State v. Baker ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DJUAN LA SHAUN BAKER, Appellant.
No. 1 CA-CR 21-0071
FILED 3-3-2022
Appeal from the Superior Court in Maricopa County
No. CR 2015-02551-001
The Honorable Howard D. Sukenic, Judge
The Honorable Cari A. Harrison, Judge (Retired)
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse F. Turner
Counsel for Appellant
STATE v. BAKER
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 Djuan Baker appeals from his convictions and sentences for
fraudulent schemes and artifices, theft, and forgery. He argues the superior
court erred by permitting the State to cross-examine a defense witness on
matters that constituted improper lay opinion evidence as well as being
irrelevant, unfairly prejudicial, and beyond the witness’s personal
knowledge. Baker also contends the court erred by denying his attorney’s
request that Baker be recalled to provide additional testimony. Because the
State’s cross-examination did not prejudice Baker, and the court acted
within its discretion in denying his request to reopen evidence, we affirm.
BACKGROUND
¶2 In March 2014, Baker met J.J. at a gym and the two became
friends. J.J. worked for a bank and Baker worked as a personal trainer. A
few weeks later, Baker asked J.J. if he could deposit his client’s checks into
J.J.’s personal bank account. Baker explained that he wanted to prevent his
girlfriend from accessing the money and offered to give J.J. part of it.
¶3 The checks, however, were not from Baker’s clients; they were
from bank accounts opened by Baker. Each of these accounts, except one,
were established under fictitious names. Baker wrote seven checks from
these accounts, knowing there were insufficient funds, and deposited the
checks into J.J.’s bank account between April 30 and May 29. After the
checks were deposited, J.J. would withdraw the money.1
¶4 Sometime later, J.J.’s bank informed him the checks did not
clear, resulting in a negative balance. The bank also told J.J. the checks
appeared fraudulent and eventually closed J.J.’s account with a negative
1 The process of depositing checks with insufficient funds and then
withdrawing cash before the deficiency is discovered is a type of fraudulent
conduct commonly known as “check-kiting.”
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balance of $1,882. In a text exchange around the same time, J.J. told Baker
his bank card was not working and asked him if the checks were “good.”
Baker responded “[y]eah,” and said the clients were reliable. J.J. later texted
Baker that the bank had closed his (J.J.’s) account, and that the checks
turned out to be “fake.” Baker responded that he would pay J.J. back and
offered to help fix the issue.
¶5 When J.J. texted Baker that the police were involved, Baker
asked for the investigating officer’s contact information. Baker called the
officer and told him that all the checks, except for the one in his own name,
belonged to his clients. Baker also told the officer he wanted to hide the
funds from his girlfriend, and that J.J. had kept all of the money that was
deposited.
¶6 Baker was charged with fraudulent schemes and artifices, a
class 2 felony; theft, a class 3 felony; and eight counts of forgery, each a class
4 felony.2 Among other trial witnesses, the State called J.J., who testified
about his dealings with Baker.
¶7 After the State’s case in chief, Baker’s first witness was
S. Jefferson, who testified about his alleged interactions with J.J. According
to Jefferson, by coincidence, he was in the same jail as J.J. for two days in
October 2018. Jefferson testified that he was previously acquainted with J.J.
through social contact and that while in jail, J.J. told Jefferson about the
check-kiting case involving Baker. Jefferson stated that based on their
conversations, it appeared that J.J. not only knew that he was participating
in a check-kiting scheme, but that he orchestrated it. Jefferson also reported
that J.J. said he told Baker to “do it one more time,” and that J.J. threatened
to “handle” Baker’s family if Baker did not comply. Jefferson then
explained that he was coincidentally transferred to the same jail where
Baker was being held. After discovering that Baker was the same man from
J.J.’s story, Jefferson tried to discuss the case with Baker. When Baker
refused, Jefferson contacted Baker’s attorney.
¶8 During cross-examination of Jefferson, the State provided
him with a copy of the text messages between Baker and J.J., and asked a
number of questions about what the messages said. The State followed up
on this line of questioning with various hypotheticals, asking how Jefferson
2 One of the forgery counts arose from Baker’s separate dealings with
a different friend, M.L. Baker wrote M.L. a check with insufficient funds,
which M.L. attempted to cash. At trial, Baker claimed the check was
actually an “IOU,” and that M.L. was never supposed to cash it.
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STATE v. BAKER
Decision of the Court
would have felt or reacted were he in Baker’s or J.J.’s position. The State
also gave Jefferson details derived from bank records, and asked if he
would be “surprised” to find out the information was true.
¶9 The State then recalled J.J., who testified that he did not know
Jefferson and never talked to anyone about the case while incarcerated. J.J.
also denied threatening Baker or forcing him to participate in the check-
kiting scheme.
¶10 After the State rested, Baker testified that J.J. was the one who
came up with the check-kiting scheme and asked Baker to participate.
