Opinion
No. 2 CA-CR 2017-0359-PR
02-15-2018
THE STATE OF ARIZONA, Respondent, v. MAURICE TYRONE HOLMES JR., Petitioner.
COUNSEL William P. Ring, Coconino County Attorney By Bryan F. Shea, Deputy County Attorney, Flagstaff Counsel for Respondent White Law Offices, PLLC, Flagstaff By Wendy F. White Counsel for Petitioner
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NOT FOR PUBLICATION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). Petition for Review from the Superior Court in Coconino County
No. CR201200914
The Honorable Jacqueline Hatch, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William P. Ring, Coconino County Attorney
By Bryan F. Shea, Deputy County Attorney, Flagstaff
Counsel for Respondent White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Maurice Holmes seeks review of the trial court's order following an evidentiary hearing denying his petition for post-conviction relief and his motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Holmes has shown no such abuse here.
Holmes states his petition arises from the "July 13, 2015 [minute entry] attached hereto." We presume Holmes intended to refer to the trial court's February 1, 2017 minute entry dismissing his Rule 32 petition. The record does not appear to contain a July 13, 2015 ruling and no such ruling is contained in the appendix to the petition for review, in addition to the fact that such a ruling would have predated the May 2016 filing of Holmes's Rule 32 petition.
In the petition and response below and on review, Holmes and the state provided minimal citations to their extensive references to the record in this case, which included an eleven-day jury trial. We admonish counsel in the future to provide specific references to relevant portions of the record. See Ariz. R. Crim. P. 32.5(a), 32.9(c)(4)(B)(iii).
¶2 Holmes was convicted after a jury trial of manslaughter in a matter arising from the death of the victim, A.J., who suffered a gunshot wound in her neck while she was alone with Holmes. The trial court sentenced him to 15.5 years in prison. We affirmed the conviction and sentence on appeal. State v. Holmes, No. 1 CA-CR 14-0443 (Ariz. App. Sept. 24, 2015) (mem. decision). In May 2016, Holmes filed a petition for post-conviction relief arguing that the attorney who represented him at trial and on appeal was ineffective and his conviction was obtained in violation of his right to present a complete defense.
Holmes incorrectly states he was sentenced to a fifteen-year prison term.
The same attorney represented Holmes at trial and on appeal.
¶3 In his Rule 32 petition, Holmes asserted trial counsel was ineffective for failing to secure the admission of a letter purportedly written by A.J., which she reportedly gave to Holmes's mother a few days before she died. Trial counsel moved to admit the letter at a pretrial hearing in December 2013, arguing it was relevant because it contained "suicidal remarks" by A.J.; at that hearing, Holmes's mother testified that A.J. had given her the sealed letter on December 4, 2012, three days before she died. Although the trial court found the mother's testimony relevant to A.J.'s state of mind, it admitted the letter only for purposes of the pretrial hearing, noting it was not the subject of the motion before the court and declining to rule on its admissibility at trial.
¶4 On the sixth day of trial, defense counsel informed the trial court Holmes had changed his mind and had decided not to testify. In an effort to corroborate the "self-inflicted gunshot wound [d]efense," about which counsel had anticipated Holmes would testify, he requested permission, inter alia, to have Holmes's mother testify to provide foundation "in time and circumstances" to admit the letter. Counsel argued the letter should be admitted because Holmes had a "fundamental right" to present a defense "regardless of what type of evidence it's based on." The court precluded the admission of the letter, finding it was hearsay and concluding that Holmes would not be able to provide sufficient foundation for its admission under the state-of-mind exception to the hearsay rule. See Ariz. R. Evid. 803(3) (excepting from rule against hearsay statements "of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health")).
¶5 In January 2017, the trial court held a Rule 32 evidentiary hearing "for the limited purpose" of determining whether the letter would have been admitted at trial had trial counsel done everything Holmes asserted he should have to secure its admission as an exception to the hearsay rule. At the hearing, Holmes presented a supplemental incident/investigation report from the Coconino County Sheriff's Office stating that, on October 24, 2013, A.J.'s parents had "agreed that the [hand]writing in the letter" belonged to A.J. Rule 32 counsel asserted trial counsel had failed to bring this document to the court's attention at trial, maintaining that the report would have provided the necessary foundation for admission of the letter.
