Opinion
No. 2 CA-CR 2013-0516
10-20-2014
THE STATE OF ARIZONA, Appellee, v. PAUL JOSEPH KELSO, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Richard C. Bock, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20123505001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
Richard C. Bock, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Paul Kelso was convicted of negligent homicide, and the trial court sentenced him to a presumptive prison term of 4.5 years. On appeal, Kelso argues the court made several erroneous evidentiary rulings and also erred in instructing the jury. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Kelso's conviction. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). On an evening in September 2012, Kelso and his then girlfriend, Hillary, were at a bar in Tucson. Hillary's brother, Hugh, and his long-time friend, John, were also at the bar. When Kelso and Hillary attempted to leave, a dispute arose between Kelso and John outside the bar. Kelso punched John, who fell to the ground and hit his head on the pavement. John lost consciousness and started bleeding from his ears. He died shortly thereafter as a result of blunt force trauma to his head.
For ease of reference and to protect the anonymity of the victim, J.L., Kelso's then girlfriend, H.K., and her brother, H.C., we use pseudonyms for each of them. See Ariz. R. Sup. Ct. 111(i).
¶3 Kelso was indicted for manslaughter. A jury convicted him of the lesser-included offense of negligent homicide. He was sentenced as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Evidentiary Rulings
¶4 Generally, "[t]he admission of evidence is within the trial court's discretion and will not be disturbed absent an abuse of discretion." State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004); see State v. Abdi, 226 Ariz. 361, ¶ 21, 248 P.3d 209, 214 (App. 2011). If a defendant fails to object to the admission of evidence, he or she forfeits appellate review for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). An objection to evidence on one ground does not preserve the issue on another ground. State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008). And, if the defendant does not argue on appeal that the alleged error is fundamental, and we find no error that can be so characterized, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (we will not ignore fundamental error when found).
Victim's Statement
¶5 Before trial, Kelso sought to present evidence to establish that "when [John] drinks, he becomes aggressive, quarrelsome and belligerent." As part of that evidence, Kelso wanted to present evidence that John had told Hillary, Hugh, and a third witness that "he was going to kick Kelso's ass." John apparently made this statement after Kelso commented that other women at the bar were "cute," which upset John because Kelso was dating Hillary, who John "looked at . . . as a sister." The trial court permitted "evidence of [John's] propensity for aggressive behavior after consuming alcohol" but precluded the statement made by John to the three witnesses. The court explained that its ruling was, in part, based on its concern for jury confusion because why and when John made the statement was unclear. On the first day of trial, using a transcript of a witness interview to provide context for John's statement, Kelso asked the court to reconsider its ruling. The court, however, affirmed its prior ruling.
¶6 On appeal, Kelso argues the trial court erred "by precluding evidence of uncommunicated threats against [him] by" John to the three witnesses. He contends the court's "concern of jury confusion [wa]s unsupported" because he "provided an explanation as to what prompted the victim's threats and also placed a threat within one hour of the parking lot altercation by the victim." He further maintains that evidence of the statement was admissible "for the purpose of corroborating [his] testimony that [John] at the time of the altercation was saying, 'let's fight.'"
Kelso also maintains "this error deprived [him] of his constitutional rights to present a complete defense and a fair trial under" the Fifth and Fourteenth Amendments to the United States Constitution and article II, § 4 of the Arizona Constitution. However, he did not raise the constitutional argument below and has therefore forfeited the right to seek relief for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Because he does not argue on appeal that the error is fundamental, and because we find no error that can be so characterized, the constitutional argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
¶7 Even assuming the additional evidence Kelso provided would have resolved any potential jury confusion, the trial court gave two additional reasons for precluding John's statement. First, the court found John's statement was hearsay not subject to any exception. See Ariz. R. Evid. 801 (hearsay is out-of-court statement offered to prove matter asserted); Ariz. R. Evid. 802 (hearsay inadmissible unless exception applies). Second, the court found the danger of unfair prejudice outweighed its probative value. See Ariz. R. Evid. 403 (relevant evidence may be excluded if probative value substantially outweighed by danger of unfair prejudice); see also State v. Williams, 133 Ariz. 220, 230, 650 P.2d 1202, 1212 (1982) (balancing under Rule 403 within trial court's sound discretion). Kelso does not address these additional bases for the court's ruling on appeal and has therefore waived any alleged error as to them. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (opening brief shall contain argument and support); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶8 Kelso argues "the [victim's] uncommunicated threats should have been admitted under Arizona Rules of Evidence, Rule 404(b) for the purpose of corroborating [Kelso's] testimony that the victim at the time of the altercation was saying, 'let's fight.'" Rule 404(b) provides that other-act evidence "is not admissible to prove the character of a person in order to show action in conformity therewith" but may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Kelso does not explain how Rule 404(b) applies to the victim's "uncommunicated threat." See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at 838. And even assuming the statement was admissible under that rule, other evidence presented at trial corroborated Kelso's testimony. As the state points out, Hillary testified that John "got . . . into Kelso's face" and said, "Let's fight," which similarly corroborated his testimony. "[T]rial courts have discretion to exclude otherwise admissible evidence 'if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.'" State v. Payne, 233 Ariz. 484, ¶ 52, 314 P.3d 1239, 1258 (2013), quoting Ariz. R. Evid. 403; see also State v. Carlos, 199 Ariz. 273, ¶ 24, 17 P.3d 118, 124 (App. 2001) (preclusion of cumulative testimony harmless).