Baker claimed he declined the offer. The next time they saw each other, J.J.
asked again, but Baker declined. According to Baker, later that night as he
was walking to his car, J.J. called out Baker’s name, and then hit Baker in
the back of the head with a gun. J.J. then forced Baker into a car and told
him he was not asking him to “do this anymore. I’m telling you this is what
you are going to do.” Baker testified that J.J. said he knew where Baker
lived, and what his girlfriend and kids looked like, and that J.J. threatened
to hurt or kill one of them if Baker did not participate in the check-kiting
scheme. J.J. then instructed Baker how to conduct the scheme, ordering him
to open the accounts and write the checks.
¶11 When cross-examined about the text messages, Baker testified
that he and J.J. were speaking in “code,” and that he was only playing along
with the story he and J.J. were creating. He also claimed he told the
investigating officer false information because he had to keep up the story
so his family would remain safe. After Baker completed his testimony, and
after a weekend break, Baker’s counsel sought to recall him for further
testimony. The State objected and, after receiving a proffer of the questions
Baker’s counsel would ask, the court denied the request to recall Baker. The
court reasoned that the issues described in the proffer were not “relevant
for the jury’s consideration,” and that any limited relevance would be
outweighed by a danger of “opening up other areas that then become
collateral to this case.”
¶12 A jury convicted Baker on all counts and the superior court
imposed presumptive, concurrent prison terms totaling 9.25 years. Baker
timely appealed, and we have jurisdiction under A.R.S. § 12–120.21(A)(1).
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DISCUSSION
A. Cross-Examination of Jefferson
¶13 Baker argues the superior court erred by permitting the State
to cross-examine Jefferson on matters that were irrelevant, outside his
knowledge, inappropriate lay opinions, and unfairly prejudicial. We
review rulings on the admission of evidence for an abuse of discretion. State
v. Togar, 248 Ariz. 567, 571, ¶ 12 (App. 2020). Because Baker did not
preserve the issue at trial with a timely, specific objection and raises this
issue for the first time on appeal, we review for fundamental error only. See
State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). To establish fundamental
error, Baker must show “(1) the error went to the foundation of the case, (2)
the error took from the defendant a right essential to his defense, or (3) the
error was so egregious that he could not possibly have received a fair trial.”
Id. at 142, ¶ 21. If that burden is satisfied, he must then show the error was
prejudicial. Id.
¶14 During cross-examination, the State asked Jefferson to read
several texts sent between Baker and J.J., and then asked Jefferson about
what those messages said:
Q. Okay. So after you just read the text messages -- when you
read those text messages, the ones from [Baker], does it
appear as though [Baker] is -- is there a threat in there to
[Baker] about the checks?
A. No.
Q. And, in fact, the text messages actually refer to [J.J.]telling
[Baker] the checks are fake. What’s going on; right?
A. I guess.
Q. Basically?
A. I don’t know.
The State then read aloud a specific text from Baker, in which Baker told J.J.,
“I’ll have the money next week. I just did a transfer for it. If you want to
go to the police Tuesday, I’ll get a lawyer and fight it. Now, if you don’t,
I’ll fix this with you. It’s your choice.” The State asked Jefferson, based on
this text, if it sounded like Baker was being threatened, and whether it
seemed like Baker was trying to fix the issue. The State also posed a series
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Decision of the Court
of hypotheticals, asking Jefferson how he would have reacted were he in
Baker’s position. Jefferson testified about how he thought he would
respond, explaining his choices were based on “street code.”
¶15 The State then asked Jefferson about a text in which Baker
promised to pay the outstanding negative balance on J.J.’s account:
Q. Would that be fixing it, is paying this money?
A. Yes.
Q. Would you be surprised to know that he never did?
A. I’m not sure. I don’t know Mr. Baker like that.
Q. Okay. I’m just asking if you would be surprised based
upon -- you said, like, street code, you’d try to fix it?
A. Yeah.
Q. Would you be surprised if in street code he didn’t fix it?
A. Yeah. I would be surprised. If he said he’s going to fix it,
he’[d] fix it.
When Jefferson was asked if he would be upset if he were in J.J.’s position,
Jefferson said yes.
¶16 The prosecutor also asked Jefferson about the bank
transactions:
Q. And would you be surprised that the checks that were
being deposited into that -- it was a Bank of America account
that the checks were being deposited to. Would you be
surprised that every one of those checks that was deposited
into that bank account all came from [Baker]?
A. Yes, I would be surprised.
Q. And, in fact, every check that was deposited in there came
from an account from [Baker], not just that the checks
belonged to him and he was depositing it. They were from
his own account. Would that surprise you?
A. Yeah.
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Decision of the Court
Q. And, in fact, none of the accounts that had checks
deposited into [J.J.’s] Bank of America account were [from]
any of [J.J.’s other] accounts. They were all from [Baker].
Would that surprise you?
