Opinion
No. 2 CA-CR 2018-0267
03-31-2020
THE STATE OF ARIZONA, Appellee, v. ALBERT RAY DICKSON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Michelle L. Hogan, Assistant Attorney General, Phoenix Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah Mayhew, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20160985001
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Michelle L. Hogan, Assistant Attorney General, Phoenix
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Sarah Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Albert Dickson appeals from his conviction for sexual abuse, contending the trial court erred by (1) improperly retaining one juror and dismissing another during trial; (2) denying motions for disclosure and precluding evidence aimed at showing that the victim had a motive to lie; (3) failing to provide a jury instruction regarding the use of the term "victim" at trial; and (4) admitting prejudicial evidence that Dickson drank alcohol. We affirm.
Factual and Procedural Background
¶2 J.T., a sixteen-year-old boy, lived with his mother and sister in a home rented from Dickson on Dickson's property. In February 2016, J.T. went to Dickson's home to use Dickson's phone. While there, Dickson invited J.T. to look at some cars in his driveway he was fixing, then induced him to enter an adjacent shed. There, Dickson initiated various sexual acts against J.T.'s will, including rubbing his hand on J.T.'s penis.
¶3 A grand jury indicted Dickson on one count of sexual abuse, and after a three-day trial, a jury found him guilty of that offense. The court suspended imposition of sentence and placed Dickson on ten years' probation. Dickson timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Dismissal and Retention of Jurors
¶4 At the beginning of day two of the trial, the court informed the parties that a juror had asked to be excused because her husband, who provided security at a public school, was not being paid at that time, and she wanted to return to her job. The court stated it assumed she was being paid for her time on jury duty and the bailiff had instructed her to continue serving. Dickson did not object to the court's decision.
¶5 Dickson then informed the court he had learned that a different juror knew Dickson's daughter, a potential defense witness, and had been an acquaintance of Dickson himself in the distant past. The juror admitted he and Dickson's daughter had been close friends in junior high school and kept in touch during high school, but they now only interacted occasionally through social media and at infrequent school reunions. He now recognized her in the courtroom but had not made the connection before because he knew her by her maiden name. He denied ever knowing Dickson himself, however, and said he knew nothing of the Dicksons' family situation other than the daughter's mom had recently been ill, a fact he had seen on social media. He indicated he could be fair and impartial despite the past friendship.
¶6 The state requested that the juror be designated the alternate and removed from the panel based on his relationship with Dickson's daughter, and suggested it might have used a peremptory strike on the juror had the relationship been disclosed during voir dire. After Dickson argued that the juror should be retained based on his limited insight into the Dickson family and assurance that he could be fair and impartial, the court decided to designate the juror as the alternate and dismiss him, concluding that despite the juror's assurances that he could be fair and impartial, it would be "problematic" if the daughter were to testify, given the longstanding friendship with her. Dickson reminded the court of the juror with the claimed financial hardship to "reinforce" his objection to removing Dickson's daughter's friend, pointing out that there had already been a problematic juror and he did not want "any problems later" with not having enough jurors. The court was not persuaded and dismissed the juror.
¶7 After the jury found Dickson guilty, he argued in his motion for new trial that the court had erred in failing to remove the juror with the hardship, contending he had no opportunity to question her about her ability to be fair and impartial, and her forced service despite the hardship may have tainted the jury. He also argued that the court had erred by designating the dismissed juror as the alternate and dismissing him, contending that the alternate was to be chosen by the clerk, and dismissing the alternate forced all the others to stay, including the juror with the hardship.
¶8 The court denied the motion, finding that the dismissed juror could not be entirely fair and impartial given his connections to the Dickson family, and noting that Dickson had not asked to voir dire the juror with the hardship after the juror had complained. Designating the dismissed juror as the alternate was merely "semantics," according to the court, because it had immediately dismissed him.
¶9 On appeal, Dickson contends the trial court erred both in dismissing the juror who knew his daughter and retaining the juror with the hardship, who he suggests may not have rendered a fair and impartial verdict. The court must excuse a juror "if there is a reasonable ground to believe that the juror . . . cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). "Determining whether there are reasonable grounds to believe that a juror cannot render a fair and impartial verdict is within the discretion of the trial judge." State v. Cook, 170 Ariz. 40, 54 (1991). We therefore generally review a court's decision whether to excuse a juror for cause for abuse of discretion. See id. But if a party fails to object to a juror for cause, we review for fundamental error only. See State v. Cruz, 218 Ariz. 149, ¶ 31 (2008).
