State v. Voge ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MARTIN DANIEL VOGE, Appellant.
No. 1 CA-CR 20-0037
FILED 4-20-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201701472
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. VOGE
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.
T H U M M A, Judge:
¶1 Defendant Martin Daniel Voge appeals his convictions and
resulting sentences for conspiracy to commit first-degree murder,
attempted first-degree murder and two counts of aggravated assault.
Because Voge has shown no error, his convictions and sentences are
affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 One day in September 2017, C.S.2 received a phone call from
his former roommate Callie Robinson. Robinson said she wanted to return
C.S.’ laptop, and they arranged to meet in a parking lot in Golden Shores,
Arizona. While C.S. waited in his truck for Robinson to arrive, Robert Davis
(who he had never met) shot him several times.
¶3 C.S. managed to drive to a nearby fire department for help.
While receiving medical care, C.S. told paramedics that Robinson was
involved in the shooting. One of the paramedics, who knew Robinson, had
seen her earlier that night nearby. Robinson later confessed to helping Voge
orchestrate a plan to kill C.S. by luring him to the parking lot so that Davis
could shoot him.
¶4 Voge and C.S. had been feuding for about a year before the
shooting. The feud began when C.S.’s live-in girlfriend, M.W., began a
romantic relationship with Voge. C.S. then moved out, taking with him
A.S., their minor daughter. Voge and C.S. later engaged in repeated, heated
1 The evidence is construed in a light most favorable to sustaining the
verdicts, resolving all reasonable inferences against Voge. See State v. Payne,
233 Ariz. 484, 509 ¶ 93 (2013).
2Initials are used to protect the privacy of the victims and witnesses who
did not participate in the crimes. See State v. Maldonado, 206 Ariz. 339, 341
¶ 2 n.1 (App. 2003).
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text messages and physical altercations. Days before the shooting, Voge
threatened to kill C.S. with “guns ablazing.” On the night of the shooting,
Voge told C.S.’s stepmother that C.S. “needed to be dead.”
¶5 Robinson told police that Voge claimed C.S. had been
harming A.S. Robinson first rejected Voge’s demands to locate C.S. Davis
then introduced her to Voge. Davis then threatened to harm Robinson and
her children, while wielding a gun if she did not help him find C.S. As a
result, Robinson and Davis drove to meet C.S. Robinson waited at a friend’s
apartment, while Davis shot C.S.
¶6 After being arrested, Davis admitted to shooting C.S. with
Voge’s gun. Davis said Voge ordered him to shoot C.S. to repay a $2,500
debt, with Voge threatening to kill Davis’ children if he refused. Davis said
Voge wanted C.S. killed because Voge believed C.S. was harming A.S.
¶7 Voge told police he met C.S. “maybe once” but had no contact
with him since C.S. sent him a text message a month earlier. Voge admitted
that he was trying to sort out whether C.S. had been harming A.S. Voge said
he had last spoken to Robinson “a week or two” before the shooting and
knew Davis as a “kid” in the neighborhood. Voge said he did not know
whether Robinson and Davis knew each other.
¶8 Voge, Robinson and Davis were charged with conspiracy to
commit first-degree murder, a Class 1 felony; attempted first-degree
murder, a Class 2 felony; and two counts of aggravated assault, Class 3
felonies.3 Before trial, Robinson and Davis pled guilty to lesser offenses and
were sentenced to prison. Both Robinson and Davis testified at trial, but not
as conditions of their plea agreements. Voge elected not to testify in his own
defense, as was his right.
¶9 After a five-day trial, the jury found Voge guilty as charged.
The court sentenced Voge to life in prison with the possibility of release
after 25 years on the murder-conspiracy conviction and lesser, concurrent
prison sentences on the other convictions, with 685 days presentence
incarceration credit. This court has jurisdiction over Voge’s timely appeal
pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona
3Voge also was indicted on four drug-related charges severed from the
murder trial and resolved by a plea agreement after the murder trial.
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Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1)
(2021).4
DISCUSSION
I. Voge Has Shown No Error in the Denial of His Motions for
Mistrial and for a New Trial Based on Prospective Juror’s
Statements During Voir Dire.
