State v. Thompson
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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.
DONELL THOMPSON,
Appellant.
DIVISION ONE
FILED: 09/06/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 09-0606
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(Not for Publication –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.
CR 2008-006131-001-DT
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee
Janelle A. McEachern
Attorneys for Appellant
Phoenix
Chandler
G E M M I L L, Judge
¶1
Donell Thompson appeals his convictions for two counts
of second-degree murder and one count of assisting a criminal
street
gang
and
the
jury’s
finding
that
the
offenses
were
committed with the intent of assisting criminal conduct by a
criminal street gang. For the reasons that follow, we find no
reversible error and affirm.
¶2
The
upholding
facts,
the
jury’s
viewed
in
the
light
verdict, 1
are
as
most
follows.
favorable
An
to
argument
erupted at a party over the Crips and the Bloods, culminating in
the fatal shooting of Kenneth R. and Regis S.
Thompson, known
by the nickname “Dooker,” was a documented member of the Lindo
Park Crips, a criminal street gang.
Kenneth R., known as “Kenny
Gangster,” was a member of the Broadway Gangsters and the 1st
Street
Bloods.
Regis
S.
liked
the
Bloods’
customs,
or
lifestyle, and was known to say he was a Blood.
¶3
Several witnesses identified Thompson at trial as the
person wearing a baby blue bandanna on his face who shot toward
the
crowd
before
Kenneth
and
Regis
fell.
Another
witness
testified that he saw Thompson point the rifle at Regis several
minutes before the shooting and say, “It’s on Park,” meaning it
was on behalf of the Lindo Park Crips. Two other witnesses
testified that they saw Thompson with a rifle and a baby blue
bandanna around his neck or covering his face shortly before the
shooting.
A gang expert testified that the Lindo Park Crips had
been involved in violent war with the Vista Bloods, and were
1
State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113
(App. 1996).
2
also rivals of all Blood “sets.”
¶4
The jury convicted Thompson of two counts of second-
degree murder and one count of assisting a criminal street gang,
and found with respect to each of the convictions that Thompson
had intended to promote, further, or assist criminal conduct of
the gang.
It acquitted him of the charge of aggravated assault
of a third victim.
The judge sentenced Thompson to sixteen
years in prison on each of the second-degree murder convictions,
to be served consecutively, and eight and one-half years on the
conviction for assisting a criminal street gang, to be served
concurrently
with
the
sentence
on
the
first
count.
Thompson
filed a timely appeal.
Failure to Suppress Thompson’s Statement
¶5
Thompson
argues
first
that
the
trial
court
fundamentally erred by failing to suppress statements he made to
deputy sheriffs on March 7, 2008, when he was in jail after
having been arraigned on these charges, violating his rights
under the Sixth Amendment.
The record, however, reflects that
the State did not introduce any statements Thompson made to
police on this occasion at trial.
This argument accordingly has
no support in the record.
Speedy Trial Violation
¶6
right
Thompson next argues that the trial court violated his
to
a
speedy
trial
by
granting
3
the
State’s
motion
to
designate this trial as a complex case pursuant to Arizona Rule
of Criminal Procedure Rule (“Rule”) 8.2(a)(3)(iii), “given the
flagrant
tactics
discovery
employed
by
violations
the
and
state.”
prejudicial
We
find
no
evidentiary
merit
in
this
argument.
¶7
The background on this issue is as follows.
A grand
jury indicted Thompson in CR 2007-005250-001-DT on two counts of
second-degree murder, one count of aggravated assault, and one
count of assisting a criminal syndicate.
Thompson moved for,
and obtained, a designation that the case was a complex case,
based
on
testify.
the
The
numerous
trial
expert
court
and
lay
witnesses
subsequently
expected
dismissed
without prejudice on the State’s motion.
the
to
case
A grand jury re-
indicted Thompson on two counts of second-degree murder, one
count
of
aggravated
criminal street gang.
assault,
and
one
count
of
assisting
a
The trial court set trial for August 11,
2008.
¶8
A week before trial was set to start, the State filed
a motion to designate the case as complex, asserting that it
involved extensive physical and forensic evidence and more than
twenty civilian witnesses, one of whom had only recently agreed
to
cooperate
with
the
State,
and
uncooperative or difficult to locate.
many
others
who
were
The State noted that it
was exhausting its resources to ensure the missing witnesses
4
were
located,
and
it
might
“need
to
take
compliance of all or some of the witnesses.”
file a written response.
part
of
the
record
on
action
to
ensure
Thompson did not
After hearing argument that is not
appeal,
the
trial
court
granted
the
State’s motion, reasoning:
At first blush, Defendant’s objection to the
Motion is odd, inasmuch as the Defendant
moved for, and obtained, the same designation
in this same case, in its earlier creation,
CR2007-005250-001-DT.
Since this is, in
essence,
the
same
case,
the
Court
incorporates by reference the same reasons
the Defense counsel gave in CR2007-005250001-DT as the justification for this same
designation in CR 2008-006131-001-DT.
As a result, the judge extended the last day for Thompson’s
trial one-hundred twenty days, to December 22, 2008.
Compare
Ariz. R. Crim. P. 8.2(a)(1) (defendant in custody shall be tried
within 150 days of arraignment) with Ariz. R. Crim. P. 8.2(a)(3)
(defendant in case designated as complex shall be tried within
270 days of arraignment).