¶10 Dickson asserts the court did not address his objection at trial to retaining the juror with the hardship, but he raised no objection to that juror until his motion for new trial. At trial, he merely mentioned that juror to "reinforce" his objection to dismissing the other juror, expressing concern that too few jurors might remain after "later" problems. We therefore review the court's decision to retain the juror for, again, fundamental error only. See Cruz, 218 Ariz. 149, ¶ 31; State v. Juarez-Orci, 236 Ariz. 520, ¶ 11 (App. 2015) (fundamental error review only for untimely objection first raised in motion for new trial).
¶11 To show fundamental error, the defendant must first show that "trial error exists." State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). Dickson does not clear this initial hurdle. Nothing in the record suggests that the juror's hardship from missing work for the three-day trial went beyond the ordinary inconvenience that most jurors endure, and are expected to endure, so that our system of jury trials can function. See A.R.S. § 21-202(B)(4) (only "undue or extreme . . . financial hardship" entitles juror to be excused from service); Perkins v. Komarnyckyj, 172 Ariz. 115, 120 (1992) (acknowledging that most jurors experience "considerable inconvenience"). And, although the juror expressed a desire to be excused for her hardship, this did not require the court to excuse her. See, e.g., State v. Clayton, 109 Ariz. 587, 592-93 (1973) (no error in retaining juror who claimed hardship). Finally, Dickson does not identify anything in the record indicating that the juror did not serve appropriately after not being excused. No error, fundamental or otherwise, occurred here.
¶12 Nor did the trial court err in dismissing the juror who knew Dickson's daughter. As previously noted, under Rule 18.4(b), the court must dismiss a juror if there is a reasonable ground to believe the juror cannot be fair and impartial. The court had discretion to make that determination, see Cook, 170 Ariz. at 54, and there were reasons to doubt the juror's ability to be impartial—he had a longstanding friendship with Dickson's daughter, the daughter was a potential witness, and the juror had some recent knowledge of the family's affairs through social media. The cases Dickson cites merely establish that a court may allow jurors to serve despite analogous relationships in some circumstances. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 32 (2018) ("[A] juror who knows some of the people involved in a case is not automatically barred from serving on a jury."); Cruz, 218 Ariz. 149, ¶¶ 30-33 (no error where court retained juror married to a former police officer); State v. Hill, 174 Ariz. 313, 319-21 (1993) (no error where court retained juror who knew prosecutor, investigator, and coroner involved in case). These cases do not establish that the court must allow such jurors to remain when it determines that the relationship will interfere with the juror's fairness and impartiality. Indeed, the court must remove such a juror. See Ariz. R. Crim. P. 18.4(b); A.R.S. § 21-211(4) (juror disqualified if "biased or prejudiced in favor of or against either of the parties").
¶13 Finally, Dickson argues that the trial court "effectively granted the State an extra peremptory strike midtrial," because the prosecutor did not definitively state she would have sought to strike the juror for cause or would have used one of her peremptory strikes to dismiss the juror had she known of the friendship with the daughter. Regardless of what the state would have done, however, the court had discretion to dismiss the juror for the reason it stated. See Ariz. R. Crim. P. 18.4(b) (court may dismiss juror for cause "on its own").
Evidence of Motive to Lie
Disclosure
¶14 Before trial, Dickson requested that the trial court order disclosure of Department of Child Safety (DCS) records from the victim's dependency. He argued that "any impeachment material" contained in the records was particularly important given the lack of physical evidence in the case. See A.R.S. § 8-807(B)(3) (providing for DCS information to be released to a criminal defendant upon a court order). The state characterized the request as a "fishing expedition" and urged the court to deny it, or if the court did not deny it, to at least conduct an in camera review of any records before disclosure.
¶15 At the motion hearing, Dickson argued that the DCS records might shed light on "what the victim's state of mind may have been as far as his family's dispute with Mr. Dickson over the housing situation." He specifically noted that writing on the wall of the victim's home, which the victim's family rented from Dickson, mentioned DCS and a date "close in time" to the allegation. He also argued that the records might show a "behavioral situation." Finally, he argued that without the DCS records, he would have "no other information to impeach the victim" at trial. The court denied the motion from the bench without in camera review, characterizing Dickson's request as "just fishing."
