Opinion
2 CA-CR 2022-0096
04-10-2023
The State of Arizona, Appellee, v. Chad Russal Curran, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee E.M. Hale Law PLLC, Lakeside By Elizabeth M. Hale Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202002705 The Honorable Steven J. Fuller, Judge
Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
E.M. Hale Law PLLC, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge:
¶1 Chad Curran appeals from his conviction and sentence for unlawful flight from a pursuing law enforcement vehicle. 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 verdict, resolving all reasonable inferences against Curran. State v. Huante, 252 Ariz. 191, ¶ 2 (App. 2021). One night in November 2020, Pinal County Deputy Sheriff Nicholas Waggoner was patrolling in Apache Junction in a fully marked patrol vehicle when he observed a truck with its license plate obscured by a cover. He activated his red and blue lights to perform a traffic stop. The truck pulled into a parking lot but did not stop, driving away "at a high rate of speed" and causing another vehicle to "slam on" its brakes to avoid a collision. Waggoner activated his patrol car's siren, added a white light to the flashing red and blue lights, and pursued. The truck drove well above the posted speed limit, ran a red light, and caused other vehicles to take evasive action.
¶3 After an approximately three-mile pursuit, the truck slowed, and Deputy Waggoner watched it stop in front of a home on West Virginia Street. A man of Curran's height and build emerged from the truck and ran up the walkway toward the house. Waggoner looked through the truck's driver-side door, which had been left open, and saw a cell phone on the seat. Its unlocked, illuminated screen showed that a call to "Mom" had been made during the pursuit. The truck was registered to D.M., Curran's mother, at the West Virginia Street address.
Although the jury did not hear evidence regarding D.M.'s relationship to Curran, the trial court allowed the state to argue in opening that the truck stopped outside Curran's "mother's house." Both parties' appellate briefs, like their motions filed below, characterize D.M. as Curran's mother. Indeed, at a hearing five days before trial, Curran's counsel described D.M. as "the defendant'[s] mother" and confirmed for the court that she is Curran's "mom." We therefore treat the familial relationship as undisputed.
¶4 Backup arrived, and officers set a perimeter around the house to ensure that anyone coming or going would be contained. Then- approximately six minutes after having arrived-Deputy Waggoner and fellow officers approached and entered the home. They found Curran in the shower. Waggoner took him to the patrol vehicle for questioning. When first asked why he had fled, Curran "acted like he didn't know what [Waggoner] was talking about" and denied that he had been driving the truck. But, after Waggoner confronted him with additional information and repeated the question about why he had fled, Curran stated, "I don't have a license," while looking down and appearing "upset with himself." Records from the Arizona Department of Motor Vehicles confirmed that Curran was not eligible for a driver license on the night in question.
¶5 The state charged Curran with one count of unlawful flight from a pursuing law enforcement vehicle. At the conclusion of a two-day trial, a jury found him guilty as charged. Taking into account one historical prior felony conviction, the trial court sentenced Curran to a presumptive, 2.25-year prison term. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Adequacy of Investigation
¶6 Shortly before trial, Curran advised the state of his intention to present a mistaken identity defense. In that context, he planned to raise questions regarding the adequacy of law enforcement's investigation. In response, on the first day of trial, the state noted its position that Curran's mother, D.M.-who would not be present to testify-had identified him at the scene as the driver of the truck. The state then argued that questions from Curran regarding why officers had not taken certain additional investigative steps would open the door for the state to question Deputy Waggoner regarding his state of mind, including what D.M. had said to him about Curran having been driving the truck. The state explained that it would not be eliciting testimony regarding D.M.'s statement as proof of its content, but rather to explain to the jury why Waggoner had believed a more extensive search for the truck's driver was unnecessary.
