Opinion
No. 1 CA-CR 11-0570
04-16-2013
STATE OF ARIZONA, Appellee, v. EMILY BROOKS LITTLEFIELD, Appellant.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Myles A. Braccio, Assistant Attorney General Attorneys for Appellee Debus, Kazan & Westerhausen, Ltd. by Tracey Westerhausen Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-136708-001
The Honorable Lisa M. Roberts, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
and Myles A. Braccio, Assistant Attorney General
Attorneys for Appellee
Phoenix Debus, Kazan & Westerhausen, Ltd.
by Tracey Westerhausen
Attorneys for Appellant
Phoenix SWANN, Judge ¶1 Defendant Emily Brooks Littlefield appeals her conviction and two-year probation term for one count of resisting arrest. Littlefield contends that the trial court erred by allowing testimony during trial that violated Ariz. R. Evid. 704 and by allowing irrelevant testimony that impermissibly provided an opinion of Littlefield's credibility. For the following reasons, we affirm.
On February 21, 2012, Littlefield's original court-appointed appellate attorney filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), and later filed a motion to allow Littlefield to file a supplemental brief in propria persona. Littlefield's initial counsel then requested that the opening brief complying with Anders be withdrawn because Littlefield had hired private counsel. Because Littlefield filed a substitute opening brief on October 10, 2012, the court struck the Anders brief.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the conviction." State v. Musgrove, 223 Ariz. 164, 166, ¶ 2, 221 P.3d 43, 45 (App. 2009) (citation omitted).
¶2 On the evening of July 13, 2010, three Scottsdale police officers (the "Officers") responded to a dispatch call regarding an incident at Littlefield's home in Scottsdale. Upon arriving at the home, they attempted to make contact with Littlefield, but "[s]he kept yelling at [the Officers] screaming profanities, [was] uncooperative [when communicating] through the door," and would not speak to the Officers. At the scene, one of the Officers informed Littlefield that "law enforcement charges were going to be filed." ¶3 Littlefield's neighbor ("Neighbor") had made the initial call to police reporting an incident with Littlefield, and the police then went to Neighbor's house to obtain a witness statement. While the police were speaking to Neighbor, Neighbor received a phone call from Littlefield, and one of the Officers picked up the phone. Because Littlefield was uncooperative during the call, the Officer hung up the phone. Littlefield then repeatedly called the Officer. Finally, the Officer again picked up the phone, and Littlefield agreed to come outside to speak with him. ¶4 The Officers proceeded to approach Littlefield's home, and Littlefield stated that she would only talk to the Officer with whom she spoke on the phone. That Officer approached her home by himself, but Littlefield initially refused to come outside to speak with him. Littlefield eventually opened her door, and the Officer entered the home. Because he had probable cause to arrest Littlefield, the Officer "grabbed her to pull her outside to arrest her." Littlefield responded by fighting against the arrest. The other two Officers came to try to help, and they were ultimately able to handcuff Littlefield, get her on her feet, and begin to escort her to one of the Officers' vehicles. As the police were escorting Littlefield to the police vehicle, she asked "Why? What was going on?" and "Why this was happening . . .?" When they were approximately halfway to the vehicle, Littlefield attempted to kick one of the Officers, which resulted in her falling forward and pulling the Officer on top of her. While she was on the ground, Littlefield continued "flailing her head [and] wiggling." The Officers lifted Littlefield to her feet and put a restraint around her ankles. She then refused to walk to the car, but the Officers were eventually able to escort Littlefield the remaining distance to the police vehicle. ¶5 The state filed a complaint charging Littlefield with one count of resisting arrest, a class 6 felony. Littlefield pled not guilty. The case was tried over four days. At trial, one of the arresting Officers testified and the following exchange took place:
[State's Counsel]: I'm not asking you to speculate about what [Littlefield's] knowledge was, what I'm asking is, is there anything you saw that led you to believe she knew that you intended to arrest her?¶6 The jury found Littlefield guilty. The superior court suspended the imposition of sentence and placed her on two years of probation. Littlefield timely appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A), 13-4031 and 13-4033.
[Defense Counsel]: Objection, calls for speculation.
