Opinion
No. 1 CA-CR 15-0134 No. 1 CA-CR 15-0220 (Consolidated)
03-29-2016
STATE OF ARIZONA, Appellee, v. MICHELLE DAWN GIBSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Christopher M. DeRose Counsel for Appellee Mays Law Office PLLC, Phoenix By Wendy L. Mays Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-114296-002
The Honorable Alfred M. Fenzel, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee Mays Law Office PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:
¶1 Michelle Dawn Gibson ("Defendant") appeals from her convictions and sentences for first degree murder and conspiracy to commit first degree murder. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against Defendant. See State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶2 Defendant orchestrated the murder of her husband with her son Steven, who was also known as "Jr." and "Rosie," and Steven's sixteen-year-old friend Erik McBee. The original plan was to shoot the victim under a bridge and stage the scene to make it appear the shooting was drug-related. Defendant agreed to pay the boys a share of the victim's expected life insurance benefit; she also advised them on which of the victim's guns to use in the murder. Because McBee had never met the victim, Defendant and Steven gave him a picture of the victim so McBee could identify him.
¶3 The plan changed the evening before the murder was to occur, and, while Defendant went shopping with her daughter Alyssa to establish an alibi, McBee confronted the victim in his bedroom and beat him on the head with a baseball bat. The victim remained conscious. Steven then stabbed the victim at least three times in the chest and stomach, and the victim died shortly thereafter. McBee wrapped the body in a blanket or towel and moved the body to the garage. Before McBee and Steven could lift the body into the back of the victim's pickup truck, McBee heard sirens and fled.
¶4 Defendant returned home, discovered the body in the garage, and called 9-1-1. Shortly after police arrived, McBee returned to the scene and confessed to the murder.
¶5 The State charged Defendant, Alyssa, Steven, McBee, and a friend of McBee's with various criminal offenses related to the murder. Before trial, Defendant moved to dismiss the indictment, or alternatively to recuse the county attorney. Defendant's motion was based on her assertion that her constitutional right to counsel was violated when police searched her jail cell pursuant to a warrant and read confidential communications between Defendant and her lawyer. The court held an evidentiary hearing and denied the motion.
McBee's friend assisted McBee in carrying the victim's body downstairs.
¶6 The jury found Defendant guilty of first degree murder and conspiracy to commit first degree murder, both class one dangerous felonies. The court imposed consecutive life and natural life sentences, and Defendant timely appealed.
DISCUSSION
I. Right to Counsel
¶7 While Defendant, McBee, and Steven were incarcerated awaiting trial, police learned from Defendant's recorded telephone conversations that McBee and Steven were improperly communicating with each other. A cellmate who was housed with both McBee and Steven at various times advised police that McBee had written a letter to Steven requesting, "Hey, why don't you send somebody over to beat me up, and then I'll claim I don't remember anything." Police subsequently obtained a warrant to search Defendant's jail cell for any evidence concerning this written communication.
¶8 Detective Balson testified that he and Detective White searched Defendant's cell pursuant to the warrant and seized a two-page handwritten document containing the following statement: "Erik has threatened Jr.'s [Steven] life again. He also wrote Jr. a note that said if he blamed every thing [sic] on me he would get Jr. [Steven] out of this." The document also contains some cryptic notations regarding such things as the deadline for discovery and the filing of the State's "capital" notice, the fact that Alyssa was arrested, whether Defendant would remain on "no bond" status, the date of Defendant's arraignment, and whether Defendant had the right to testify before the grand jury.
At the time of the search, Detective Balson was working on a cooperation agreement with McBee whereby McBee would testify against Defendant at trial.
¶9 In denying Defendant's motion, the superior court found the subject document had "no bearing whatsoever on really attorney/client privilege," stating the letter contained "no defenses. . . no strategy," and concluding "[t]here's no legal advice" in the document. The court further concluded there was nothing in the document that "in any way prejudices the defendant," or "that the police officer did anything untoward in seizing that document, especially given the reason why they took that particular document."
At Defendant's request, the court also reviewed in camera "a report" that the parties "discussed in chambers." The court, noting the State had not seen the exhibit, ordered it sealed. Defendant raises no argument on appeal regarding this report.
¶10 Defendant argues the court erred in denying her motion to dismiss or recuse. She contends that the document contained privileged communications and, as a result, by seizing the document the State interfered with her attorney-client relationship. We review the court's denial of the motion for abuse of discretion. State v. Martinez, 230 Ariz. 208, 220, ¶ 64 (2012) (motion to disqualify prosecutor); State v. Pecard, 196 Ariz. 371, 376, ¶ 24 (App. 1999) (motion to dismiss).
¶11 Criminal defendants have a federal and state constitutional right to counsel. U.S. Const. amend. VI; Ariz. Const. art 2 § 24. A violation of this right may occur when the State purposefully intrudes into an attorney-client relationship and thereby directly or indirectly obtains evidence or learns of defense strategy. Weatherford v. Bursey, 429 U.S. 545, 558 (1977); Pecard, 196 Ariz. at 377, ¶ 28. "[I]f an accused is to derive the full benefits of his right to counsel, he must have the assurance of confidentiality and privacy of communication with his attorney." State v. Warner, 150 Ariz. 123, 127 (1986).
