Opinion
No. 2 CA-CR 2015-0429
05-08-2017
THE STATE OF ARIZONA, Appellee, v. DOMINIQUE DEWAYNE GRAYER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Michael Valenzuela, Assistant Attorney General, Phoenix Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Christopher Stavris 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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201300646
The Honorable Joseph R. Georgini, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Michael Valenzuela, Assistant Attorney General, Phoenix
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred. HOWARD, Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Following a jury trial, Dominique Grayer was convicted of negligent homicide and aggravated assault. On appeal, Grayer argues the trial court impermissibly limited his cross-examination of a witness, erred by denying his motion for a new trial based on mutually exclusive jury verdicts, and erred by considering an element of the offense as an aggravator in determining his sentences. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007). In April 2013, Grayer, K.M., and T.L. attended a party at a coworker's apartment, where they drank beer and smoked marijuana. Later that night, the coworker drove them to a "desert party" in Grayer's car and agreed to be the "designated driver" for the night. Shortly after arriving, however, the coworker left but Grayer, K.M., and T.L. stayed at the party.
¶3 Grayer continued drinking either "beer or malt liquor" and K.M. and T.L. took "mollies," which are pills containing "a highly concentrated form of ecstasy." At some point, K.M. took T.L. back to Grayer's car and laid him in the back seat. K.M. then got in the passenger seat, and Grayer got in the driver's seat. The last thing K.M. remembers from that night was asking Grayer to wait to drive until he was "sober enough."
¶4 Early in the morning, Grayer was driving down a highway when he steered the car right then left, causing the car to begin rotating counterclockwise. The car slid into a guardrail along the right side of the highway, deflected off that guardrail, spun back across the highway, and entered the depressed median on the left side of the highway. The car rolled over once and came to a stop on its wheels in the median.
¶5 During the collision, T.L. was ejected from the car and died as a result of the injuries from the resulting impact. K.M. suffered various injuries, including a broken hand, wrist, jaw, and eye socket.
¶6 When officers interviewed Grayer later that morning, he admitted he had smoked marijuana and drank alcohol the previous day. The officers observed he had a "moderate odor" of alcohol and various symptoms of intoxication, such as droopy eyelids, bloodshot eyes, and slurred speech. They administered a field sobriety test, which Grayer failed. Using retrograde extrapolation, a forensic scientist determined Grayer's blood alcohol concentration at the time of the accident had been between .084 and .117. Grayer's blood also showed the presence of THC and carboxy-THC—both components of marijuana—and alprazolam—commonly known as Xanax.
Tetrahydrocannabinol.
¶7 A grand jury indicted Grayer on charges of second-degree murder and aggravated assault. Following a mistrial on both counts, the state amended the indictment and charged Grayer with manslaughter and aggravated assault. The jury subsequently found Grayer guilty of negligent homicide and aggravated assault. The trial court sentenced Grayer to aggravated, consecutive prison terms totaling sixteen years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.
Prior Conviction Sanitization
¶8 Grayer first argues the trial court violated his Confrontation Clause rights by restricting his cross-examination of K.M. by precluding the nature of K.M.'s prior conviction used for impeachment purposes. See U.S. Const. amend. VI. We review a court's order restricting the scope of cross-examination for an abuse of discretion "and we will not disturb the court's ruling absent a clear showing of prejudice." State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996).
¶9 Rule 609(a)(1), Ariz. R. Evid., allows the admission of a witness's prior conviction for the purposes of impeachment if its probative value outweighs its prejudicial effect. See Ariz. R. Evid. 403; see also State v. Beasley, 205 Ariz. 334, ¶ 19, 70 P.3d 463, 467 (App. 2003). "[P]otential prejudice . . . may be mitigated by prohibiting the prosecution from revealing the nature of the prior convictions," State v. White, 160 Ariz. 24, 31, 770 P.2d 328, 335 (1989), otherwise known as "sanitization" of the conviction, State v. Montano, 204 Ariz. 413, ¶ 66, 65 P.3d 61, 74 (2003).
