STATE v. LARSGARD
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOHN KRISTOFFER LARSGARD, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 05/07/2013 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 12-0283 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Navajo County Cause Nos. S0900CR201100767 and S0900CR201100780 The Honorable John N. Lamb, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Criss E. Candelaria Attorney for Appellant H A L L, Judge Pinetop ¶1 six Following a jury trial, John Larsgard was convicted of counts of endangerment Winslow s filed a pursuant aggravated for annual timely assault 1 driving into Standing on notice of and crowds the one of Corner appeal, and to Arizona Revised Statutes 120.21(A)(2) (2003), 13-4031, and count people of celebrating festival. we have (A.R.S.) -4033(A) felony Larsgard jurisdiction sections (2010). 12- For the reasons that follow, we find no reversible error and affirm. Due Process Claim Regarding Medications ¶2 Larsgard s process first violation. He argument claims on appeal that he alleges was a denied due pain medications prescribed by his doctor in Norway for severe neck pain and was provided inadequate medication by jail medical staff that severely impacted his ability to communicate with counsel, prevented him from reacting rapidly to trial developments, sedated him, and diminished his ability to express emotions. 2 1 The aggravated assault counts alleged that Larsgard intentionally placed the victims in apprehension of imminent physical injury while using a deadly weapon or dangerous instrument. 2 Although Larsgard mentions in the caption to this argument that his due process rights were also violated by denial of access to legal materials, he has waived and abandoned this claim on appeal by failing to make any argument or offer any authority in support of it. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (failure to present significant arguments, supported by authority in 2 ¶3 On the first day of trial, Larsgard filed a motion asking the court to order the Navajo County Jail to administer the pain medications that had been prescribed by his treating doctor in Norway for chronic pain because the medication provided to him by jail medical staff the previous five months left him in constant pain. The trial court denied the motion, reasoning that it did not make sense the day before trial to change the medications Larsgard had been on for months and that it was not in a position to determine the correct medications without having some guidance. ¶4 read Larsgard renewed his request two days later when he an e-mail from his doctor in Norway explaining that Larsgard had been prescribed unusually high dosages of opioids, including oxycodone, to activities of daily life. allow him to participate in the The court advised Larsgard to forward the e-mail to the jail and let them do what they need to do. Larsgard did not pursue the matter further until he again raised the issue in a motion for new trial. The court denied the motion for new trial, finding that Mr. Larsgard was engaged fully in the trial of his case, taking notes, whispering with investigators, testifying lucidly and clearly and confronting [sic] with counsel, and he did not appear tired or out of it. opening brief waives issue) (citing State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)). 3 ¶5 During sentencing, Larsgard testified that he was distracted at trial by the pain, twice felt he was about to fall asleep because of difficulty in sleeping at night, and was not able to reach acknowledged, my full however, potential that he was as far as able to hear focus. all of He the witnesses testify, and to answer questions when he testified. He testified that he could have done better if he had different medication, but he did not give any specific examples. ¶6 We do not perceive a due process violation that would require Larsgard s convictions and sentences to be vacated. record fails to support his claims that: The (1) he was forced to take the medications given him by the jail medical staff; (2) that the medications made him restless, cloudy, unresponsive, nauseous, and largely apathetic toward life; or (3) the medications severely impacted his ability to communicate with counsel, prevented him from reacting rapidly to trial developments, sedated him, and diminished his ability to express emotions. Moreover, the cases that Larsgard relies on pertain to standards for the forcible administration of anti-psychotic drugs, see Sell v. United States, 539 U.S. 166, 169 (2003); Riggins v. Nevada, 504 U.S. 127, 129 (1992); Washington v. Harper, 494 U.S. 210, 213 (1990); United States v. Loughner, 672 4 F.3d 731, 744-52 (9th Cir. 2012), and are therefore inapposite here because Larsgard was not forced to take any medication. 