State v. Summers ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ZERA P. SUMMERS, JR.,
Appellant.
No. 1 CA-CR 14-0362
FILED 6-9-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-416358-001
The Honorable William L. Brotherton, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
Zera P. Summers, Jr.
Appellant
STATE v. SUMMERS
Decision of the Court
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.
O R O Z C O, Judge:
¶1 Zera P. Summers, Jr. appeals his convictions and sentences for
one count of aggravated assault, a class three dangerous felony; one count
of disorderly conduct, a class six dangerous felony; and one count of
threatening and intimidating, a class one misdemeanor. Summers’ counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and
State v. Leon, 104 Ariz. 297 (1969), advising this court that after a search of
the entire appellate record, he found no arguable question of law. Summers
was afforded the opportunity to file a supplemental brief in propria
persona, which he has done and we have considered. Our obligation on
appeal is to review “the entire record for reversible error.” State v. Clark,
196 Ariz. 530, 537, ¶ 30 (App. 1999). Finding no reversible error, we affirm
Summers’ convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 J.F. and V.H. were at a bus stop when Summers began
following them. Summers appeared to be intoxicated and began to make
comments that J.F. believed were intended to make him “get violent or get
mad,” mostly “drunk talk.” Attempting to avoid a confrontation with
Summers, J.F. and V.H. returned to Vanessa’s, V.H.’s mother, apartment
and Summers followed them inside. After leaving the apartment, Summers
pointed a knife at J.F. and V.H. Several of the apartment complex’s
residents, including Daren Howard, congregated around the three. At
some point during the altercation, Summers allegedly cut his finger, said
“Blood Swans”1 and attempted to write something on a wall with the blood
1 At trial, Mesa Police Department Gang Unit Detective Tapia,
testified that the Swan Love Bloods are a documented criminal street gang
operating predominately in the Casa Grande area. He further testified that
he did not believe Summers was a member of that gang.
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STATE v. SUMMERS
Decision of the Court
on his finger. J.F. allegedly told Summers to put the knife down and
Summers put it in his back pocket.
¶3 V.H. pulled the knife from Summers’ pocket, and J.F. and
Summers began to swing at each other and wrestled to the ground. J.F. got
on top of Summers, and Summers attempted to strike J.F. with a nearby
rock. However, the rock fell out of Summers’ hand, and the police arrived
shortly thereafter. Summers began screaming, “I got you, motherfucker”
and “[y]ou’re done, motherfucker.” Summers was arrested and while in
police custody, Summers told Officer Silva, “I will get out” and “I will get
you, bitch.”
¶4 Summers was charged with three counts of aggravated
assault, one count of threatening or intimidating, and one count of
disorderly conduct. A jury found Summers guilty of one count of
aggravated assault, disorderly conduct, and threatening or intimidating.
¶5 The trial court sentenced Summers to concurrent
presumptive terms of 13.25 years’ imprisonment as to the aggravated
assault conviction, 5.75 years’ imprisonment as to the disorderly conduct
conviction, and seventy-six days of incarceration for the threatening and
intimidating conviction, to run concurrently. The court also gave Summers
seventy-six days of presentence incarceration credit. Summers timely
appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21.A.1, 13-4031 and -4033.A.1 (West 2015).2
DISCUSSION
Testimony re Gang Membership
¶6 Summers argues the trial court erred by admitting testimony
about his “alleged gang affiliation” into evidence. Specifically, Summers
asserts that such testimony was “highly prejudicial” and that its admission
violated his due process rights.
¶7 We review the trial court’s admission of testimony for an
abuse of discretion. See State v. Wood, 180 Ariz. 53, 61 (1994). The trial court
is best suited to “balance the probative value of challenged evidence against
its potential for unfair prejudice,” and we view the evidence in the light
“most favorable to its proponent, maximizing its probative value and
2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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STATE v. SUMMERS
Decision of the Court
minimizing its prejudicial effect.” State v. Harrison, 195 Ariz. 28, 33, ¶ 21
(App. 1998).
