Opinion
No. 2 CA-CR 2016-0271
09-20-2017
THE STATE OF ARIZONA, Appellee, v. MARVIN LUTHER POTTS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County
No. CR20154589001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a jury trial, Marvin Potts was convicted of two counts of aggravated assault and three counts of assault. On appeal, he argues the trial court erred by not allowing him to cross-examine a victim at trial about a specific instance of untruthfulness. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Fimbres, 222 Ariz. 293, ¶ 2, 213 P.3d 1020, 1023 (App. 2009). In November 2015, G.C. and Potts were dating and living in N.H.'s home with N.H. and her daughter.
¶3 One night, after N.H.'s daughter had gone to bed and N.H. had left for work, Potts cornered G.C. in their bedroom and threatened her with a knife. At one point, he began "stabbing [a] suitcase and telling [G.C.] how the knife would go into [her] skin so easily." Later, he lunged at G.C. with the knife while she was sitting on the bed. G.C. put her foot up to defend herself, and the knife went through her shoe and punctured her foot. He later made her perform sexual acts on him while continuing to point the knife at her. Throughout the night, Potts threatened G.C. with the knife, told her she needed to "tell [her] kids good-bye," and said if she screamed and woke N.H.'s daughter up, he would kill G.C. and N.H. and "make [the daughter] watch." N.H. arrived home around 2 a.m. but did not notice anything "unusual" and went to bed.
¶4 The following morning, when N.H. had returned from dropping her daughter off at school, G.C. told N.H. that "[N.H.] needed to get out of the house" because "she wasn't safe." Potts later told N.H. that "if [G.C.] told [N.H.] anything [she was] in just as much danger." N.H. and G.C. went to a neighbor's house and called 9-1-1.
¶5 The state charged Potts with five counts of aggravated assault, aggravated domestic violence, two counts of sexual assault, and threatening or intimidating N.H. A jury found him guilty of two counts of aggravated assault and three counts of assault as the lesser-included offenses of aggravated assault, but not guilty of aggravated domestic violence and threatening or intimidating. The trial court declared a mistrial for the two sexual assault counts after the jury was unable to reach verdicts and later dismissed those charges without prejudice. The court sentenced Potts to concurrent prison terms, the longest of which are nine-year terms. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).
Discussion
¶6 Potts argues the trial court violated his due process and Confrontation Clause rights to effective cross-examination by precluding him from asking N.H. about an alleged conversation she had with G.C. on social media regarding N.H.'s 9-1-1 telephone call. In particular, Potts contends the court erred by finding he failed to provide a sufficient foundation for the line of questioning. Because he did not raise this constitutional argument below, Potts has forfeited review for all but fundamental, prejudicial error. See State v. Lopez, 217 Ariz. 433, ¶ 6, 175 P.3d 682, 684 (App. 2008). Under this standard of review, Potts bears the burden of establishing that fundamental error occurred and that the error prejudiced him. See State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005). We review a court's ruling restricting the scope of cross-examination for an abuse of discretion, State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996), but we review rulings that implicate constitutional rights de novo, see State v. Ellison, 213 Ariz. 116, ¶ 42, 140 P.3d 899, 912 (2006).
In his reply brief, Potts argues he "had no duty to object to the constitutional error" because it was the state that initially objected to the question he posed to N.H. But regardless of which party made an objection, we will not reverse a trial court on an argument not presented below for the "obvious" reason that "[o]ne cannot claim the trial court erred in rejecting a theory if the theory was never presented to it." State v. Claxton, 122 Ariz. 246, 249, 594 P.2d 112, 115 (App. 1979); see State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999); see also State v. Kinney, 225 Ariz. 550, ¶ 7, 241 P.3d 914, 918 (App. 2010). Therefore, although the state initially objected to the question, Potts's failure to make a constitutional argument in response has resulted in his forfeiture of the right to seek relief for all but fundamental, prejudicial error.
¶7 The constitutional rights to due process and confrontation "guarantee[] criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S. 479, 485 (1984); see also U.S. Const. amends. VI, XIV, § 1; Ariz. Const. art. II, §§ 4, 24. This includes the right to "effective cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16, 318 (1974); see also State v. Abdi, 226 Ariz. 361, ¶ 27, 248 P.3d 209, 215 (App. 2011). That right, however, is subject to reasonable limitations, and the trial court "retain[s] wide latitude" to limit "cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also State v. Evans, 120 Ariz. 158, 161, 584 P.2d 1149, 1152 (1978) ("While the right of cross-examination is guaranteed by both the federal and Arizona Constitutions, the right does not confer a license to run at large in cross-examination."). Thus, cross-examination must fall "within the scope of the rules of evidence." Evans, 120 Ariz. at 161, 584 P.2d at 1152.