¶16 On appeal, Dickson argues that the court prevented him from presenting a complete defense by denying his motion for disclosure of the DCS records. He contends that motion was reasonably calculated to discover evidence of the victim's motive to lie. We review a trial court's decisions on discovery matters for abuse of discretion, but review de novo the legal scope of disclosure. State v. Johnson, 247 Ariz. 166, ¶ 82 (2019).
¶17 Under both the federal and Arizona constitutions, a defendant has a due process right to present a defense, including a right to effective cross-examination of witnesses at trial. State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 236 (App. 1992) (citing Chambers v. Mississippi, 410 U.S. 284 (1973) (right to present defense) and Davis v. Alaska, 415 U.S. 308 (1974) (right to effective cross-examination). To that end, the state is constitutionally required "to disclose exculpatory evidence that is material on the issue of guilt or punishment." State v. Tucker, 157 Ariz. 433, 438 (1988) (citing Brady v. Maryland, 373 U.S. 83 (1963)). And while "there is no general constitutional right to discovery in a criminal case," Murphy v. Superior Court, 142 Ariz. 273, 278 (1984) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)), discovery rules in criminal cases are "intended to effectuate the constitutional right of cross-examination." Id.
¶18 Under the relevant rule here, "a court may order any person to make available to the defendant material or information [the defendant requests] . . . if the court finds [that] the defendant has a substantial need for the material or information to prepare the defendant's case" and "cannot obtain the substantial equivalent by other means without undue hardship." Ariz. R. Crim. P. 15.1(g)(1). Information is discoverable, however, only if it is itself admissible or could lead to admissible evidence. State v. Fields, 196 Ariz. 580, ¶ 4 (App. 1999). If a defendant establishes a "reasonable possibility" that a discovery request will yield admissible evidence necessary for a meaningful opportunity to present a complete defense, the defendant is entitled to, at minimum, in camera review of the requested material. See State v. Kellywood, 246 Ariz. 45, ¶¶ 7-8 (App. 2018) (in camera review required where defendant shows reasonable possibility that information sought, although constitutionally protected by Victim's Bill of Rights, is needed for meaningful opportunity to present complete defense). But "mere conjecture without more that certain information might be useful as exculpatory evidence is not sufficient to reverse a trial court's denial of a request for disclosure." State v. Hatton, 116 Ariz. 142, 150 (1977); see also Kellywood, 246 Ariz. 45, ¶ 9 ("conclusory assertions or speculation" do not entitle defendant to court-ordered discovery); State v. Bernini, 222 Ariz. 607, ¶ 14 (App. 2009) (defendant not entitled to discovery "merely in hope that something will turn up"); Fields, 196 Ariz. 580, ¶ 9 ("fishing expedition" not permitted by discovery rules).
¶19 Here, Dickson offered no reason to believe that there was a "behavioral situation," and in any event, he did not explain how any evidence of a behavioral situation would be admissible or lead to admissible evidence. Moreover, Dickson's belief that the DCS records might contain information about the victim's state of mind relating to his "housing situation" was similarly speculative. His sole showing in support was his attorney's avowal that the residence where the victim lived had writing on the wall mentioning DCS and a date; the attorney did not offer any theory on what the writing meant, much less explain how the writing showed why the victim would falsely accuse Dickson. In sum, Dickson did not establish a reasonable possibility that the DCS file would yield admissible exculpatory evidence. Therefore the trial court acted within its discretion in denying Dickson's discovery request without conducting an in camera review.