¶8 The prosecutor introduced evidence concerning Summers’
purported “Blood Swans” statement at trial as proof that Summers placed
J.F. in “reasonable apprehension of imminent physical injury” as required
by A.R.S. § 13-1203.A.2. Moreover, Detective Tapia testified that he did not
believe Summers was a member of the Swan Bloods gang.
¶9 In his closing argument, the State reiterated:
Folks, it didn’t matter if [Summers] was in a gang or not. He’s
not charged with being in a gang. The reason all that evidence
came out and the reason it’s presented to you wasn’t that
[Summers] was in a gang, it was [that Summers] was saying
he was in a gang. He was trying to scare [J.F.]. He was trying
to intimidate him.
¶10 Because Summers’ statement about gang affiliation,
regardless of its truth or falsity, was relevant in determining whether he
placed J.F. in reasonable apprehension of imminent physical injury, we find
the trial court did not abuse its discretion. Moreover, we note that the
prosecutor’s statement in his closing argument helped clarify the purpose
of such evidence to the jury and thus, prevented subjecting Summers to
“unfair prejudice” and “confusing the issues” before the jury. See Ariz. R.
Evid. 403.
Hearsay Testimony
¶11 Summer next argues that the trial court erred by admitting
hearsay testimony in violation of the Confrontation Clause of the Sixth
Amendment to the United States Constitution. “We review a trial court’s
ruling on the admissibility of hearsay evidence for an abuse of discretion.”
State v. Bronson, 204 Ariz. 321, 324, ¶ 14 (App. 2003). However, we review
Confrontation Clause issues de novo. Id.
A. Detective Tapia’s Testimony
¶12 Summers first asserts that the court erred by permitting
Detective Tapia to testify concerning statements Vanessa made. During the
State’s redirect, the prosecutor asked Detective Tapia if Vanessa told him
that Summers was a “wannabe gang member and just a bully.” The trial
court overruled Summers’ objection to this line of questioning, finding that
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STATE v. SUMMERS
Decision of the Court
defense counsel asked Detective Tapia the same question while cross
examining him.
¶13 During cross-examination, defense council elicited the
following testimony from Detective Tapia:
Q. Six documented members of the 79th Swan Love
Bloods or the Swan Love Bloods in Arizona, right?
A. Correct.
...
Q. And of those six, the information in your report. .
.pretty much says [Summers] isn’t one of them, right, from
Vanessa and what’s noted in your report?
A. From speaking with the witnesses?
Q. Yeah.
A. [F]rom what Vanessa said, that’s correct.
...
Q. And he was described as maybe a bit of a blowhard or
bully, but not one of them, right?
A. Correct.
When defense counsel develops testimony about “the subject of
information” obtained from another witness, he opens the door for the
witness’ statements to be admitted into evidence. State v. Garcia, 133 Ariz.
522, 525-26 (1982). Because defense counsel opened the door to further
inquiry about Vanessa’s statements, Summers “may not assign its fruits as
error on appeal.” See id. at 526. Thus, we affirm the trial court’s ruling.3
3 Summers also contests the admission of statements made by J.F.
about his “alleged memory disorder” to Detective Tapia, because Summers
was not given an opportunity to confront and cross examine Detective
Tapia. The record reflects that the testimony Summers refers to was J.F’s
direct testimony, was elicited by defense counsel, and contained no hearsay
statements. Thus, we do not address this argument.
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STATE v. SUMMERS
Decision of the Court
B. Officer Silva’s Testimony
¶14 Summers next argues the court erred by admitting Officer
Silva’s testimony. During the State’s direct examination, over Summers’
objection, Officer Silva testified that several people at the scene of the
confrontation told him they witnessed Summers yell “Swan Bloods.” The
trial court overruled Summers’ objection because the statement was “based
on the effect of the hearer.”
¶15 We agree. “Words offered to prove the effect on the hearer
are admissible when they are offered to show their effect on one whose
conduct is at issue.” State v. Hernandez, 170 Ariz. 301, 306 (App. 1991). The
“Swan Bloods” statement was offered to show its effect on Officer Silva.