¶6 Following arguments by both sides, the trial court ruled on the record at the conclusion of the evidentiary hearing. The court determined that even assuming A.J. had written the letter, "[t]hat's just not enough [to admit the letter pursuant to Rule 803(3)] in and of itself. Not enough. It's not even close to enough. When did she write it? What was going on when she wrote it?" The court further noted that just because Holmes's mother recalled receiving the letter three days before A.J. died, that did not establish when the undated letter was written. The court additionally stated, "I can tell you that anything that would have pointed to what the victim's state of mind was on that day would be important and the Court would look at it very carefully."
¶7 The trial court also noted that A.J. had used "drugs," a fact that could have affected whether she was "happy that day or . . . sad the next day." The court further stated it could "say . . . very confidently" that the letter did not indicate A.J. intended to commit suicide, as Holmes had argued. The court emphasized that based on "timing," the letter "just wasn't relevant [and] couldn't pass the test for being a State of Mind Exception against the hearsay rule" under Rule 803(3). In its ruling denying Holmes's motion for rehearing, the court reiterated "there was no way to tell when the letter was written" and added that the letter constituted hearsay evidence that "did not fit within any exception" to the hearsay rule. This petition for review followed.
In its response to the petition for review, the state argues the petition, filed more than thirty days after the trial court denied the motion for rehearing, is untimely. See Ariz. R. Crim. P. 32.9(c)(1)(A) (aggrieved party may petition for review no later than thirty days after entry of trial court's final decision on motion for rehearing). Based on the version of Rule 1.3(a), Ariz. R. Crim. P., in effect at the time Holmes filed his petition for review, see Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017), we disagree and conclude the petition was timely filed. See State v. Savage, 117 Ariz. 535, 536-37 (1978) (Rule 1.3's five-day extension for mailing provision applicable to former Rule 32.9(c)).
¶8 On review, Holmes asserts the issues "the trial court decided" which he "wishes to present" for review are whether he presented colorable claims of ineffective assistance of trial and appellate counsel and whether he was entitled to relief because he was denied the right to present a complete defense. However, in light of the limited scope of the evidentiary hearing, the sole purpose of which was to address the admissibility of the letter as a preliminary step to determine whether the court would further consider Holmes's ineffective assistance claims, the court never ruled expressly on the latter claims, which were rendered moot by the court's ruling. Holmes dedicates most of his petition for review to his argument regarding the admissibility of the letter under Rule 803(3), and asserts generally in his reply to the state's response that even if the letter were "technically inadmissible" under the Rules of Evidence, it nonetheless should have been admitted because the court's ruling denied him the right to present a complete defense.
¶9 In his reply to the state's response to the petition for review, Holmes urges us to apply a de novo standard of review, asserting the issue before us is whether the trial court erred as a matter of law in interpreting the Rules of Evidence. However, the issue raised is not one of interpretation of the rules of evidence, which we review de novo. See State v. Steinle, 239 Ariz. 415, ¶ 6 (2016). Rather, the question before the court was the admissibility of evidence under an exception to the rule against hearsay, which we review for an abuse of discretion. See State v. Tucker, 205 Ariz. 157, ¶ 41 (2003). Here, the court applied the law to the relevant facts, an act well within its discretion. See State v. Chappell, 225 Ariz. 229, ¶ 28 (2010) (appellate court defers to trial court's determination of relevance); cf. State v. Miller, 226 Ariz. 202, ¶ 7 (App. 2010) (trial court abuses discretion if it errs in applying the law).
¶10 Holmes acknowledges the letter constitutes hearsay—an out-of-court statement offered to "prove the truth of the matter asserted." Ariz. R. Evid. 801(c). It is "not admissible" except as provided by "applicable constitutional provision or statute" or "rules." Ariz. R. Evid. 802. Holmes argues the letter falls within the state-of-mind exception to the hearsay rule pursuant to Rule 803(3). He maintains the letter "is one big statement about [A.J.'s] mental feelings as well as her plans and her motive for getting into a fight with [Holmes] on the day of her death," and further argues it is particularly relevant in a case like this where the defense is suicide or accident. Although Holmes argues about whether A.J. wrote the letter, because the trial court assumed for purposes of its ruling that she had done so, we do not address that portion of his argument: "[S]o let's just go with that. [A.J.] wrote it."
