Opinion
1 CA-CR 21-0475
12-08-2022
STATE OF ARIZONA, Appellee, v. COLLIN JOSEPH TARR, Appellant.
Arizona Attorney General's Office, Phoenix By Eliza Ybarra Counsel for Appellee Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County No. S0300CR201800137 The Honorable Ted Stuart Reed, Judge
COUNSEL
Arizona Attorney General's Office, Phoenix By Eliza Ybarra Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
Peter B. Swann Judge delivered the decision of the Court, in which Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.
Judge Peter B. Swann was a sitting member of this court when the matter was assigned to this panel of the court. He retired effective November 28, 2022. In accordance with the authority granted by Article 6, Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice of the Arizona Supreme Court has designated Judge Swann as a judge pro tempore in the Court of Appeals for the purpose of participating in the resolution of cases assigned to this panel during his term in office.
MEMORANDUM DECISION
SWANN, Judge:
¶1 Collin Joseph Tarr appeals from his convictions and sentences for second-degree murder, aggravated assault, assault, and disorderly conduct. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The facts, viewed in the light most favorable to sustaining the convictions, State v. Guerra, 161 Ariz. 289, 293 (1989), and drawing all reasonable inferences in support thereof, State v. Fulminante, 193 Ariz. 485, 494, ¶ 27 (1999), are as follows. Tarr and the fifty-three-year-old victim were friends and lived near each other in a Flagstaff mobile home park. Tarr's cousin, V.T., also lived in the park with her three young children.
¶3 One day, Tarr sent V.T. a text message that stated, in part: "I want to stir up shit and hopefully beat someone up bad, very bad." Later that afternoon, a neighbor at the mobile home park called 911 to report a man was yelling as he knelt over and began beating a supine individual in the street. Less than two minutes into the call, the neighbor exclaimed: "Oh my God! Oh my God! Oh My God! OK. Banging their head against the street! They're not moving." The caller described the aggressor as a "white [man] . . . wearing a gray shirt . . . jeans" and stated, "He's knocking on my neighbor's door." A few minutes later, the caller said the aggressor "is running around in his underwear out there now."
¶4 Coconino County Sheriff deputies responded. Seventeen minutes after the 911 call was initiated, they found the victim's lifeless and bloody body in the middle of the dirt road on which V.T. lived, and they heard a man screaming from V.T.'s nearby home. Deputies approached the home and eventually persuaded the man to come out. Tarr appeared at the front door wearing only his underwear and socks. His hands and arms were bloodied. He was unsteady on his feet and mumbling incoherently. He smelled of alcohol.
The road was "actually crushed cinders and dirt."
According to Tarr, his BAC at the time of the 911 call was between .156 and .278.
¶5 Deputies also found a bloody long-sleeved gray shirt in front of V.T.'s home and a gray bloody sweatshirt inside. A pair of bloody jeans were located near the victim's body. The victim's cellphone and a wallet containing Tarr's ID were in the jeans' pocket.
¶6 Deputies immediately detained Tarr and interviewed V.T. She explained that, as she was arriving home from work with her three children, she noticed the bloodied victim laying in the road, and a neighbor's dog was running loose. V.T. parked in her driveway and walked to the neighbor's home where Tarr answered the door "covered in blood" and carrying an empty carton of juice under his shirt and a candle. V.T. described Tarr as "scared . . . distraught . . . confused." Tarr exited the home, "slam[ed] [V.T.] into the side of the porch" and dragged her down the stairs. As Tarr then accompanied V.T. to her home across the street, V.T. asked Tarr to "check on" the victim. Tarr stated that the victim was "okay."
¶7 V.T. then took her son out of her vehicle, and when she returned to collect her daughters, Tarr began smashing the driver side window with a fist-sized rock. Tarr turned to V.T. and lifted the rock over her, frightening her. Tarr dropped the rock, and V.T. took the girls inside the home. Tarr proceeded to the living room where he began "yelling like to God," at which point the deputies arrived.
¶8 Tarr was transported from the scene to a hospital. While in the ambulance, he complained of pain in his hands and arms. Tarr also "made a comment about knowing the UFC fighter, Georges St-Pierre." As Detective Barr, the case agent, described:
[St-Pierre] is . . . widely considered one of the best fighters in UFC history.... [H]e's particularly known for . . . what is called ground and pound .... And, essentially, what that entails is getting your opponent to the ground, primarily flat on their back, and then getting on top of them and pounding them .... [I]t's pretty caveman, . . . you just pound them, whether that be with your hands or your fists or your elbows.
