State v. Ellis

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. FREDERICK MICHAEL ELLIS, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0257 DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-146639-001 DT The Honorable John R. Hannah, Jr., Judge CONVICTION AFFIRMED; REMANDED FOR RESENTENCING Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel And Craig W. Soland, Assistant Attorney General Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Attorney for Appellant Phoenix T H O M P S O N, Judge ¶1 Defendant, Frederick Michael Ellis, appeals from his conviction on one count of theft of a means of transportation. He claims that the trial court erred: (1) when it permitted the state to elicit firefighters; defendant s (2) when it statements admitted to police testimony and regarding defendant s invocation of his right to remain silent and (3) concerning his refusal to cooperate with police; and (4) when it sentenced proving defendant or defendant as a repeat admitting offender two prior without felony the state convictions. For reasons that follow, we affirm. FACTS 1 AND PROCEDURAL HISTORY Jacinto and Luis C. 2 are two brothers who operate a ¶2 pallet company on Buckeye Road in Phoenix. 2:00 p.m. on July 24, 2008, company s 1995 Dodge flatbed customer lot while he Luis truck dealt At approximately temporarily outside with a parked the of the company s load of pallets. Unfortunately, he left the keys in the ignition, and, when he returned thirty minutes later, the truck was gone. He immediately called the Phoenix Police Department and reported it stolen, providing officers with the vehicle s license plate number. 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 We use the first initial of the victim s last name to protect his privacy as a victim. State v. Maldonado, 206 Ariz. 339, 341 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 ¶3 Within minutes police received word that the stolen Dodge truck construction was zone involved on in 75th a four Avenue and vehicle Van collision Buren. in The a Dodge flatbed truck had rear-ended a Ford F250 utility truck that was in a line of traffic stopped at a red light. The Ford truck then hit the vehicle in front of it, which in turn caused that vehicle to hit the vehicle in front of it. ¶4 the A lineman working at the construction site witnessed accident and identified defendant at trial as occupant and driver of the Dodge flatbed truck. the sole He observed defendant get out and walk behind the Dodge truck and heard defendant say what did everybody to do him. The lineman and the driver of the Ford utility truck both watched as defendant left the scene of the collision and were able to inform police of the direction defendant took. Within minutes, police apprehended defendant in some industrial buildings located on the north side of Van Buren and 75th Avenue. Police transported defendant to the site of the collision where firefighters were treating the injured victims. Witnesses at the site identified defendant as the driver of the stolen Dodge truck. ¶5 The state charged defendant with one count of theft of a means of transportation, knowing or having reason to know that the vehicle was stolen, a Class 3 3 felony. A jury found defendant guilty of the offense as charged. On March 25, 2009, the trial court sentenced defendant to a mitigated term of ten years in prison. ¶6 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) §§ 12- 120.21(A)(1)(2003), 13-4031 and -4033 (2010). DISCUSSION Admission of Defendant s Statements to Officers ¶7 When police located defendant in the industrial area, he claimed that his ankle was broken and he appeared to be limping very badly. The officer who transported defendant to the site of the collision asked the firefighters at the site to also attend to defendant. as well as verbally However defendant became belligerent aggressive, and the firefighters were unable to deal with him. ¶8 On the first day of trial, prior to opening argument, defendant moved in limine to preclude the state from introducing any mention of defendant s refusal to cooperate with officers the expletives defendant used when approached by police and/or firefighters, arguing that these were hearsay and not relevant. According to defense counsel, the expletives defendant had mouthed [made] up about 80 percent of the police report, and 4 counsel maintained that clearly prejudicial. admission of all of them would be The state maintained that because the statements were those of a party opponent they were not hearsay and they also were relevant to show consciousness of guilt as they were not what a normal person would do if they were in that situation. ¶9 The trial court noted that defendant s motion had been untimely filed. argument on objection it. but arguments. defer It nonetheless accepted the motion and heard The court considered overruled defendant s defendant s relevance and hearsay prejudice Although the trial court announced that it would ruling on the matter until the time of the officer s testimony, it indicated that it was inclined to permit one or two repetitions of the statements that the state quoted from the police reports, finding them relevant and