¶10 The Sixth Amendment right to confront witnesses includes the right to impeach witnesses with evidence of a prior criminal conviction to give jurors a basis to infer that the witness would be less likely to be truthful when testifying. Davis v. Alaska, 415 U.S. 308, 316 (1974); see also U.S. Const. amend. VI. "[W]hether to admit evidence of a prior conviction for impeachment purposes is left to the sound discretion of the trial judge." State v. Noble, 126 Ariz. 41, 43, 612 P.2d 497, 499 (1980). The trial court "retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Carreon, 210 Ariz. 54, ¶ 36, 107 P.3d 900, 909 (2005), quoting State v. Cañez, 202 Ariz. 133, ¶ 62, 42 P.3d 564, 584 (2002) (omission in Carreon).
¶11 Before trial, the state requested that the trial court limit the evidence related to K.M.'s prior conviction for aggravated driving under the influence (DUI) to "the existence of prior felony conviction, the date of the offense, and the date and court of conviction." It argued the probative value of the nature of the offense was outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Grayer, however, argued precluding the nature of the offense violated his Confrontation Clause rights because the nature of the offense was highly probative of K.M.'s "motive and opportunity to lie about what happened that night." He contended that because K.M. was not the defendant, any potential prejudice was minimal. The court ruled that K.M.'s probation status at the time of the incident was "fair game," as were any questions related to his conviction status, but precluded any references to the nature of the conviction.
¶12 We cannot say the trial court abused its broad discretion in sanitizing K.M.'s prior conviction. See Carreon, 210 Ariz. 54, ¶ 36, 107 P.3d at 909. A prior felony conviction is admissible because the commission of such an offense indicates "such a lack of scruples as to show a willingness to give false testimony." State v. Williams, 144 Ariz. 433, 438, 698 P.2d 678, 683 (1985), quoting State v. Malloy, 131 Ariz. 125, 127, 639 P.2d 315, 317 (1981). During cross-examination, Grayer elicited testimony from K.M. that he had pled guilty to a class four felony in 2011, had been placed on probation for three years and was on probation at the time of the collision, his license had been suspended at the time of the collision as a result of that conviction, and driving under the influence would have been a violation of his conditions of probation and would have resulted in his return to custody. Consequently, precluding the nature of the prior conviction did not hinder Grayer's attempts to discredit K.M.'s credibility based on the fact he had previously been convicted of a felony. See Williams, 144 Ariz. at 438, 698 P.2d at 683.
¶13 Grayer argues, however, the trial court erred in balancing the probative value and danger of unfair prejudice pursuant to Rule 403. But Grayer has not articulated what additional probative value the nature of K.M.'s DUI conviction would have in rebutting the credibility of K.M.'s statement that Grayer, rather than he, was the driver of the car. Williams, 144 Ariz. at 438, 698 P.2d at 683. Further, the court could reasonably have found that the admission risked confusing the issues or misleading the jury. Ariz. R. Evid. 403. Indeed, as the court pointed out, the nature of K.M.'s conviction risked the jury considering it as improper propensity evidence. Ariz. R. Evid. 404(a). Consequently, we cannot say the court abused its broad discretion in determining the probative value of the nature of K.M.'s prior conviction was outweighed by one of the dangers listed in Rule 403.
¶14 To the extent Grayer also relies on State v. Conroy, 131 Ariz. 528, 642 P.2d 873 (App. 1982), for the proposition that any sanitization of a prior conviction necessarily violates a defendant's right to confront the witnesses against him, we reject any such claim. In Conroy, the trial court had precluded entirely the admission of the witness's prior felony conviction. Id. at 529, 642 P.2d at 874. This court found that such preclusion violated the defendant's "right to discredit or impeach by showing the witness has a prior criminal conviction." Id. at 530, 642 P.2d at 875. The trial court here allowed Grayer to impeach K.M. with evidence of his prior felony conviction, and only precluded the nature of the offense. Conroy does not support his position.