Thompson’s trial began on December 1,
2008.
¶9
We review a trial court’s determination of whether a
case is complex for Rule 8 purposes for abuse of discretion.
State v. Wassenaar, 215 Ariz. 565, 570, ¶ 9, 161 P.3d 608, 613
(App.
2007).
exercise
of
The
its
trial
court
abuses
discretion
is
its
discretion
“manifestly
if
unreasonable,
exercised on untenable grounds or for untenable reasons.”
5
its
Id.
at ¶ 11.
¶10
We find no such abuse of discretion.
As an initial
matter, we presume that the August 7, 2008 oral argument on this
motion, the transcript of which Thompson failed to designate as
part of the record on appeal, supports the trial court’s ruling.
See State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941
(App. 1995) (“When matters are not included in the record on
appeal, the missing portion of the record is presumed to support
the decision of the trial court.”).
Our review of the record
that is before us, moreover, convinces us that the judge did not
abuse his discretion in designating the case as complex and
allowing the State more time to prepare.
“A case is ‘complex’
if it is ‘so complicated by virtue of its nature or because of
the evidence required, that the ordinary limits for the time to
trial are insufficient and must be extended to afford more time
to prepare so that the case can be fairly and fully presented.’”
Wassenaar, 215 Ariz. at 570, ¶ 9, 161 P.3d at 613 (quoting
Snyder v. Donato, 211 Ariz. 117, 120, ¶ 12, 118 P.3d 632, 635
(App. 2005)).
Homicides are among those cases that are most
likely to qualify as complex. Snyder, 211 Ariz. at 120, ¶ 13,
118 P.3d at 365 (citing Ariz. R. Crim. P. 8.2(a)(3) comm. cmt.).
¶11
This case not only involved two homicides, it involved
allegations
that
the
homicides
were
committed
criminal street gang, the Lindo Park Crips.
6
to
assist
a
The State argued
that because the case involved gangs, many of the more than
twenty
witnesses
to
the
shooting
were
uncooperative
and
difficult to locate, and the record supports this claim.
In
fact, three months after the court’s designation of this case as
complex, Thompson argued in support of a motion to preclude
witnesses that seven of the State’s witnesses still could not be
located for defense interviews, and two of the State’s witnesses
had failed to appear at depositions after subpoenas were served.
One of these witnesses (Terry T.) was beaten by members of the
Lindo Park Crips when gang members obtained his original trial
subpoena.
ordinary,
Under the circumstances, in short, this was not an
run-of-the-mill
case,
but
rather
a
case
in
which
securing civilian witness interviews and testimony was difficult
at best, ultimately requiring issuance of arrest warrants, field
stops, and a court order that certain witnesses make themselves
available
for
interviews.
We
accordingly
find
no
abuse
of
discretion in the court’s designation of this case as complex.
¶12
Moreover, even if the court had abused its discretion
in granting the State’s motion to designate this case complex,
Thompson has failed to show that his ability to defend himself
was harmed by the four-month delay in trying him, as necessary
to reverse on this basis.
136,
945
prejudice
P.2d
to
1260,
reverse
See State v. Spreitz, 190 Ariz. 129,
1267
for
(1997)
violation
7
(requiring
of
Rule
a
8
showing
speedy
of
trial
rights); State v. Vasko, 193 Ariz. 142, 147, ¶ 22, 971 P.2d 189,
194 (App. 1998) (to prove prejudice, defendant must show that
his
defense
has
been
harmed
by
the
delay).
“[I]t
is
not
sufficient for a defendant to contend that the state may not
have
made
its
case
had
the
trial
proceeded
without
the
continuance,” Vasko, 193 Ariz. at 147, ¶ 22, 971 P.2d at 194,
the only claim of prejudice that Thompson makes in this appeal.
In short, we find no reversible error on this ground.
Denial of Dismissal for Discovery Violations
¶13
Thompson next argues that the trial court abused its
discretion in denying his motion to dismiss the charges with
prejudice or, alternatively, to exclude the witnesses, because
the State had violated the discovery rules by its “inability or
unwillingness to produce” its witnesses for defense interviews
in a timely manner.
¶14
4,
We find no merit in this argument.
The background on this issue is as follows.
2008,
civilian
Thompson
witnesses
filed
a
motion
disclosed
by
seeking
the
State
to
On August
preclude
from
all
testifying
because of difficulties the State was facing in setting up five
witness interviews.
The State responded that it had made good-
faith efforts to set up interviews, and suggested, as a less
onerous
sanction,
witnesses.
week
later
that
the
court
order
depositions
of
these
Defense counsel noted at the hearing on his motion a
that
he
had
completed
8
interviews
of
the
five
witnesses.
¶15
The judge denied the motion to preclude all of the
State’s civilian witnesses, reasoning that a more appropriate
intermediate sanction would be to allow the defense to “subpoena
for deposition any civilian witness who does not cooperate with
the interview process.”
The judge agreed also to order the
prosecutor to disclose the addresses of civilian witnesses, “and
to the extent that those address[es] are no longer good, let the
defense know so the defense investigator can attempt to locate
those witnesses.”
The following month, the judge ordered the
Office of Public Defense Services to appoint an investigator to
assist
Thompson
in
serving
deposition
subpoenas
on
civilian
witnesses.