¶7 Curran objected on the grounds that his mother's statement to Deputy Waggoner was hearsay and that its admission would violate the Confrontation Clause, emphasizing his "right to challenge the quality of the investigation done by law enforcement." The trial court overruled the objection. It reasoned that D.M.'s statement to Waggoner identifying Curran as the driver "would not be offered for the truth of the matter asserted but rather to rebut any defense insinuation that the search was incomplete." The court explained that, although Curran had the right to question the investigation, a challenge to the sufficiency of the search for the driver would open the door for the state to elicit D.M.'s statement. The court noted that Curran, therefore, would need to make a "tactical decision" as to which avenue to pursue.
¶8 During his cross-examination of Deputy Waggoner, Curran asked a number of questions regarding the investigation but did not address the scope of the search for the truck's driver. As a result, the state did not present evidence that Curran's mother had identified him as the driver.
¶9 On appeal, Curran contends the trial court violated his due process right to a fair trial, including his right to present a complete defense, by preventing him from challenging the sufficiency of law enforcement's investigation without opening the door to his mother's out-of-court statement. He further argues that the court's ruling violated his constitutional right to confront witnesses against him, as D.M.'s alleged statements were "both testimonial and hearsay, without any exception." We review constitutional claims de novo. State v. Turner, 251 Ariz. 217, ¶ 19 (App. 2021). A court's ruling on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion and resulting prejudice. State v. Granados, 235 Ariz. 321, ¶ 30 (App. 2014).
¶10 As an initial matter, Curran inaccurately states that the trial court "precluded" him from questioning the quality of the investigation. To the contrary, the court expressly recognized his "right to question the investigation." It simply warned that doing so could open the door to Deputy Waggoner's testimony regarding why he conducted the investigation the way he did. To be sure, criminal defendants have a fundamental constitutional right to present a complete defense. State v. Abdi, 226 Ariz. 361, ¶ 32 (App. 2011). But that right "is subject to evidentiary rules" and is not a right to "'present testimony free from the legitimate demands of the adversarial system.'" Id. (quoting United States v. Nobles, 422 U.S. 225, 241 (1975)).
¶11 No evidentiary rule prevented Curran from cross-examining Deputy Waggoner, the state's lone witness, regarding the scope and details of the state's investigation. But a criminal defendant cannot reasonably challenge a witness on a particular topic and expect the state to be barred from eliciting admissible facts to counter that challenge. Cf. State v. Wilson, 200 Ariz. 390, ¶ 16 (App. 2001) (party may not use privilege as both sword and shield by invoking it to buttress own position while also preventing opponent from impeaching or otherwise challenging it).
¶12 An out-of-court statement that is admitted to establish its effect on the listener-not to establish the truth of its content-"is not hearsay" and "do[es] not run afoul of the Confrontation Clause." State v. Allen, 253 Ariz. 306, ¶¶ 27, 36 (2022); see also State v. Hernandez, 170 Ariz. 301, 306 (App. 1991) ("Words offered to prove the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue."). Curran emphasizes the United States Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004). But that case, too, notes that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 59 n.9.
This exception to the hearsay rule does not require that the declarant be "unavailable" for trial as contemplated by Rule 804, Ariz. R. Evid. Curran's arguments regarding D.M.'s availability are therefore inapposite as to the admissibility of the statement in question here.
¶13 Here, the state did not elicit D.M.'s identification of her son as part of its case in chief to establish that Curran was, in fact, the driver of the truck. Rather, the state expressed its intention to offer the statement only if the adequacy of the search for the driver was questioned. With that evidence, the state would have argued that, once Curran's own mother informed Deputy Waggoner that her son had been driving her truck- which had, after a high-speed chase, been parked in front of her home with a phone indicating a call to "Mom" on the seat-Waggoner had a reasonable basis to limit further investigation into the driver's identity. Curran, perhaps wisely, chose not to open the door to that testimony.