¶12 In Weatherford, the defendant asserted his right to counsel was violated when an undercover government agent met with the defendant and the defendant's lawyer and discussed trial strategy. Weatherford, 429 U.S. at 547-50. The agent not only concealed that he was acting on behalf of law enforcement, but he also misrepresented to the defendant that he would not be a witness at trial. Id. The agent did, in fact, testify at trial regarding events that occurred prior to the meetings with defendant and defendant's counsel. Id. at 549, 554-55.
¶13 The Supreme Court rejected the defendant's claim of a Sixth Amendment violation, reasoning that the agent's trial testimony was not "tainted" by the privileged communications between defendant and counsel. Id. at 554-58. Additionally, the Court determined that the agent did not purposefully intrude in the attorney-client relationship because the State did not request that he attend the meetings to learn about the defendant's trial strategy; rather, he was invited by defendant to the meetings. Id. The Court also found persuasive the fact that the undercover agent did not communicate defendant's trial strategy to the prosecution. Id.
¶14 In Warner, our supreme court held that a defendant's right to counsel was violated when a sheriff's deputy seized—and turned over to the county attorney—verbatim transcripts of the defendant's telephone conversations with counsel. Warner, 150 Ariz. at 127. The court remanded for an evidentiary hearing to determine whether "evidence introduced at trial was tainted by the invasion." Id. at 128. Specifically, the court directed the trial court to make findings regarding the following:
the motive behind the seizure of defendant's papers, the use made of them, whether the interference with the attorney relationship was deliberate, whether the state benefited in any way from the seizure, if the papers were used how any taint was purged in defendant's trial and whether defendant was, in fact, prejudiced.Id. at 129.
¶15 Here, even assuming the document contains information relating to Defendant's conversations with counsel, the record does not support Defendant's claim that Detective Balson read and seized the document to purposely intrude into Defendant's relationship with her lawyer. Instead, the purpose of the search was to gather information about McBee's collusion with Steven to alter their potential trial testimony. We conclude, therefore, that the seizure of the document did not amount to a violation of Defendant's right to counsel.
¶16 Further, even if a purposeful intrusion did occur, Defendant points to nothing in the record indicating that information gleaned from the document influenced, directly or indirectly, the evidence presented at trial. Indeed, the document itself was not admitted. Additionally, the notations in the document do not reflect any legal strategies, defenses or legal advice. Defendant, therefore, has not suffered any prejudice due to the State's seizure of the document.
At trial, Defendant discredited McBee's testimony and argued that the State failed to submit sufficient evidence of her involvement in the murder.
¶17 The record also does not support Defendant's claim that her right to counsel was violated when, during the search of her cell, Balson and White allegedly read privileged documents contained in an envelope labeled "Legal Documents." The detectives testified that they did not recall seeing or reading any documents or any correspondence between Defendant and her lawyer. The trial court found the detectives' testimony credible, notwithstanding Defendant's testimony that she found her legal papers scattered on her bunk after the search. We will not call into question the court's finding on appeal. See State v. Ossana, 199 Ariz. 459, 461, ¶ 7 (App. 2001) (noting that trial court determines the credibility of witnesses); Pecard, 196 Ariz. at 376, ¶ 24 ("This court does not retry conflicts in the evidence.").
¶18 Because no violation of Defendant's right to counsel occurred, the court did not abuse its discretion in denying Defendant's motion to dismiss or recuse. The search of her jail cell and seizure of the subject document also did not prejudice Defendant; thus, any possible error in denying the motion does not require reversal. II. Admission of Evidence
¶19 Over Defendant's objection, the State introduced evidence showing that, both before and after the murder, Defendant was a member of a dating website, and that she exchanged e-mails and texts with men she met on the site. Defendant challenges the admissibility of this evidence, arguing it is irrelevant because it contains no information regarding the plot to murder the victim, and it does not prove she had an affair. Defendant further argues the evidence is hearsay, and she was denied her right to confront the men with whom she engaged in sexually-themed electronic conversations. We reject these arguments.
¶20 Generally, relevant evidence is admissible unless proscribed by law or an evidentiary rule. Ariz. R. Evid. 402. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Ariz. R. Evid. 401. "'Hearsay' [is] a statement[] . . . offer[ed] in evidence to prove the truth of the matter asserted[,]" and generally is not admissible as evidence. Ariz. R. Evid. 801(c), 802.
¶21 "[T]he Confrontation Clause prohibits the admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." State v. King, 213 Ariz. 632, 637, ¶ 17 (App. 2006) citing Crawford v. Washington, 541 U.S. 36, 68 (2004); U.S. Const. amend. VI. "The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59, n.9. Thus, the Confrontation Clause is inapplicable to non-hearsay statements.
¶22 We generally review a trial court's ruling on the admissibility of evidence for a clear abuse of discretion. King, 213 Ariz. at 636, ¶ 15. However, we review de novo challenges to admissibility based on the Confrontation Clause. Id.
¶23 The evidence of Defendant's extramarital sexual conduct is relevant, as the State argued at trial, to show her motive in plotting to murder her husband; namely, she was dissatisfied with her marriage and wanted relationships with men other than her husband. See Ariz. R. Evid. 404(b) (other-act evidence admissible to prove motive). As indicative of Defendant's motive, the infidelity evidence was not offered to prove whether she was, in fact, having an affair or flirting with men online. The evidence, therefore, is not hearsay, and its admission did not violate Defendant's rights under the Confrontation Clause. Accordingly, the evidence was properly admitted. No abuse of discretion or legal error occurred.
CONCLUSION
¶24 For the above reasons, we affirm.