¶8 Pursuant to Rule 608(b), Ariz. R. Evid., a party may, on cross-examination, ask a witness about specific instances of conduct "if they are probative of the character for truthfulness or untruthfulness of . . . the witness" but may not introduce extrinsic evidence of that act. The examiner must, however, have a "basis in fact" for asking the question. State v. Holsinger, 124 Ariz. 18, 21, 601 P.2d 1054, 1057 (1979). An attorney does not need "definitive proof," but must be able to provide some "facts and the corresponding inferences" to constitute a good-faith basis for the question. United States v. Beck, 625 F.3d 410, 418-19 (7th Cir. 2010); see also United States v. Zaccaria, 240 F.3d 75, 81-82 (1st Cir. 2001) (cross-examiner may not impeach witness based "solely on hunch or innuendo" and "some proof in the form of concrete facts must underlie any offering that can be accepted by a trial court as evidence"); Bui v. DiPaolo, 170 F.3d 232, 243-44 (1st Cir. 1999) ("One well-established basis for circumscribing cross-examination is a party's inability to lay a proper evidentiary foundation for the questions that he wishes to pose.").
¶9 Accordingly, the rules provide that when a defendant discovers evidence he wishes to present, he "must make it known to the court by means of an offer of proof." State v. Quinn, 121 Ariz. 582, 585, 592 P.2d 778, 781 (App. 1978); see Ariz. R. Evid. 103. The failure to do so not only makes the denial of cross-examination on that issue proper, see Quinn, 121 Ariz. at 585, 592 P.2d at 781, but it also forecloses the argument on appeal that the court's preclusion of such evidence was erroneous, Ariz. R. Evid. 103; see also State v. Hernandez, 232 Ariz. 313, ¶ 37, 305 P.3d 378, 386 (2013); State v. Towery, 186 Ariz. 168, 178-79, 920 P.2d 290, 300-01 (1996). Although the offer-of-proof requirement "may be relaxed when the court sustains an objection to a question asked on cross-examination," a party must still provide "something more than speculation." Towery, 186 Ariz. at 179, 920 P.2d at 301.
¶10 Potts asked N.H., during cross-examination, if she "remember[ed] having a conversation with [G.C.] over [social media]" after the incident occurred. The state objected on the ground of relevancy and stated it had "no idea what this [was] about." Out of the presence of the jury, defense counsel explained, "The information I have is that [N.H. told G.C.] that she lied to the police . . . when she first call[ed] 911. . . . That's what I have. That's all the information I have." When the court asked who provided that information, the attorney responded, "I can't tell, Your Honor." The court also asked "how . . . this person would have knowledge" of this conversation, and the attorney again replied, "I can't answer without revealing" the source of the information. The court sustained the state's objection, and Potts did not seek permission to make a further offer of proof.
¶11 Here, Potts offered nothing more than a bare assertion that N.H. had told G.C. she lied to the 9-1-1 operator. And he told the trial court that assertion was based on information he received from a third party whom he refused to name. He did not have a copy of the actual social-media conversation, nor was he able to explain how the third party knew about the conversation. Moreover, Potts did not introduce the transcript of the 9-1-1 call into evidence. Thus, the court had no basis for determining what N.H. purportedly lied about, whether it was relevant, and whether it was merely cumulative to her previous testimony that she had indeed lied to 9-1-1 operators about how long G.C. and Potts had lived with her.