¶20 Dickson further asserts that the state possessed or controlled the victim's DCS file by virtue of its power to obtain DCS files to prosecute crimes, see A.R.S. § 8-807(B)(2), suggesting that the state had a duty to disclose exculpatory information within the DCS file. See Ariz. R. Crim. P. 15.1(b)(8) (state must disclose "all existing material or information that tends to mitigate or negate the defendant's guilt" "within the State's possession or control"); Brady, 373 U.S. at 87. But a prosecutor's obligation to disclose information not directly possessed or controlled by the prosecutor's office or staff is generally limited to information possessed or controlled by entities under the prosecutor's direction or control who have participated in the investigation or evaluation of the case. See Ariz. R. Crim. P. 15.1(f); Kyles v. Whitley, 514 U.S. 419, 437 (1995) (prosecutor has "duty to learn of any favorable evidence known to the others acting on the government's behalf in the case"); see also Pennsylvania v. Ritchie, 480 U.S. 39, 43, 57-58 (1987) (plurality decision) (defendant had due process right to in camera review of records of child-protection agency that investigated defendant's child abuse case). Dickson does not provide any reason to believe that DCS participated in the investigation or evaluation of the case against him or suggest that the records contained information relating to such an investigation, nor does he articulate any other reason why the state had a duty to obtain and review the records sought here. While the state "cannot get around Brady by keeping itself in ignorance or compartmentalizing information about different aspects of a case," Milke v. Mroz, 236 Ariz. 276, ¶ 18 (App. 2014), Dickson has not established that the state had a duty to obtain and review the records at issue. See State v. Perez, 141 Ariz. 459, 463 (1984) (state has no "affirmative duty to seek out and gain possession of potentially exculpatory evidence").
We do not address here the nature of the state's duty to obtain and review DCS records when (1) DCS was not involved in the investigation or evaluation of the case but (2) those records are obviously relevant to the case. --------
Exclusion of Condition of Victim's Home and Eviction Proceeding
¶21 Before trial, the state filed a motion in limine to preclude evidence of the condition of the victim's home and an eviction proceeding against the victim's family, arguing the eviction was initiated after the alleged incident and therefore was irrelevant. Dickson opposed the motion, arguing that the evidence of the eviction proceeding, which began three weeks after the victim's accusation, was not remote in time and therefore was relevant.
¶22 At the motion hearing, Dickson argued that photographs of squalid conditions in the home were relevant to his defense that the victim had fabricated the story of abuse to threaten Dickson or otherwise help his family avoid payments under the rental agreement relating to the condition of the home. When asked by the court if any other evidence supported his theories, Dickson offered none. The trial court excluded the evidence, reasoning that the defense theory was speculative and unsupported by any other evidence, and the evidence risked confusing, misleading, and distracting the jury.
¶23 On appeal, Dickson argues the trial court erred in excluding the evidence because it prevented him from establishing the victim's motive to lie. He maintains that the squalid condition of the victim's home was relevant to show that the victim may have feared he would be taken away from his family by the state, or that he was angry with Dickson for forcing the family to move.
¶24 Evidence is relevant if it has "any tendency" to make a consequential fact "more or less probable." Ariz. R. Evid. 401. Relevant evidence is generally admissible, Ariz. R. Evid. 402, but may be precluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid. 403. We review a trial court's exclusion of evidence for abuse of discretion. State v. Fuentes, 247 Ariz. 516, ¶ 27 (App. 2019).
¶25 Dickson's theories of the victim's motive to lie are dubious, and the proffered evidence supports them thinly at best. Dickson made no showing that he had informed the victim's family they must move before the victim's accusation, and therefore did not demonstrate how the eviction evidence was relevant to show why the victim would be angry at Dickson when he accused him. And at any rate, the victim's accusation might have risked calling the state's attention to the squalid condition in the family's home, if anything; as a tactic to avoid a return to the state's care, a false accusation of abuse would make little sense. Finally, the evidence of the eviction risked confusing or misleading the jury, and the squalid conditions in the victim's home risked unfair prejudice to the victim. In sum, the trial court acted within its discretion in excluding the evidence of the condition of the victim's home and eviction proceedings. See State v. Amaya-Ruiz, 166 Ariz. 152, 167 (1990) (trial court has considerable discretion in determining relevance and admissibility of evidence).
Use of Prejudicial Labels at Trial
¶26 Before trial, Dickson filed a motion in limine to preclude, among other things, use of the word "victim" to refer to Dickson's accuser and references to the accuser being "molested." The trial court declined to preclude use of the words, but told Dickson that upon request it would issue a limiting instruction that "victim" referred to an alleged victim. The court asked the state to instruct its witnesses other than the victim to avoid the word "molest" and suggested that it would consider a similar instruction if the request was made.
¶27 At the beginning of trial during review of the earlier rulings on motions in limine, Dickson reminded the court of its earlier ruling that it would give a limiting instruction, and the court told Dickson "the onus will be on you" to provide the requested instruction. During trial, the state and its witnesses said "victim" several times, and also said "molest" several times while describing the victim's words when he had reported abuse. Dickson did not submit limiting instructions for those words, and when the court later reviewed instructions with the parties, he did not object to the lack of an instruction.