¶10 During voir dire, Prospective Juror S.W. said that he “had
heard about [Voge’s] case about two years ago . . . in a bar at the VFW.”
When asked if that caused him to form any opinions about the case, S.W.
said that he had “heard [Voge] was guilty.” S.W. said he could disregard
what he had heard and decide the case solely on the evidence produced at
trial. The court denied Voge’s motion for mistrial based on other potential
jurors hearing what S.W. said, concluding S.W.’s statements would not
“influence the whole jury in a negative way.” The court, however, excused
S.W. from jury service.
¶11 Outside the other jurors’ presence, Prospective Juror A.A.
said he was “very concerned” that S.W.’s remarks “kind of tainted the
process.” After further questioning, however, A.A. said he could set aside
S.W.’s remarks, follow the court’s instructions and decide the case only on
the evidence presented. Although the court denied a motion to strike A.A.
for cause, A.A. was not selected as a juror.
¶12 The court addressed the remaining prospective jurors as
follows:
At some point in time there was a juror who
expressed [an] opinion in this case about the
defendant’s guilt or innocence, and with respect
to that . . . I’m going to advise all of you that you
have to make a decision in this case based on the
evidence that will be presented during the trial
and that you will have to make a decision . . .
based solely on that evidence . . . [and] you will
have to start with the presumption that the
defendant is innocent, and it will be up to the
4Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. VOGE
Decision of the Court
state to prove the defendant guilty beyond a
reasonable doubt.
Is there anybody who could not be fair and
impartial based on the statement made by the
other juror? The record should reflect there are
no hands shown.
After the guilty verdicts, Voge unsuccessfully moved for a new trial,
arguing in part that S.W.’s comments violated his right to a fair trial. On
appeal, Voge argues the court should have granted his motions for mistrial
and new trial because S.W.’s remarks impermissibly tainted the panel. Both
rulings are reviewed for abuse of discretion. State v. Jones, 197 Ariz. 290, 304
¶ 32 (2000) (mistrial); State v. Spears, 184 Ariz. 277, 287 (1996) (new trial).
¶13 A criminal defendant has a constitutional right to a fair and
impartial jury but is not entitled to “any one particular jury.” State v.
Greenawalt, 128 Ariz. 150, 167 (1981). A defendant must show “objective
indications” that an excused juror’s comments prejudiced the empaneled
jurors. State v. Doerr, 193 Ariz. 56, 61–62 ¶ 18 (1998). The superior court is in
the “best position to assess [the comments’] impact on the jurors.” Id. at 62
¶ 23. As applied, Voge identifies nothing in the record showing that S.W.’s
comments prejudiced the empaneled jurors. He relies on A.A.’s expression
of concern to assert that S.W.’s comments “most likely had a negative effect
on the entire panel.” But A.A. made clear that he was voicing only his
opinion, adding he could follow the court’s instructions in fairly and
impartially deciding the case.
¶14 Voge cites Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997) and
Paschal v. United States, 306 F.2d 398 (5th Cir. 1962) for the proposition that
S.W.’s comments improperly contaminated the other prospective jurors.
Both cases are distinguishable, involving potentially prejudicial comments
by potential jurors who tendered expert-like opinions on relevant matters.
See Mach, 137 F.3d at 632–33 (reversing sexual conduct with a minor
conviction when potential juror repeatedly said she had “never known a
child to lie about sexual abuse” in her years as a social worker); Paschal, 309
F.2d at 399–400 (reversing conviction when potential juror said he was a
director of the bank that received defendant’s counterfeit money). S.W.’s
generalized comments about something he had heard two years earlier
conveyed no comparable expert-like information.
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¶15 The superior court protected Voge’s right to a fair jury, and
Voge has not overcome the presumption that the empaneled jurors
followed the court’s instructions. See State v. Kuhs, 223 Ariz. 376, 387 ¶ 55
(2010). Thus, Voge has shown no reversible error in the court’s denial of his
motions for mistrial and for new trial.
