Opinion
No. 2 CA-CR 2012-0455
10-22-2014
THE STATE OF ARIZONA, Appellee, v. SCOTT MICHAEL MEDIZ, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Michael T. O'Toole, Assistant Attorney General, Phoenix Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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. CR20104113002
The Honorable Michael O. Miller, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Michael T. O'Toole, Assistant Attorney General, Phoenix
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Appellant Scott Mediz was convicted of kidnapping and first-degree murder following a jury trial. On appeal, he argues the trial court violated his constitutional rights by allowing the state to admit photographs of his chest and back depicting racist tattoos. He also argues the court erred in denying his motion to vacate the judgment because of newly discovered evidence, which showed that three witnesses had colluded about their testimony prior to trial. For the following reasons, we affirm Mediz's convictions and sentences but vacate the Criminal Restitution Order (CRO).
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In November 2011, Mediz and his then-girlfriend, Sara Golden, lured the victim, J.L., to their house, where Mediz severely beat him. Mediz then wrapped J.L. in a sheet and placed him in the back of a hatchback vehicle. Mediz abandoned the vehicle and J.L. at a nearby convenience store. J.L. died as a result of the beating combined with positional asphyxiation from being in the vehicle.
¶3 Mediz was charged and convicted as described above. The trial court sentenced him to concurrent prison terms, the longer of which is natural life. We have jurisdiction over Mediz's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Evidence of Racist Tattoos
¶4 Mediz first argues that the trial court erred by failing to preclude the state from introducing at trial photographs that depicted tattoos reading "White Pride" and "Peckerwood" on his chest and back. He contends the admission of this evidence deprived him of his right to a fair trial and violated his due process rights under the Sixth Amendment of the United States Constitution and article 2, section 4 of the Arizona Constitution. He specifies that he is not presenting this claim as "trial error." ¶5 As Mediz concedes, although he objected to the admission of the photographs at trial on evidentiary grounds, he did not argue that admitting them violated his constitutional rights. Consequently, we review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995) (constitutional issues not raised below reviewed for fundamental error). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. ¶6 Mediz contends the photographs were irrelevant, and any probative value was substantially outweighed by their prejudicial effect under Rule 403, Ariz. R. Evid. Thus, he reasons, the trial court's ruling denied him "his fundamental due process right to a fair trial in violation of the United States and Arizona Constitutions." As our supreme court has noted, "the analysis for [due process] claims parallels our Rule 403 analysis, focusing on the probative value and prejudicial effect of the evidence." State v. Payne, 233 Ariz. 484, ¶ 55, 314 P.3d 1239, 1258 (2013). When reviewing a due process claim based on evidentiary rulings we note that "not every ad hoc mistake in applying state evidence rules, even in a murder case, should be called a violation of due process; otherwise every significant state court error in excluding evidence offered by the defendant would be a basis for undoing the conviction." Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). ¶7 We first note that the allegedly prejudicial photographs are not part of the record on appeal. Pursuant to a stipulation between the parties, the majority of exhibits, including the photographs at issue, were released and returned to the state in September 2012. Although we address Mediz's argument on appeal, we presume the missing portions of the record support the trial court's actions. See State v. Printz, 125 Ariz. 300, 304, 609 P.2d 570, 574 (1980). ¶8 The photographs were admitted for the relevant purpose of rebutting Mediz's claim of self-defense by showing the lack of injuries to him, as well as to show that, at the time of the crime, he was physically capable of overpowering and "bare handedly" beating J.L. to death. According to the prosecutor, Mediz looked "substantially different" during trial "than he did at the time of the homicide" because he was "significantly less muscular." Mediz did not dispute this characterization below nor on appeal. ¶9 Photographs of tattoos may be admitted if the probative value outweighs the prejudice, as the trial court here found. See State v. Sanchez, 130 Ariz. 295, 300, 635 P.2d 1217, 1222 (App. 1981) (probative value of tattoos "Hate Cops" and "Lonely Drifter" outweighed any prejudice because they tended to identify defendant). And although Mediz did not dispute that he had overpowered and beat J.L., "nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence simply because the defense chooses not to contest the point." Estelle v. McGuire, 502 U.S. 62, 70 (1991); see also State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990) (defendant's stipulation as to cause and manner of death did not render relevant and probative victim and crime scene photos inadmissible). Because we presume the missing photographs support the trial court's ruling, see Printz, 125 Ariz. at 304, 609 P.2d at 574, and Mediz's arguments fail to undermine the court's conclusion, we cannot say that Mediz's due process rights were violated by the photographs' admission. See Payne, 233 Ariz. 484, ¶ 55, 314 P.3d at 1258. ¶10 In any event, Mediz would not be entitled to relief because he has not established that any alleged error was fundamental or prejudicial. