Opinion
No. 1 CA-CR 20-0078
02-02-2021
STATE OF ARIZONA, Appellee, v. CHRISTOPHER EDWARD KIRKENDOLL, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Casey D. Ball Counsel for Appellee Ramos Law Firm, Scottsdale By Paul A. Ramos, Zachary Ansell 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2018-123303-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Casey D. Ball
Counsel for Appellee Ramos Law Firm, Scottsdale
By Paul A. Ramos, Zachary Ansell
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge D. Steven Williams and Judge David D. Weinzweig joined. THUMMA, Judge:
¶1 Defendant Christopher Edward Kirkendoll, Jr., appeals his convictions and resulting sentences for four counts of aggravated driving while under the influence (DUI), Class 4 felonies. Because Kirkendoll has shown no error, his convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Early one morning in October 2015, a Phoenix resident was in her home and heard a "tire screech and a bang." Looking out her front window, she saw a car had crashed into a tree in her yard. She called 911 and relayed what she saw, including that someone was slumped over the steering wheel with no one else in the car. In response, the 911 operator entered the following into a Computer-Aided Dispatch (CAD) report: "Car into a palm tree. Fire advised."
¶3 A few minutes later, a second person called 911 from a different phone. The operator added in the CAD report: "the subject is out of the BEH vehicle on the ground not moving." The operator erroneously attributed the phone call to the first caller, even though the call was from a different number. First responders arrived about a minute later and began treating Kirkendoll, the only person near the car.
¶4 Phoenix Police Officer Moreth arrived about 20 minutes later and saw Kirkendoll lying on the driveway receiving treatment. Officer Moreth later testified the damage to the car would have made it "nearly impossible" to open the front passenger door. Debris covering the seats, other than the driver's seat, suggested those seats had been empty at the time of the crash. Officer Moreth approached Kirkendoll and smelled alcohol, also noting Kirkendoll had bloodshot watery eyes, slurred speech and trouble balancing. Officer Moreth could not conduct a field sobriety test because Kirkendoll said it was too difficult.
¶5 Officer Moreth arrested Kirkendoll for DUI and another officer drew his blood. After being read his rights, Kirkendoll told Officer Moreth he was coming from his brother's house and heading home. He admitted he had been operating the car, had been drinking, and felt impaired. Officers did not immediately book Kirkendoll given his injuries. The blood analysis was completed four days after the crash, revealing a blood alcohol level of .198.
¶6 Phoenix Police submitted the case to the Maricopa County Attorney's Office in late December 2016. By then, the recordings of the 911 calls were unavailable given a retention policy of a few months, but the CAD report was still available. A deputy county attorney reviewed the case in April 2017 and determined that further information was needed to clarify whether the eyewitness saw Kirkendoll driving the car. Phoenix Police then interviewed the first caller in October 2017. In April 2018, the case was resubmitted and, after a deputy county attorney determined there was probable cause, a direct complaint was filed that May.
¶7 Kirkendoll moved to dismiss, claiming the delay in filing the charges violated his due process rights. After a hearing, the court denied the motion, finding Kirkendoll failed to show the State intentionally delayed filing the charges or that he had been prejudiced as a result of the delay.
¶8 At trial, defense counsel referenced the delay in his opening statement. He told the jurors Kirkendoll was "at a terrible disadvantage" because witnesses were unavailable or could no longer remember the incident, adding "[t]his whole thing has been a nightmare." Before Kirkendoll testified, the State moved to preclude evidence about the delay. The State argued that, because the court had previously ruled there was no impermissible delay in filing the charges, such evidence would be inappropriate. Kirkendoll objected, contending it affected his credibility by being unable to tell the jury he was surprised to be charged three years after the incident.
¶9 The court allowed defense counsel to ask Kirkendoll "when [he was] charged . . . how did he [find] out . . . and was he surprised." Defense counsel was not to go into "the nightmare, the whole thing."
