STATE v. REED

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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. RODNEY JOHN REED, Appellant. 1 CA-CR 11-0422 DIVISION ONE FILED: 06/19/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Navajo County Cause No. S0900CR200900941 The Honorable Carolyn C. Holliday, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Christian C. Ackerley Attorney for Appellant Phoenix Lakeside T I M M E R, Presiding Judge ¶1 convictions and sentences for eleven counts of sexual conduct with a minor. He raises Rodney arguments John Reed relating appeals to from jury his selection, evidentiary rulings, and prosecutorial misconduct. For the following reasons, we find no error and therefore affirm. BACKGROUND ¶2 Reed began engaging in sexual conduct with the victim, C.D., in 1996 or 1997 when she was thirteen years old and in the eighth grade. 1 The two had fallen in love, and they maintained a sexual relationship intermittently for more than ten years. Reed was married, and his daughter was C.D. s friend. Reed had been C.D. s sixth grade teacher. ¶3 January C.D. reported the illicit sexual activity to police on 25, counseling 2009 with investigation, activity with after she and their church her husband bishop. Police and Reed admitted having C.D. after she turned had sought marriage began consensual eighteen. an sexual As the investigation in this matter proceeded, Reed became romantically involved with S.R. Later, C.D. and Reed discussed reestablishing their relationship, but C.D. would only do so if Reed left S.R. On October 27, 2009, when C.D. realized Reed was 1 Reed does not challenge the sufficiency of evidence supporting his convictions, and in any event, we view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Reed. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 not going to leave S.R., 2 C.D. secretly recorded a confrontation call to Reed during which he made inculpatory statements. ¶4 The State charged Reed with eleven counts of sexual misconduct with a minor. felonies and dangerous Counts 1 through 6 are class two crimes against children because the offenses allegedly occurred when C.D. was under fifteen years of age. Counts 7 through 11 are class six felonies. Reed testified at trial, and the jury found him guilty on all counts. The court imposed mitigated thirteen-year consecutive terms of imprisonment for Counts 1 through 6, and the court ordered concurrent mitigated .5-year prison terms for Counts 7 through 10 to be served consecutively to the sentence imposed in Count 6. For Count 11, the court imposed a .5-year term to be served consecutively to the sentence imposed in Count 10. Reed timely appealed. DISCUSSION I. ¶5 Voir Dire selection. Reed raises a number of issues regarding jury We will not disturb the trial court s selection of the jury in the absence of a showing that a jury of fair and impartial jurors was not chosen. State v. Walden, 183 Ariz. 2 At the time of trial, Reed and S.R. were married. 3 595, 607, 905 P.2d 974, 986 (1995) (quoting State v. Tison, 129 Ariz. 546, 551, 633 P.2d 355, 360 (1981)) (rejected on other grounds by State v. Ives, 187 Ariz. 102, 108, 927 P.2d 762, 768 (1996)). Although Reed does not explicitly argue the voir dire in this case resulted in a jury that was unfair or partial, we nonetheless address the merits of his arguments to the extent he properly preserved them. ¶6 Reed first argues the court abused its discretion in rejecting his request for two questions to be asked of the jury panel. See State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296 (1978) (concluding scope of voir dire sound discretion). left to trial court s Those questions were: Assuming the testimony will be that the defendant engaged in extra-marital affairs with one or more adult women, would that lead you to believe he may have committed the acts he is accused of in this case? Are you familiar with the adage Hell hath no fury like that of a woman scorned? Reed contends because he showed a nexus existed between the prejudice addressed in the question and an issue in the case, the court violated his due process rights to a fair and impartial jury. ¶7 dire The trial examination court of is responsible potential jurors for for conducting the purpose voir of determining their qualifications and to enable the parties to 4 intelligently exercise challenges for cause. their peremptory challenges and State v. McMurtrey, 136 Ariz. 93, 99, 664 P.2d 637, 643 (1983); Ariz. R. Crim. P. 18.5(c), (d), (e) (West 2012). It is not a legitimate function of voir dire to condition the jury to the receipt of certain evidence or to a particular view of the evidence. 664 P.2d at 643 (1983). McMurtrey, 136 Ariz. at 99, Indeed, as the comment to Rule 18.5(e) states: Subsection (e,) and the shift of voir dire responsibility to the court, are intended to remove entirely the practice of some attorneys of conditioning the jury by means of questions and argument which amount to preliminary instructions on the law and facts of the case. ¶8 We find no error in refusing to pose Reed s requested questions because they do not address jurors prejudices. See State v. Skaggs, 120 Ariz. 467, 469-70, 586 P.2d 1279, 1281-82 (1978) ( Due process would require an examination by the trial judge on an issue if there was a nexus shown between prejudice feared and the issues of the case. ). the Rather, the questions appear designed to condition the jurors to damaging evidence expected to be presented at trial and to commit them to certain positions prior to receiving the evidence. 