¶9 At the hospital, deputies photographed Tarr's injuries, including his bloodied hands and thighs and bruised knees and elbows. The bloodied shirt, sweatshirt, and jeans collected from the scene were tested, and they were all covered in the victim's blood.
¶10 An autopsy revealed the victim died from blunt force trauma to the head and neck. In addition to other facial injuries, he sustained an open comminuted super orbital ridge fracture above his right eye. Nine of the victim's twelve left-side ribs were fractured, and four of those nine were fractured in two places. Six ribs on the victim's right side were fractured.
¶11 The State charged Tarr with second-degree murder, a class one felony; aggravated assault, a class three dangerous felony; second-degree burglary, a class three felony; disorderly conduct, a class one misdemeanor; and assault, a class three misdemeanor. At trial, the case agent testified that the investigation of the scene did not reveal any apparent "information or any evidence to suggest there was a car involved in [the victim's death]." Consistent with that testimony, the medical examiner described the extent of the victim's injuries and noted that, based on his observations during the autopsy, "there's seconds or minutes between some of these injuries." Thus, the medical examiner opined that the victim sustained his injuries during a physical altercation involving multiple strikes to his body.
¶12 In his defense, Tarr presented the testimony of Michael Iliescu, M.D., a forensic pathologist, and Patrick Hannon, Ed.D., a biomechanical expert. Both testified that, because of the high level of force necessary to inflict the victim's injuries, his death was most likely caused by a "broad based, high energy, high momentum impact" such as a moving vehicle. Dr. Hannon specifically theorized that the victim was in a recumbent position in the road before a vehicle with "better clearance"-such as a truck-fatally struck him in the face and chest. Thus, during closing arguments Tarr suggested the victim drunkenly stumbled in the road and "pass[ed] out." Then, to explain the presence of the victim's blood on his clothes, Tarr argued he was "blackout drunk" and "attempting to help his friend" by administering CPR.
¶13 The superior court granted Tarr's motion for judgment of acquittal as to the second-degree burglary charge. See Ariz. R. Crim. P. 20(a)(1) (requiring court to "enter a judgment of acquittal on any offense charged in an indictment . . . if there is no substantial evidence to support a conviction"). Thereafter, the jury found Tarr guilty of the remaining offenses as charged.
¶14 Tarr timely moved for a new trial, asserting the guilty verdict for second-degree murder was contrary to the law and the weight of the evidence, the State committed misconduct, and the court erred as a matter of law when it denied a motion for mistrial based on the State's purported violation of a motion in limine ruling. See Ariz. R. Crim. P. 24.1(c)(1), (2), (4). The court rejected Tarr's arguments and denied the new trial motion.
¶15 After finding Tarr had two prior felony convictions, the court imposed concurrent mitigated prison terms, the longest being fifteen years for the second-degree murder conviction. Tarr appeals.
DISCUSSION
I. THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUPPORT TARR'S CONVICTIONS.
¶16 Tarr argues the trial court should have granted his Rule 24.1 motion for a new trial because insufficient evidence established that he killed the victim. In support, Tarr points to Drs. Iliescu's and Hannon's testimony that "adamantly assured the jury that [the victim's] injuries absolutely could not have been caused during an assault by another..... We review the trial court's decision whether to grant a new trial motion for an abuse of discretion. State v. Fischer, 242 Ariz. 44, 48, ¶ 10 (2017) (citing Smith v. Moroney, 79 Ariz. 35, 38-39 (1955)).
¶17 To prevent "unjust verdicts," a trial judge is authorized to grant a new trial if the "weight of evidence" fails to support the jury's verdict. Id. at ¶ 12. Thus, when evaluating the sufficiency of evidence to determine whether to grant a new trial under Rule 24.1, the trial court may weigh the evidence and assess witnesses' credibility. Id. at 50, ¶ 18. The court's authority to weigh the evidence and assess witnesses' credibility is based on its first-hand observation of trial evidence. See id. at ¶ 21 ("We defer to the discretion of the trial judge who tried the case and who personally observed the proceedings."). And when weighing evidence generally, probative value is not diminished merely because the evidence is circumstantial as opposed to direct. See State v. Nash, 143 Ariz. 392, 404 (1985) ("Criminal convictions may rest solely on circumstantial proof.").