¶16
Three
weeks
before
trial,
on
November
4,
2008,
Thompson moved to preclude nine witnesses from testifying on the
ground that two of the witnesses had failed to honor subpoenas
to
attend
a
deposition,
and
seven
addresses provided by the State.
others
were
not
at
the
The State argued that it had
and was making made good faith efforts to locate the witnesses,
who were vital to its case, and Thompson not only knew of the
witnesses
but
had
copies
of
their
therefore could not be “surprised.”
recorded
statements,
and
The judge denied the motion
to preclude, but continued trial for one week, made a jury room
available for witness interviews, and ruled that “no one can
9
testify that hasn’t been interviewed by the defense.”
¶17
on
At a status conference a week and a half before trial,
November
21,
2008,
Thompson
orally
moved
to
dismiss
the
charges, alleging in pertinent part that the State had failed to
timely disclose exculpatory evidence.
Thompson avowed, however,
that he did not want a continuance to allow further discovery.
After hearing argument, the court denied the motion.
¶18
The first day of trial, the defense had still not
interviewed
ordered
the
two
of
the
witnesses
State’s
to
witnesses.
make
The
themselves
trial
available
court
for
interviews the following day, and reiterated that “no witness
will testify who has not been interviewed.”
The prosecutor
noted that police had finally conducted a field stop on one of
these witnesses, who could not be served because he had been
severely
beaten
by
the
Lindo
Park
obtained his initial trial subpoena.
she
had
obtained
earlier that day.
an
arrest
warrant
Crips
when
they
somehow
The prosecutor noted that
for
the
second
witness
The record does not reflect that Thompson was
unable to interview any witness who testified at trial.
¶19
The trial court may order preclusion of a witness or
dismissal of the charges as a sanction for failure to disclose a
witness.
Ariz. R. Crim. P. 15.7(a)(1).
The trial court must
take into account, in determining the appropriate sanction, “the
significance of the information not timely disclosed, the impact
10
of the sanction on the party and the victim and the stage of the
proceedings at which the disclosure is ultimately made.” Ariz.
R. Crim. P. 15.7(a).
Before precluding a witness, the court
must also take into account whether less stringent sanctions
would be available “to effect the ends of justice,” “how vital
the precluded witness is to the proponent’s case,” “whether the
opposing party will be surprised and prejudiced by the witness’
testimony,” and “whether the discovery violation was motivated
by bad faith or willfulness.” State v. Smith, 123 Ariz. 243,
252, 599 P.2d 199, 208 (1979).
¶20
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).
find
an
abuse
of
discretion
in
a
discovery
We will not
ruling
unless
defendant shows that he suffered prejudice as a result of the
nondisclosure.
State v. Martinez-Villareal, 145 Ariz. 441, 448,
702 P.2d 670, 677 (1985).
Finally, we will not find that a
trial court has abused its discretion
judge
would
circumstances.”
have
reached
the
same
“unless no reasonable
result
under
the
State v. Armstrong, 208 Ariz. 345, 354, ¶ 40,
93 P.3d 1061, 1070 (2004) (citation omitted).
¶21
We find no such abuse in this case.
Thompson makes no
allegation in this appeal that the State failed to disclose any
witnesses, or the statements they had made to police officers.
11
He simply argues that the trial court should have precluded the
testimony of some or all the State’s witnesses because of “its
inability
or
unwillingness
defense interviews.”
a sanction:
to
produce
hauling
witnesses
for
The trial court, however, did impose such
it precluded any witness from testifying who had
not been interviewed by the defense.
resources
these
to
them
assist
in
in
for
locating
The court also lent its
the
interviews,
missing
including
witnesses
ordering
and
that
defendant be given an investigator, issuing arrest warrants,
ruling
that
defendant
could
subpoena
the
witnesses
for
depositions, and ordering witnesses to appear for interviews.
Even when a witness is not timely disclosed, the trial court
does not abuse its discretion in denying a motion to preclude
the witness so long as the defendant has the opportunity to
interview the witness before testifying.
See State v. Paxton,
186 Ariz. 580, 587, 925 P.2d 721, 728 (App. 1996); State v.
Tyler, 149 Ariz. 312, 315, 718 P.2d 214, 217 (App. 1986).
In
this case, the State avowed these eyewitnesses were vital to its
case, and that it had acted in good faith in trying to secure
their interviews by Thompson.
evidence
suggesting
shows none.
Thompson has not offered any
otherwise,
and
our
review
of
the
record
Nor has Thompson suggested that he was ultimately
unable to interview any of the witnesses before they testified
at
trial,
or
that
he
was
surprised
12
or
prejudiced
by
their
testimony.
On this record, we cannot say that the judge abused
his discretion in allowing these witnesses to testify.
Denial of Severance of Gang Charge
¶22
Thompson next argues that the trial court abused its
discretion in denying his motion to sever trial of the charge of
assisting a criminal street gang from the trial of the murder
and aggravated assault charges, because the charges were joined
only
because
they
were
“of
the
same
entitling him to severance as of right.
or
similar
character,”
He also argues that the
evidence of gang involvement or activity would not have been
admissible at the trial of the other charges.
We find no merit
in this argument.
¶23
The record forwarded on appeal reflects that Thompson
made only an oral motion to “bifurcate,” or sever, the gang
charge from the other charges, and made it for the first time
the third day of trial, after jury selection.