¶12 Defense counsel was required to provide some factual basis for the impeaching question, supported by more than a mere assertion that he had been told about a social-media conversation by a source whose identity he could not reveal in order to support this line of questioning and also demonstrate it was not cumulative or repetitive. See Van Arsdall, 475 U.S. at 679; see also State v. Madsen, 125 Ariz. 346, 349-50, 609 P.2d 1046, 1049-50 (1980) (state had good-faith basis to ask about previous instances of domestic violence by naming officer who could verify those instances despite fact that officer unavailable to testify); Zaccaria, 240 F.3d at 81-82 ("unsubstantiated claim that [defendant] . . . had told [counsel] that [witness] had admitted participating in drug trafficking activities" with another witness was "too porous to support the weight of so charged a line of cross-examination"); Bui, 170 F.3d at 243-44 ("good-faith basis founded on attorney-client privilege" is insufficient evidentiary foundation to support questioning on cross-examination). Potts's failure to make a sufficient offer of proof not only makes the trial court's preclusion of the question proper, it also forecloses our review of the issue. See Quinn, 121 Ariz. at 585, 592 P.2d at 781; see also Hernandez, 232 Ariz. 313, ¶ 37, 305 P.3d at 386. Consequently, Potts cannot meet his burden of showing the court erred. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
¶13 Potts argues, however, that "[c]ounsel's assertion that []he has a good faith basis to ask the question should . . . be satisfactory." He relies on the Arizona Rules of Professional Conduct, which state that an attorney may only "assert or controvert an issue . . . [if] there is a good faith basis in law and fact for doing so." Ariz. R. Sup. Ct. 42, ER 3.1; see also Ariz. R. Sup. Ct. 42, ER 3.3 (attorney has duty of candor toward court and may not "make a false statement of fact or law" or "offer evidence that the lawyer knows to be false").
¶14 We are unpersuaded by Potts's reliance on the rules of professional conduct. Those rules "are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies." Ariz. R. Sup. Ct. 42, Preamble; cf. Stanley v. McCarver, 208 Ariz. 219, n.6, 92 P.3d 849, 854 n.6 (2004) ("While rules of professional conduct may provide evidence of how a professional would act, they do not create a duty or establish a standard of care as a matter of law."). Conversely, evidentiary rules "serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted." Crane, 476 U.S. at 690; see also Ariz. R. Evid. 102 (purpose of evidentiary rules is to ensure proceedings conducted "fairly" and "to the end of ascertaining the truth and securing a just determination"); United States v. Scheffer, 523 U.S. 303, 309 (1998) ("principal objective of many evidentiary rules" is to ensure that "reliable evidence is presented to the trier of fact in a criminal trial"); Montana v. Egelhoff, 518 U.S. 37, 67 (1996) (O'Connor, J., dissenting) ("The purpose of the familiar evidentiary rules is . . . to ensure the reliability and competency of evidence . . . ."). Thus, whether an attorney has a basis for asking the question that is sufficient to meet his or her ethical obligations is a separate inquiry from whether he or she has provided a sufficient foundation under the applicable rules of evidence.
As we have noted in previous cases, these two areas can overlap when a prosecutor asks questions that make "prejudicial insinuations" without any evidence to support them. State v. Cornell, 179 Ariz. 314, 331, 878 P.2d 1352, 1369 (1994). Doing so not only bars that line of questioning and can lead to reversible error, but also constitutes "seriously improper conduct," which can justify referral to the State Bar of Arizona. Id. at 331 & n.10, 878 P.2d at 1369 & n.10; see also State v. Ballantyne, 128 Ariz. 68, 71, 623 P.2d 857, 860 (App. 1981) ("To ask a question which implies the existence of a prejudicial factual predicate which the examiner cannot support by evidence is unprofessional conduct and should not be condoned."); Holsinger, 124 Ariz. at 20-22, 601 P.2d at 1056-58 (prosecutor's implication that defendant had "long criminal record" when, in fact, she did not required reversal because "[t]he question was prejudicial and the prosecutor's conduct improper"). Here, however, there has been no claim or showing that Potts's attorney did not have a sufficient basis to ask the question under the applicable ethical rules. Rather, the only issue is whether that basis rose to the necessary level under the rules of evidence to allow the question to be asked. --------
¶15 Moreover, even assuming the admission of the evidence was error and the error could be characterized as fundamental, Potts cannot show he was prejudiced by the trial court's ruling. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. The jury acquitted him of the only charge that involved N.H. Potts had already cross-examined N.H. about lying to the 9-1-1 operator regarding how long G.C. and Potts had lived with her. Additionally, N.H. did not witness any of the acts underlying the other charges against Potts. N.H. in fact testified that she did not know anything had occurred between Potts and G.C. until G.C. approached her the following morning. And without a transcript of the 9-1-1 call, Potts cannot establish that anything N.H. may have said to the operator would have impacted those other charges. Thus, Potts's argument that had the court "permitted [him] to ask about the conversation between the two victims, it is likely that the jury would have concluded that both victims were utterly unbelievable . . . and acquitted on all counts" is nothing more than speculation unsupported by the record. See State v. Munninger, 213 Ariz. 393, ¶ 14, 142 P.3d 701, 705 (App. 2006) (defendant failed to meet burden to show prejudice by offering only speculation unsupported by record).
Disposition
¶16 For the foregoing reasons, we affirm Potts's convictions and sentences.