¶14 Even had Curran pursued that line of cross-examination, the "nonhearsay aspect" of D.M.'s statement-to prove how it impacted Deputy Waggoner's state of mind-"raises no Confrontation Clause concerns." Tennessee v. Street, 471 U.S. 409, 414 (1985). Curran's right to cross-examination would have been satisfied by Waggoner's presence on the stand. Id. If Curran doubted that Waggoner was accurately recounting D.M.'s statement, or if he believed that Waggoner's acceptance of or reliance on that statement had been unreasonable-including for the reasons Curran articulates in his briefs on appeal-he would have been free to cross-examine Waggoner. See id. Thus, the trial court neither abused its discretion nor violated the Confrontation Clause in correctly ruling that Curran's theory of the case could render D.M.'s statements admissible.
Destroyed Audio Recordings
¶15 Deputy Waggoner used a digital device to record his interviews with Curran and D.M. on the night of the incident. However, the recorder malfunctioned, the two recordings were not salvaged, and a supply technician destroyed the device.
¶16 Before trial, Curran filed a motion to dismiss with prejudice, asserting a due process violation based on what he characterized as Deputy Waggoner's "blatant, intentional destruction of evidence." In the alternative, he requested that the state be precluded from eliciting or using Curran's or D.M.'s statements at trial. He also requested that, if the trial court refused to dismiss the case, a Willits instruction be given. After an evidentiary hearing, the trial court denied Curran's requests for dismissal and preclusion. It held the issue of the Willits instruction in abeyance until trial evidence had been presented.
Under State v. Willits, 96 Ariz. 184, 191 (1964), when the state fails to preserve evidence that is potentially exonerating, the accused may be entitled to an instruction informing the jury that it may draw an adverse inference from the state's action.
Motion to Dismiss
¶17 Curran contends the trial court erred in denying his motion to dismiss because the state had "acted in bad faith" by destroying the non-functioning device with which Deputy Waggoner recorded the witness interviews, thereby violating his due process rights. A trial court's ruling on a motion to dismiss will not be disturbed on appeal absent an abuse of discretion. Turner, 251 Ariz. 217, ¶ 10. We review constitutional issues de novo. State v. Williamson, 236 Ariz. 550, ¶ 8 (App. 2015). "We defer to a trial court's findings of fact when they are supported by the record and not clearly erroneous." State v. Hulsey, 243 Ariz. 367, ¶ 17 (2018).
Curran has not challenged on appeal the trial court's denial of his motion to preclude, except with regard to D.M.'s statement to Deputy Waggoner identifying Curran as the driver of the truck, already discussed above.
¶18 To demonstrate that a failure to preserve potentially useful evidence amounts to a due process violation, a defendant must prove that law enforcement acted "in bad faith, not in accordance with normal police practices." Turner, 251 Ariz. 217, ¶ 11. In the due process context, the determination of bad faith necessarily turns on whether the police knew of the exculpatory value of the evidence at the time it was destroyed. State v. O'Dell, 202 Ariz. 453, ¶ 12 (App. 2002). "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." Turner, 251 Ariz. 217, ¶ 11.
¶19 Curran insists that Deputy Waggoner's actions "were deliberate and intentional" and that he "acted in bad faith." But, after questioning Waggoner directly and hearing his other sworn testimony at the evidentiary hearing, the trial court found that, although the state had destroyed relevant evidence in its possession, it had not acted in bad faith. This finding is supported by the record. See Hulsey, 243 Ariz. 367, ¶ 17.
¶20 In particular, Deputy Waggoner testified that around a week after the incident, he made multiple unsuccessful attempts to upload the audio recordings when preparing his police report, pursuant to department policy, including trying multiple different adapters. He had experienced difficulties with such recording devices in the past, but he had been able to successfully remedy them by plugging the device into different computers, "wiggl[ing] it just right," or using different USB adapters. However, such methods proved unsuccessful here, and the recorder stopped working completely. Waggoner installed new batteries, but that did not revive the device. At that point, Waggoner believed the recordings were not salvageable. In order to have a functioning recording device to perform his job, department policy required him to return the non-functioning device to the sheriff department's supply technician. The technician then destroyed the recorder. Waggoner testified that, if he had believed the interviews were salvageable, he would not have given the device to the supply technician.