Grayer additionally argues the preclusion prohibited him from presenting a complete defense and arguing that K.M., and not Grayer, had been driving the car when the incident occurred. Below, Grayer focused solely on whether the preclusion violated his Confrontation Clause rights. He has therefore forfeited this argument for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground."). Because he does not argue any error was fundamental, and we see none that could be so characterized, he has waived the argument on appeal. State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it). --------
Mutually Exclusive Verdicts
¶15 Grayer next argues the trial court erred by denying his motion for a new trial based on the jury's verdicts being contrary to law. He argues the verdicts for negligent homicide and aggravated assault are mutually exclusive because each offense requires a different mens rea. We review the denial of a motion for a new trial for an abuse of discretion. State v. West, 238 Ariz. 482, ¶ 12, 362 P.3d 1049, 1055 (App. 2015). An error of law is considered an abuse of discretion. State v. Hansen, 237 Ariz. 61, ¶ 15, 345 P.3d 116, 122 (App. 2015).
¶16 Rule 24.1, Ariz. R. Crim. P., allows a trial court to grant a new trial if "[t]he verdict[s are] contrary to law or to the weight of evidence." Both the Arizona Supreme Court and the United States Supreme Court have held that consistency among the verdicts on various counts of an indictment is not required. Gusler v. Wilkinson ex rel. County of Maricopa, 199 Ariz. 391, ¶ 25, 18 P.3d 702, 707 (2001) ("Well-settled Arizona law permits inconsistent verdicts."); accord United States v. Powell, 469 U.S. 57, 62-63, 65 (1984). The rationale behind this rule is that an inconsistent verdict could be the result of "a favorable error or the result of jury nullification, compromise, or lenity." Hansen, 237 Ariz. 61, ¶ 20, 345 P.3d at 123. Because courts do not "speculate about the reason for the inconsistency or inquire into the jury's deliberations," such verdicts are generally not subject to judicial review. Id. ¶¶ 20-21.
¶17 In finding that inconsistent verdicts were not subject to judicial review, the Court in Powell stated, in a footnote, that nothing in that decision was intended to decide the "proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other." 469 U.S. at 69, n.8; see also Hansen, 237 Ariz. 61, n.6, 345 P.3d at 123 n.6. These so-called "mutually exclusive verdicts" occur when "a conviction as to one of the crimes must negate an element of the other." United States v. Maury, 695 F.3d 227, 263, 266 (3rd Cir. 2012).
¶18 Although no Arizona court has addressed the issue, we have noted "the problem of mutually exclusive verdicts" is "akin" to "an ambiguous verdict finding the defendant guilty and not guilty of the same offense, or guilty of the greater offense but not guilty of the lesser included offense." Hansen, 237 Ariz. 61, ¶¶ 23-24 & n.6, 345 P.3d at 123-24 & n.6. "[I]n both scenarios, the verdicts negate one another and the defendant receives no benefit." Id. n.6. In Hansen, for example, the jury found the defendant guilty of aggravated assault but not guilty of the lesser-included offense of simple assault. Id. ¶ 1. Under those circumstances, the verdicts could not "be given simultaneous effect." Id. ¶ 21.
¶19 Grayer's argument rests on the differing culpable mental states for negligent homicide and aggravated assault, each of which requires the defendant to undertake "a substantial and unjustifiable risk that the result will occur or that the circumstance exists." A.R.S. § 13-105(10)(c), (d). Aggravated assault based on recklessness requires the jury to find the defendant was "aware of and consciously disregard[ed]" that risk, while negligent homicide only requires that the defendant "fail[ed] to perceive" the risk. A.R.S. §§ 13-105(10)(c), (d), 13-1102(A), 13-1203(A)(1), 13-1204(A)(2).
¶20 Grayer argues that each charge "stem[s] from the identical act of . . . operating the motor vehicle." He contends the verdicts "defy logic" because it is "a legal impossibility" for him to have driven the car both "recklessly" and "negligently" simultaneously.