¶28 Dickson argues the trial court erred in failing to give a limiting instruction for the word "victim" after he "reminded the court of its decision to give a limiting instruction on the first morning of trial." But, as noted above, the court indicated that it would give such an instruction if Dickson provided one, which he did not do. Nor did Dickson object when the court reviewed instructions and no instruction regarding the word was included. To the extent there was any misunderstanding about who would draft an instruction, it was up to Dickson to object once it became clear that the court had not included one.
¶29 "If a party fails to object to an error or omission in a jury instruction . . . he waives the issue on appeal, absent a finding of fundamental error." State v. Valenzuela, 194 Ariz. 404, ¶ 2 (1999). And because Dickson merely asserts that the error was fundamental without any supporting argument, he has waived any review of the issue. State v. Salcido, 238 Ariz. 461, ¶ 16 (App. 2015) (citing State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App.2008)). In any event, no error occurs when, as here, a trial court does not give a limiting instruction a party fails to provide. See State v. Miles, 211 Ariz. 475, ¶ 31 (App. 2005).
Evidence of Dickson's Alcohol Consumption
¶30 In a pretrial interview, the victim told investigators that Dickson had been drinking a can of beer when the abuse occurred. Before trial, Dickson filed a motion to preclude evidence that he had been drinking at the time of the alleged abuse and police photographs of beer cans in his trash taken twelve days after the alleged incident. He argued that the evidence was highly prejudicial and irrelevant because the victim had stated that Dickson did not appear to be intoxicated at the time.
¶31 At the motion hearing, the court found that the photos had probative value to corroborate details of the victim's story to police: the cans matched the description of the can the victim told police Dickson had been drinking and were located on Dickson's portion of the property in the area where the victim alleged the abuse occurred. Dickson conceded that evidence of a single beer can was relevant and indicated he had no objection to testimony that Dickson was drinking a beer, but objected to the photos showing cans of beer "because there are other ways to get that information in." The court allowed photos showing two cans of beer of the brand the victim said Dickson had been drinking, but ordered that the state make other cans of beer in the photos "blurry."
¶32 On appeal, Dickson argues the trial court erred in admitting photos showing cans of beer and portions of the victim's pretrial interview referring to Dickson's consumption of alcohol. He argues that the evidence improperly led the jury "to believe that Ray's alcohol consumption could have interfered with his recollection or caused him to be a bad man who assaults children when he is drinking."
¶33 We review admission of the photos for abuse of discretion, see Amaya-Ruiz, 166 Ariz. at 167, but see none here. Dickson does not identify where the beer cans are located in photos admitted at trial, and it appears that the state did not introduce all the pictures to which Dickson objected at the hearing. We detect only one can possibly identifiable as a beer can of the brand Dickson had been allegedly drinking, and several other cans too indistinct to identify as beer cans. The photos broadly depict the interior of Dickson's shed, and the cans occupy only a tiny fraction of the photos as a whole. Given that Dickson did not object to testimony that Dickson was drinking a beer, the trial court could reasonably conclude that the risk of additional prejudice from the photos was minimal, and as it noted, the photos were relevant to corroborate parts of the victim's account. Indeed, Dickson conceded the beer can's relevance at the motion hearing. In sum, the court acted within its discretion in admitting the photos. See id.
¶34 Dickson did not object to admission of the victim's pretrial statement, and we therefore would reverse only for fundamental, prejudicial error. See Escalante, 245 Ariz. 135, ¶ 12. None occurred here. In the pretrial statement, the victim merely said that Dickson was drinking one can of beer at the time of the abuse but showed no signs of intoxication. Dickson cites no instance, and we are aware of none, where the state used the evidence to suggest that Dickson's drinking was a factor in the abuse or interfered with his recollection of events. And as explained above, the victim's account of the beer can was relevant and Dickson had conceded as much. We therefore see no error, and in any event no fundamental error would have arisen from this relatively innocuous evidence. See State v. Hulsey, 243 Ariz. 367, ¶ 114 (2018) (no fundamental error where improper reference at trial was brief and inconsequential).
Disposition
¶35 We affirm Dickson's conviction and the court's disposition.