we decline to presume that jurors lose confidence in the court's fairness just because one juror questions the court's fairness toward himself. In sum, the court did not abuse its discretion in denying a mistrial for this juror's conduct.
¶13 Carter also contends he is entitled to a mistrial because of reports a juror was sleeping during trial. Early in the trial, Carter's attorney alerted the court that a juror appeared to be "do[z]ing off." The court stated that it would keep an eye on the juror. A courtroom security officer later confirmed that the juror had appeared to be nodding off for fifteen to twenty minutes during DNA testimony. Upon questioning, the juror denied that he had slept during the trial and attributed the fact that he might have closed his eyes on occasion to an eye condition. The trial court denied Carter's motion to exclude the juror. The court stated that it had monitored the juror for much of the trial and concluded that, while his head tilted down and his eyes appeared to be closed at times, he was not sleeping.
¶14 The trial court could rely on its own observations to determine whether the juror was sleeping. See State v. Cota, 229 Ariz. 136, ¶¶ 73-74 (2012). Moreover, the court had discretion to credit the juror's statements that he had not slept during trial, even if someone else believed they had seen otherwise. See Brooks v. Zahn, 170 Ariz. 545, 550 (App. 1991) ("We must defer to the trial court's resolution of conflicting evidence with respect to alleged juror misconduct."). The court's observations, corroborated by the juror, provided ample basis to deny Carter's motion to exclude the juror.
¶15 At any rate, a juror's brief slumber during trial, without more, does not warrant a new trial. Prince, 226 Ariz. 516, ¶ 57. Even if the juror did sleep, nothing in the record suggests that it was for more than a brief time during Carter's eight-day trial. And while the DNA testimony may have been important generally, nothing in the record indicates the juror missed a critical part of it. Moreover, although Carter asserts that the sleeping juror "could not evaluate [the DNA] testimony," he does not explain how the juror's lack of full attention to the DNA testimony, which placed his DNA at the murder scene and the victim's DNA on his body, would have prejudiced him. We detect no abuse of discretion.
Carter also documents an alleged improper conversation about tattoos and felony murder between three prospective jurors, one of whom was chosen as a juror. Upon questioning by the trial court, the juror admitted she had heard the conversation of the two others, gave her opinion that tattoos did not make a person bad, and told them she understood the felony murder law but could be wrong. She told the court that the conversation would not affect her ability to be fair and impartial, she would follow the court's instructions, and would bring any further such conversations she heard to the court's attention. The court denied Carter's motion for a mistrial. Carter does not appeal that decision, nor explain how this juror deprived him of a fair and impartial jury. He therefore has waived any claim of error. See State v. Nirschel, 155 Ariz. 206, 208 (1987) (failure to argue issue constitutes abandonment and waiver). --------
Jury Questionnaire
¶16 Carter contends the trial court erred by refusing his request for a written jury questionnaire. Specifically, he contends that some of the irregularities in the jury's behavior, particularly the misconduct of the disgruntled juror, could have been avoided had there been a questionnaire. Under Rule 18.5(d), Ariz. R. Crim. P., "[t]he court must conduct a thorough oral examination of the prospective jurors," and "[u]pon request, the court must allow the parties a reasonable time, with other reasonable limitations, to conduct a further oral examination of the prospective jurors." "Nothing in [the] rule precludes submitting written questionnaires." Ariz. R. Crim. P. 18.5(d). But a court has discretion whether to administer a requested questionnaire, and we will not disturb its decision absent a showing that a fair and impartial jury was not selected. State v. Moody, 208 Ariz. 424, ¶ 93 (2004).
¶17 Here, the record shows that after the court examined the prospective jurors, it gave the parties a reasonable opportunity to conduct their own examinations. Carter asked prospective jurors whether any of them worked at night and would be tired during the trial. Carter did not ask the jurors about any other hardships they might suffer from being empaneled. Nor does the record show that the court unreasonably cut short Carter's portion of the examination; it ended when Carter stated he had no further questions.