A motion to sever
must be made at least twenty days before trial or at the omnibus
hearing, and, “if denied, renewed during trial at or before the
close of the evidence.”
Ariz. R. Crim. P. 13.4(c).
“Severance
is waived if a proper motion is not timely made and renewed.”
Id.
We will not reverse on the basis of the trial court’s
denial of a motion to sever absent a clear abuse of discretion.
State v. Prince, 204 Ariz. 156, 159, ¶ 13, 61 P.3d 450, 453
(2003).
13
¶24
We need not decide whether Thompson waived any error
by failing to make such motion twenty days before trial, and by
failing to renew his motion “at or before the close of evidence”
because we find no error in the judge’s refusal to sever trial
of the offense of assisting a criminal street gang from the
murder and aggravated assault charges.
are governed by Rules 13.3 and 13.4.
Joinder and severance
Offenses may be joined
when they “[a]re of the same or similar character, “[a]re based
on the same conduct or are otherwise connected together in their
commission,” or “[a]re alleged to have been a part of a common
scheme or plan.” Ariz. R. Crim. P. 13.3(a)(1), (2), and (3).
When, however, it is “necessary to promote a fair determination
of the guilt or innocence of any defendant of any offense, the
court may on its own initiative, and shall on the motion of a
party, order. . . severance.”
Ariz. R. Crim. P. 13.4(a).
Rule
13.4(b) provides for severance as of right when offenses are 1)
joined only because they are of the same or similar character,
and 2) evidence of the other offense or offenses would not be
admissible if the counts were tried separately.
Ariz. R. Crim.
P. 13.4(b).
¶25
Thompson
argues
that
severance
was
mandatory
under
Rule 13.4(b) because Count Four, assisting a criminal street
gang, was of the same or similar character as Counts One through
Three, the murder and aggravated assault charges.
14
The crime of
assisting a criminal street gang, however, is not of the same or
similar character as murder and aggravated assault.
See State
v. Johnson, 212 Ariz. 425, 429, ¶ 10, 133 P.3d 735, 739 (2006).
The charge of assisting a criminal street gang, rather, was
based on the same conduct as the murder and aggravated assault
charges, and accordingly, the offenses were properly joined for
trial pursuant to Rule 13.3(a)(2). Moreover, evidence to prove
the gang charge would have been admissible in a separate trial
of the murder and aggravated assault charges to show Thompson’s
motive, and evidence of the murders would have been admissible
in a separate trial of the gang charge because they supplied an
element of the offense.
See Johnson, 212 Ariz. at 429-30, ¶¶
11-12, 133 P.3d at 739-40; State v. Romero, 178 Ariz. 45, 52,
870 P.2d 1141, 1148 (App. 1993). Under these circumstances, we
decline to find that the judge abused his discretion in denying
severance.
Admission of Gang Expert Testimony and Presentation
¶26
Thompson next argues that the trial court erred by
denying his motion to preclude use of gang evidence at trial,
specifically the testimony of a police detective who is a gang
expert
and
testimony.
the
power-point
presentation
that
accompanied
his
Thompson concedes in appeal that our courts have
held such evidence relevant in a trial on a charge of assisting
15
a criminal street gang, 2 but argues that the evidence “went far
beyond that necessary to establish the elements of Count 4 and
was
irrelevant,
unnecessary,
cumulative
and
fatally
prejudicial,” and much of it constituted inadmissible “profile
testimony.”
¶27
Before
the
State’s
gang
expert
testified,
Thompson
filed a motion to limit the expert’s testimony and the power
point
slide
testimony.
show
that
Thompson
he
asked
had
the
developed
court
to
to
accompany
preclude
any
his
expert
testimony and any slides on the following:
The history and evolution of the Lindo Park
Crips;
The geographical boundaries of the Lindo
Park Crips, a map of the Lindo Park
neighborhood in South Phoenix, pictures of
graffiti in the neighborhood, and a City of
Phoenix sign identifying park regulations
for Lindo Park;
The type of gang, ethnicity, and age range
of the Lindo Park Crips;
Identification
of
ongoing
felony
acts
committed by the Lindo Park Crips criminal
street gang;
Photographs seized from Thompson’s cellular
phone showing indicia of gang membership,
and his possession of gang paraphernalia;
A call by Thompson to police on August 4,
2007, reporting a gang threat;
2
See State v. Baldenegro, 188 Ariz. 10, 15, 932 P.2d 275, 280
(App. 1996).
16
Thompson’s contact with police on September
16,
2007,
and
photographs
showing
him
wearing gang clothing and jewelry;
Gang graffiti showing Dooker’s name and gang
affiliation found in a jail holding cell;
A photograph
“Dooker”;
of
Thompson’s
tattoo
reading
Identification of the statutory indicia of
gang membership;
Identification of other documented Lindo
Park Crips criminal street gang members;
Any opinion that the homicides at issue were
gang-motivated; and
Slides
or
testimony
from
the
expert
repeating eyewitness testimony to show the
basis of the expert’s opinion that these
homicides were gang-motivated.
Thompson
argued
the
expert
testimony
and
accompanying
slides
were irrelevant, cumulative to other witnesses’ testimony that
Thompson was a member of the Lindo Park Crips, and were unfairly
prejudicial profiling evidence.
He offered to stipulate that
the Lindo Park Crips is a criminal street gang and he is a
member, a stipulation that the State said it was unwilling to
accept.