¶10 Kirkendoll sought to admit the CAD report. The State objected, as only the first caller had been identified and the other caller was not present to testify. The court deferred ruling on the request. Before the court ruled, defense counsel introduced, through Officer Moreth, the statement from the CAD report that the 911 caller said "somebody was out of the vehicle and was now on the ground." In the context of the questioning, the implication was that the first caller made the statements, when in fact it was the second caller. After defense counsel introduced the statement from the CAD report, the State agreed to stipulate to admit the CAD report because, "the evidence is already out, so I think in an effort to not confuse the jury that we should just admit it so they can read everything." Ultimately, when the jury could not reach unanimous verdicts, the court declared a mistrial and scheduled a new trial.
¶11 Before the second trial, the State timely moved in limine to preclude the CAD report. Noting the State had stipulated the CAD report could be admitted in the first trial, Kirkendoll argued the State was bound by the stipulation. The court disagreed and granted the State's motion, finding the CAD report was hearsay not subject to any exception to the rule against hearsay.
¶12 The State also moved to preclude evidence of the time between the incident and when Kirkendoll was charged. The State argued "the time frame it took for this case to be charged, how [Kirkendoll] found out, as well as [Kirkendoll's] personal feelings on the charges" did not make it more or less probable that he committed the offenses. Kirkendoll countered that the timeline was relevant to show the possibility of the witnesses' memories being inaccurate, and that his surprise at being charged made it more likely that he was not the driver of the car. The court granted the State's motion, noting the delay was relevant to determine whether Kirkendoll's due process rights had been violated, but it was not relevant as to whether he committed the offenses. In doing so, however, the court allowed Kirkendoll to discuss that the length of time may have caused witnesses' memories to fade. However, the court agreed that, for cross-examination purposes, Kirkendoll could not discuss the timeline.
¶13 At the second trial, Kirkendoll requested an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964) based on the failure to preserve the recordings of the 911 calls. Kirkendoll argued the calls would have supported his theory that he was not the driver by contradicting the first caller's testimony. Kirkendoll also argued he was prejudiced by the lack of preservation because he could not "meaningfully rebut" testimony by the State's witnesses. The State noted that, pursuant to longstanding policy, recordings of 911 calls typically are only retained for a few months, and that Kirkendoll's preservation request came long after that period expired. The State argued the recordings of the 911 calls would not tend to exonerate Kirkendoll, as they aligned with Officer Moreth's testimony. The State also argued a lack of prejudice, given Kirkendoll had opportunities to interview the first caller — who also was cross-examined at trial — and to locate the second caller. The court denied Kirkendoll's request for a Willits instruction, finding "it is too speculative to show that the lost evidence would have been materially and potentially useful." Further, the court noted, because the jury heard no testimony about the second caller given the court precluding admission of the CAD report, a Willits instruction was unnecessary.
¶14 After hearing evidence and argument, the jury in the second trial found Kirkendoll guilty as charged on all four counts. The jury also found aggravating circumstances timely alleged by the State — Kirkendoll's two prior felony convictions — had been proven. Kirkendoll was sentenced to the presumptive term of 10 years on each count, to run concurrently. This court has jurisdiction over Kirkendoll's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031 and 13-4033(A) (2021).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶15 Kirkendoll argues the superior court erred in denying his motion to dismiss due to pre-indictment delay, granting the State's motions in limine to preclude the CAD report and testimony about the charging timeline, and denying his requested Willits instruction.
I. The Superior Court Did Not Err in Denying Kirkendoll's Motion to Dismiss Due to Pre-Indictment Delay.
¶16 A superior court's denial of a motion to dismiss for pre-indictment delay is reviewed for an abuse of discretion. See State v. Lemming, 188 Ariz. 459, 463 (App. 1997). The primary guarantee against a stale prosecution is the statute of limitations, State v. Van Arsdale, 133 Ariz. 579, 581 (App. 1982), and due process "plays only a limited role in evaluating" pre-charge delay, State v. Broughton, 156 Ariz. 394, 397 (1998). Here, the State was well within the seven-year statute of limitations when it charged Kirkendoll. A.R.S. § 13-107(B)(1).