more probative than prejudicial. However, the court also cautioned that it was not . . . going to permit a 10 minute verbatim recitation of that kind of language. fair; and the trial Defense counsel responded, [t]hat s court stated [s]o that s the Court s ruling on that one. ¶10 Based on the trial court s provisional ruling and without further objection from defense counsel, the prosecutor elicited the following testimony at trial from Officer W., the 5 officer who transported defendant both to the scene and to the police station, concerning defendant s demeanor and statements on the night of the offense. Officer W. testified that, when firefighters approached defendant at the site of the collision to check his injuries and asked defendant what s wrong, defendant replied fuck you mother fuckers, you can all suck my cock. Defendant was very agitated and verbally aggressive when he tried to speak with him and that [i]t literally seemed as if every something. third word was the F word at somebody, at When Officer W. attempted to read defendant his rights, defendant replied fuck you, go suck some more dick, mother fucker. belligerent According behavior to continued Officer at the W., police defendant s station, with defendant yelling and screaming while in the holding cell. When a sergeant came over to talk to defendant, he immediately had choice words for her once again. ¶11 On appeal, defendant maintains that the trial court committed reversible error when it permitted the state to introduce these inflammatory statements which prejudiced the jury and tipped the balance against him. We review a trial court s ruling on the admission of evidence for an abuse of discretion. State v. Tucker, 215 Ariz. 298, 314, ¶ 58, 160 P.3d 177, 193 (2007). A trial court is granted broad discretion in 6 such rulings because it is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice. State v. Connor, 215 Ariz. 553, 564, ¶ 39, 161 P.3d 596, 607 (App. 2007) (quoting State v. Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998)). Absent a clear abuse of that considerable discretion, this court will not second-guess a trial court s relevance of evidence. the on the admissibility or State v. Spreitz, 190 Ariz. 129, 146, 945 P.2d 1260, 1277 (1977). ¶12 ruling We find no abuse of discretion. Defendant s statements and behavior at the scene of crime after having been observed by witnesses both in possession of the recently stolen vehicle and fleeing from the scene furnished circumstantial consciousness of guilt. the jury to consider. evidence of defendant s It was therefore relevant evidence for See State v. Pettit, 194 Ariz. 192, 197, ¶ 23, 979 P.2d 5, 10, (App. 1998) (it is well established in civil and criminal cases, that direct and circumstantial evidence have equal probative worth (citation omitted)). In addition, the trial court took appropriate measures and limited the number and kinds of expletives the state was permitted to elicit, thus further reducing 7 any possibility of unfair prejudice. See Ariz. R. Evid. 403. The trial court committed no abuse of discretion in admitting this evidence at trial. 3 ¶13 The cases that defendant relies on for his arguments, State v. Salazar, 181 Ariz. 87, 887 P.2d 617 (App. 1994) and State v. Coghill, 216 Ariz. 578, 169 P.3d 942 (App. 2007), are inapposite. In Salazar, we found that the trial court erred in permitting the admission of prior bad acts in inflammatory detail. 181 Ariz. at 91-92, 887 P.2d at 621-22. Here, the evidence of defendant s conduct was part of his overall conduct the night of the crime in committing of the offense. Furthermore, the trial court took appropriate limiting action to restrict the evidence that was presented to the jury. ¶14 Coghill also applies to prior bad act evidence and not intrinsic evidence of the offense. In Coghill, we found that, even though evidence of defendant s ability to download adult pornographic videos was relevant to the charge that he copied and possessed child pornography, the trial court erred by not restricting the testimony to defendant s general ability to download and copy computer files without disclosing the specific pornographic nature of the other files. 3 216 Ariz. at 583, ¶¶ We find defendant s motion in limine sufficient to preserve this issue for appeal. We therefore need not address the state s fundamental error or invited error arguments. See State v. Coleman, 122 Ariz. 99, 101, 593 P.2d 653, 655 (1979) (a properly made motion in limine preserves an objection on appeal if it contains specific grounds for the objection). 8 16-17, 169 P.3d at 947. In reversing the trial court in Coghill, we noted the importance of a trial court s role in removing unnecessary inflammatory detail from other-act evidence before admitting it. Id. at ¶ 18. In the present case, the trial court specifically restricted the state to the number of profane statements probative value that of it the could quote, evidence thus against balancing any the potentially prejudicial effects. ¶15 the Our holding in Coghill, that the error in admitting evidence was not harmless, was further tempered by our finding that the evidence of defendant s possession of child pornography in that case was not overwhelming. Contrary to defendant s argument, we find Id. at ¶ 29. the evidence of defendant s guilt in this case, where he was identified as the driver of the stolen vehicle within minutes of its theft, to be overwhelming. Cases in which we have found harmless error in the admission of improper evidence cannot be characterized as close, but convincing have on presented the us essential with facts, convicted even without the error. a that to assume arguendo that the the of jury firmly would have Therefore, even if we evidence was admitted, we are convinced any error was harmless. 