State v. Mallotte ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL JAMES MALLOTTE, Appellant.
No. 1 CA-CR 21-0591
FILED 12-15-2022
Appeal from the Superior Court in Mohave County
No. S8015CR202100089
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee
Jill L. Evans Attorney at Law, Flagstaff
By Jill Evans
Counsel for Appellant
STATE v. MALLOTTE
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Michael James Mallotte appeals his convictions and sentences
for one count each of possession of dangerous drugs (methamphetamine)
for sale and possession of drug paraphernalia. For the following reasons,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Mallotte. State v. Felix,
237 Ariz. 280, 283, ¶ 2 (App. 2015). One afternoon in January 2021, Lake
Havasu City narcotics detectives gave patrol officers a tip that Mallotte's
car was parked at Katherine's residence, which they had been staking out
for "quite a while." Mallotte drove away and the patrol officers stopped
him after he committed a traffic infraction. During a lawful search of his
car, the officers found a bag containing approximately a half-pound of
methamphetamine. A grand jury indicted Mallotte for possessing
methamphetamine for sale, a class 2 felony, and possessing drug
paraphernalia, a class 6 felony.
¶3 Before jury selection on the first day of trial, the superior court
addressed the parties' motions in limine. The State sought to preclude
Mallotte from introducing evidence that a few hours after his arrest, the
police had served a search warrant at Katherine's house, arguing the
information was irrelevant because the charged offenses stemmed solely
from the search of his car. The State also noted that Mallotte did not live at
the residence, and the police did not find any exculpatory evidence there.
¶4 Mallotte objected, stating he intended to present a third-party
culpability defense that someone at Katherine's house could have placed
the methamphetamine in his car without his knowledge. To support his
theory, he wanted to introduce evidence establishing (1) the detectives had
been investigating Katherine for drug-related crimes; (2) they secured and
served the search warrant based in part on the drugs recovered from his
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STATE v. MALLOTTE
Decision of the Court
car; (3) when they searched her residence, they learned that several others
were living there with her; and (4) the officers saw another person leave the
residence and detained him, but they did not find any drugs in the person's
truck.
¶5 The court reasoned that if Mallotte could provide evidence
showing another person had access to his car "within a reasonable period
of time," it would allow him to question the officers whether that person
had been near his car or in Katherine's residence during the relevant time.
After Mallotte failed to identify any such person, the court granted the
State's motion.
¶6 At the hearing, the court also granted Mallotte's unobjected-
to motion in limine precluding the State from introducing evidence that the
Lake Havasu City police had "any prior interaction" with him. The next
trial day, during the State's direct examination of a narcotics detective, the
following exchange occurred:
Q. Detective [D.], did you have any involvement in this case?
A. Yes, I did, sir.
Q. And could you . . . tell us that involvement with the case?
A. Yes, I can. On the day this investigation was initiated, . . . I
observed a vehicle that I recognized as a red Mustang
belonging to Mr. Mallotte, based on his prior investigation
that had been conducted.
Mallotte immediately requested a bench conference where he moved for a
mistrial, asserting the detective's reference to a prior investigation violated
the motion-in-limine order.
¶7 Noting the jury had already heard repeatedly that the patrol
officers stopped Mallotte based on the testifying detective's tip, the court
denied the mistrial motion. Over Mallotte's objection, the court instead
instructed the jury "not to consider any prior investigations or prior
knowledge that [the Lake Havasu City police] may have had regarding Mr.
Mallotte. . . . [I]f you heard anything like that, you're to disregard that and
not consider it in your deliberations." In final jury instructions, the court
again directed the jurors that "[i]f testimony was ordered stricken from the
record, you must not consider that testimony for any purpose."
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Decision of the Court
¶8 In Mallotte's case-in-chief, he called a police sergeant who had
assisted in searching his car. Once the police found the drugs, the sergeant
went to Mallotte's nearby apartment and secured it for a search, which the
police ultimately decided not to conduct. Mallotte chose not to testify.
After Mallotte rested his case, the court denied his request for a third-party
culpability jury instruction. In closing argument, Mallotte advanced the
argument that the State had only presented "half of the story," urging the
jury to consider that he—not the State—had called the sergeant to the stand
and to question why the police had not searched his apartment.
