State v. Terry

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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. BRANDON SCOTT TERRY, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-24-010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0374 1 CA-CR 09-0386 1 CA-CR 09-0388 (Consolidated) DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause Nos. CR2008-158657-001 DT, CR2007-139138-001 DT; CR2008-111971-001 DT Commissioner Steven P. Lynch, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee Law Office of Corso & Rhude By John M. Rhude Attorney for Appellant Peoria J O H N S E N, Judge ¶1 Brandon Scott Terry appeals his conviction of aggravated assault and the resulting revocation of probation. For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted). contest the conviction. sufficiency of the evidence Terry does not to support his Therefore, it will suffice to note that after an argument with the victim, Terry approached her with two knives as she sat in her car, repeatedly stabbed the car and slashed one tire. ¶3 As he did so, Terry threatened to kill the victim. After a aggravated assault. two-day trial, Terry was convicted of Because of his conviction, his terms of probation on two prior convictions were revoked. Terry was sentenced to the minimum term of 11.25 years imprisonment for aggravated assault and presumptive terms imprisonment for the two prior convictions. of one year All sentences were ordered to be served concurrently. ¶4 Terry filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and 2 Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2003), 13-4031 (2010) and 13-4033 (2010). DISCUSSION A. Alleged Coaching of Witnesses. ¶5 failed Terry first asserts the superior court erred when it to admonish the victim after she allegedly coached witnesses on the stand by nodding and/or shaking her head from where she sat in the gallery of the courtroom. contends the court should have investigated Terry further the coaching s effect on witness testimony or the jury. ¶6 The issue arose at the beginning of the final day of the two-day trial. Defense counsel informed the court that the day before, the victim appeared to be coaching witnesses by nodding and/or shaking her head during the witnesses testimony. Defense counsel conceded she did not observe any of this activity herself, but was informed of it by Terry s girlfriend. Defense counsel asked that if the victim appeared at trial again, the court admonish her to keep some of her motions or gestures to herself. Defense counsel did not ask the court to conduct any sort of investigation or take any further action. ¶7 The court noted it had observed the victim during the other witnesses testimony the day before and that it had the best vantage point. occasionally nodded The court stated that while the victim her head during 3 the testimony of other witnesses, the victim was not demonstrative nothing that merited the court s admonition. and had done There is nothing in the record to indicate the victim appeared for the second and final day of trial. ¶8 We will not overturn a decision regarding the conduct of trial absent an abuse of the superior court s discretion. State v. Just, 138 Ariz. 534, 550, 675 P.2d 1353, 1369 (App. 1983). In reviewing an exercise of discretion, [t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot discretion for that of the trial judge. substitute our Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring)). ¶9 abused We its personally have no reason discretion observed in the to this victim conclude the instance. and found superior First, she court the not was court being demonstrative and had done nothing to warrant an admonition. There is reasonable nothing in finding. the record Second, to Terry suggest only this asked was the admonish the victim if she appeared again at trial. not court a to As noted above, there is nothing in the record to indicate the victim 4 ever reappeared at trial. Therefore, even if the court should have admonished the victim about coaching of witnesses, there was no need to do so. the court abused Further, nothing in the record suggests its discretion investigation into the matter. in failing to undertake an As noted, the court had already determined, based on its own observations, that no coaching had occurred. ¶10 For these reasons, the superior court did not abuse its discretion in responding to the assertion that the victim had coached witnesses during the prior day s testimony. B. Asserted Admission of Hearsay. ¶11 Terry also contends the superior court erred when it admitted statements during a prior his incident girlfriend between made Terry to and a 9-1-1 the operator victim. The girlfriend testified on direct examination regarding the prior incident and her call to 9-1-1. On cross-examination, the girlfriend denied she told the 9-1-1 operator she had actually slept through most of the prior incident. She further testified she called 9-1-1 because she was afraid of what the victim might do and denied she told the 9-1-1 operator she called because she was afraid of what Terry might do because of his temper. Finally, while the girlfriend initially denied she told the 9-1- 5 1 operator Terry s temper gets bad, she later admitted she told this to the operator.1 ¶12 Terry argued his girlfriend s statements to the 9-1-1 operator were inadmissible hearsay and that admission of those statements denied him the right to confrontation because the 91-1 operator was not available for cross-examination. held the statements were admissible as prior The court inconsistent statements to impeach the girlfriend s earlier testimony. We review a superior court s evidentiary rulings for a clear abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). ¶13 The court did not err in admitting the testimony. girlfriend s statements definition, not hearsay. to the 9-1-1 operator were, The by A prior inconsistent statement is not hearsay if it is made by a witness who is subject to crossexamination about that statement. Ariz. R. Evid. 801(d)(1)(A); State v. Sucharew, 205 Ariz. 16, 23, ¶ 20, 66 P.3d 59, 66 (App. 2003). Further, a witness may be impeached with his or her prior inconsistent statements. State v. Thompson, 167 Ariz. 230, 231, 805 P.2d 1051, 1052 (App. 1990). statements to the 9-1-1 operator 1 were The girlfriend s inconsistent with her The girlfriend was never shown a transcript of her 9-1-1 call, and extrinsic evidence of her statements was not admitted into evidence. See Ariz. R. Evid. 613. The State merely asked the girlfriend questions regarding whether she made certain statements to the 9-1-1 operator. 6 testimony regarding her ability to observe the prior incident, why she called 9-1-1 and her denial she told the 9-1-1 operator Terry s temper admissible as gets prior bad. Her inconsistent statements statements therefore for were impeachment purposes and did not constitute hearsay. ¶14 The Confrontation Clause provides that in all criminal prosecutions an accused has the right to be confronted with the witnesses against him. State v. Moore, 203 Ariz. 515, 517, ¶ 7, 56 P.3d 1099, 1101 (App. 2002) (citation omitted, emphasis added). Terry was confronted with all the witnesses who provided testimony or other evidence against him. The 9-1-1 operator was not a witness against Terry, so the operator s alleged unavailability for trial was irrelevant. ¶15 allowed The trial court did not abuse its discretion when it the State to impeach the girlfriend with her prior inconsistent statements, and Terry was not denied the right to confront any witness. 7 CONCLUSION ¶16 We affirm Terry s conviction, the revocations of probation and the sentences imposed. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/___________________________ PHILIP HALL, Judge /s/___________________________ PATRICIA K. NORRIS, Judge 8

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