Opinion
1 CA-CR 22-0086
03-28-2023
STATE OF ARIZONA, Appellee, v. TEDDY CARL VANDERS, Appellant.
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee DM Cantor, Phoenix By Jason Karpel Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2017-132367-001 The Honorable Jennifer C. Ryan-Touhill, Judge
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee
DM Cantor, Phoenix By Jason Karpel Counsel for Appellant
Vice Chief Judge David B. Gass delivered the decision of the court, in which Judge Brian Y. Furuya and Judge Maurice Portley joined.
The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to article VI, section 3, of the Arizona Constitution.
MEMORANDUM DECISION
GASS, VICE CHIEF JUDGE
¶1 Teddy Carl Vanders appeals his conviction and sentence for second-degree murder. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court reviews the facts in the light most favorable to sustaining the verdict, resolving all reasonable inferences against Vanders. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).
¶3 Early one morning, an intoxicated Vanders called 9-1-1 and admitted he shot his "lady." During the case, he referred to being the victim of ongoing domestic abuse. Vanders also apologized but said the killing "was not premeditated by any means" and said he was "probably going to do time."
¶4 Before Vanders hung up, police officers arrived at his Mesa home. They found the victim's body on the living room floor and a .44 magnum revolver on the kitchen counter. The officers noted a "smokey, sooty, vaporous lead-type gray" substance covered the back of the victim's left hand-showing the hand was close to the gun's barrel when it was fired. They did not find the substance anywhere else. The revolver's cylinder contained one expended cartridge casing.
¶5 As an officer transported Vanders to the police station for questioning, Vanders described his relationship with the victim as abusive, and he said she wanted to have sexual relations the previous evening, but he was not "in the mood." Vanders said the victim was "speaking gibberish, crawling on all fours and growling at him" before he shot her.
¶6 The ensuing investigation and autopsy showed the victim was fatally shot in the forehead with the revolver at close range within 40 minutes of Vanders' 9-1-1 call. Blood spatter evidence in Vanders' living room showed the “source” was two to four feet above the floor where police found the victim's body. And evidence of back spatter on the shorts Vanders was wearing when police arrived showed he was standing close to, and facing, the victim when she was shot.
¶7 The State charged Vanders with one count of second-degree murder, a class one felony and dangerous domestic-violence offense. The jury found Vanders guilty as charged, and the superior court imposed a 21-year prison sentence.
¶8 Vanders timely appealed from the judgment and sentence. Seven weeks later, Vanders moved to vacate the judgment in superior court, arguing newly discovered evidence in the form of an expert opinion supported his theory the victim shot herself. According to Vanders' expert, a small laceration on the victim's right wrist was "consistent with being a possible hammer bite mark[,]" showing she "might have" held the revolver upside down when she fired the weapon with her right hand while holding the barrel with her left hand. This court revested jurisdiction in the superior court to rule on the motion, and the superior court denied it. This court has jurisdiction over Vanders' timely appeal under article VI, section 9, of the Arizona Constitution and A.R.S. §§ 13-4031, -4033.A.1.
ANALYSIS
I. Denial of Motion to Vacate Judgment
¶9 Vanders first argues the superior court erred when it denied his motion to vacate judgment. But Vanders did not appeal from the order denying his motion, and he did not amend his notice of appeal to include that order. See Ariz. R. Crim. P. 24.2(d) (in noncapital cases, a party seeking appellate review of a final decision on a motion to vacate judgment must file a notice of appeal no later than 20 days after entry of the decision); Ariz. R. Crim. P. 31.2(a)(2)(B). We, thus, lack jurisdiction to address Vanders' argument. See State v. Berry, 133 Ariz. 264, 267 (App. 1982) (finding State's untimely filed notice of appeal precludes appellate jurisdiction over superior court's dismissal order).