II. Voge Has Not Shown the Court Erred in Failing to Declare a
Mistrial or Grant a New Trial Based on Evidence Suggesting Voge
May Have Served Time in Prison and Was a “Convict.”
A. C.S.’s Trial Testimony
¶16 On direct examination of C.S. by the State, the following
exchange took place:
Q. Going back, was there ever a point in your . .
. relationship . . . with [Robinson] while [Voge]
was there that you actually got along with
[Voge]?
A. We weren’t buddy-buddy, but I was
introduced to him—[M.W.] told me that that
was her brother. Oh, that’s my brother. Just got
out of prison or whatever. That was my
understanding of the—not that they were
lovers.
Voge moved for a mistrial, contending C.S.’s statement that Voge had been
in prison was unfairly prejudicial. The court denied the motion but struck
the answer, directed the jurors to disregard it and, in final instructions,
reminded the jurors they were not to consider stricken testimony. Outside
the presence of the jury, the court later explained “there wasn’t any actual
evidence presented that the defendant was in prison.”
¶17 Voge argues the court abused its discretion by not granting a
mistrial. See Jones, 197 Ariz. at 304 ¶ 32. “A declaration of a mistrial is the
most dramatic remedy for trial error and should be granted only when it
appears that justice will be thwarted unless the jury is discharged and a new
trial granted.” State v. Adamson, 136 Ariz. 250, 262 (1983). “When a witness
unexpectedly volunteers an inadmissible statement, the action called for
rests largely within the discretion of the trial court which must evaluate the
situation and decide if some remedy short of mistrial will cure the error.”
Id. In deciding whether a mistrial is warranted, courts examine “(1) whether
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STATE v. VOGE
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the jury has heard what it should not hear, and (2) the probability that what
it heard influenced [it].” State v. Miller, 234 Ariz. 31, 40 ¶ 25 (2013).
¶18 The State concedes the jurors should not have heard
testimony suggesting that Voge had been in prison. See id. The court,
however, immediately struck that brief testimony and directed the jurors
not to consider it. The testimony was not repeated or again referenced at
trial. On this record, the court thus acted within its discretion in imposing
a remedy short of a mistrial. See Adamson, 136 Ariz. at 262; Kuhs, 223 Ariz.
at 387 ¶ 55; see also State v. Stuard, 176 Ariz. 589, 601–02 (1993) (concluding
testimony that defendant had been in prison was not unfairly prejudicial
when the remark was brief and not further mentioned).
B. Testimony About Text Messages.
¶19 A detective testified that Voge sent C.S. a text message stating,
“Maybe I’m confused, but I thought you were a convict. Anywhere in our
code does it say it’s okay to hang out or associate with a snitch who tries to
build cases.” Voge objected when the State sought to have the detective
read C.S.’s response, which was “She didn’t tell you the entire story.” Voge
asserted that his text message (including “our code”) improperly implied
that he was a convict. The court agreed that it might be interpreted that way
but added that a juror could also interpret the message to mean “we people
don’t like snitches” instead. The court allowed the State to introduce C.S.’s
text response.
¶20 Voge argues the court erred (1) by failing to sua sponte
declare a mistrial and (2) by denying Voge’s motion for a new trial, which
alleged in part that the text message evidence contributed to “cumulative
prejudice” at trial. “Absent fundamental error, a defendant cannot
complain if the court fails to . . . sua sponte order a mistrial.” State v. Ellison,
213 Ariz. 116, 133 ¶ 61 (2006). The denial of a motion for new trial is
reviewed for an abuse of discretion. Jones, 197 Ariz. at 304 ¶ 32.
¶21 Evidence that Voge served time in prison was inadmissible.