¶17 Even when charged within the statute of limitations, however, a defendant can assert a due process claim based on unreasonable delay in the charges being filed. U.S. Const. amend. V, XIV; Ariz. Const. Art. 2, § 4; State v. Lacy, 187 Ariz. 340, 346 (1996). A defendant claiming such a due process violation must show "the prosecution intentionally slowed proceedings to gain a tactical advantage or to harass the defendant, and that actual prejudice resulted." Lacy, 187 Ariz. at 346. Therefore, Kirkendoll must show intentional conduct by the state and actual prejudice.
A. Kirkendoll Has Not Shown the Court Erred in Finding the State Did Not Intentionally Delay Filing the Charges.
¶18 "Absent proof of an intentional delay for strategic . . . purposes," a defendant cannot sustain a claim for violation of due process for delay in filing charges. Lacy, 187 Ariz. at 346 (citing Stoner v. Graddick, 751 F.2d 1535, 1543 (11th Cir. 1985)). That a prosecution could have been filed earlier does not show intentional delay. See Lacy, 187 Ariz. at 346 (citing United States v. Lovasco, 431 U.S. 783, 792 (1977)).
¶19 Kirkendoll claims there is no reasonable explanation as to why the State waited three years before filing the charges. Kirkendoll argues the State's delay stemmed from its attempt to gain a tactical advantage relating to the "driving" issue. But Arizona courts have repeatedly held that the defendant must provide evidence of an intentional delay by the State; here, Kirkendoll has shown none. See Broughton, 156 Ariz. at 397; Lacy, 187 Ariz. at 346; State v. Torres, 116 Ariz. 377, 379 (1977). Thus, Kirkendoll has not met his burden to prove the State intentionally delayed his prosecution.
¶20 Kirkendoll argues, in the alternative, that the "intentional delay" prong of the test is too rigid and limited, advocating for the adoption of a balancing test looking at whether the length of the delay, balanced against the reasons for the delay, offends "fundamental conceptions of justice which lie at the base of our civil and political institutions." United States v. Moran, 759 F.2d 777, 782-83 (9th Cir. 1985) (citing Lovasco, 431 U.S. at 790); see also United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403-04 (4th Cir. 1985). The Arizona Supreme Court, however, has adopted the "intentional delay" inquiry, which is well-established in Arizona case law. See State v. Marks, 113 Ariz. 71, 74 (1976) (citing United States v. Marion, 404 U.S. 307 (1971)). Only the Arizona Supreme Court can decide whether to change the test. State v. Romero, 236 Ariz. 451, 454 ¶ 7 (App. 2014), vacated in part on other grounds, 239 Ariz. 6 (2016).
B. Kirkendoll Has Not Shown the Court Erred in Finding He Was Not Prejudiced by the Delay.
¶21 A defendant prosecuted "following investigative delay [is] not deprive[d] of due process, even if his defense might have been somewhat prejudiced by the lapse of time." Broughton, 156 Ariz. at 398 (citing Lovasco, 431 U.S. at 795-96). Rather, "a defendant must show that a defense witness became unavailable during the delay, that such witness would have testified on the defendant's behalf, the substance of the testimony, and that such testimony is not available through substitute sources." State v. Lemming, 188 Ariz. 459, 462 (App. 1997) (holding failure to show deceased witness' testimony was unavailable from another source was not enough to show prejudice).
