State v. Ruder
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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 DIVISION ONE FILED: 05/24/2011 RUTH A. WILLINGHAM, CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JAMES CHRISTIAN RUDER, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0665 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-171925-001 DT The Honorable Margaret R. Mahoney, Judge REVERSED AND REMANDED Thomas Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix D O W N I E, Judge ¶1 James Christian Ruder appeals his convictions on two counts of misconduct involving weapons. erroneously trial, we precluded reverse a defense Ruder s Because the trial court witness convictions from and testifying remand for a at new trial. FACTS AND PROCEDURAL HISTORY 1 ¶2 Officers Reeves and Rine saw a vehicle swerving and drifting across stop. lanes of traffic. They initiated a traffic Ruder was the driver and sole occupant of the vehicle. The officers asked Ruder if he had any weapons. small pocketknife officers. Officer from his Reeves pocket asked and Ruder said the officers handed permission vehicle, and Ruder purportedly consented. 2 Reeves, Ruder removed a would to it to the search the According to Officer find a backpack with multiple knives and a pair of nunchucks, but there shouldn t be anything else. backpack propped In searching the vehicle, Officer Rine saw a against the center console. Inside the backpack, the officer found a pair of nunchucks, a fixed-blade knife in a sheath, and three folding knives. 1 Defendant challenges only the preclusion of his witness at trial. We thus confine our discussion to the facts and proceedings relevant to that issue. 2 Ruder denies giving consent. We need not resolve this disputed factual question to decide the issue presented by this appeal. 2 ¶3 Ruder testified at trial that, on the day of the traffic stop, he drove a family friend, Daniel Knight, to and from Knight s karate class. Knight reportedly left his backpack in the car, and Ruder called Knight to say he had it. testified he never opened the backpack, did not Ruder speak with Knight about its contents, and did not know what was in the backpack. Ruder testified he was on his way to return the backpack to Knight when the traffic stop occurred. telling officers there were nunchucks and He denied knives in the backpack. ¶4 Ruder was charged with two counts involving weapons, both class 4 felonies. 3 Knight as a potential trial witness prosecutor to set up his interview. of misconduct The defense disclosed and worked with the Knight failed to appear for two interviews. ¶5 On the first day of trial, the State asked the court to preclude Knight as a witness because the prosecutor could not effectively cross-examine him without first interviewing him. The court instead allowed the defense to locate Knight and bring him to court for an interview, provided he arrive by 1:00 p.m. 3 Count 1 related to the nunchucks, which are a prohibited weapon. Arizona Revised Statutes ( A.R.S. ) section 133101(A)(8)(v). Count 2 related to the fixed blade knife, which an expert testified was a deadly weapon. 3 Ruder, who was not in custody, located Knight over the lunch hour and returned with him at 1:13 p.m. ¶6 To avoid postponing jury selection, which was scheduled to begin at 1:30, the court and counsel agreed Knight would be interviewed at the end of the day. The court warned the defense that, if this guy s important to your case, you need to get him under control or you re going to be without him at trial. Defense counsel told Knight to wait in the witness room until they were ready to speak with him and not to talk about the case in front of jurors. ¶7 After voir dire, while counsel were exercising peremptory strikes, several members of the jury panel reported to the bailiff that Knight had been talking to them in the hallway. The trial judge seated prospective jurors but did not swear them in. She inquired whether they had heard anything being about discussed their hands. this case. Six panel members raised They reported that Knight said he was Ruder s friend, that the nunchucks belonged to him, that Ruder was a multiple felon, and the cops wanted to put him down for life, and that he was not going to let Ruder go down for life. They related that Knight initiated the contact and just . . . started talking. ¶8 The court discharged the jury panel. When questioned about his actions, Knight said he told one man Ruder might have felonies, and that s what might be 4 taking so long. He also admitted telling a prospective juror he thought Ruder got caught with nunchucks. its motion to preclude Knight as a The State renewed witness, and the court granted the motion. ¶9 Ruder order. Before jury selection the next day with a new panel, unsuccessfully sought