¶21 We need not decide whether mutually exclusive verdicts are prohibited in Arizona. The jury was not charged with returning a verdict as to whether Grayer's driving constituted either reckless or criminally negligent behavior. Instead, it had to determine whether, as to the aggravated assault count, Grayer was "aware of and consciously disregard[ed]" the risk that his conduct would lead to K.M. becoming physically injured while using "a deadly weapon or dangerous instrument." §§ 13-105(10)(c), 13-1203(A)(1), 13-1204(A)(2). As to the negligent homicide count, the jury had to determine whether Grayer "fail[ed] to perceive" the risk that his conduct would cause T.L.'s death. §§ 13-105(10)(d), 13-1102(A). Finding that Grayer failed to perceive the risk his conduct would lead to one of his passenger's death does not negate the finding that he was aware of and consciously disregarded the risk his conduct would lead to one of the passenger's becoming physically injured. The verdicts are not mutually exclusive, and the trial court did not err by denying Grayer's motion for a new trial. See West, 238 Ariz. 482, ¶ 12, 362 P.3d at 1055.
Sentence Enhancement
¶22 Grayer lastly argues the trial court erred by enhancing his sentence based on the recklessness of his conduct because it is an element of aggravated assault. Although we review a sentence imposed by the court for an abuse of discretion, we review de novo whether a particular aggravating factor is an element of the offense and whether the court can use such a factor in aggravation. State v. Tschilar, 200 Ariz. 427, ¶ 32, 27 P.3d 331, 339 (App. 2001). Grayer failed to object to this below, and we therefore review only for fundamental, prejudicial error. State v. Munninger, 213 Ariz. 393, ¶ 10, 142 P.3d 701, 704 (App. 2006). An illegal sentence, however, constitutes fundamental error. State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002).
¶23 "An element of an offense may be used as an aggravating factor if the legislature has specified that it may be so used." Tschilar, 200 Ariz. 427, ¶ 33, 27 P.3d at 339. Section 13-701(D), A.R.S., states that a trial court may consider twenty-four specific "aggravating circumstances" when determining a defendant's sentence. Section 13-701(D)(25)'s catch-all provision additionally allows the court to consider "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." If an element of the offense has not been specifically identified in § 13-701(D), it may not be used to aggravate a sentence under the catch-all provision unless the degree of the misconduct exceeds that necessary to establish the element of the underlying crime. State v. Germain, 150 Ariz. 287, 290, 723 P.2d 105, 108 (App. 1986); see also State v. Alvarez, 205 Ariz. 110, ¶ 11, 67 P.3d 706, 710 (App. 2003).
¶24 During sentencing, the trial court stated it was adopting "[t]he degree of recklessness" as an aggravating circumstance. It explained it was doing so because Grayer's "judgment was so impaired because of the level of intoxication because of the stuff [Grayer] took from the time [he] got to [the coworker's] house all the way through to the time the accident occurred."
¶25 K.M. testified Grayer began drinking beer and smoking marijuana at their coworker's apartment and continued, at a minimum, drinking beer after reaching the desert party and after learning their "designated driver" would no longer be able to drive them home. At the time of the incident, Grayer's blood-alcohol concentration was determined to be between .084 and .117, and he was also under the influence of marijuana and alprazolam. The trial court therefore acted within its discretion because Grayer's "conduct was reckless to a degree greater than what was necessary to establish an element of the crime of" negligent homicide. Germain, 150 Ariz. at 290-91, 723 P.2d at 108-09.
¶26 Grayer also appears to argue the trial court improperly relied on the degree of recklessness to aggravate his sentence on the negligent homicide count. But the court is not limited to the culpable mental state of the underlying offense when considering aggravating factors. State v. Harvey, 193 Ariz. 472, ¶¶ 19-21, 974 P.2d 472, 477 (App. 1998). Grayer's degree of recklessness was an appropriate consideration. Id. ¶ 21.
Disposition
¶27 For the foregoing reason, we affirm Grayer's convictions and sentences.