After hearing argument, the judge denied the motion,
reasoning “this is evidence or things that the gang detective
relied upon in forming his opinions.”
The State’s gang expert
subsequently testified on the history, identifying marks, and
criminal
activities
demonstrating
of
Thompson’s
the
Lindo
membership
17
Park
in
Crips,
the
the
gang,
indicia
and
his
opinion, based on the circumstances surrounding the shootings,
that they were gang-related.
¶28
Expert testimony is admissible at trial if it “will
assist
the
trier
of
fact
to
understand
the
evidence
or
to
determine a fact in issue.” Ariz. R. Evid. 702. Evidence is
relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.”
Ariz.
R.
Evid.
401.
Relevant
evidence
may
be
excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of
time,
or
needless
Ariz. R. Evid. 403.
has
“‘an
undue
presentation
of
cumulative
evidence.”
Evidence is “unfairly prejudicial” when it
tendency
to
suggest
decision
on
an
improper
basis’ . . . such as emotion, sympathy or horror.” State v.
Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (citing Fed.
R. Evid. 403, advisory comm. note).
¶29
We
view
the
challenged
evidence
on
appeal
in
the
“light most favorable to its proponent, maximizing its probative
value
and
minimizing
its
prejudicial
effect.”
State
v.
Harrison, 195 Ariz. 28, 33, ¶ 21, 985 P.2d 513, 518 (App. 1998)
(citation omitted).
Moreover, “[b]ecause the trial court is
best situated to conduct the [Arizona Rule of Evidence] 403
18
balance,
we
discretion.”
will
reverse
its
ruling
only
for
abuse
of
State v. Canez, 202 Ariz. 133, 153, ¶ 61, 42 P.3d
564, 584 (2002)(citation omitted).
¶30
We find none.
The State charged Thompson with the
offense of assisting a criminal street gang pursuant to Arizona
Revised
Statutes
(“A.R.S.”)
section
13-2321(B)
(2010) 3
in
committing the two murders alleged in Counts One and Two of the
Indictment, and alleged that each of the charged offenses in
this case was intended to promote, further, or assist criminal
conduct by the criminal street gang.
criminal
street
gang
is
defined
as
The crime of assisting a
“committing
any
felony
offense . . . for the benefit of, at the direction of or in
association
with
any
criminal
street
gang.”
A.R.S.
§
13-
2321(B). A “criminal street gang” is defined in pertinent part
as an “association of persons in which members or associates
individually or collectively engage in the commission, attempted
commission, facilitation or solicitation of any felony act and
that has at least one individual who is a criminal street gang
member.”
A.R.S. § 13-105(8) (2010).
A “criminal street gang
member” is defined as an individual “to whom at least two of the
following
seven
criteria”
self-proclamation,
witness
indicating
gang
testimony
or
3
membership
official
apply:
statement,
We cite the current version of the applicable statute
because no revisions material to this decision have since
occurred.
19
written
or
electronic
correspondence,
paraphernalia
or
photographs, tattoos, clothing or colors, or any other indicia
of membership.
¶31
A.R.S. § 13-105(9).
The gang expert’s testimony summarizing the numerous
indicia that Thompson was a member of the Lindo Park Crips was
relevant to prove Thompson’s membership in the gang as well as
his motive for the shooting, and we cannot say that the judge
abused his discretion in concluding that the expert’s testimony
on this issue would have assisted the jury in understanding the
evidence
and
determining
those
facts.
The
gang
expert’s
testimony on the membership and geographical boundaries of the
Lindo Park Crips, and its commission of ongoing felony acts,
including
homicides,
aggravated
assaults,
and
threatening
and
intimidating was also relevant to show that the Lindo Park Crips
met the statutory definition of a “criminal street gang.”
Baldenegro, 188 Ariz. at 15, 932 P.2d at 280.
See
Moreover, we
cannot say the judge abused his discretion in concluding that
the
expert’s
testimony
describing
the
history,
culture,
and
customs of the Lindo Park Crips and its war with the Vista
Bloods
and
significance
its
of
subsets,
the
would
witnesses’
be
helpful
testimony
to
explain
regarding
what
the
had
occurred the night of the shooting, and the conduct of Thompson.
¶32
The judge was in the best position to balance the
significant probative value the expert testimony and the power
20
point
presentation
had
on
the
issue
of
whether
Thompson
committed the murders to benefit the Lindo Park Crips against
any
unfair
prejudice
it
might
have
had.
In
reviewing
this
evidence in the light most favorable to the State, as we must,
see Harrison, 195 Ariz. at 33, ¶ 21, 985 P.2d at 518, we cannot
say that the judge abused his discretion in rejecting Thompson’s
argument that the potential for unfair prejudice substantially
outweighed any probative value.
15, 932 P.2d at 280.
See Baldenegro, 188 Ariz. at
Nor on this record was the State required
to accept Thompson’s stipulation that he was a member of the
Lindo Park Crips, or that this was a criminal street gang.
See
State v. Leonard, 151 Ariz. 1, 8, 725 P.2d 493, 500 (App. 1986)
(“[T]he state is not required to accept a stipulation when the
prejudicial
potential
of
the
evidence
is
substantially
outweighed by the state’s legitimate need to prove the facts to
which the defendant offers to stipulate.”).