¶9 Kelso nevertheless maintains the state "opened the door to admit the uncommunicated threats by attacking [his] credibility" and in its "portrayal of" John. In support of his argument, Kelso points to the following portion of Hugh's testimony on direct examination, which occurred after discussing Kelso's comment about the other women at the bar:
The state asserts that this argument was not raised below, but, after Hugh's direct examination, Kelso asked the trial court if the state had "open[ed] the door" to allow him "to ask about other things that were not communicated to . . . Kelso." We therefore address it.
Q: Okay. Now, at any point in that, I guess, when people were in the bar that night before people go outside, was
there any confrontation between [Kelso] and [John]?
A: No.
Q: Did [John] communicate that he was upset about that comment to . . . Kelso?
A: No.
¶10 "[W]here one party injects improper or irrelevant evidence or argument, the 'door is open,' and the other party may have a right to retaliate by responding with comments or evidence on the same subject." Pool v. Superior Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984). "The rule is most often applied to situations where evidence adduced or comments made by one party make otherwise irrelevant evidence highly relevant or require some response or rebuttal." Id.; see also State v. Leyvas, 221 Ariz. 181, ¶ 25, 211 P.3d 1165, 1173 (App. 2009). We disagree with Kelso that the state's line of questioning opened the door to John's statement. The state specifically asked Hugh about John and Kelso's interaction after Kelso's comment about the other women. Kelso, however, sought to elicit testimony about a statement made by John to third parties. This is beyond the scope of the state's questioning and is more than mere rebuttal.
Prior Acts
¶11 Before trial, Kelso gave notice of his intent to introduce evidence of his good character. The trial court ruled that, if he presented character evidence, the state could introduce evidence of the nature of his prior felony conviction for attempted kidnapping and of his prior bar fights. Kelso chose not to present evidence of his good character at trial.
¶12 On appeal, Kelso maintains the trial court's ruling allowing the state to present rebuttal evidence "dissuaded" him from presenting evidence of his good character and he was thus denied the opportunity to present a complete defense. As a preliminary matter, we note that Kelso has not meaningfully addressed this issue on appeal. Although he provided the relevant factual background and cited Crane v. Kentucky, 476 U.S. 683 (1986), his application of the law to this case is lacking. See Ariz. R. Crim. P. 31.13(c)(1)(vi); see also State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("[O]pening briefs must present significant arguments."); State v. Oakley, 180 Ariz. 34, 36 n.1, 881 P.2d 366, 368 n.1 (App. 1994) (issue raised in reply brief too late). We therefore could deem the argument waived on this basis. See Bolton, 182 Ariz. at 298, 896 P.2d at 838.
¶13 Moreover, although he disagreed with the trial court's ruling below, Kelso never argued that it denied him the opportunity to present a complete defense. Thus, the court never had an opportunity to correct the alleged error. See Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d at 683. And "an objection on one ground does not preserve the issue on another ground." Id. We therefore review for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. But, because Kelso does not argue the error is fundamental, and because we find no such error, the argument is waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
¶14 Even assuming the argument has not been waived, Kelso is precluded from raising it on appeal. Where a defendant does not call character witnesses at trial, he does not preserve for appellate review a claim that the trial court erred by ruling the state could cross-examine character witnesses on the defendant's prior felony convictions. See State v. Romar, 221 Ariz. 342, ¶¶ 5-6, 212 P.3d 34, 37 (App. 2009). By failing to present his good-character evidence at trial, Kelso is "forcing us to speculate as to what precisely the witnesses would have testified had they in fact appeared, what the prosecutor would have ultimately asked, and how the judge would have finally ruled." Id. ¶ 5. We will not do so. Accordingly, Kelso failed to preserve this claim of error. See id. ¶ 9.