¶22 Kirkendoll's concern is that the passage of time caused the witnesses' memories to fade. But "natural incidents of delay," such as faded memories, do not amount to actual prejudice. Van Arsdale, 133 Ariz. at 581 (citing Marion, 404 U.S. at 325-26). Moreover, the court instructed the jury to evaluate trial testimony using factors, including "the quality of the witness's memory." Jurors are presumed to follow instructions, Elliott v. Landon, 89 Ariz. 355, 357 (1961), and the instructions sufficiently abate any potential prejudice. Kirkendoll has offered no example of a witness who became unavailable given the delay and has failed to show how he suffered actual prejudice. Accordingly, he has not shown the court erred in denying Kirkendoll's motion to dismiss for pre-indictment delay.
II. Kirkendoll Has Not Shown the Court Erred in Resolving the State's Motion in Limine.
¶23 The court granted the State's motion in limine to preclude the CAD report created by the 911 dispatcher. That report had been admitted at the first trial by stipulation. Because a retrial following a hung jury is a continuation of a single prosecution, State v. Luzanilla, 176 Ariz. 397, 401 (App. 1993), affirmed in relevant part, vacated in part on other grounds, 179 Ariz. 391 (1994), the stipulation was still in effect going into the second trial. Accordingly, to have properly granted the motion in limine, the court must have first properly set aside the stipulation.
A. The Court Properly Set Aside the Stipulation.
¶24 A decision to set aside a stipulation is reviewed for abuse of discretion. See Rutledge v. Ariz. Bd. of Regents, 147 Ariz. 534, 550 (App. 1985). Parties "are bound by their stipulations, unless relieved therefrom by the trial court." Id. at 549. The court may relieve a party from a stipulation "upon appropriate and timely motion for good cause." Gangadean v. Flori Inv. Co., 106 Ariz. 245, 248 (1970).
¶25 During the first trial, the State stipulated to the admission of the CAD report only after the information it had sought to preclude — the second 911 caller's statements — had been introduced by defense counsel. The State stipulated to the admission of the CAD report to avoid juror confusion. Before the second trial, the State timely sought to preclude admission of the CAD report. Kirkendoll argues the stipulation should remain binding on the State, citing Pulliam v. Pulliam, 139 Ariz. 343, 345 (App. 1984). But no party in Pulliam ever sought to withdraw from the stipulation. Here, the State filed its motion in limine contrary to the stipulation, with supporting rationale, before the second trial. Moreover, the record created at the second trial was sufficiently different than at the first trial, thereby justifying a different resolution. Accordingly, Kirkendoll has not shown the court abused its discretion in setting aside the stipulation to admit the CAD report.
B. Kirkendoll Has Not Shown the Court Committed Reversible Error in Granting the Motion in Limine.
¶26 As applicable here, a ruling on a motion in limine will not be reversed absent an abuse of discretion resulting in prejudice. See Gordon v. Liguori, 182 Ariz. 232, 235 (App. 1995). The CAD report itself is classic hearsay. See Ariz. R. Evid. 801(c). Unless subject to an exception, hearsay is not admissible at trial. Ariz. R. Evid. 802. Even if there was an applicable exception here, to be admissible, hearsay typically must be based on personal knowledge. See State v. Adamson, 136 Ariz. 250, 255 (1983).
¶27 The State argued the CAD report lacked trustworthiness because it included information from an unknown caller, and the content of the report is the dispatcher's interpretation of the callers' statements. While the court did not specify the basis for its ruling, it found generally that the CAD report was hearsay not subject to any exception.
The court noted it would have found the CAD report was hearsay during the first trial, but did not have the opportunity, as the stipulation was a waiver of the hearsay objection.
¶28 On appeal, Kirkendoll cites A.R.S. § 13-3989.01 for the proposition that the CAD report was admissible without testimony from the custodian of records. That statute, however, applies to "recordings of 911 emergency service telephone calls." Id. It is unclear whether the CAD report, which is different than a 911 recording, would fall within the scope of that statute. Even if the statute did apply to the CAD report, that would resolve foundational issues but not whether the information contained on the CAD report itself was properly admissible in evidence.