¶33
57
Thompson misplaces his reliance on People v. Albarran,
Cal.
Rptr.
3d
92
(Cal.
Ct.
App.
2007).
In
Albarran,
a
California appellate court found that evidence identifying other
gang members and their unrelated crimes, evidence of threats to
police
officers,
and
Mexican
Mafia
evidence,
was
unfairly
prejudicial, depriving defendant of a fair trial, in light of
the absence of evidence other than the fact of defendant’s gang
membership.
See
id.
at
103-07.
21
In
this
case,
substantial
eyewitness
testimony
supported
the
State’s
allegation
that
Thompson shot into the crowd to benefit the Lindo Park Crips.
The facts in this case distinguish it from Albarran.
¶34
Thompson
also
mischaracterizes
the
gang
expert’s
testimony and slide presentation as improper “profile testimony”
under State v. Lee, 191 Ariz. 542, 546, ¶ 19, 959 P.2d 799, 803
(1998)
(reversing
on
the
ground
that
drug
courier
profile
testimony was improperly admitted to show defendant’s knowledge
of drug in suitcase) and State v. Cifuentes, 171 Ariz. 257, 257,
830 P.2d 469, 469 (App. 1991) (reversing on the ground that
improper profile testimony was used to convict defendant of car
theft).
The testimony and presentation on Thompson’s membership
in the Lindo Park Crips gang and the ongoing felonies committed
by that gang was not offered to show that Thompson fit the
“profile” of a gang member who committed murders, but rather to
prove that he was a member of this criminal street gang and that
he had committed the offense of assisting this gang by murdering
the two victims, as alleged in Count Four, and to prove his
motive for the aggravated assault and murders alleged in Counts
One
through
argument.
Three.
We
accordingly
find
no
merit
in
this
For all of the foregoing reasons, we find no abuse of
discretion in the judge’s admission of the testimony from the
gang expert and the accompanying power point presentation.
Sufficiency of Evidence
22
¶35
his
Thompson argues that the trial court erred in denying
motion
for
judgment
of
acquittal
on
all
counts,
and
insufficient evidence supported his convictions for two counts
of second-degree murder and assisting a criminal street gang.
He argues that the evidence was insufficient because no physical
evidence
was
offered
against
him,
two
witnesses
were
“under
suspicion themselves as being the potential shooter,” and the
witnesses against him were not credible.
¶36
A directed verdict of acquittal is appropriate only
“if there is no substantial evidence to warrant a conviction.”
Ariz. R. Crim. P. 20(a).
“Substantial evidence is more than a
mere scintilla and is such proof that ‘reasonable persons could
accept as adequate and sufficient to support a conclusion of
defendant's
guilt
beyond
a
reasonable
doubt.’”
State
v.
Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (citation
omitted); see Ariz. R. Crim. P. 20(a).
¶37
facts
In reviewing the sufficiency of evidence, we view the
in
verdict,
the
and
defendant.
light
resolve
most
favorable
to
upholding
all
conflicts
in
the
the
evidence
jury’s
against
State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301,
1307 (1983).
The credibility of witnesses and the weight given
to their testimony are issues for the jury, not the trial judge.
See State v. Just, 138 Ariz. 534, 545, 675 P.2d 1353, 1364 (App.
1983).
“To set aside a jury verdict for insufficient evidence
23
it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the
jury.”
State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484,
486 (1987).
¶38
The evidence was more than sufficient in this case to
survive a motion for judgment of acquittal and to support the
convictions for two counts of second-degree murder and one count
of assisting a criminal street gang. See A.R.S. § 13-1104(A)(3)
(2010)
(defining
without
second-degree
premeditation,
murder
“[u]nder
in
pertinent
circumstances
part
as
manifesting
extreme indifference to human life . . . recklessly engages in
conduct that creates a grave risk of death and thereby causes
the
death
assisting
of
a
another
criminal
person”);
street
A.R.S.
gang
as
§
13-2321
“committing
(defining
any
felony
offense . . . for the benefit of, at the direction of or in
association
with
any
criminal
street
gang”).
Witnesses
testified at trial that an argument at the party over the Bloods
and the Crips led to a later fistfight outside, which culminated
in the shooting deaths of Kenneth, a documented Bloods member,
and Regis, who identified as a Blood.
Thompson was a documented
member of the Lindo Park Crips gang.
The gang expert testified
that the Lindo Park Crips was an association of persons claiming
a South Phoenix neighborhood as their turf, several of whom had
committed felonies, including homicides.
24
He also testified that
the Lindo Park Crips were engaged in an ongoing war with the
Vista Bloods and other Blood groups.
One witness testified
that, before the shooting, he saw Thompson point his rifle at
Regis and heard Thompson say, “It’s on Park,” meaning it was on
behalf of the Lindo Park Crips.
that
they
saw
Thompson,
his
Several witnesses testified
face
covered
with
a
baby
blue
bandanna, the color identifying the Lindo Park Crips, fire his
rifle into the crowd gathered outside after the party, killing
Kenneth
and
Regis.
The
credibility
of
the
witnesses
who
testified at trial was an issue, not for the trial court or this
court, but for the jury. See Just, 138 Ariz. at 545, 675 P.2d at
1364. On this record, the evidence was more than sufficient to
survive the motion for acquittal and to support the convictions.