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. No allegation of racial bias was made in the case, thus making the tattoos irrelevant to any of the issues that the jury had to decide. The state did not present any testimony as to the meaning associated with either tattoo. And the jurors were instructed "not to consider any of [the] tattoos for any reason when deciding about your verdict," and we presume jurors follow their instructions. State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). ¶11 Moreover, overwhelming evidence of Mediz's guilt supports the jury's verdicts. See State v. Gallegos, 178 Ariz. 1, 11, 870 P.2d 1097, 1107 (1994) (declining to find fundamental error in light of overwhelming evidence of defendant's guilt); see also State v. Ramos, 235 Ariz. 230, ¶ 20, 330 P.3d 987, 994 (App. 2014). To prove that Mediz committed first-degree murder, the state was required to show he intended or knew his conduct would "cause death, [and he] cause[d] the death of another person . . . with premeditation," or "[a]cting either alone or with one or more other persons . . . commit[ted] . . . kidnapping . . . and, in the course of and in furtherance of the offense or immediate flight from the offense, [Mediz caused] the death of any person." A.R.S. § 13-1105(A). The kidnapping charge required the state to show that Mediz "knowingly restrained another person with the intent to . . . [i]nflict death, [or] physical injury . . . or to otherwise aid in the commission of a felony; or . . . [p]lace the victim . . . in reasonable apprehension of imminent physical injury to the victim." A.R.S. § 13-1304(A)(3), (4). ¶12 The evidence established that Mediz and Golden thought J.L. had inappropriately touched Golden's daughter. They called and sent text messages to multiple people the morning of the murder and asked them to bring J.L. to their house. They told two of those people they wanted to kill J.L. Golden then hired a taxi to bring J.L. to the house. After J.L. arrived, Mediz beat J.L. and duct-taped his hands and ankles together. J.L.'s injuries included four fractured ribs, a broken nose, a split thyroid cartilage, and abrasions, bruising and swelling to his torso, arms, neck, and head. ¶13 Mediz then wrapped J.L., who was still alive at that point, in a sheet, duct-taped the sheet around J.L., and put him into the back of a hatchback car. Shortly after leaving, the car got a flat tire and Mediz pulled into a convenience store. While there, Mediz heard police sirens, "panicked," covered J.L.'s body with a spare tire and blanket, and then ran off and hid in the desert. J.L. died of suffocation before police arrived. During questioning by the police, Mediz admitted to beating J.L., duct-taping his hands, placing him in the hatchback, and covering his body and leaving it at the convenience store. Consequently, overwhelming evidence supports that Mediz committed kidnapping and first-degree murder. See § 13-1105(A); § 13-1304. ¶14 In light of the overwhelming evidence of guilt, the lack of a racial bias allegation, and the cautionary jury instructions, Mediz has not shown that any alleged error in admitting photographs depicting his tattoos would have altered the verdict in any way. Consequently, because Mediz cannot show he was prejudiced by the admission of the photographs, he has not carried his burden to obtain relief based on fundamental error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607; see also Gallegos, 178 Ariz. at 11, 870 P.2d at 1107.
Mediz also argues that evidence of the tattoos constituted an "other crime[], wrong[], or act[]" which was offered as impermissible character evidence under Rule 404(b), Ariz. R. Evid. A tattoo, however, is not a crime, wrong, or an act. See Ariz. R. Evid. 404(b); see also State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997) (Rule 404(b) governs "[e]vidence of prior bad acts committed by a defendant"). Moreover, given that no allegation of racial bias was made in this case, the tattoos were not introduced "to show action in conformity therewith." See Ariz. R. Evid. 404(b).
According to the trial transcript, several voicemails from Golden and Mediz to three different people were played to the jury and admitted into evidence. However, with the exception of one set of voicemails received by one particular witness, the other two audio recordings admitted into evidence were released and returned to the state pursuant to the September 2012 stipulation. A witness who received one of the voicemails discussed, in some detail, the message during his testimony. But an apparently lengthy voicemail received by a third-party who did not testify during the trial was not included in the record on appeal, and its contents were not discussed in detail during the trial. As discussed above, we view the facts in the light most favorable to upholding the convictions, Robles, 213 Ariz. 268, ¶ 2, 141 P.3d at 750, and presume the missing portions of the record support the court's ruling, Printz, 125 Ariz. at 304, 609 P.2d at 574.