¶18 In any event, Carter has failed to demonstrate that the jury was not fair and impartial. He contends the questionnaire could have uncovered the hardship the lengthy trial caused the disgruntled juror, but that juror was excused. Carter has shown no unfairness or bias in the jurors who found him guilty. In sum, the trial court did not abuse its discretion in denying the proposed jury questionnaire.
Hearsay
¶19 The state elicited evidence that Carter had identified himself to an investigating detective using the victim's name. However, the state presented that evidence through the testimony of a different detective. Carter contends the trial court erred by admitting that testimony over his objection that it was inadmissible hearsay and violated the Confrontation Clause. See U.S. Const. amend. VI; Ariz. R. Evid. 802. He further asserts that the testimony prejudiced him because it showed consciousness of guilt.
¶20 The state implicitly concedes that the court erred in admitting this testimony, but contends the error was harmless. It argues, among other things, that the testimony was unimportant because Carter effectively conceded guilt to some offenses and thereby implicitly admitted he had reason for a guilty conscience; the testimony was cumulative of other evidence of consciousness of guilt; and the other evidence of Carter's guilt was overwhelming.
¶21 When hearsay and Confrontation Clause violations are preserved for review by proper objection at trial, we review for harmless error. See State v. Bocharski, 218 Ariz. 476, ¶¶ 35, 38 (2008); see also State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). Such violations are harmless if the reviewing court can conclude beyond a reasonable doubt that the error did not impact the verdict. Bocharski, 218 Ariz. 476, ¶ 38. We have found error harmless when the tainted evidence was superfluous as to the issue for which it was offered, see id. ¶¶ 40-41, or other properly admitted evidence provided overwhelming proof of guilt, see State v. Davolt, 207 Ariz. 191, ¶ 64 (2004).
¶22 Here, we agree with the state that it had no need to show Carter's consciousness of guilt. In his opening statement, Carter conceded that he was guilty of stealing the money, stealing the truck, and fleeing from police. In closing argument, Carter again admitted "that he was guilty of theft of means of transportation, fleeing, and also stealing." He contended instead that he was not the killer, but had come upon the victim, stealing from him as he lay dying from a beating delivered by someone else. Thus, to the extent the erroneously admitted testimony showed consciousness of guilt, it was superfluous. And while the hearsay testimony showed that Carter knew the victim's name—a fact from which a jury could infer Carter first encountered the victim while he was conscious—other evidence demonstrated that Carter had access to the victim's name through his possession of the victim's identification.
¶23 Moreover, the state presented overwhelming evidence that Carter had robbed and killed the victim. Blood spatter matching the victim's DNA was found on Carter's head and shoes, which placed Carter at the murder scene and strongly suggested that Carter was there when the fatal blows were struck. The injuries on the victim's body were consistent with injuries that would have been caused by blows from a metal stake found next to the victim's body, on which both Carter's and the victim's DNA were found—evidence that Carter had used that stake to beat the victim to death. Carter's possession of the victim's truck and cash showed that Carter had profited from the victim's death—a clear motive.
¶24 Furthermore, evidence at trial undermined Carter's defense theory that someone else had been there and murdered the victim before Carter arrived at the murder scene and stole from the victim. A police officer testified that Carter said he had slept the night before at a park several miles from the murder scene, but only a few blocks from the south-side church where day laborers gathered. This supported the state's theory that Carter was the day laborer the victim had hired and undercut the notion that Carter came upon the victim only after the fatal beating. Police discovered Carter driving the victim's truck near that same church and park, further tying Carter to that location. The short timeframe in which the murder could have occurred also conflicted with Carter's defense—less than a half hour passed from the time the victim last spoke to the employer and his son to when his body was discovered.
¶25 Because the erroneously admitted testimony was superfluous evidence on an effectively conceded issue and refutable evidence on another, and because the other evidence of Carter's guilt was overwhelming, any error in admitting it was harmless. Carter is thus not entitled to a new trial.
Disposition
¶26 We affirm Carter's convictions and sentences.