9 proof, State v. Bass, 198 Ariz. 571, 582, ¶ 45, 12 P.3d 796, 807 (2000). were body erroneously Invocation of Right to Remain Silent ¶16 As noted above, Officer W. testified that, when he attempted quote, to fuck read you, defendant go suck his some rights, more defendant dick, mother told him fucker. Officer W. testified that, after this exchange, he simply placed defendant in the back of his police vehicle while he helped out with the investigation of the collision. During rebuttal closing argument, the state referred to this exchange to argue that defendant s belligerence and uncooperativeness were indicative of his guilt, stating Is that the way a person who was innocent acts, or would that person be more cooperative? ¶17 On appeal, defendant argues that Officer W. clearly understood that his response was his invocation of his right to remain silent, and, therefore, that it was error for the trial court to permit the prosecutor to elicit this testimony subsequently use it in her argument to the jury. and Defendant acknowledges that he did not raise this objection before the trial court and that he has therefore forfeited relief on this issue save in the rare instance that fundamental error occurred. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Furthermore, the burden is on defendant to establish both that fundamental error occurred and that the error caused him prejudice. Id. at ¶ 20. 10 ¶18 Before we engage in fundamental error review, however, we must first find that the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). We find the trial court committed no error. ¶19 Neither defendant s attention silent use to or the of officer nor profanities defendant s prejudice the were used invocation defendant state s to for to his references to draw the jury s right to remain that right. exercising Instead, it is apparent from the context in which the testimony was elicited eliciting being that further arrested the prosecutor s question was aimed at at evidence in of defendant s aggressiveness support of the theory state s that that conduct was further evidence of defendant s guilt. ¶20 Nor is it clear, as defendant maintains, that Officer W. understood his response to be an invocation of his right to remain silent. It is true that Officer W. testified that the invectives came when he attempted to read defendant his rights. However, abandoned it any is clear further from Officer attempts to W. s speak testimony with that defendant, he not because he believed defendant invoked his rights, but because Officer W. concluded that those attempts would have been futile in light of defendant s bellicosity. Furthermore, a review of the record establishes that the state never used the testimony 11 to comment on defendant s invocation of his right to remain silent. ¶21 Defendant has failed to establish that the trial court committed any error, let alone fundamental error, in this case. See Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. He is not entitled to reversal on this basis. Refusal to Cooperate with Police ¶22 Reiterating the same arguments made above, defendant next asserts that it was fundamental error for the trial court to allow the state to introduce evidence of defendant s lack of cooperation with police to argue indication of defendant s guilt. that it was a further He maintains that that he has a constitutional right to refuse to cooperate and suggests that the use of this evidence was an improper comment on his exercise of that right. error. We find no error, let alone fundamental See Lavers, 168 Ariz. at 385, 814 P.2d at 342. ¶23 First, as noted above, there is simply no indication in the record that defendant ever invoked his constitutional right to remain silent or that his actions intended to signify that he was doing so. or words were Furthermore, there is no general constitutional right to refuse to cooperate with law enforcement as defendant suggests, and defendant does not point us to any authority that provides otherwise. 12 ¶24 Second, defendant s reliance on State v. Palenkas, 188 Ariz. 201, 933 P.2d 1269 (App. 1996) is misplaced. The evidence at trial in Palenkas established that defendant spoke with an attorney prior to his arrest and consequently refused to consent to a warrantless actions that search involve of his protected vehicle, both constitutional of which rights. are See Palenkas, 188 Ariz. at 212, 933 P.2d at 1280; U.S. Const. amend. IV and VI; Ariz. Const. art. 2, §§ 8 and 14. Under those specific circumstances, this court found that the prosecutor s subsequent argument that the defendant s refusal to permit police officers to search his car without a warrant established his guilt was improper because it violated a prior court order in limine and creat[ed] an inference that defendant s invocation of constitutional rights was evidence of his guilt. 