3 ¶7 In summary, Larsgard has failed to present evidence demonstrating that the unidentified medications that the jail medical staff provided him significantly affected his access to counsel or his ability to participate in his own defense. The trial court had the opportunity to observe Larsgard throughout the trial, and found that he was fully engaged in the trial and was able to and did communicate with counsel. The trial court s observations are entitled to substantial deference, see State v. Moody, 208 (addressing Ariz. 424, whether 443, ¶ 48, reasonable 94 grounds P.3d 119, exist for 1138 (2004) competency hearing), and we find no error that requires setting aside the convictions and sentences and ordering a new trial. 3 Our research has not disclosed, and Larsgard has not cited, any authority for the proposition that due process requires a trial court to ensure that a criminal defendant be given the same drugs he was prescribed prior to his detention. The sole case that Larsgard cites for this proposition, Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002), holds only that a pretrial detainee s due process rights are violated by deliberate indifference to his serious medical needs. See id. at 1187-97 (finding that fact issue existed as to whether county was liable for civil rights claim based on lack of policy requiring medical staff to use information from prescription medication to screen incoming detainees, in light of other policy delaying medical evaluations of incoming detainees who are combative and uncooperative). 5 Claims of Late Disclosure and Brady violations 1. Late Disclosure ¶8 Larsgard discretion in argues failing to that the preclude trial an court untimely abused its disclosed lab report showing the presence of drugs in his system a short time after the incident. ¶9 We review a trial court s imposition of sanctions for discovery violations for abuse of discretion. State v. Lee, 185 Ariz. 549, 555-56, 917 P.2d 692, 698-99 (1996). A court may impose any remedy or sanction for nondisclosure that it finds appropriate. sanction of Ariz. last R. Crim. resort, 15.7(a). be to P. imposed stringent sanctions are not applicable. Preclusion only if other is a less Moody, 208 Ariz. at 454, ¶ 114, 94 P.3d at 1149 (citations and internal punctuation omitted). Instead of precluding the late-disclosed lab report, the court continued the trial to allow defendant additional time to prepare. The State had timely disclosed that it was waiting for the lab results, and the disclosure was not a surprise to Larsgard when he received them shortly before trial. The results were also important to the State s case because they demonstrated that oxycodone and three types of muscle relaxants were present possible incident. in Larsgard s explanation for bloodstream, his aggressive thereby driving providing during a the Moreover, the State disclosed the report the same day 6 it was received, and Larsgard did not claim that the prosecutor acted in bad faith. Under these circumstances, we cannot say that the trial court abused its discretion. 2. Brady Violations ¶10 Larsgard also claims that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce a videotape of his booking and failing to disclose that two of the State s witnesses had filed suit against the company that supplied Larsgard with the rental car. ¶11 In suppression by Brady, the the Supreme prosecution of Court held evidence that favorable the to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. 109-10 (1976). United States v. Agurs, 427 U.S. 97, Evidence is considered material for purposes of Brady only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. is a probability outcome. sufficient to A reasonable probability undermine confidence in United States v. Bagley, 473 U.S. 667, 682 (1985). 7 the ¶12 The issue of a possible booking tape first arose during the cross-examination of Winslow Police Officer Alicia Marquez, who had testified on direct examination that when Larsgard was in a holding cell after his arrest, he fluctuated between agreed being only real to calm make a and irate written or statement aggressive, about the and he incident. Officer Marquez acknowledged that there were security cameras in the Larsgard location argued where following Mr. Larsgard this was witness s being testimony detained. and in a motion for new trial that the prosecutor should have searched for and disclosed the booking tape. The issue of the civil lawsuits purportedly filed by two of the witnesses against the rental-car company first surfaced in defendant s post-trial motion for a directed verdict and motion for a new trial, when Larsgard argued that the prosecutor should have obtained and disclosed this information. ¶13 Because Larsgard failed to raise a claim during trial that the State s failure to disclose the booking tape or the civil lawsuits violated his Brady rights, we review only for fundamental error. P.3d 601, 608. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 Larsgard thus bears the burden of establishing that there was error, that the error was fundamental, and that the error caused him prejudice. Id. at 568, ¶¶ 23, 26, 115 P.3d at 608. 8 ¶14 Larsgard has failed to meet his burden. First, he has failed to demonstrate the existence of a booking tape that would have clearly shown his demeanor or captured his remark that he would make only a written statement. The evidence did not show that the security camera was focused on Larsgard, that it was turned on, or that the tape was retained after that night. Second, he has failed to demonstrate that, had the booking tape shown his demeanor or captured his remarks, the evidence would have contradicted the officer s testimony. Finally, he has failed to demonstrate a reasonable probability that, even if the tape had contradicted this officer s of his trial have been testimony, the result would any different. On this record, we find that Larsgard has failed to demonstrate a Brady violation with respect to the booking tape. ¶15 Larsgard has likewise failed to establish that the non-disclosure of the civil lawsuits filed by the two witnesses constituted a Brady violation. The State s duty under Brady extends only to evidence in its possession or the possession of police crime. investigating or assisting in the prosecution of the See Strickler v. Greene, 527 U.S. 263, 280-81 (1999). Brady, moreover, only imposes an obligation on a prosecutor to learn of any favorable evidence known to the others acting on the government s behalf in the case, including Kyles v. Whitley, 514 U.S. 419, 437 (1995). 9 the police. The record in this case fails to show that either police or the prosecutor knew that the two witnesses had filed suit against the rental-car company, when these witnesses purportedly filed these lawsuits, 4 or why Larsgard himself. could not have discovered this information Moreover, it is hardly surprising that the witnesses, both of whom were injured during the incident, would have filed lawsuits. Under these circumstances, Larsgard has failed to demonstrate any reasonable probability that the outcome of his trial would have been any different had evidence that these two witnesses had in fact filed lawsuits been presented to the jury. On this record, we find no error, let alone fundamental error. Weight of the Evidence ¶16 Larsgard also claims that the trial court erred in denying his motion for a new trial on the ground verdict was contrary to the weight of the evidence. that the eyewitnesses misperceptions, conduct after because the first were the themselves physical incident deliberately driven into the crowd. the evidence showed that that the He argues victims of and his own he had not We review the trial court s denial of a motion for new trial based on the weight of the evidence for abuse of discretion. 4 State v. Spears, 184 Ariz. Indeed, Larsgard did not include a citation to the record that supports his contention that the witnesses had filed lawsuits against the rental-car company. 10 277, 289, 908 P.2d 1062, 1074 (1996). The trial court did not abuse its discretion here. ¶17 Larsgard was charged with eight counts of aggravated assault for intentionally using a dangerous place each of instrument, the named a victims apprehension of imminent physical injury. vehicle, in to reasonable The jury convicted him of six counts and acquitted him of the two remaining counts. Larsgard was also charged with recklessly endangering a twoyear-old boy, with a substantial risk of imminent death, and the jury convicted him of this offense. ¶18 We view the evidence in the light most favorable to sustaining the convictions and leave credibility determinations to the judge, who was evaluate credibility. present and in the best position to Larsgard s convictions were supported by sufficient evidence of record, and we cannot say that the trial court abused its discretion in denying the motion for new trial. 5 5 Larsgard also argues that the trial court abused its discretion in denying his request to depose his mother, a Norway resident, before a trial date had been set. Although the court denied the request, his mother testified at trial. Consequently, the issue is moot, and we decline to address it. See State v. Hoskins, 199 Ariz. 127, 136-37, ¶¶ 22-24, 14 P.3d 997, 1006-07 (2000) (concluding that defendant s claim that his Miranda rights were violated was moot because his statement was not introduced at trial). 11 Conclusion ¶19 For the foregoing reasons, we affirm Larsgard s convictions and sentences. _________/s/__________________________ PHILIP HALL, Judge CONCURRING: _________/s/___________________________ MARGARET H. DOWNIE, Presiding Judge ________/s/____________________________ MAURICE PORTLEY, Judge 12
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