reconsideration of the preclusion Trial proceeded, and Ruder testified in his own defense. He admitted having two felony convictions and acknowledged his right to possess deadly weapons had not been restored. convicted Ruder on both counts. The jury He was sentenced to mitigated concurrent terms of nine years imprisonment. ¶10 Ruder timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). DISCUSSION ¶11 Ruder s sole contention on appeal is that the trial court erroneously precluded Knight as a trial witness. The State maintains preclusion was appropriate based on a discovery violation and Knight s actions. ¶12 The State conceded below that defense counsel gave adequate and timely notice of Knight as a witness and stated that counsel had worked together to arrange his interview. Even after Knight s comments to the jury panel, the State did not allege a discovery violation or bad faith by the defense, but 5 instead conceded defense counsel properly disclosed Knight and timely informed the State of his expected testimony. Given this record, the State has waived on appeal any argument that the defense committed a discovery or disclosure violation. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (arguments not raised below are waived). ¶13 We review the trial court s exclusion of evidence for an abuse of discretion. 796 P.2d 853, discretion 858 State v. Robinson, 165 Ariz. 51, 56, (1990). manifestly An unreasonable abuse or of discretion exercised on is untenable grounds or for untenable reasons. State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993). ¶14 Appellate courts consider competing interests when reviewing an order precluding a criminal defendant s evidence as a sanction. Few rights are more fundamental than that of an accused to present witnesses in his own defense. Illinois, 484 U.S. 400, 408 (1988). Taylor v. A defendant s fundamental right, though, must be balanced against the State s interests in the orderly conduct of a criminal trial[,] in protecting itself against an eleventh hour defense[,] and in preserving the integrity of the adversary process. Id. at 411, 412, 414. ¶15 Preclusion a resort. State v. Talmadge, 196 Ariz. 436, 440, ¶ 17, 999 P.2d of a witness is sanction of last 192, 196 (2000); see also State v. Roque, 213 Ariz. 193, 210, 6 ¶ 51, 141 P.3d 368, 385 (2006). Courts have upheld the drastic remedy of excluding a witness only in cases involving willful and blatant discovery violations. United States v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (quoting Taylor, 484 U.S. at 416). When choosing an appropriate sanction for a discovery violation, a trial court: should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible since the Rules of Criminal Procedure are designed to implement, not to impede, the fair and speedy determination of cases. Prohibiting the calling of a witness should be invoked only in those cases where other less stringent sanctions are not applicable to effect the ends of justice. The court should also consider how vital the precluded witness is to the proponent s case, whether the opposing party will be surprised and prejudiced by the witness testimony, whether the discovery violation was motivated by bad faith or willfulness, and any other relevant circumstances. State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984) (citations omitted); see also State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979). ¶16 Significantly, the trial court here found no discovery violation. below. And as we noted supra, the State made no such claim Some courts have held that, without such a violation, application of See 937 Peters, the exclusionary F.2d at 1426; sanction see also is impermissible. United States v. Schwartz, 857 F.2d 655, 658-59 (9th Cir. 1988) ( In the absence 7 of a specific warranting subject constitutional, the also imposition to the of statutory the rules or other exclusionary regulating violation sanction, admissibility, and the government is entitled to offer its best evidence to the court and jury. ); cf. Chappee v. Vose, 843 F.2d 25, 30 (1st Cir. 1988) (preclusion lurid and of witness unequivocal, appropriate and its where genesis violation was was inexcusably deliberate ). ¶17 We need not determine whether the lack of a discovery violation, standing alone, is fatal to the preclusion order in this case. Even if the defense had failed to provide sufficient contact information for Knight, as the State now suggests, the drastic remedy of preclusion would not be warranted. ¶18 Knight was unquestionably difficult to work with, and his behaviors were inappropriate. His actions wasted scarce judicial jurors resources, inconvenienced caused delay in the proceedings. and counsel, and Significantly, though, the court attributed none of this to Ruder or his lawyer. Defense counsel specifically instructed Knight to stay in the witness room and not speak to jurors. 