121 Ariz. at 3, 588 P.2d at 296. Melendez, The first proposed question does not ask if the jurors bear prejudice towards anyone who engages in an extra-marital affair; it asks how the jurors would 5 decide the second proposed harbored by case in light question the jurors of such fails but evidence. to instead touch on previews Similarly, any the prejudices Reed s defense strategy of casting the victim in the role of the spurned lover. Accordingly, the trial court did not abuse its discretion by not allowing the questions. Id.; see also State v. Mauro, 159 Ariz. 186, 203, 766 P.2d 59, 76 (1988); McMurtrey, 136 Ariz. at 99, 664 P.2d 6at 643 (1983). ¶9 Reed next contends the trial court abused its discretion in failing to question the jury panel regarding the prejudicial impact of a statement made in open court by one of the panel members. exchange during Reed s argument is based on the following voir dire immediately following the court s recitation of the charged offenses: Court: Has anyone on the . . . jury panel[] ever seen, heard, or read anything about this case, or have you ever heard anyone express an opinion about this case? A prospective juror: Mr. [C.] has. Court: Well, Mr. [C.] why don t you come up here over to the side bar. Mr. [C.]: Boy, all I can tell you is he sure got around. Court: Mr. [C.], you re not to say anything until you get over to the side bar. At the side bar, the court excused Mr. C. before repeating its question to the jury panel and continuing voir dire proceedings. 6 ¶10 Reed did not ask the court to question the panel regarding any potential impact Mr. C. s comment may have had, nor did Reed otherwise object to the court s continuation with voir dire arising without from the fundamental error. further addressing outburst. any Consequently, potential we issues review for See State v. Velazquez, 216 Ariz. 300, 309, ¶ 37, 166 P.3d 91, 100 (2007); see also State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error that goes to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that possibly have received a fair trial. the defendant could not Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). ¶11 Reed has not shown fundamental error. The prospective juror s comment did not indicate any knowledge or opinion on Reed s guilt of the charges. At most, the comment conveyed an opinion Reed was sexually promiscuous. Because the jury learned of Reed s extra-marital affairs from the evidence introduced at trial, however, the errant comment could not have deprived him of a fair trial. ¶12 State s Reed finally argues the court erred in granting the motion to excuse potential 7 juror K.J. for cause. Because Reed arguably raised a proper objection below, 3 we review for abuse of discretion. State v. Glassel, 211 Ariz. 33, 47, ¶ 46, 116 P.3d 1193, 1207 (2005), corrected on other grounds 211 Ariz. 370, 121 P.3d 1240. ¶13 [A] defendant is not entitled to be tried by any particular jury, but merely by one which is fair and impartial. State v. Eisenlord, 137 Ariz. 385, 392, 670 P.2d 1209, 1216 (App. 1983) (quoting State v. Thompson, 68 Ariz. 386, 391, 206 P.2d 1037, 1040 (1949)). The court shall excuse a juror when reasonable grounds exist to believe the juror could not render a fair and impartial verdict. Ariz. R. Crim. P. 18.4(b). Additionally, the court should excuse prospective jurors whose personal views prevent them from serving as fair jurors. State v. Anderson, 210 Ariz. 327, 337, ¶ 25, 111 P.3d 369, 379 (2005) (citation omitted). ¶14 The State moved to strike K.J. based on her comments relating to her experiences as a former Arizona State legislator when she ran a lot they of legislation were very, regarding much sex offenders because against. K.J. explained she saw [sex offense] cases where men 3 very youthful discriminated While we are uncertain Reed properly objected to K.J. s excusal, we assume without deciding the objection was proper. The entirety of Reed s objection was: I think she can be fair. I mean, my opinion is she could be fair. She can set aside her experiences, and she helped write the laws, for crying out loud. I would leave it up to you, Judge. 8 were very much accused when they were not guilty . . . . K.J. further expressed her opinion that Arizona s sex offender laws . . . are way too stringent, and she recounted cases where there were young offender . . . ridiculous . men stigmas . . . that on ended them, When the up when court with it or lifetime was sex absolutely counsel asked K.J. whether she could nonetheless be fair and impartial as a juror in this case, she equivocated. ¶15 K.J. s foregoing statements provided the court with reasonable grounds to excuse her from further jury duty in this case. The court based its finding of bias upon determinations of demeanor and credibility that are peculiarly within a trial judge's province. Such deference . . . . determinations this reasonable entitled to Wainwright v. Witt, 469 U.S. 412, 428, 105 S. Ct. 844, 854, 83 L. Ed. 2d 841 (1985). through [are] deferential grounds to lens, believe we Viewing the record conclude K.J. s the personal court views had would prevent her from rendering a fair and impartial verdict. II. ¶16 Evidentiary issues Reed raises a number of issues challenging the court s evidentiary rulings. by making discretion. objections When addressing issues properly preserved at trial, we review for abuse of State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004). For those issues not subjected to a proper 9 objection at trial, we review for fundamental error only. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. ¶17 Reed first argues the court erred in allowing the State to cross-examine him regarding his denial of having had extra-marital affairs with adult women other than [C.D.] Reed also contends that [t]he State improperly introduced extrinsic evidence of [Reed s] affairs via Detective Sergeant [C. s] testimony, to the effect his investigation had revealed [Reed] had been involved with other adult women while married, and then compounded these errors by failing to give the jury a limiting instruction. ¶18 the Reed apparently challenges the court s ruling granting State s motion in limine under Arizona Rule of Evidence 608(b) to introduce evidence that Reed denied to his family and law enforcement that he had engaged in extra-marital affairs. But Reed failed to develop this argument in his brief and has therefore abandoned it on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi) ( The appellant s brief shall include . . . the contentions presented, of and the the appellant reasons with therefor, respect with to the citations issues to the authorities, statutes and parts of the record relied on. ); see also State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9, 94 P.3d 1119, 1147 n.9 (2004) ( In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an 10 appellant s position on the issues raised. ) (quoting State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). ¶19 Additionally, even assuming Reed his argument on appeal, we would reject it. properly preserved Although the court granted the State s motion, the State did not cross-examine Reed about denying his affairs to his family nor introduced evidence of those affairs. Rather, Reed introduced affairs in questioning Detective C. error and waived the challenge. evidence of his He therefore invited any State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001). ¶20 Reed next argues the court erred by prohibiting him from impeaching C.D. with testimony regarding a false allegation she purportedly made of a prior sexual assault by a cousin. The background to this issue is as follows: Before trial, the court granted, with Reed s acquiescence, the State s motions in limine to introduce evidence of Reed s sexual relationship with C.D. after she turned eighteen. defense counsel stated he At the hearing on the motions, wanted more latitude than might normally be permitted in cross-examining [C.D.], and the court, in response more to latitude the State s might expressed entail, concern precluded 11 Reed regarding what generally from alluding to evidence prohibited by Arizona Revised Statutes ( A.R.S. ) section 13-1421 (West 2012). 4 ¶21 Section 13-1421, provides in relevant part: A. Evidence of specific instances of the victim s prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following: . . . 5. Evidence of false allegations of sexual misconduct made by the victim against others. B. Evidence described in subsection A shall not be referred to in any statements to a jury or introduced at trial without a court order after a hearing on written motions is held to determine the admissibility of the evidence. . . . The standard for admissibility of evidence under subsection A is by clear and convincing evidence. ¶22 Reed does not direct us to any written request for a hearing as required by § 13-1421(B) to determine the admissibility of a false allegations by C.D. of a prior sexual 4 Absent material revisions after the date of an alleged offense, we cite a statute s current version. 12 assault. 5 And our independent review of the record does not reveal such a request. Because Reed failed to comply with § 13- 1421(B), the record is likewise devoid of any showing that C.D. had made false allegations of sexual misconduct against others, and the court Accordingly, the had no court basis acted for well allowing within its the evidence. discretion in precluding Reed from impeaching C.D. with such evidence. ¶23 Reed also argues the trial court abused its discretion in sustaining the State s objection that the following question posed by Reed to C.D. assumed facts not in evidence: later tell the bishop, after he finds pregnant, that it was all a lie? out that Don t you you weren t Aside from asserting his question was a legitimate avenue of impeachment, however, Reed does not develop this argument further. it on appeal. He has therefore waived Ariz. R. Crim. P. 31.13(c)(1)(vi). 5 Even though he did not request a § 13-1421 hearing, Reed twice asked C.D. on cross-examination whether she told others she had been raped by a cousin. Reed also cross-examined S.R. on that subject. Because Reed repeatedly disobeyed the court s prior ruling precluding § 13-1421 evidence, the court correctly reminded defense counsel -- out of the jury s presence -- of counsel s obligation under ER 3.4 to avoid referring to matters not reasonably believed to be relevant or supported by admissible evidence. We find no merit to Reed s characterization of the court s warning as a threat[] to impose sanctions designed to thoroughly intimidate[] Counsel . . . . The court did not abuse its discretion in reminding counsel of his ethical obligations to the court. 