Thus, it was not hearsay and the trial court properly overruled the
objection. See State v. Strong, 178 Ariz. 507, 509 (App. 1993) (finding
statement made to officer was “admissible to show the effect on the hearer,
that is, how the officer first made contact with the appellant”).
C. Daren Howard’s Testimony
¶16 Summers also argues the court erred by admitting Daren
Howard’s following testimony over Summers’ objection:
Q. Okay. Okay. So things are being said. Do you recall
anything else that’s being said between [J.F.] and [Summers]?
A. Just, “put the knife down.”
Q. And who was saying that?
A. [J.F.].
¶17 The trial court did not state its reasoning for overruling
Summers’ hearsay objection. However, we will affirm the ruling if it was
legally correct for any reason. State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App.
2010).
¶18 Although hearsay, we conclude the statement was admissible
as an excited utterance under Arizona Rule of Evidence 803(2). The
statement was purportedly made after Summers pulled out his knife and
J.F. testified that he was afraid of being stabbed at that moment. Thus, the
statement was properly admitted as J.F. said it while under “the stress of
excitement” of the confrontation with Summers. See Ariz. R. Evid. 803(2).
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STATE v. SUMMERS
Decision of the Court
¶19 Also, “[w]hen hearsay evidence is the sole proof of an
essential element of the state’s case, reversal of the conviction may be
warranted.” State v. McGann, 132 Ariz. 296, 299 (1982). Howard’s hearsay
testimony was not offered as the sole proof of an essential element; it was
simply admitted to show J.F. asked Summers to put the knife down. Thus,
we find no error.
Prosecutorial Misconduct
¶20 Summers next asserts that his “conviction was obtained as the
result of prosecutorial misconduct.”4 Specifically, Summers argues the
prosecutor’s statement about self-defense was improper. During his
closing argument, the prosecutor stated, “Now, this case is maybe different
than you were possibly expecting when you came in because you didn’t
receive a single instruction on self-defense.”
¶21 Defense counsel objected on relevance grounds. After calling
a bench conference, the trial judge noted that the jury would not be
instructed to consider self-defense and instructed the prosecutor to “go
right on past it.” The prosecutor did not address self-defense in the
remainder of his closing argument.
¶22 Because Summers objected to the prosecutor’s self-defense
statement at trial, we review for harmless error. See State v. Ramos, 235 Ariz.
230, 234, ¶ 8 (App. 2014). We will reverse only if there is a “reasonable
likelihood that the misconduct could have affected the jury’s verdict,
thereby denying the defendant a fair trial.” State v. Nelson, 229 Ariz. 180,
189, ¶ 36 (App. 2012) (internal punctuation and citation omitted). Summers
has not demonstrated how the prosecutor’s self-defense statement could
have impacted the jury’s verdict. Moreover, the trial court did not instruct
the jury to consider a self-defense theory and there is no evidence that it did
while it deliberated. Finding no error, we affirm.
CONCLUSION
¶23 We have read and considered counsel’s brief and Summers’
supplemental brief. We have carefully searched the entire appellate record
for reversible error and have found none. See Clark, 196 Ariz. at 541, ¶ 49.
4 Summers contends the prosecutor repeatedly made “improper
references to [Summers’] alleged gang involvement during direct
examination and redirect.” Because we concluded that the trial court
properly admitted such evidence, we find no misconduct and do not
further address this argument. See supra ¶¶ 8-10.
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STATE v. SUMMERS
Decision of the Court
All of the proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure. Summers was represented by counsel at all
critical stages of the proceedings. At sentencing, Summers and his counsel
were given an opportunity to speak, the court imposed a legal sentence,
and Summers received the correct amount of presentence incarceration
credit.
¶24 Counsel’s obligations pertaining to Summers’ representation
in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 584 (1984).
Counsel need do nothing more than inform Summers of the status of the
appeal and his future options, unless Counsel’s review reveals an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See id. at 585. Summers shall have thirty days from the date of this
decision to proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.
¶25 For the foregoing reasons, we affirm Summers’ convictions
and sentences.
:ama
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