188 Ariz. at 212, 933 P.2d at 1280. As we stated in Palenkas, a defendant s invocation of constitutional rights is probative of nothing except the constitutional rights. ¶25 defendant s awareness of his or her Id. Defendant in the present case did not invoke his Fifth Amendment right to remain arguments never implied silent. guilt based right. 13 Thus, on an the prosecutor s exercise of that Existence of Prior Convictions ¶26 Prior to trial, the state alleged that defendant had previously been convicted of seven felonies in Maricopa County. After the jury returned its guilty verdict, the trial court asked defendant whether he wanted a hearing on the priors or planned to admit them. Defense counsel replied, Your Honor, [defendant] is not asking for a hearing. The trial court then stated: Let me just put this on the record. The defense has indicated that the defendant will not, is not requesting a trial on the prior convictions. If that continues to be his position, the Court will take a formal admission on the priors at the time of sentencing. If [defendant] changes his mind and wants an evidentiary hearing, defense counsel is directed to notify the Court in advance so that we can schedule the hearing on a date when there s time available on the Court s calendar. ¶27 On February 25, 2009, the trial court held a hearing on defendant s motions for new trial and judgment of acquittal. Defendant made no request for an evidentiary hearing on the priors at that time. ¶28 The matter proceeded to sentencing on March 25, 2009. Impliedly proceeding with the understanding that defendant did not desire a hearing on the priors, the trial court sentenced defendant to a mitigated term of ten years in prison, with two prior felony convictions. The trial court never formally asked 14 defendant to admit the two prior historical felonies and did not conduct a colloquy in accordance with Rule 17.6 of the Arizona Rules of Criminal Procedure. ¶29 On appeal, defendant argues that the trial court s failure to either hold a hearing on the priors or conduct a Rule 17.6 colloquy and obtain a formal admission of them constitutes fundamental error. The state concedes that the court s failure to at least conduct the Rule 17.6 colloquy to establish the voluntariness of defendant s implied admission of the priors is fundamental error that requires remand for resentencing. Under the circumstances of this case, we agree. ¶30 In State v. Morales, 215 Ariz. 59, 61, ¶ 6, 157 P.3d 479, 481 (2007), our supreme court held that, when a defendant s sentence is enhanced by a prior conviction, the existence of that prior conviction must be found by the court through a hearing at which the state presents evidence in the form of a certified copy of the conviction and establishes that the defendant is the person to whom the document refers. Id. The need for a formal hearing may be obviated if a defendant agrees to admit the prior conviction. Id. When a defendant admits a prior conviction, however, the trial court must then conduct a plea-type Rule 17.6 colloquy to ascertain that the defendant s admission is voluntarily and intelligently made. 15 Id. at ¶¶ 7-8. This same policy applies when a defense counsel stipulates to the existence of a prior conviction. ¶31 Id. at ¶ 9. In Morales, our supreme court held that a complete failure to afford a defendant a Rule 17.6 colloquy constitutes fundamental waiver of constitutional rights must be voluntary and intelligent. Id. at ¶ 10. error because a defendant s Thus, the trial court s failure to conduct the Rule 17.6 colloquy in the present case is clearly fundamental error. ¶32 Nonetheless, our supreme court in Morales further found that the mere absence of a Rule 17.6 colloquy did not automatically Id. at ¶ 11. entitle a defendant to a resentencing hearing. Prejudice, the second prong of fundamental error review, is established if a defendant also shows that he would not have admitted the prior had the colloquy been given, thereby forcing the state to prove its existence. Id. defendant matter makes such a showing would the Only when a require a resentencing hearing at which the state was put to the burden of proving the prior conviction. a showing, record on certified a resentencing appeal copies contains of the Id. at ¶ 13. may still conclusive prior not But even with such be proof conviction or required in the if the form of convictions the authenticity of which the parties do not contest, as the record apparently did in Morales. Id. 16 ¶33 copies Unlike Morales, the record here contains no certified of defendant s prior convictions. Under these circumstances, we must therefore remand for resentencing. CONCLUSION ¶34 For conviction. the foregoing reasons, we affirm defendant s We remand for resentencing in accordance with this decision. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ SHELDON H. WEISBERG, Judge 17

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.