¶21 Curran contends that Deputy Waggoner made only "personal attempts to extract data from the recorder" and "did not consult an expert" or "turn the recorder over to IT personnel." But Curran presented no evidence that the sheriff department's policies or procedures had required Waggoner to do so or evidence that Waggoner had failed in any way to comply with established departmental policies.
¶22 Curran also complains that the state delayed informing him of the destruction of the evidence, which did not occur until a few weeks before trial in January 2022. But that timing, which was explored at the evidentiary hearing, cannot be blamed on Waggoner. He had twice reported the failure of the recording device to the state in writing months earlier, including at the request of defense counsel.
¶23 Moreover, Deputy Waggoner's testimony at the evidentiary hearing provided no indication that he had known of any exculpatory value of the evidence at the time it was destroyed. See O'Dell, 202 Ariz. 453, ¶ 12. He explained that, although Curran initially denied having fled from the patrol car, he changed his answer to "I don't have a license" after Waggoner had advised him of all the evidence indicating he had been the driver. That included that a cell phone reflecting a call to "Mom" had been found in the truck registered to his mother, that Waggoner had seen a person run from the truck toward the house, and that Curran's mother had identified him as the driver. Waggoner further testified that, after he had explained to Curran that he would have been released with just a citation if he had stopped the truck without speeding away, Curran "looked down" and seemed "defeated." Waggoner reported that he had interpreted Curran's demeanor as indicating "[t]hat he was upset with himself" for having prompted Waggoner to "initiate the pursuit and running from [Waggoner] to his mother's house." Waggoner stated that nothing in Curran's statement reflected an attempt to "divert the investigation another way." By Waggoner's description, D.M.'s recorded statements also inculpated Curran.
¶24 Thus, the testimony presented at the evidentiary hearing both provided a reasonable explanation for how the audio recordings came to be destroyed and reflected that Deputy Waggoner did not believe them to have contained any exculpatory value at the time of their destruction. Because the trial court's finding of no bad faith is supported by the record and not clearly erroneous, we defer to it. See Hulsey, 243 Ariz. 367, ¶ 17.
¶25 Given the lack of bad faith, Curran needed to demonstrate that the missing recordings had "obvious exculpatory value." Turner, 251 Ariz. 217, ¶ 17. In Turner, we determined that mere speculation that destroyed evidence might have been exculpatory is insufficient to demonstrate a violation of due process. Id. And Curran has repeatedly conceded his own uncertainty as to whether the recordings would have been exculpatory.
¶26 For instance, in his motion to dismiss, Curran argued that, "[w]ithout listening to the recording [of his own interview], and hearing exactly what was said and tone of voice" in which he said "I don't have a license," "it is difficult to tell whether this was a confession or an explanation as to why [he] was actually not the one fleeing from the motor vehicle." With regard to D.M.'s statements, the motion stated only that "not being in possession of the audio recording" of her interview "limits the Defense's ability to do an effective cross examination on her, as the deputy paraphrased what she ha[d] allegedly told him, and the exact language could make a difference in the interpretation of her statements." (Emphasis added.) At the hearing on the motion, Curran again argued, "[W]ithout the extra audio recording, we don't know. We can't appropriately interpret what happened and the jury would be essentially forced to take the state'[s] interpretation that I don't have a license means, I was driving." And, on appeal-because he continues to insist on the existence of bad faith- Curran only argues that the audio recordings "potentially exonerated" him. (Emphasis added.) Elsewhere he argues that the recordings "might have tended to exonerate him" and provided support to his claim that he had not been driving the truck. (Emphasis added.) As we have explained, "[t]he mere possibility that destroyed evidence could have exculpated a defendant is insufficient to establish a due process violation, as there has been no showing of prejudice to the defendant." O'Dell, 202 Ariz. 453, ¶ 13.
¶27 Because Curran failed to establish either bad faith or the exculpatory value of the missing audio recordings, the trial court did not abuse its discretion in denying his motion to dismiss. Turner, 251 Ariz. 217, ¶ 17.