State v. Bailey, 160 Ariz. 277, 280 (1989). Here, however, the references were
ambiguous (as the court noted), brief and in passing. See Jones, 197 Ariz. at305 ¶ 34. Moreover, Voge neither asked to strike the evidence nor requested
a curative instruction. Cf. State v. Christensen, 129 Ariz. 32, 38 (1981)
(affirming denial of mistrial when defendant did not seek to strike the
testimony or request a curative instruction). The State never again
referenced the evidence during trial. See Stuard, 176 Ariz. at 601–02. On this
record, there is no reasonable probability that the testimony improperly
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STATE v. VOGE
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influenced the verdicts. See, e.g., State v. Hoskins, 199 Ariz. 127, 137 ¶ 28
(2000); Bailey, 160 Ariz. at 280. Thus, Voge has shown no error. See Jones, 197
Ariz. at 304 ¶ 32 (noting superior court “is in the best position to determine
whether [improper] evidence will actually affect the outcome of the trial”).
III. Voge Has Shown No Error in the Admission of Evidence That He
Had Been in Custody with a Defense Witness.
¶22 Voge disclosed Robert Jeffrey as a witness to testify about a
purported conversation he had with Robinson a month before the shooting.
Jeffrey met Voge when they were in jail together; Jeffrey faced unrelated
charges while Voge awaited trial in this case. Jeffrey testified that, after
apparently hearing him talking with someone else about C.S., Voge asked
Jeffrey what he knew about the victim. Jeffrey said Robinson had told him
information relevant to Voge’s defense. Voge sought to preclude the State
from eliciting evidence that the conversation took place in jail, asserting that
such information would be unfairly prejudicial. The State responded that
the context of their discussions was “completely relevant,” and the same
prosecutor was assigned to the cases against Voge and Jeffrey.
¶23 The court allowed the evidence, reasoning the circumstance
of their meeting was “relevant to the context of the conversation” because
“there are potential dynamics that are different in a jail atmosphere than
outside a jail atmosphere.” The court added Jeffrey’s incarceration status
potentially added credibility to his testimony, because a typical defendant
“would not believe himself to receive any benefit by testifying [for the
defense] in a case that involves the same prosecutor.”
¶24 Jeffrey testified that he and Voge had met in jail and discussed
Voge’s case, that a month before the shooting Robinson was his coworker,
he lived in the same area as C.S. and they drove similar vehicles. Jeffrey also
testified that Robinson told him she and others had been looking for C.S. to
“beat [him] up” and nearly attacked Jeffrey by mistake because they
confused his car for C.S.’s car. Voge offered Jeffrey’s testimony to make the
point that Robinson had been planning an attack on C.S. without Voge’s
involvement weeks before the shooting.
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STATE v. VOGE
Decision of the Court
¶25 With the parties’ agreement, the court gave the jury the
following limiting instruction:
You have heard evidence that the defendant
was in jail for at least some period of time while
the case was pending. This evidence is
submitted only for the limited purpose of
determining the credibility of witnesses; and
therefore, . . . you must consider it only for that
limited purpose and not for any other purpose.
¶26 A superior court has substantial discretion in determining
whether the probative value of relevant evidence is substantially
outweighed by a danger of unfair prejudice. State v. Clabourne, 142 Ariz.
335, 343 (1984); see Ariz. R. Evid. 403. In reviewing such a determination,
this court views the challenged evidence 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 (App. 1998). “Unfair prejudice
results if the evidence has an undue tendency to suggest decision on an
improper basis, such as emotion, sympathy, or horror.” State v. Mott, 187
Ariz. 536, 545 (1997).
¶27 Voge has shown no abuse of discretion. The timing and
circumstances of Jeffrey’s conversation with Voge were probative of his
credibility. That context allowed the jurors to consider (1) the
reasonableness of their chance meeting and (2) whether the genesis of their
discussions made it more likely that the two coordinated their stories. See
Ariz. R. Evid. 401. Thus, the context of the evidence was valuable to the
jurors in deciding whether to accept Jeffrey’s testimony.
¶28 As the superior court also reasoned, admitting evidence of
Jeffrey’s pretrial incarceration led to minimal possible prejudice. After
defense counsel elicited testimony from Jeffrey that the prosecutor trying
Voge’s case was also prosecuting his case, counsel asked why he would
testify where “you have the same prosecutor that . . . is still prosecuting
you.” Jeffrey answered that he was “here to speak the truth . . . whether it
hurts [him] or not.” Defense counsel asserted in closing that Jeffrey’s
account was credible, noting he testified “even though the same prosecutor
is prosecuting both his case and this one . . . [and] he exposed himself to
some . . . consequences; maybe, maybe not.” A reasonable juror could thus
conclude that Jeffrey’s incarceration status enhanced his credibility, thereby
benefitting Voge.