¶29 The superior court may have had concerns about whether the CAD report was based on personal knowledge. See State v. Adamson, 136 Ariz. 250, 255 (1983). Similarly, the court may have had concerns that the probative value of the CAD report may have been substantially outweighed by a danger of unfair prejudice, confusion or other mischief. See Ariz. R. Evid. 403. Because the court did not provide a basis for its ruling, the record does not suggest an answer.
¶30 Even if the court improperly found the CAD report was inadmissible hearsay, Kirkendoll must show that the exclusion of the CAD report resulted in prejudice. See Gordon, 182 Ariz. at 235. Kirkendoll has shown none. The first caller was interviewed before trial and testified at trial, where she was subject to cross-examination. The exclusion of the information from the second, unknown caller was also not prejudicial. The CAD report attributed the following statement to that individual: "the subject is out of the BEH vehicle on the ground not moving." The fact that Kirkendoll was on the ground was also offered by Officer Moreth. Kirkendoll has therefore shown no prejudice by the exclusion of the CAD report.
III. Kirkendoll Has Shown No Error by the Court Prohibiting Trial Evidence About the Charging Delay.
¶31 "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. Relevant evidence is admissible unless "its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues [or] misleading the jury." Ariz. R. Evid. 402, 403. "Unfair prejudice results if the evidence has an undue tendency to suggest a decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545 (1997).
¶32 Kirkendoll argued the purpose of eliciting evidence about the delay in filing charges "would be to establish that [Kirkendoll] was surprised and shocked at his charging, and that he did not intentionally avoid prosecution during that four-year period." However, the State never presented evidence that Kirkendoll was avoiding prosecution. Kirkendoll's theory of the case is that he was not the driver and that his shock at being charged establishes that fact. Without the use of this evidence, Kirkendoll was still able to testify that he was not the driver of the car. Therefore, Kirkendoll was not prejudiced by being unable to testify that he was shocked at being charged. IV. The Superior Court Did Not Err in Denying Kirkendoll's Request for a Willits Instruction.
¶33 The superior court's denial of a Willits instruction is reviewed for an abuse of discretion. State v. Carlson, 237 Ariz. 381, 393 ¶ 38 (2015). "[I]f the state fails to preserve evidence that is potentially exonerating, the [defendant] might be entitled to an instruction informing the jury that it may draw an adverse inference from the state's action." State v. Glissendorf, 235 Ariz. 147, 149 ¶ 1 (2014) (citing Willits, 96 Ariz. at 191). A Willits instruction is appropriate if the defendant can show "(1) the state failed to preserve material and reasonably accessible evidence that could have a tendency to exonerate [him], and (2) there was resulting prejudice." Glissendorf, 235 Ariz. at 147 ¶ 8. "The defendant must 'demonstrate that the lost evidence would have been materially and potentially useful to a defense theory supported by the evidence.'" State v. Williamson, 236 Ariz. 550, 561 ¶ 36 (App. 2015) (quoting Glissendorf, 235 Ariz. at 150 ¶ 10). "'The failure to preserve potentially useful' evidence is not a denial of due process unless 'a criminal defendant can show bad faith on the part of the police." Glissendorf, 235 Ariz. at 150-51 ¶ 11 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
¶34 Here, the 911 call recording was destroyed under the standard document retention policy a few months after it was created. Kirkendoll has shown no misconduct or spoliation that lead to its destruction. Kirkendoll also has not shown that the statements from the call tended to exonerate him. Indeed, the State presented consistent testimony from Officer Moreth and the first caller that implicated Kirkendoll. Finally, Kirkendoll has not shown prejudice; he was able to cross-examine both Officer Moreth and the first caller at trial and point to the fact that their memories may have faded over time. Accordingly, Kirkendoll has not shown the superior court erred in denying his request for a Willits instruction.
CONCLUSION
¶35 For these reasons, Kirkendoll's convictions and sentences are affirmed.