Willits Instruction
¶28 At trial, after the evidence had been presented, Curran renewed his request for a Willits instruction. He argued that his statement, "I don't have a license," was susceptible to multiple interpretations, that Deputy Waggoner had leapt to the conclusion that it was a confession, and that Curran was prejudiced because the jury did not "get to hear the other possible interpretation of that statement" due to the state's failure to preserve the audio recording. Referencing the evidence that had been presented and its complete consistency with the state's position, the trial court denied the request, explaining that Curran's statement had been "directly responsive to the question asked" by Waggoner-"Why were you running?"-and "is not subject to interpretation." The court further determined that the recording could not have "possibly exonerated the defendant under any interpretation," as required for a Willits instruction.
Curran quotes the trial court as having ruled that "the tapes would not tend to exonerate as required by Willits." But he challenged that articulation at the time, and the court corrected the ruling, applying the "possibly exonerated" standard, which Curran acknowledged. Curran also contends the court's denial of the Willits instruction was based on its finding that the state had not acted in bad faith in failing to preserve the audio recordings. This is a misreading of the transcript. The court merely summarized its prior ruling on the motion to dismiss or preclude, before turning to its discussion of the requested instruction.
¶29 On appeal, Curran contends the trial court "committed reversible error" when it denied his request for a Willits instruction. We review such a ruling for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, ¶ 7 (2014).
¶30 "To be entitled to a Willits instruction, a defendant must prove that (1) the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused, and (2) there was resulting prejudice." Id. ¶ 8 (quoting State v. Smith, 158 Ariz. 222, 227 (1988)). "A trial court does not abuse its discretion by denying a request for a Willits instruction when a defendant fails to establish that the lost evidence would have had a tendency to exonerate him." State v. Fulminante, 193 Ariz. 485, ¶ 62 (1999).
¶31 Curran reasserts on appeal the argument that his statement regarding his lack of a driver license was exculpatory and that "the tone and context of the statement were critical to his defense." But, as the trial court explained in denying the Willits instruction, Deputy Waggoner's trial testimony-which was consistent with his written police reports and his testimony at the evidentiary hearing-put Curran's statement in context. When first asked why he had fled, Curran acted as if "he didn't have any idea of what was going on" or what Waggoner was talking about. Waggoner then confronted him with additional information, before again asking why Curran had been running away. In response, Curran-who "looked down and upset with himself"-responded, "I don't have a license." After Waggoner told Curran that he would have been released with a citation if he had "just stopped" when Waggoner initially attempted to conduct the traffic stop, Curran still "just looked down." At no point did he say anything to indicate that he had not been driving or that someone else had been driving.
¶32 In this context, the trial court acted within its discretion in concluding that the recorded version of the statement could not possibly have exonerated Curran. See Glissendorf, 235 Ariz. 147, ¶ 9 ("To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful."); Fulminante, 193 Ariz. 485, ¶ 63 (when defendant's contention that destroyed evidence may have supported defense was "highly questionable at best," state's failure to preserve it did not cause significant prejudice, and no abuse of discretion in trial court's refusal to provide Willits instruction); Smith, 158 Ariz. at 227 (no abuse of discretion in trial court's denial of Willits instruction when "nothing except speculation to suggest" that lost piece of paper would have contained exculpatory information).
¶33 Curran also contends he was prejudiced because the jury was not able to hear the tone and context of his statement on the recording of his interview. He claims the absence of the recording prevented him from "provid[ing] his own version of events without opening up himself to cross-examination as to his prior felonies." But Curran chose not to testify, as was his right. We will not speculate as to what he might have said on the stand if he had chosen to testify or whether that testimony would have conformed to the unavailable audio recording. Cf. State v. Duran, 233 Ariz. 310, ¶ 14 (2013) (appellate courts "avoid speculation on whether a defendant would have testified and how the trial would have otherwise played out"). Thus, the trial court acted within its discretion in denying Curran's request for a Willits instruction. See Glissendorf, 235 Ariz. 147, ¶ 7.
Disposition
¶34 For all the foregoing reasons, we affirm Curran's conviction and sentence.