Prior Inconsistent Statements
¶15 At trial, Hugh testified he did not see Kelso punch John and had heard only one punch. When confronted with a transcript of his police interview from the night of the incident in which he said Kelso had punched John twice and described how the punches had occurred, Hugh maintained that the transcript was "in error." The state sought to impeach Hugh's trial testimony with a recording of his police interview by playing it during the testimony of the detective who conducted the interview. The trial court ruled that the recording could not be played for the jury but that the detective could read the relevant portions of the transcript into the record.
¶16 On appeal, Kelso asserts the trial court erred by permitting the state to use Hugh's prior inconsistent statements from the interview for substantive purposes to establish guilt, rather than impeachment, thus creating unfair prejudice. Again, however, Kelso failed to raise this particular argument below. See Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d at 683. Instead, he objected to the playing of the recording and to a "blanket reading" of the transcript. Because he does not argue that fundamental error occurred, and we find none, the argument is waived. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607; Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
Jury Instructions
¶17 The decision to deny a requested jury instruction is within a trial court's broad discretion, and we will not reverse that decision absent a clear abuse of discretion. State v. Larin, 233 Ariz. 202, ¶ 6, 310 P.3d 990, 994 (App. 2013); State v. Robles, 213 Ariz. 268, ¶ 4, 141 P.3d 748, 750 (App. 2006). "But we review de novo whether jury instructions accurately state the law." State v. Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d 786, 787 (App. 2008).
Lesser-Included Offense of Assault
¶18 Kelso argues the trial court erred by failing to instruct the jury on the lesser-included offense of assault. "A trial court must give a lesser-included offense instruction if an offense is, in fact, a lesser-included offense of another, and the evidence supports giving the lesser-included instruction." State v. Brown, 204 Ariz. 405, ¶ 7, 64 P.3d 847, 850 (App. 2003); see State v. Kamai, 184 Ariz. 620, 622, 911 P.2d 626, 628 (App. 1995). In determining whether the evidence supports a lesser-included instruction, "'the test is whether the jury could rationally fail to find the distinguishing element of the greater offense.'" State v. Sprang, 227 Ariz. 10, ¶ 7, 251 P.3d 389, 391 (App. 2011), quoting State v. Jackson, 186 Ariz. 20, 27, 918 P.2d 1038, 1045 (1996). The distinguishing element between manslaughter and assault is the death of the victim. Compare A.R.S. § 13-1103(A)(1) (defining manslaughter as recklessly causing death of another), with A.R.S. § 13-1203(A)(1) (defining assault as recklessly causing physical injury to another).
¶19 Kelso asserts he punched John "once, perhaps twice," resulting in a black eye, but he "took no action which could be considered as an attempt to seriously injure [him]." He suggests he did not expect John to fall backwards and strike his head on the pavement, which ultimately resulted in the brain injury that caused his death. Accordingly, he maintains the trial court should have given an instruction for the lesser-included offense of assault.
¶20 Our case law is clear: "Where the victim of an assault dies as a result of that assault, the trial court is not required to instruct on the lesser included offense of . . . assault." State v. Melendez, 121 Ariz. 1, 5, 588 P.2d 294, 298 (1978); see also State v. Contreras, 107 Ariz. 68, 70, 481 P.2d 861, 863 (1971) (trial court properly instructed jury only as to various degrees of criminal homicide, not assault, where facts unequivocally showed victim died as result of assault). In that situation, an assault instruction is proper only where there is reasonable support in the record showing that the defendant's conduct was not the proximate cause of the victim's death. Melendez, 121 Ariz. at 5, 588 P.2d at 298; State v. Sanchez, 165 Ariz. 164, 169-70, 797 P.2d 703, 708-09 (App. 1990); see also State v. Marty, 166 Ariz. 233, 237, 801 P.2d 468, 472 (App. 1990) (proximate cause means difference between result intended by defendant and harm suffered by victim not so extraordinary that it would be unfair to hold defendant responsible).