The Court: Overruled.
[Witness]: Yes, that's why I believe she wouldn't come outside the door and why she wouldn't answer for us.
During trial, the parties stipulated that there was probable cause to arrest Littlefield and did not provide details regarding the reason for Littlefield's arrest.
The arresting Officer never told Littlefield that she was under arrest.
DISCUSSION
¶7 We will not disturb a trial judge's rulings on evidentiary issues absent an abuse of discretion and resulting prejudice. State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 (App. 1994).
I. THE OFFICER'S TESTIMONY DID NOT VIOLATE THE VERSION OF ARIZ. R. EVID. 704 THAT WAS IN EFFECT AT THE TIME OF THE ARREST.
¶8 Littlefield contends that that the Officer's testimony regarding her alleged knowledge of her arrest violated Ariz. R. Evid. 704 ("Rule 704") because the Officer testified as to "whether the defendant did or did not have a mental state or condition that constitutes an element of the crime." We disagree. ¶9 Rule 704 provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue," but "[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." (Emphasis added.) Here, the testifying Officer was not an expert witness. He was a fact witness who testified regarding his observations at the scene. The Officer was competent to testify concerning the circumstances that would cause Littlefield to understand that arrest was imminent, and concerning behavior he observed that would support an inference that she knew that she was under arrest. His testimony was therefore "rationally based on [his] perception[,] helpful to clearly understanding [his] testimony or to determining a fact in issue[,] and not based on scientific, technical, or other specialized knowledge within the scope of [expert testimony]." Ariz. R. Evid. 701. Rule 704 has no application in this setting. ¶10 We conclude that the trial court did not abuse its discretion by overruling Littlefield's objection to the Officer's testimony. Further, because Littlefield's actions after she was restrained by the Officers were consistent with the actions of one who knew she was under arrest and resisted that arrest, Littlefield failed to demonstrate that she suffered prejudice due to the Officer's statement.
In her opening brief, Littlefield concedes that Rule 704(b) did not exist in the 2010 version of the Rule. At the time of the case, Rule 704 provided that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Because the result of this appeal does not differ depending on which version of Rule 704 we apply, we analyze Littlefield's contention under the current version.
Because it has not materially changed since the date of this offense, we cite to the current version of the rule.
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II. THE OFFICER'S TESTIMONY WAS RELEVANT AND DID NOT AMOUNT TO AN OPINION ON LITTLEFIELD'S CREDIBILITY.
¶11 Littlefield further contends that the Officer's testimony regarding her alleged knowledge of her arrest was inadmissible because it "was tantamount to saying that [Littlefield] was guilty[, and] [h]is opinion of [Littlefield's] credibility was not relevant evidence." Though we agree that such opinion testimony would not have been relevant evidence, we disagree with Littlefield's characterization of the record. ¶12 Credibility is defined as "[t]he quality that makes something (as a witness or some evidence) worthy of belief." Black's Law Dictionary 396 (8th ed. 2004). The Officer's testimony did not comment on Littlefield's veracity or any other aspect of her credibility as a witness -- it merely recounted his observation of her behavior. ¶13 Moreover, the police Officer's testimony was relevant because it had a tendency to make more probable the proposition that Littlefield knowingly resisted arrest. Ariz. R. Evid. 401. The state presented evidence that even after Littlefield was handcuffed, she tripped one of the Officers, argued, and struggled all the way to the police vehicle. There was ample evidence upon which the jury could have found that Littlefield resisted arrest, even without the Officer's testimony. ¶14 We conclude that the trial court did not abuse its discretion by overruling Littlefield's objection to the Officer's testimony, and Littlefield again did not demonstrate that she suffered any prejudice due to the admission of the statement.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
___________
PETER B. SWANN, Judge
CONCURRING: ___________
PATRICIA A. OROZCO, Presiding Judge
___________
ROBERT C. HOUSER, JR., Judge Pro Tempore*
*The Honorable Robert C. Houser, Jr., Judge (Retired) of the Maricopa County Superior Court, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to the Arizona Constitution, Article 6, Section 3, and A.R.S. §§ 12-145 to -147 (2003).