¶10 Even so, Vanders does not show error. To succeed on his motion to vacate judgment, Vanders had to show the expert's opinion, if admitted at a new trial, probably would change the verdict. See State v. Parker, 231 Ariz. 391, 408, ¶ 78 (2013). Vanders, thus, specifically had to show a reasonable juror would disbelieve his voluntary, detailed, and consistent admissions and instead afford more weight to his expert's inconclusive opinion about the revolver's possible position in the victim's hands. Additionally, Vanders would have to demonstrate the same hypothetical juror could reasonably find Vanders retrieved the gun after the victim shot herself and set it on the kitchen counter before falsely confessing. Under these facts, the superior court did not abuse its discretion in finding Vanders failed to make the requisite showing. See Parker, 231 Ariz. at 408, ¶ 78 (“We afford [superior court] judges great discretion [when ruling on a motion to vacate judgment] 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.”).
II. Admission of State's Expert Evidence
¶11 Vanders challenges the State's presentation of undisclosed evidence. That evidence, according to Vanders, consisted of the State's firearm expert demonstrating how to load the revolver used to shoot the victim and his "speculat[ion] about gunshot residue and soot distribution." Vanders contends the purported discovery violation entitled him to a new trial.
¶12 Arizona Rule of Criminal Procedure (Rule) 15.1 governs the State's pretrial disclosure obligations. For experts who examine evidence in a particular case, the State must disclose the expert's name, any prepared report, "and the results of any completed physical examination, scientific test, experiment, or comparison conducted by the expert[.]" Ariz. R. Crim. P. 15.1(b)(4).
¶13 At trial, the State's firearm expert explained how he examined the functionality of the gun found on Vanders' kitchen counter and described how to load and shoot it. Over Vanders' Rule 15.1 objection, the expert physically demonstrated the loading process and generally described how gunshot residue or soot expels from a revolver when a person fires it. Vanders unsuccessfully requested a mistrial under Rule 15.7.
¶14 Contrary to Vanders' argument, the expert did not recreate or replicate what, in his opinion, happened in this case. And the State's expert did not opine about how the revolver was loaded before it was used to shoot the victim. Instead, the demonstration simply added to the expert's testimony describing generally how to load the revolver. See State v. King, 226 Ariz. 253, 256, ¶ 7 (App. 2011) (describing difference between demonstrative evidence and a "replication"). The expert made the distinction plain for the jury, saying he knew nothing of the circumstances leading to the shooting, including who the shooter was. Vanders cites no authority requiring the State to disclose demonstrative evidence under Rule 15.1. Vanders, thus, fails to establish a Rule 15.1 violation.
¶15 Similarly, the State did not have to disclose the expert's description of how a revolver expels gunshot residue or soot when it fires. Contrary to Vanders' characterization of the expert's testimony, the expert did not connect the revolver used to shoot the victim to the soot distribution pattern found on the victim's left hand. Instead, the expert explained a revolver generally expels most gunshot residue from the end of the barrel, but the revolver also expels some gunshot residue from gaps around a revolver's cylinder. That testimony was based on the expert's knowledge and experience with firearms, and did not reflect the expert's "physical examination, scientific test, experiment, or comparison" of Vanders' revolver. See Ariz. R. Crim. P. 15.1(b)(4)(B).
¶16 Under Rule 15.1, the State did not have to disclose the challenged evidence. The superior court, thus, did not abuse its discretion by admitting it and denying Vanders' mistrial motion.
III. Purported Prosecutorial Error
¶17 Vanders argues two instances of prosecutorial "misconduct" should have caused a mistrial. "Prosecutorial misconduct" and "prosecutorial error" are not the same. State v. Shortman, 523 P.3d 405, 410, ¶ 20 (App. 2022). "Both broadly encompass any conduct that infringes a defendant's constitutional rights. Prosecutorial misconduct goes one step further because it may imply a concurrent ethical rules violation." Id. (cleaned up). Because Vanders does not argue the prosecutor acted unethically, we frame our discussion in terms of prosecutorial error rather than prosecutorial misconduct. See id.