¶18 As a preliminary matter, we note that Tarr's argument incorrectly presumes his experts' opinions must be accepted as fact and afforded more weight vis-a-vis the conflicting evidence of guilt. See State v. Gomez, 211 Ariz. 111, 113, ¶ 10 (App. 2005) ("[J]urors are not required to accept expert testimony uncritically.....). As the jurors were properly instructed, expert testimony may be accepted or rejected in whole or in part considering "all of the other evidence." Here, the jury (and the trial court, in ruling on the motion for new trial) had significant "other evidence" against which to evaluate Tarr's expert evidence. The 911 caller testified as follows:
Q. When you saw the two individuals in the road, would you characterize what you saw as the person on top helping the other person or hurting them?
A. No. Definitely hurting them.
Q. Did you see any effort to render aid whatsoever?
A. No.
¶19 Based on the deference afforded the trial court in weighing and assessing conflicting evidence, in conjunction with the circumstantial evidence showing Tarr fatally injured the victim during a physical altercation-including Tarr's stated intent to "beat someone up bad, very bad," the 911 caller's real-time account of the fight in the road, and the physical evidence connecting Tarr to the murder-we cannot conclude that the court's denial of Tarr's motion for new trial lacked substantial evidentiary support. See Fischer, 242 Ariz. at 52, ¶ 31. The court therefore did not abuse its discretion. See Nash, 143 Ariz. at 404 ("[I]t is unnecessary for the prosecution to negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence."); State v. Sullivan, 205 Ariz. 285, 287, ¶ 6 (App. 2003) (if reasonable minds can differ on the inferences to be drawn from the evidence, substantial evidence of guilt exists).
II. THE STATE'S CROSS-EXAMINATION OF DR. HANNON DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT.
¶20 Drs. Iliescu and Hannon co-authored the defense report for this case. After establishing that the two had an ongoing professional relationship for the previous fifteen to sixteen years, the prosecutor asked the following during his cross-examination of Dr. Hannon:
Q. It would be disadvantageous to provide an opinion that's inconsistent with [Dr. Iliescu's]. Correct? Would you agree?
A. Depends on the opinion. It depends.
Q. That could jeopardize your business relationship?
A. No. That's not true.
¶21 Tarr argues the questioning amounts to prosecutorial misconduct because it "blatantly and improperly insinuated that Dr. Hannon tailored his testimony to conform with Dr. Iliescu's." We disagree. It is both proper and common to cross-examine expert witnesses on possible sources of bias, including financial considerations. Having failed to object to the questioning at trial, Tarr has the burden to establish prejudice resulted from the questioning. State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018). He fails to do so because he does not properly indicate any affirmative prejudice in the record; he merely speculates that he was "deprived . . . of his entire defense." Moreover, Dr. Hannon expressly denied whatever improper insinuation, if any, the questioning implicated. Absent a showing otherwise, we are left to speculate that the jury rejected Hannon's denial. We will not presume prejudice where none appears affirmatively in the record. See State v. Trostle, 191 Ariz. 4, 13-14 (1997). Tarr's prosecutorial misconduct claim fails.
III. THE COURT DID NOT ERR BY ADMITTING THE "GROUND AND POUND" EVIDENCE.
¶22 Tarr challenges the admissibility of Detective Barr's testimony describing the "ground and pound" fighting technique. As he did at trial, Tarr contends the description was irrelevant. He also claims the testimony was "rife with offender profiling." Moreover, Tarr argues the State's "diatribe of leading questions" probing Dr. Ilescu's knowledge of UFC amounted to improper testimony. We disagree.
¶23 The detective's description of "ground and pound" was necessary both to explain Tarr's comment regarding Georges St-Pierre and to describe the State's theory regarding the cause of the victim's death. In turn, the provided description made it more likely than not that the jury would consider Tarr's comment as an admission. The testimony was therefore relevant and generally admissible under Arizona Rule of Evidence 402. See Ariz. R. Evid. 401 ("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.").