Gang Expert’s Alleged Perjury
¶39
Finally, Thompson argues that the trial court erred in
finding that the State’s gang expert had not offered perjured
testimony in offering his opinion that the Lindo Park Crips had
“been involved in a number of felonies, including ten homicides,
as
well
as
robberies,
threatening
and
intimidating,
drug
offenses, and the like,” in the absence of proof of actual
convictions.
He argues that the trial court accordingly erred
in denying his motions for mistrial, a new trial, and dismissal
of
the
charges
on
grounds
of
prosecutorial
misconduct
in
eliciting this alleged perjury, and this court should therefore
25
immediately dismiss the convictions.
¶40
The testimony at issue in Thompson’s allegations of
elicitation of perjury from the gang expert by the prosecutor,
summarized in a separate power point slide, was in pertinent
part as follows:
Q.
Now, have there been felonies committed
by the Lindo Park Crips?
A. Yes.
Q. And what types of felonies
committed?
A. Several different felonies.
Q.
A.
have
been
Homicides?
Yes.
Q. And approximately since this gang war has
[be]gun, have you researched or documented
how many homicides have occurred between the
Lindo Park Crips and the Vista Bloods?
A. There’s an average of about ten.
Q.
A.
How about aggravated assaults?
Several.
Q.
A.
Threatening or intimidating?
Several.
* * *
Q.
A.
And what about reckless endangerment?
Yes.
Q.
A.
Burglaries and thefts?
Yes.
Q.
A.
Drug offenses?
Yes.
Q. And any other felonies under the Arizona
Revised . . . Revised Statutes?
A. Yes.
26
Q.
And have you documented the Lindo Park
Crips – criminal street gang as committing
all of those types of felony offenses?
A.
Yes.
¶41
This
issue
first
arose
after
trial,
when
Thompson
asked the court to order the State in pertinent part to disclose
records of convictions for the above-referenced offenses, and
records of convictions demonstrating that the offenses had been
committed to benefit the Lindo Park Crips.
Shortly afterward,
Thompson simultaneously filed a motion for a mistrial due to
prosecutorial
misconduct
alleging
in
pertinent
part
that
“[b]ased upon investigation, research, and belief, the defense
contends these claims are false and/or grossly misleading,” and
a motion for new trial incorporating by reference in pertinent
part his motion for mistrial based on prosecutorial misconduct.
The
trial
disclosure.
court
subsequently
denied
Thompson’s
motion
for
The judge denied the motion for mistrial due to
prosecutorial misconduct, finding no prosecutorial misconduct or
any reasonable likelihood, had there been, that it would have
affected the verdict.
The judge also denied the motion for new
trial without comment.
¶42
Thompson then filed a motion to disclose information
(or lack thereof) that may tend to mitigate his punishment,
seeking in pertinent part the same disclosure of convictions for
gang-motivated offenses committed by the Lindo Park Crips to
27
support the gang expert’s testimony that he had sought in his
motion to disclose.
After hearing argument, the judge granted
the motion in part and ordered the prosecutor to produce to
defense counsel “at least one defendant and cause number as to
each named offense” identified by the gang expert committed in
furtherance
Shortly
of
the
afterward,
Lindo
Park
Thompson
Crips
filed
a
criminal
motion
street
to
gang.
dismiss
for
Prosecutorial Misconduct, arguing that his review of the court
records for the convictions produced by the prosecutor pursuant
to the court order did not show that these crimes were gangmotivated,
and
the
prosecutor
accordingly
had
“intentionally
suborned false and misleading testimony to obtain a conviction
in
disregard
of
Donell’s
constitutional
rights,”
requiring
dismissal without possibility of retrial.
¶43
The trial judge conducted an evidentiary hearing on
the motion, and heard argument from the parties.
Detective N.
testified at the evidentiary hearing that he knew of about ten
murders that had occurred during the war between the Lindo Park
Crips and the Vista Bloods that started in January 2007, but
those investigations were still ongoing, and only about five
people had so far been charged with the murders.
He testified
that Todd L., a member of the Lindo Park Crips, was at that time
on
trial
for
a
homicide
that
occurred
during
the
war.
He
testified that he knew of several aggravated assaults that had
28
been
committed
to
promote
the
objectives
of
the
Lindo
Park
Crips, and referred to disclosure of a police report documenting
the aggravated assault by two gang members of a police officer.
He testified that he was also aware of the aggravated assault
involving the shooting of a gang detective in the Lindo Park
Crips neighborhood, causing him to lose his lower leg, as well
as a wiretap investigation of the Lindo Park Crips for selling
drugs.
A Phoenix Police commander testified that the shooting
of the gang detective was intended to retaliate against police
for killing a Lindo Park Crips during a hostage situation.
¶44
Detective N. testified that a police report showed
that Thompson and other Lindo Park Crips were shot in 2007 as
part
of
the
gang
war,
while
driving
neighborhood in a stolen vehicle.
in
the
Vista
Blood
He identified the beating of
Terry T., a witness in this case, by members of the Lindo Park
Crips as involving the offense of threatening and intimidation
of a snitch.
He testified that there were hundreds of reports
of which he was aware documenting members of the Lindo Park
Crips gang committing felony offenses, and the reports he had
disclosed were “just a very tiny tip of the iceberg.”
¶45
two
The State advised the court that it planned to call
other
committed
police
by
officers
members
of
to
the
testify
Lindo
about
Park
ongoing
Crips,
but
felonies
defense
counsel told the court he did not have any desire to cross-
29
examine these witnesses, and the court advised the State it did
not need to call them.