4 Defense counsel had diligently tried to get Knight to participate in a pretrial interview with the prosecution. The record reflects that defense counsel left 4 Knight had not been admonished by the court and thus did not disobey a specific court order that might give rise to a contempt citation. 8 a telephone message for Knight and also sent him a letter with the interview information. Defense counsel had a process server unsuccessfully attempt to serve Knight. Knight did appear in court on an earlier date to testify at an evidentiary hearing in Ruder s case. reschedule sought a a He also phoned defense counsel and attempted to missed court interview. interview order Rule appointment. compelling 15.3(a)(2), Knight s Arizona The State attendance Rules of never at an Criminal Procedure, allows the court to order a witness to submit to an interview upon motion by a party. State v. Paxton, 186 Ariz. 580, 588, 925 P.2d 721, 729 (App. 1996). ¶19 Although we understand the trial court s frustration with Knight, because there is nothing linking the defense to Knight s preclusion inappropriate was improper. conduct, We also the drastic disagree with sanction the of court s assessment that Knight was an unnecessary witness because all that information can come from the Defendant. As a prohibited possessor, Ruder s criminal history would be before the jury as an element of the crime. not to testify. 636, 638 (1976). Ruder, however, still had the right State v. Piper, 113 Ariz. 390, 392, 555 P.2d Whether to testify was Ruder s decision to make, acting with the advice of his counsel, and should not be one implicitly compelled by the preclusion of his only witness. 9 ¶20 We conclude the preclusion of Knight s testimony was error. The required. question then becomes whether a new trial is When, as here, an issue is properly presented to the trial court and erroneously ruled on, we review for harmless error. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The State has the burden of proving beyond a reasonable doubt that the error was harmless and did not prejudice Ruder by contributing to or affecting the verdict. State v. Armstrong, 218 Ariz. 451, 458, ¶ 20, 189 P.3d 378, 385 (2008); State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). ¶21 Defense counsel made an offer of proof Knight s proposed testimony, stating: The nature of Mr. Knight s testimony is to claim ownership of the weapons, all the weapons at issue in this trial, and to testify that Mr. Ruder had no knowledge that the weapons were . . . in the backpack -the weapons were found in a backpack in a car Mr. Ruder was driving. [Knight] would testify that he left the weapons in that car and never informed Mr. Ruder about what was in there, and that they were his. No discussion ever happened. . . . . [Knight] s testimony would have been that earlier in the day my client took him to karate practice, dropped him back off. [Knight] left a backpack with knives, nunchucks in it, didn t tell my client what was in it, and that he doesn t think -- he has no knowledge of my client being aware of what was in the backpack. 10 regarding So I think it is fundamental to our defense. We don t have any other witnesses other than [Knight]. The only other person really who could testify is my client as to the events that happened. Your Honor, I d argue that this is in many ways essentially forcing my client to take the stand, because we don t have any other witnesses to the event. ¶22 The State was required to prove that Ruder knowingly possessed the nunchucks and fixed-blade knife. Knight was the only defense. witness who could corroborate Ruder s We recognize that Knight could not testify regarding Ruder s actual level of knowledge. But, contrary to the State s contention, his testimony was nonetheless relevant. could corroborate Ruder s claim that If believed, Knight the backpack and its contents were not Ruder s and that Knight had not told him what was in the backpack. See Ariz. R. Evid. 401 (defining relevant evidence as evidence having 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 ). ¶23 The State has not demonstrated, beyond a reasonable doubt, that the erroneous preclusion of Knight s testimony did not contribute to or affect the verdict. We understand the trial court s frustration and the lack of meaningful remedial measures. Under the circumstances, though, where it was not 11 established that the defense was at fault, preclusion of the only corroborating defense witness was not harmless error. CONCLUSION ¶24 For the foregoing reasons, we reverse convictions and remand for a new trial. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ JON W. THOMPSON, Judge 12 Ruder s
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