¶21 Here, the record does not reasonably support the conclusion that Kelso's conduct was not the proximate cause of John's death. Kelso punched John, who fell to the ground and hit his head on the pavement. John lost consciousness, began bleeding from his ears, and died shortly thereafter as a result of blunt force head trauma. Kelso admits this series of events.
¶22 Kelso, however, seems to suggest his conduct was not the proximate cause because he could not have foreseen John's death resulting from a punch. But such a distinction does not support an instruction for the lesser-included offense of assault. See Melendez, 121 Ariz. at 5, 588 P.2d at 298; Sprang, 227 Ariz. 10, ¶ 7, 251 P.3d at 391. And, the trial court's instruction for the lesser-included offense of negligent homicide accounted for this difference. "Manslaughter requires that a person be aware of a substantial and unjustifiable risk that his conduct will cause another's death and consciously disregard the risk. Negligent homicide is established where a person fails to perceive the substantial and unjustifiable risk." State v. Nieto, 186 Ariz. 449, 456, 924 P.2d 453, 460 (App. 1996) (citation omitted). Accordingly, the court did not abuse its discretion by denying Kelso's requested instruction for the lesser-included offense of assault. See Larin, 233 Ariz. 202, ¶ 6, 310 P.3d at 994; Robles, 213 Ariz. 268, ¶ 4, 141 P.3d at 750.
Lesser-Included Offense of Negligent Homicide
¶23 Kelso lastly argues the trial court's instruction on the lesser-included offense of negligent homicide "improperly mention[ed] the subject of punishment." The instruction provided:
Kelso concludes this alleged error violates his due process rights under the Fifth and Fourth Amendments to the United States Constitution and article II, § 4 of the Arizona Constitution. However, he failed to raise this argument below, see Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607, and does not contend on appeal that the error is fundamental. We therefore deem it waived. See Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140.
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The crime of manslaughter includes the less serious crime of negligent homicide. You may find the defendant guilty of one, but not both, of the two crimes. You may also find the defendant not guilty of both crimes.
If you find the defendant not guilty of the more serious offense or if you cannot agree after reasonable efforts whether or not the defendant is guilty of the more serious offense, then you may consider the less serious offense.
¶24 Kelso objected to the instruction below, arguing that the Recommended Arizona Jury Instructions (RAJI) do not use the word "serious" in describing lesser-included offenses and that "telling the jury something is less serious" could give "the impression that the punishment is less serious." The trial court overruled the objection, explaining that "[l]esser means something that's less than the greater, which means it's less serious."
¶25 Kelso reasserts his arguments on appeal. He maintains the trial court "added a nonexistent 'seriousness' standard to the established recommended jury instructions" and effectively "told the jury to choose which offense to convict on based on . . . what the level of punishment might be." We disagree.
¶26 As the state points out, the trial court's instruction for the lesser-included offense of negligent homicide did not explicitly refer to punishment. And, as the court noted, the term "lesser-included," as used in the RAJI, see State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 22 (2013), necessarily suggests the offense is "less serious," see Black's Law Dictionary 1187 (9th ed. 2009) (defining "lesser included offense" as "[a] crime that is composed of some, but not all, of the elements of a more serious crime and that is necessarily committed in carrying out the greater crime"). The court's instructions thus accurately stated the law. See Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d at 787.
¶27 Even assuming the trial court's instruction improperly referred to punishment, any error was harmless. See State v. Johnson, 205 Ariz. 413, ¶ 27, 72 P.3d 343, 351 (App. 2003) ("When an error has been made in the jury instructions, we consider whether the error was harmless."). "Jury instructions must be viewed in their entirety to determine whether they adequately reflect the law." State v. Zaragoza, 221 Ariz. 49, ¶ 15, 209 P.3d 629, 633 (2009). Here, as Kelso points out, the trial court also instructed the jury: "In arriving at a verdict, the subject of penalty or punishment is not to be discussed or considered by you, as that matter is one that lies solely with the court and must not in any way affect your decision as to the guilt or innocence of the defendant." Thus, the instructions as a whole effectively communicated to the jurors that they were not to consider punishment in their determination of guilt. See State v. Velazquez, 216 Ariz. 300, ¶ 50, 166 P.3d 91, 103 (2007) (we presume jurors follow instructions). Accordingly, we are satisfied beyond a reasonable doubt that any error in the negligent-homicide instruction did not affect the jury's verdict. See Johnson, 205 Ariz. 413, ¶ 27, 72 P.3d at 351.
Disposition
¶28 For the reasons stated above, we affirm Kelso's conviction and sentence.