Insofar as Holmes attempts to support his relevancy argument by arguing about the import of gunshot residue, an argument it appears he did not raise in his petition below, we do not consider it. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not consider on review claims not raised below). --------
¶11 Holmes asserts the trial court's stated concern that it did not know what A.J. meant to say in the letter was not a valid reason to keep it from the jury, and maintains her statements in the letter showed "some tendency" to establish the day she died was a day "she was fighting with [Holmes] again or . . . threatening suicide in order to keep him from leaving," or, quoting from the letter, a day she "felt like [dying]." He also contends that regardless when the letter was written, the fact that A.J. gave it to his mother three days before her death showed her then existing state of mind. He further maintains that the court's findings regarding the timing of the letter violated his right to present a complete defense. In summary, he argues "[w]hen the letter was written, the circumstances surrounding the writing, when it was given to [Holmes's mother], what [A.J.] meant in the [l]etter and the like are questions for the jury to consider and go to the weight of the evidence not its admissibility." In addition to the court's extensive findings, summarized above, the court also stated that although it could have left the interpretation of the letter to the jurors, and even assuming the foundation presented was sufficient, the "timing . . . just wasn't relevant" to "pass the test for being a State of Mind Exception against the hearsay rule."
¶12 "Admissibility under the state-of-mind exception requires that the offer be connected to the declarant's state of mind at the time the statement was made and be relevant for a purpose independent from any prohibited use of hearsay." State v. Fulminante, 193 Ariz. 485, ¶ 32 (1999), citing United States v. Brown, 490 F.2d 758 (D.C. Cir. 1973); State v. Christensen, 129 Ariz. 32, 36 (1981). "To be relevant, the declarant's statement must first be relevant to prove the state of mind," and "the state of mind itself must be relevant to an essential element of the claim or defense . . . or tend to prove relevant conduct of the declarant." Id. ¶ 33. "A victim's state of mind is relevant only when identity or the defense of accident, suicide or self-defense is raised." State v. Mauro, 159 Ariz. 186, 198 (1988), citing Christensen, 129 Ariz. at 36.
¶13 Even assuming, without deciding, that the letter was written at some point during the few months before A.J. died, as Holmes asserts, there simply was no evidence establishing that it reflected her "then-existing state of mind" sufficiently to overcome the undisputed fact that it was otherwise irrelevant hearsay. Ariz. R. Evid. 803(3). Although the letter apparently described A.J.'s "present feeling" at the time she wrote it, because it neither described a "future intent[]," nor did it "tend to prove relevant conduct of the declarant," to wit, her conduct on the day she died, the trial court correctly denied its admission under the state-of-mind exception to the hearsay rule. Fulminante, 193 Ariz. 485, ¶¶ 32, 33. Moreover, although the court noted "there is a certain time period more than likely when [A.J.] wrote" the letter, the court was not persuaded by Holmes's argument that one who suffers from depression will be depressed "all [the] time," particularly in light of the mood swings A.J. may have experienced as a result of her drug use, as the court expressly noted. In summary, the court did not abuse its discretion by concluding the letter was not sufficiently relevant to establish A.J.'s state of mind on the day she died, and by precluding its admission under Rule 803(3).
¶14 Finally, at the evidentiary hearing Holmes asked the trial court to essentially ignore Rule 803(3), which he characterized as "just a rule," in order to let him present a complete defense. In turn, the court concluded, "I don't think that we have [R]ules of [E]vidence so that sometimes certain evidence is just going to come in and we are going to ignore the [R]ules of [E]vidence." Nor has Holmes established that the court's ruling is an example of the mechanistic application of hearsay rules "to defeat the ends of justice," prohibited in Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
¶15 Accordingly, finding no abuse of discretion, we grant review but deny relief.