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¶29 Nor did the evidence unfairly prejudice Voge’s defense. Cf.
State v. Murray, 184 Ariz. 9, 35 (1995) (“Certainly the jurors were aware that
defendants were arrested and had spent some time in custody prior to trial.
Such knowledge is not prejudicial and does not deny defendants the
presumption of innocence.”). Similarly, Voge has not shown how the
evidence invited the jurors to decide the case on an improper basis,
particularly given the limiting instruction. See Mott, 187 Ariz. at 545; Kuhs,
223 Ariz. at 387 ¶ 55; cf. State v. Villalobos, 225 Ariz. 74, 80 ¶ 20 (2010)
(instructing the jury on the “limited purposes for which it could consider”
other-acts evidence “appropriately mitigated” any prejudice).
IV. The Court Did Not Err by Refusing to Give a Third-Party
Culpability Instruction.
¶30 A third-party culpability instruction tells the jurors (1) the
State has the burden of proving the defendant committed the charged
offenses, and (2) if the jury has a reasonable doubt about the defendant’s
guilt because a third party may have committed the crime, it must find him
not guilty. See Rev. Ariz. Jury Instr. (RAJI) Stand. Crim. 47 (5th ed. 2019). In
denying Voge’s request for this instruction, the court explained that Voge
had not presented any evidence of third-party culpability. The court added
that the requested instruction was inappropriate because Voge was charged
as an accomplice, reasoning that the instruction should be given when the
defendant points blame at an uncharged party instead of “somebody that
is already charged with the offense.” Voge argues the court erred by
denying his request to give the instruction, which this court reviews for an
abuse of discretion. State v. Moody, 208 Ariz. 424, 467 ¶ 197 (2004).
¶31 A defendant has a right to have the jury instructed on any
theory reasonably supported by the evidence. Id. But “[w]here the law is
adequately covered by instructions as a whole, no reversible error has
occurred.” Doerr, 193 Ariz. at 65 ¶ 35. As the Arizona Supreme Court has
noted, “[n]o Arizona case has required a third-party culpability
instruction” because the “substance of the instruction [is] adequately
covered” by the instructions “on the presumption of innocence and the
State’s burden of proving beyond a reasonable doubt all elements of the
crimes charged.” State v. Parker, 231 Ariz. 391, 405 ¶¶ 55–56 (2013).
¶32 Because the court properly instructed the jury on the State’s
burden of proof and the presumption of innocence, it did not have to give
the third-party culpability instruction. Id. The court also instructed the
jurors on accomplice liability and the culpability of a co-conspirator, and
the required proof for such charges. Because the instructions given
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STATE v. VOGE
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adequately explained the applicable law, the absence of the requested third-
party culpability instruction did not affect the verdicts. See id.; Doerr, 193
Ariz. at 65 ¶ 35. Had the jurors accepted Voge’s defense that Robinson and
Davis acted without his involvement, they would have found Voge not
guilty because the charged offenses required proof that Voge participated
in committing the crimes.
¶33 Despite Parker, Voge cites State v. Rodriguez, 192 Ariz. 58(1998), and State v. Gibson, 202 Ariz. 321 (2002), for the proposition that the
third-party culpability instruction was required. Both cases are
distinguishable. Rodriguez involved a request for an alibi instruction, which
is not at issue here. Gibson dealt with whether third-party culpability
evidence was admissible. Parker cited both cases in reaching its conclusion.
231 Ariz. at 405 ¶¶ 55–56. Parker also makes clear that any error in rejecting
the instruction is not reversible, given that the court properly instructed the
jurors on the State’s burden of proof and the presumption of innocence. See
id.
CONCLUSION
¶34 Voge’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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