STATE v. MULLER

Annotate this Case

Download PDF

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. ) ) CHRISTOPHER STUART MULLER, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 9/19/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0527 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-007633-001 The Honorable Dawn M. Bergin, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section William Scott Simon, Assistant Attorney General Attorneys for Appellee Phoenix Curry Pearson & Wooten PLC By Kristen M. Curry Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Christopher Stuart Muller appeals his conviction and life sentence for conspiracy to commit first-degree murder. The conviction stems from an alleged plan by Muller to kill a former business associate and the associate s brother. when the person Muller spoke notified the authorities. to about The plot failed arranging the murders On appeal, Muller argues that error occurred in the admission of evidence. For reasons that follow, we affirm. DISCUSSION I. Admission of Testimony Regarding Threat ¶2 Muller contends the trial court erred in admitting testimony regarding a threat made by one of the brothers. We review a ruling on the admissibility of evidence for an abuse of discretion. State v. Amaya Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990) (citation omitted). ¶3 The State s theory was that Muller wanted to kill M.S. and his brother because they were threatening his businesses - including a crating business and a marijuana growing enterprise for use by medical dispensaries in California. At trial, M.S. testified about a telephone call his brother made to Muller. During the call, the brother warned [Muller] that often times if you overload a grow house, a marijuana grow house, and overload the power system they have the ability to catch fire. M.S. testified threatening. that his brother s statement almost sounded Muller argues this testimony should have been excluded because it was hearsay. 2 ¶4 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible. Ariz. R. Evid. 801(c), 802. The rule excluding hearsay, however, is inapplicable when the statement is offered for some valid purpose other than asserted in the statement. proving the truth of the matter State v. Rivera, 139 Ariz. 409, 413-14, 678 P.2d 1373, 1377-78 (1984). ¶5 Here, testimony regarding the brother s warning was not offered to prove that overloading the power system on a grow house will cause a fire, but rather to show the effect of the statement on Muller brothers killed. vis-Ã -vis his motive for wanting the Hence, the testimony was properly admissible for a non-hearsay purpose. See State v. Hernandez, 170 Ariz. 301, 306, 823 P.2d 1309, 1314 (App. 1991) (words offered for effect on listener not hearsay because not offered to prove truth of matter asserted). II. Admission of Opinion Testimony ¶6 As part of its proof of motive for the murder plot, the State presented evidence that Muller was angry because he believed M.S. had contacted Muller s crating business customers to inform them about Muller s prior felony conviction. M.S. denied permitted business him contacting to learned Muller s testify of that Muller s customers, if customers felony 3 the of Although trial the conviction, it court crating would adversely affect the business. Muller contends the court should not have allowed this testimony because M.S. is not an expert and is unqualified to offer such an opinion. ¶7 A witness not testifying as an expert is permitted to give an opinion that is (a) rationally based on the witness s perception; (b) helpful to clearly understanding the witness s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Ariz. R. Evid. 701. The Arizona Rules of Evidence further provide, in pertinent part: 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. Evidence to prove personal knowledge may consist of the witness s own testimony. Ariz. R. Evid. 602. ¶8 M.S. s Muller argues experience in the trucking business was too remote and limited to permit him to opine about the effect of Specifically, a felony Muller conviction notes that on M.S. the had crating not business. worked in the trucking business since about 2001 and that he had worked for Muller s crating business for only six months in 2003 or 2004 as a dispatcher. At trial, though, M.S. testified it is well known through the industry and documented through contracts that they sign with these customers that a vendor can t have felons work for them or in the factory places and further explained 4 that he became familiar with this restriction on owners and employees during his work at Muller s business, which included reviewing contracts with the no-felony requirement. ¶9 Given industry and M.S. s his testimony review of about his contracts background with the in the no-felony requirement, the trial court could reasonably conclude he was sufficiently qualified to offer the opinion because it was based on his own experience in the industry. Muller s argument that M.S. s knowledge and experience is too remote or limited goes to the weight of the evidence, not its admissibility. See State v. Davolt, 207 Ariz. 191, 210, ¶ 70, 84 P.3d 456, 475 (2004) ( The degree of qualification goes testimony, not its admissibility. ). to the weight given the The court did not abuse its discretion in admitting the testimony. ¶10 Furthermore, even if M.S. s testimony were erroneously admitted, reversal would not be required. Two other witnesses, including Muller himself, testified that customers knowledge of Muller s felony conviction would adversely affect his business. Thus, any error in admitting M.S. s testimony would be harmless because it was cumulative of other testimony. Williams, 133 Ariz. 220, 226, (citations omitted). 5 650 P.2d 1202, See State v. 1208 (1982) III. Admission of Other Act Evidence ¶11 Finally, Muller argues that admitting evidence of his involvement in illegally transporting marijuana was fundamental error. He claims this evidence should have been precluded as other act evidence under Rule 404(b). We decline to review this assertion because any error was invited by Muller. ¶12 Before trial, the court ruled that evidence of Muller s involvement in the illegal transportation of marijuana would not be admissible unless Muller opened the door on this subject. In his opening statement, defense counsel informed the jury of Muller s involvement with another witness in illegally transporting marijuana. clarification from the When court the prosecutor regarding whether sought counsel had opened the door on this subject, defense counsel confirmed his intent to do so. Consistent with the decision to place evidence on this subject before the jury, defense counsel later elicited testimony from Muller regarding his involvement in the illegal transportation of marijuana. ¶13 A defendant who invites error at trial may not then claim the same as error on appeal. State v. Moody, 208 Ariz. 424, 453, ¶ 111, 94 P.3d 1119, 1148 (2004) (citation omitted); see also State v. Lucero, 223 Ariz. 129, 138, ¶ 31, 220 P.3d 249, 258 (App. affirmatively 2009) and ( [I]f the independently 6 party complaining initiated the on error, appeal he [is] barred from raising the error on appeal. ). Because he affirmatively contributed to the admission of the evidence he now challenges on appeal, Muller s claim is rejected as invited error. See State v. Logan, 200 Ariz. 564, 565 66, ¶ 9, 30 P.3d 631, 632 33 (2001) ( If an error is invited, we do not consider whether the alleged error is fundamental . . . . ). We further reject Muller s claim that the trial court committed fundamental error by failing to sua sponte give a limiting instruction on the proper use of other act evidence. See State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996) ( [T]he trial court's failure to sua sponte give a limiting instruction is not fundamental error. ). CONCLUSION ¶14 For the reasons stated, we affirm Muller s conviction and sentence. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ LAWRENCE F. WINTHROP, Presiding Judge /s/ JON W. THOMPSON, Judge 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.