¶46
The
judge
denied
the
motion
to
dismiss
for
prosecutorial misconduct, based on the following findings:
The evidence and testimony presented doesn’t
support
the
contentions
made
by
the
defendant.
The COURT FINDS that Detective [N.] did not
intentionally and knowingly present false
testimony to the jury. Prosecutor April [S.]
did not suborn perjury.
There is no
evidence that the State withheld Brady
evidence from the jury.
¶47
We review a denial of a motion to dismiss on grounds
of prosecutorial misconduct for abuse of discretion. State v.
Trani, 200 Ariz. 383, 384, ¶ 5, 2 P.3d 1154, 1155 (App. 2001).
We also review a trial court’s denial of a motion for mistrial
for abuse of discretion.
State v. Jones, 197 Ariz. 290, 304, ¶
32, 4 P.3d 345, 359 (2000).
“The trial judge’s discretion is
broad . . . because he is in the best position to determine
whether the evidence will actually affect the outcome of the
trial.”
Id. (citation omitted).
We will reverse a denial of a
motion for new trial “only when there is an affirmative showing
that
the
trial
court
abused
its
discretion
and
acted
arbitrarily.” State v. Mincey, 141 Ariz. 425, 432, 687 P.2d
1180, 1187 (1984).
¶48
Prosecutorial misconduct “taken as a whole, amounts to
30
intentional conduct which the prosecutor knows to be improper
and prejudicial, and which he pursues for any improper purpose
with
indifference
mistrial.”
to
a
significant
resulting
danger
of
State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172
P.2d 423, 426-27 (App. 2007) (internal punctuation and citation
omitted).
The knowing use of perjury or false testimony to
convict a defendant constitutes a denial of due process and is
reversible
error
without
a
showing
of
prejudice.
State
v.
Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975) (citing
Mooney v. Holohan, 294 U.S. 103 (1935)).
¶49
We find no abuse of discretion in the judge’s denial
of Thompson’s motions for mistrial, new trial, and to dismiss on
the
basis
that
the
prosecutor
had
suborned
perjury,
because
Thompson has failed to cite to the record of a single instance
of
testimony
Thompson’s
testified
committing
from
Detective
argument
to
the
on
appeal
Lindo
homicides
N.
and
that
that
was
the
Park
Crips’
other
in
fact
State’s
serious
false.
gang
expert
“nefarious
offenses
record
without
of
any
proof to back up his statements and knowing that he had no such
proof” is not supported by the record.
As outlined infra,
Detective N. testified extensively at the post-trial evidentiary
hearing on the information on which he relied to offer his
opinion
that
members
felony
offenses,
of
the
including
Lindo
Park
homicides,
31
Crips
had
aggravated
committed
assaults,
threatening and intimidating snitches and drug offenses.
State
also
documents
introduced
linking
numerous
members
of
police
the
Lindo
reports
Park
and
Crips
The
other
to
the
felonies that Detective N. testified to at trial.
¶50
Detective N. testified at the hearing he based his
expert
opinions
at
trial
regarding
the
Lindo
Park
Crips
on
police reports, his personal knowledge of the Lindo Park Crips
neighborhood and gang members, testimony presented at Thompson’s
trial,
and
conversations
with
other
dealt with members of the gang.
improper
bases
for
Detective
police
officers
who
had
We cannot say that these were
N.’s
expert
testimony.
See
Baldenegro, 188 Ariz. at 15, 932 P.2d at 280 (noting that the
gang
expert
in
that
case
based
his
opinions
on
“personal
observations and experience, the observations of other officers
in the department, police reports, and conversations with other
gang members”).
¶51
The gravamen of Thompson’s argument to the trial court
was that Detective N. perjured himself when he testified that
the Lindo Park Crips had committed these felonies to benefit the
gang, because, in Thompson’s view, the evidence failed to show
actual
convictions
of
members
of
the
Lindo
Park
Crips
for
committing each of the referenced felonies to assist the gang.
The statute defining a criminal street gang, however, does not
require proof of convictions for felony acts.
32
See A.R.S. § 13-
105(8). Rather, the statute requires only proof that members
“engage in the commission, attempted commission, facilitation or
solicitation of any felony act.”
Id.
Detective N. testified at
trial that members of the Lindo Park Crips had committed these
felonies, and he testified at the evidentiary hearing that he
reached this expert opinion relying on police reports, personal
observations, trial testimony, and the observations of other
officers.
Thompson acknowledges on appeal that Detective N. did
not testify that the gang members had been convicted of these
offenses.
Thompson’s claim that Detective N.’s testimony was
false accordingly fails.
¶52
On this record, the trial court did not abuse its
discretion
in
finding
that
Detective
N.
did
not
knowingly
present false testimony, and the prosecutor did not engage in
misconduct by eliciting the testimony, or in denying Thompson’s
motions for mistrial, new trial, and to dismiss on this ground.
Conclusion
¶53
For
the
foregoing
reasons,
we
affirm
Thompson’s
convictions and sentences.
___/s/_______________________
JOHN C. GEMMILL, Judge
CONCURRING:
__/s/__________________________
PATRICK IRVINE, Presiding Judge
___/s/_______________________
PHILIP HALL, Judge
33
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