13 ¶24 Moreover, from our review of the exchange, the court properly sustained the State s objection because Reed s question improperly assumed the bishop had discovered pregnant a fact not in evidence. C.D. was not Reed fails to point to anyplace in the record where the bishop s knowledge of the false pregnancy points had out, after immediately evidence: a lie, been established. the rephrased court his Additionally, sustained question to the omit as the State objection, the fact Reed not in Do you subsequently tell the bishop that it was all that you made it up? Consequently, Reed was not prevented from asking C.D. whether she had lied to the bishop, making any error harmless. ¶25 Finally, Reed contends the court erred by precluding him from questioning Detective C. about his purported statement to S.R. during execution of a search warrant at the couple s home that the police were taking computers because they may contain child pornography. We reject this argument because it is recitation based on an erroneous of the court s ruling. Pursuant to the State s motion, the court precluded S.R. from testifying about hearsay. The Detective court C. s expressly Detective C. about these comments. statements permitted as Reed impermissible to question And, even though he had the court s approval and the opportunity to do so, Reed did not ask 14 Detective C. about any statements he purportedly made to S.R. We do not discern error. ¶26 Assuming Reed intends to argue the court erred by precluding him from asking S.R. about Detective C. s statement concerning error. child pornography, we do not discern reversible First, we agree with the court the detective s statement did not fall under the present sense impression exception to the hearsay rule. requirements: condition, that Arizona Rule of Evidence The statement must was perceived by 803(1) describe the an declarant, statement must be made immediately after the event. has three event or and the State v. Tucker, 205 Ariz. 157, 166, ¶ 43, 68 P.3d 110, 119 (2003). Detective C. did not describe an event to S.R.; he furnished a reason for taking the computers. exception does not apply. The present sense impression Second, applicability, we would not reverse. even assuming its Any error was harmless in light of the fact the court permitted Reed to question Detective C. about his statement. III. Prosecutorial Misconduct ¶27 Reed argues the prosecutor improperly impeached him by asking him the following questions concerning the accuracy of his counsel s assertion during opening statement that C.D. had been stalking him for ten or twelve years: (1) [W]ould [your attorney s opening statement] . . . be inaccurate or based on 15 something other than your statements and representations to him? ; (2) So today, you re saying that statement from your Attorney really isn t accurate, that it didn t begin in the mid 1990s? According to Reed, the prosecutor s questions improperly forced Reed to choose between waiving the attorneyclient privilege, or invoking the privilege and leading the jury to believe he had something to hide. Because Reed did not object to these questions at trial, he has waived his claim of error absent fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. ¶28 We do not discern fundamental error from the court s failure to sua sponte corrective action. strike these questions or take Only the first question arguably implicated Reed s attorney-client privilege in an improper manner. extent Reed other contends this misconduct, we disagree. question amounted to To the prosecutorial Assuming without deciding that the question constituted misconduct, we consider whether the remarks deprived Reed of a fair trial. 611, 832 P.2d 593, 628 State v. Atwood, 171 Ariz. 576, (1992) (quoting United States v. Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985) (quoting United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir. 1977))) (disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729 (2001)). determination, we consider: 16 In making such a (1) whether the remarks call to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks. Misconduct alone will not mandate that the defendant be awarded a new trial; such an award is only required when the defendant has been denied a fair trial as a result of the actions of counsel. Id. Here, the probability that the jurors were influenced by the prosecutor s first question is remote, and we cannot say the question denied Reed a fair trial. The second question does not touch on the attorney-client privilege. For these reasons, the court did not commit fundamental error. ¶29 Finally, Reed argues the prosecutor engaged in egregious behavior by commenting during cross-examination of D.C. that that Reed s extra-marital affairs were immoral. record does not examination of refers the to reflect D.C. such a Assuming, prosecutor s comment as the redirect in the State The prosecutor s suggests, examination of Reed Reed s daughter, Reed failed to object and, absent fundamental error, therefore waived any challenge to the court s failure to take corrective action. at 607. We do Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d not detect such error. After the daughter testified during cross-examination by Reed that her opinion of her father s truthfulness had changed as a result of learning of 17 his affairs, the prosecutor asked on redirect whether learning Reed had been involved in what one might describe as immoral activity caused her to question Reed s truthfulness. the prosecutor s use of the term immoral At most, activity as a substitute for extra-marital affairs was argumentative; it did not rise to the level of misconduct likely to influence the jurors and deny a fair trial. Atwood, 171 Ariz. at 611, 832 P.2d at 628. CONCLUSION ¶30 For the foregoing reasons, we affirm Reed s convictions and sentences. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ Patricia K. Norris, Judge /s/ Donn Kessler, Judge 18

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