¶9 The jury found Mallotte guilty as charged. The court
sentenced him to concurrent prison terms, the longer of which was seven
years. Mallotte timely appealed. We have jurisdiction under A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Third-Party Culpability Defense.
¶10 Mallotte argues the court improperly precluded his third-
party culpability evidence, depriving him of his constitutional rights to
present a complete defense. He further challenges the denial of his request
for a corresponding third-party culpability jury instruction. Although
Mallotte did not raise his constitutional claim in the superior court, the State
does not assert he has forfeited review of the issue absent fundamental
error. Thus, we review the court's rulings for an abuse of discretion but
examine constitutional issues de novo. State v. Payne, 233 Ariz. 484, 502,
515, ¶¶ 49, 136 (2013).
¶11 Arizona Rules of Evidence ("Rule") 401, 402, and 403 govern
the admissibility of third-party culpability evidence. State v. Machado, 226
Ariz. 281, 284, ¶ 16 (2011). In this context, evidence is relevant only when
it "tend[s] to create a reasonable doubt as to the defendant's guilt." Id. at n.2
(quoting State v. Gibson, 202 Ariz. 321, 324, ¶ 16 (2002)). Defendants are not
entitled, however, "to raise unfounded suspicions or to simply throw
strands of speculation on the wall and see if any of them will stick." State v.
Bigger, 227 Ariz. 196, 208, ¶ 42 (App. 2011) (internal quotation marks
omitted). And courts may exclude relevant third-party culpability
evidence "if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury." Id. at
¶ 41 (quoting Ariz. R. Evid. 403). The superior court has considerable
discretion in deciding whether to admit such evidence, viewed in the light
most favorable to its proponent. Id. at 208-09, ¶ 42.
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¶12 "Criminal defendants are constitutionally guaranteed a
meaningful opportunity to present a complete defense." State v. Foshay, 239
Ariz. 271, 279, ¶ 36 (App. 2016) (internal quotation marks omitted). In
exercising that right, they must still comply with "established rules of
procedure and evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence." State v. Prasertphong, 210 Ariz.
496, 502, ¶ 26 (2005) (quoting Chambers v. Mississippi, 410 U.S. 284, 302
(1973)). Put another way, the "right to present evidence in one's defense is
limited to evidence which is relevant and not unduly prejudicial." State v.
Oliver, 158 Ariz. 22, 30 (1988).
¶13 Applying these principles, Mallotte's proffered third-party
culpability evidence consisted only of his uncorroborated allegation that
some unidentified person—for unknown reasons—might have concealed
the drugs in his car. And when the court pressed him for details, Mallotte
could not specify when the unnamed culprit would have had the means
and opportunity to do so. Because the potential evidence provided no more
than "vague grounds of suspicion," the court reasonably concluded that it
was irrelevant, given that it had little, if any, tendency to raise doubt about
his guilt. Bigger, 227 Ariz. at 209, ¶ 43 (quoting State v. Fulminante, 161 Ariz.
237, 252 (1988)). Even assuming the evidence met the low threshold for
relevance, State v. Tucker, 215 Ariz. 298, 313, ¶ 51 (2007), the court could
have found its probative value was substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, see State
v. Dann, 205 Ariz. 557, 569, ¶¶ 35-36 (2003) (affirming the preclusion of
third-party culpability evidence when its "tenuous and speculative
nature . . . caused it to fail the Rule 403 test").
¶14 In sum, Mallotte's proffered evidence casts no doubt on the
verdict and stands in stark contrast to cases in which our supreme court has
found error in precluding a third-party culpability defense. See Machado,
226 Ariz. at 285, ¶ 24 (addressing an anonymous phone call wherein the
caller confessed to the charged crime and "powerful indications" existed
that the third party, not the defendant, was the caller); State v. Prion, 203
Ariz. 157, 161-62, ¶ 25 (2002) (discussing evidence showing an identified
third party had the motive and opportunity to commit the charged offense).