Tarr summarily asserts the evidence was also unfairly prejudicial and should have been precluded under Arizona Rule of Evidence 403. This assertion is waived because Tarr fails to develop any argument to support it. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) (citing State v. Carver, 160 Ariz. 167, 175 (1989)) (finding waiver because the defendant "[m]erely mention[ed] an argument"); State v. Greenberg, 236 Ariz. 592, 598, ¶ 24 (App. 2015) (quoting Carver, 160 Ariz. at 175) (finding an argument waived because the defendant did not "'present significant arguments, supported by authority,' setting forth his position").
¶24 The testimony also was not improper profile evidence. "Profile evidence tends to show that a defendant possesses one or more of an 'informal compilation of characteristics' or an 'abstract of characteristics' typically displayed by persons' engaged in a particular kind of activity." State v. Ketchner, 236 Ariz. 262, 264, ¶ 15 (2014) (quoting State v. Lee, 191 Ariz. 542, 544-45, ¶ 10 (1998)). Profile evidence creates a high risk that a jury will convict a defendant "not for what he did but for what others are doing." Lee, 191 Ariz. at 545, ¶ 12 (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)).
¶25 Before providing the challenged testimony, Detective Barr explained for the jury:
[A]s the UFC became more mainstream, we were seeing certain techniques that were seen on these UFC fights and that they were starting to be more mainstream being used against officers, being used in the streets more often. . . . [W]e decided that it was necessary for our [defensive tactics] instructors . . . to train . . . in ground fighting, in order to give our officers the best chance to survive such attacks, if people were to take these techniques and start bringing them against our officers.
¶26 The purpose of the foregoing testimony was not to suggest that Tarr was guilty merely because he allegedly used a UFC fighting technique that some individuals may employ against officers. Rather, the testimony explained Barr's personal knowledge of UFC fighting, a foundational prerequisite for Barr to explain Tarr's reference to the UFC fighter, Georges St-Pierre. See Ariz. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."); 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.").
¶27 Finally, the State's cross-examination of Dr. Iliescu regarding UFC fighting techniques was not improper testimony by the prosecutor. To the contrary, the questioning properly established Iliescu's lack of familiarity with "ground and pound," which, in turn, impeached his opinion that a physical assault did not cause the victim's death. No error occurred. In any event, whatever improper "evidence" regarding "ground and pound" can be gleaned from the State's questions, it was cumulative to other trial evidence, including Detective Barr's testimony. Any error, therefore, was harmless. See State v. Shearer, 164 Ariz. 329, 340 (App. 1989) (holding that the introduction of inadmissible evidence was harmless error when said evidence was cumulative to and consistent with other trial testimony).
IV. THE COURT DID NOT ERR BY PRECLUDING TARR'S VIDEO EVIDENCE.
¶28 Tarr argues the trial court erred by denying his request to admit specific video evidence that depicted his "physical state of high inebriation." According to Tarr, his physical state rendered him unable to assault the victim with the amount of force required to kill him. We summarily reject this argument. Other video evidence that clearly showed Tarr's inebriated state at the time of the offenses was admitted at trial.
¶29 Before trial, the court granted Tarr's motion in limine and precluded opinion evidence of the victim's mental capacity. A deputy sheriff unexpectedly testified on direct examination that Tarr told her the victim was "retarded." Tarr unsuccessfully moved for a mistrial. Tarr argues he was entitled to a mistrial because the testimony violated the court's pretrial order and deprived him of a fair trial.
¶30 "When a witness unexpectedly volunteers an inadmissible statement, the remedy rests largely within the discretion of the trial court." State v. Marshall, 197 Ariz. 496, 500, ¶ 10 (App. 2000). In deciding whether to grant a motion for mistrial after inadmissible testimony is unexpectedly interjected, the trial court must consider "(1) whether the remarks called to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks." State v. Stuard, 176 Ariz. 589, 601 (1993) (citing State v. Hallman, 137 Ariz. 31, 37 (1983)). We give great deference to the trial court's decision because the trial court "is in the best position to determine whether the evidence will actually affect the outcome of the trial." State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000) (citing State v. Koch, 138 Ariz. 99, 101 (1983)).
¶31 We discern no abuse of discretion. In denying Tarr's request for a mistrial, the court correctly noted that its preclusion order applied to witness opinion testimony, and the deputy testified as to a statement Tarr made to her. Thus, the court found no violation of its order. Further, the record reveals no indication that the jury was affected by a comment made briefly and only once in the midst of nine days of trial testimony.
CONCLUSION
¶32 We affirm.