¶18 To prevail on a prosecutorial error claim, Vanders "must show the error occurred, and it is reasonably likely the error could have affected the jury's verdict, thereby denying defendant a fair trial." See id. at 410, ¶ 21 (internal quotations removed). "This court reviews errors cumulatively to determine whether the conduct resulted in an unfair trial." See id.
A. Comment on Vanders' Silence
¶19 Vanders first contends the State improperly commented on Vanders' constitutional right to remain silent by eliciting testimony from the detective who interviewed him. True, when answering the State's question, the detective said he asked Vanders about the last time Vanders handled a firearm and Vanders answered, “I'd rather not say.” But the superior court struck the testimony and specifically instructed the jury not to consider it. “When a person is in custody, even if police have not given Miranda warnings or begun interrogation, the prosecution's subsequent comment on the defendant's exercise of his right to silence violates the Fifth Amendment.” State v. VanWinkle, 229 Ariz. 233, 237, ¶ 15 (2012) (cleaned up). We generally presume a jury follows the superior court's instruction. See State v. McCurdy, 216 Ariz. 567, 574, ¶ 17 (App. 2007).
¶20 Still, Vanders contends the jury was "inevitably influenced" by the detective's testimony because a prolonged break in the proceedings took place between the testimony and the superior court's remedial measures. According to Vanders, "[t]his process emphasized the exchange and the facts that something was wrong, then provided an extended period of time to think [about] the testimony and remember what was said and what happened regardless of the later instruction striking the testimony." But Vanders cites nothing in the record to support his speculation "the extended period of time" caused the jury to ignore the superior court's directive not to consider the detective's testimony. Because we presume the jury followed the superior court's instruction, Vanders fails to show an error occurred, let alone show it led to an unfair trial. See id.
B. Officer's Testimony about Vanders' Statements
¶21 Vanders' second proffered instance of prosecutorial error occurred during the State's direct examination of the officer who transported Vanders from the crime scene to the police station. As the officer drove, his body camera recorded his conversation with Vanders. The State played that recording for the jury, but Vanders' statements were noticeably quiet, and it was difficult to make out what he was saying. The prosecutor, thus, asked the witness to describe what Vanders said. Vanders promptly objected, arguing the recording alone was "the best evidence . . . [and] speaks for itself." The superior court overruled the objection but instructed the prosecutor to question the witness as to his memory of Vanders' statements but not "to give a play by play of every single statement that's made." The prosecutor continued as instructed, and the witness described multiple inculpatory statements Vanders made during the 20-minute trip.
¶22 Vanders argues the prosecutor erred by knowingly violating the "best evidence rule" when she asked the officer to describe Vanders' recorded statements. Under the best evidence rule, “[a]n original . . . video is required in order to prove its content unless these rules or an applicable statute provides otherwise.” Ariz. R. Evid. 1002. “An original is not required and other evidence of the content of a . . . video is admissible if . . . all the originals are lost or destroyed, and not by the proponent acting in bad faith.” Ariz. R. Evid. 1004(a).
¶23 Nothing in the record shows either the prosecutor knew Vanders' recorded statements would be inaudible at trial or she had the ability to increase their volume. Indeed, according to the transcripts, the prosecutor could hear the statements when she reviewed the recording with headphones before trial. The record reflects the prosecutor learned, for the first time at trial, the statements were inaudible when played in open court. The prosecutor, thus, did not act in "bad faith" by somehow rendering the original recording inaudible. And the officer's testimony summarizing Vanders' statements was admissible under Arizona Rule of Evidence 1004.
¶24 We discern no violation of the best evidence rule under these circumstances, and Vanders cites no authority that supports a contrary conclusion. As a final point, Vanders does not contest the accuracy of the officer's description, meaning any alleged error was harmless. See Jones v. State, 780 N.E.2d 373, 378 (Ind. 2002) ("Because there is no dispute as to the accuracy of the description, any error in admitting the description in lieu of the actual movie was harmless.").
¶25 Based on the above, no prosecutorial error occurred.
CONCLUSION
¶26 We affirm.