Accordingly, we find neither evidentiary nor constitutional error in the
evidence's exclusion. See State v. Davis, 205 Ariz. 174, 179, ¶ 33 (App. 2002)
("[A] defendant's constitutional rights are not violated where, as here,
evidence has been properly excluded.").
¶15 Likewise, the superior court did not abuse its discretion by
denying Mallotte's request for a third-party culpability instruction, given
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that no reasonable evidence supported his defense theory. See State v.
Parker, 231 Ariz. 391, 405, ¶ 54 (2013) ("A trial judge must instruct the jury
'on any theory reasonably supported by the evidence.'" (quoting State v.
Moody, 208 Ariz. 424, 467, ¶ 197 (2004))). But, even if the court incorrectly
assessed the instruction's evidentiary foundation, Mallotte is not entitled to
relief. Our supreme court has held that the substance of a third-party
culpability instruction is adequately covered when—as here—the jury
receives proper instructions on the defendant's presumed innocence and
the prosecution's burden to prove all elements of the charged crimes
beyond a reasonable doubt. Id. at ¶ 56. Therefore, because the given
instructions sufficiently informed the jury of the law, no reversible error
occurred. Id.; see also State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998) ("Where the
law is adequately covered by instructions as a whole, no reversible error
has occurred.").
II. Motion for Mistrial.
¶16 Mallotte asserts the court erroneously denied his mistrial
motion. We review the ruling for an abuse of discretion. State v. Bush, 244
Ariz. 575, 594, ¶ 80 (2018). The superior court is afforded broad discretion
in deciding whether to declare a mistrial because it "is in the best position
to determine whether the [improper] evidence will actually affect the
outcome of the trial." State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000).
¶17 "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.
Leteve, 237 Ariz. 516, 526, ¶ 33 (2015) (quoting State v. Adamson, 136 Ariz.
250, 262 (1983)). "To determine whether a mistrial is warranted, courts
consider '(1) whether 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) (quoting State v. Laird, 186 Ariz. 203, 207 (1996)) (alterations
in original).
¶18 "Arizona has long recognized that testimony about prior bad
acts does not necessarily provide grounds for reversal." Jones, 197 Ariz. at
305, ¶ 34. To that end, "vague references to other unproven crimes and
incarcerations" are not unduly prejudicial. Id. Likewise, brief testimony
introducing inadmissible evidence is unlikely to influence a jury. Laird, 186
Ariz. at 207. And a curative instruction directing the jurors to disregard
objectionable testimony can minimize any resulting prejudice. State v.
Lamar, 205 Ariz. 431, 439, ¶ 43 (2003); see Payne, 233 Ariz. at 518, ¶ 151
(presuming jurors follow the court's instructions).
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STATE v. MALLOTTE
Decision of the Court
¶19 Here, although the jury should not have heard the challenged
testimony, see Miller, 234 Ariz. at 40, ¶ 25, the detective's comment was
isolated and lacked any details about the prior investigation. And the
prosecutor did not solicit the testimony; instead, the detective volunteered
arguably extraneous information to a reasonable question about his
involvement in this case. See State v. Koch, 138 Ariz. 99, 102 (1983)
(considering the unsolicited nature of inadmissible testimony in affirming
the denial of a mistrial). Further, as the superior court reasoned, the
statement was largely cumulative to earlier unobjected-to testimony that
the patrol officers had pulled him over based on the narcotics detectives'
tip. Cf. State v. Dunlap, 187 Ariz. 441, 458, 466 (App. 1996) (finding no
prejudice from improper but "merely cumulative" testimony).
¶20 Although Mallotte complains the "limiting instruction was
not enough to cure the error," he does not explain why it was insufficient,
let alone identify any record evidence overcoming our presumption that the
jury complied with the court's directives. Nor is there merit to his
unsupported contention that the court erred by issuing the curative
instruction immediately after the inadmissible testimony rather than doing
so only in final jury instructions. See State v. Herrera, 203 Ariz. 131, 135,
¶¶ 7-8 (App. 2002) (finding no abuse of discretion in promptly delivering a
curative instruction following improper testimony). Accordingly, the
superior court did not abuse its discretion in denying the mistrial motion
and instead providing a curative instruction.
CONCLUSION
¶21 We affirm Mallotte's convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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