Motion to Vacate Judgment
¶15 Mediz next argues that the trial court erred by denying his Rule 24.2, Ariz. R. Crim. P., motion to vacate the judgment because newly discovered evidence seriously undermined the credibility of three witnesses. We review a trial court's ruling on a motion to vacate the judgment for an abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 78, 296 P.3d 54, 71, cert. denied, ___ U.S. ___, 134 S. Ct. 180 (2013). In reviewing a court's ruling, "[w]e afford trial judges great discretion given their 'special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record.'" Id., quoting Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978). ¶16 A defendant moving to vacate the judgment based on newly discovered evidence must show
(1) the newly discovered evidence is material; (2) the evidence was discovered after trial; (3) due diligence was exercised in discovering the material facts; (4) the evidence is not merely cumulative or impeaching, unless the impeachment evidence substantially undermines testimony that was of critical significance at trial; and (5) that the new evidence, if introduced, would probably change the verdict or sentence in a new trial.State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995); see also Ariz. R. Crim. P. 32.1(e). "Evidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." State v. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d 1030, 1033 (App. 2000). ¶17 In his Rule 24.2 motion, Mediz argued that newly discovered evidence showed that two witnesses, C.B. and A.M., "conspir[ed] to fabricate their trial testimony to say among additional coordinated testimony that [Mediz] wanted [C.B.'s] car . . . to take the deceased victim to the desert." He additionally contended that a third witness, D.W., "had spoken with both [A.M.] and [C.B.] about his and their testimony." ¶18 Mediz learned about C.B. and A.M.'s collusion several months before his trial began from a fellow prison inmate, D.G., who claimed to have overheard the two men planning to coordinate their testimony. Mediz conveyed this information to his trial counsel. His trial counsel then contacted D.G.'s attorney, who stated that D.G. was "delusional, and thinks he knows things he does not," and that the attorney would not allow D.G. to "testify at trial, or give any interviews on the matter." After receiving this information, Mediz's counsel decided not to pursue the matter further and informed Mediz of his decision. After Mediz's trial was completed, D.G. submitted an affidavit reciting what he already had told Mediz and included the names of A.M. and C.B.'s cellmates who also had heard them conspiring. Those inmates additionally testified that D.W. also was involved in the collusion. ¶19 "For it to be considered newly discovered, evidence 'must truly be newly discovered, i.e., discovered after the trial.'" Saenz, 197 Ariz. 487, ¶ 14, 4 P.3d at 1034, quoting State v. Jeffers, 135 Ariz. 404, 426, 661 P.2d 1105, 1127 (1983). The evidence of collusion among A.M. and C.B. was clearly known to Mediz and his attorney well before trial. In his reply brief, Mediz admits "[t]he gist of the evidence was received by the Appellant prior to trial." He has therefore failed to show that the evidence was "discovered after the trial," and we thus cannot say the trial court abused its discretion in denying his Rule 24.2 motion. See Rule 32.1(e)(1); Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d at 1033; State v. Andersen, 177 Ariz. 381, 387, 868 P.2d 964, 970 (App. 1993) (all elements must be satisfied to establish claim of newly discovered evidence). ¶20 Mediz contends, however, that the evidence was discovered after trial because it was not until then that D.G. submitted an affidavit, and Mediz discovered that A.M.'s and C.B.'s cellmates also had heard similar conversations and that D.W. was implicated in the collusion. But the test is not simply whether the evidence was discovered after trial. Rather, it is whether "it was unknown to . . . the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d at 1033. Mediz did not provide the trial court with any explanation as to why he could not have discovered the identity of A.M. and C.B.'s cellmates by the exercise of due diligence prior to trial. See id. And as to the affidavit, Mediz has not provided any legal authority for why the discovery of additional support for the evidence he discovered prior to trial constitutes a new claim for newly discovered evidence. The trial court therefore did not abuse its discretion in denying Mediz's motion on these grounds. See id. ¶21 Mediz argues, without citation to any legal authority, that his trial counsel's failure to diligently follow up on the information prior to trial cannot be attributed to him. The test for newly discovered evidence, however, applies to both counsel and defendant equally. See id.; State v. Nettz, 114 Ariz. 296, 298, 560 P.2d 814, 816 (App. 1977). To the extent that Mediz is raising an ineffective assistance of counsel argument, we note that such a claim may only be raised in a Rule 32 post-conviction proceeding and will not be considered on direct appeal. See State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002); State v. Sang Le, 221 Ariz. 580, ¶¶ 4-5, 212 P.3d 918, 918-19 (App. 2009). We consequently reject this argument.
Mediz's motion was brought pursuant to Rule 24.2, and not as a Rule 32 petition for review. Rule 24.2, however, states that a motion made based on newly discovered evidence is to be considered "under the standards of Rule 32.1."
Notably, at trial the witnesses did not testify to the same facts. A.M. and D.W. testified that Mediz had intended to take J.L. to the desert. C.B. testified that he "didn't hear [Mediz] say anything about what he was going to do" with J.L., but that D.W. later told C.B. that Mediz had been intending to take J.L. to the hospital.
Criminal Restitution Order
¶22 Although neither party has raised this issue, we have discovered that in its sentencing minute entry, the trial court reduced the "fines, fees, assessments and/or restitution" it had imposed "to a Criminal Restitution Order [CRO]." But as this court has determined, based on A.R.S. § 13-805(C), to the extent it includes fines, fees, and assessments "the imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Therefore, because this portion of the sentencing minute entry is not authorized by statute, the CRO must be vacated.
Section 13-805(C) has since been renumbered to § 13-805(E). See 2012 Ariz. Sess. Laws, ch. 269, § 1.
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Disposition
¶23 For the foregoing reasons, we affirm Mediz's convictions and sentences, but we vacate the CRO.