A. Yes.
¶17 Baker argues the State improperly cross-examined Jefferson
with facts derived from bank records. He contends this testimony violated
Arizona Rule of Evidence (“Rule”) 602, which limits a lay witness’s
testimony to matters in which the witness has personal knowledge. It is
undisputed that Jefferson had no firsthand knowledge of the actual check-
kiting scheme, as he had never seen the bank records and had no prior
knowledge of the bank transactions. According to Baker, any comment on
such matters by Jefferson would necessarily require Jefferson to testify to
matters outside his personal knowledge.
¶18 We conclude that Jefferson’s testimony on this matter was
within his personal knowledge. The State never showed Jefferson the bank
records or asked Jefferson to interpret them. He was merely presented with
facts apparent from the bank records and asked if he found them surprising.
Jefferson was not asked about his personal knowledge regarding the bank
transactions; instead, the State simply pointed out Jefferson’s lack of
knowledge as to these details. Thus, the superior court did not violate Rule
602 by allowing this testimony.
¶19 Baker’s primary argument is that the State impermissibly
cross-examined Jefferson with the text messages between Baker and J.J., and
improperly asked how Jefferson would have personally reacted in Baker’s
or J.J.’s position. Baker contends the cross-examination with the text
messages violated Rule 602, as Jefferson was not a part of the text
conversation and had never seen these texts before trial. Baker also asserts
the cross-examination on these matters introduced irrelevant evidence.
¶20 Evidence is only relevant if “(a) it has any tendency to make
a fact more or less probable than it would be without evidence; and (b) the
fact is of consequence in determining the action.” Rule 401. “Irrelevant
evidence is not admissible.” Rule 402. Baker asserts that how Jefferson
would have felt or reacted in J.J.’s position, his interpretation of the text
messages, and his opinions on street code did not tend to make any facts
more or less probable, and were of no consequence to the ultimate issue at
trial—whether Baker or J.J. was more credible. For similar reasons, Baker
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argues the cross-examination on these matters violated Rules 403 (unfair
prejudice) and 701 (improper-lay-witness opinion).
¶21 Assuming without deciding that the superior court
fundamentally erred by allowing the State to cross-examine Jefferson on
questions concerning how he interpreted the messages, or how he would
have reacted if he found himself in J.J.’s or Baker’s position, we consider
whether the error was prejudicial. To establish prejudice under
fundamental error review, Baker must show that without the allegedly
improper cross-examination of Jefferson, a reasonable jury could have
reached a different verdict. Escalante, 245 Ariz. at 144, ¶ 29.
¶22 The texting exchange on which Jefferson was cross-examined
had already been admitted as an exhibit, and was therefore available for the
jury to review. The texts were also read into the record. And although
Jefferson was asked to interpret the texts, he was not asked to draw any
conclusions that were not apparent from the plain language of those
messages. Thus, any error caused by the State in questioning Jefferson
about these texts was not prejudicial. Cf. Ryan v. San Francisco Peaks
Trucking Co., Inc., 228 Ariz. 42, 52, ¶ 39 (App. 2011) (holding that an
improper cross-examination of a witness under Rule 602 was harmless
because the witness was cross-examined with documents already admitted
as exhibits).
¶23 Baker contends nonetheless that he was prejudiced by
Jefferson’s testimony addressing hypothetical reactions, asserting the
testimony misled and confused the jury as to the ultimate factual issues of
the case. Baker argues the State’s emphasis on Jefferson’s judgment
misdirected the jury’s focus, suggesting it may have deferred to Jefferson’s
judgment and opinions when making credibility determinations about J.J.
and Baker. Thus, because J.J. and Baker’s credibility were critical issues to
Baker’s duress defense, Baker contends a reasonable probability existed
that the jury could have come to a different conclusion.
¶24 But the prejudice standard is not so easily satisfied. See
Escalante, 245 Ariz. at 144, ¶ 31. Prejudice analysis necessarily excludes
“imaginative guesswork.” Id. Baker’s assertion that the jury was unduly
swayed by irrelevant information amounts to little more than speculation,
given that the jury was properly instructed on the legal issues at hand,
including the duress defense. See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13
(App. 2013) (stating that a defendant claiming fundamental error “must
affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry
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Decision of the Court
his burden”); see also State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006) (“[W]e
presume jurors follow the court’s instructions . . . .”).
¶25 Moreover, in applying the prejudice standard, we “examine
the entire record, including the parties’ theories and arguments as well as
the trial evidence.” Escalante, 245 Ariz. at 144, ¶ 31. Error may be harmless
in the context of other evidence. See State v. Burns, 237 Ariz. 1, 15, ¶ 38
(2015). Contrary to Baker’s assertion, the text messages between him and
J.J. provided strong evidence that Baker was an active participant and not
acting under duress, and Baker’s assertions that these messages were in
“code” and that he was just going along with the façade, are unpersuasive.
Moreover, Baker’s statements to police confirm the version of events
described by J.J.
¶26 Thus, even if Jefferson’s cross-examination elicited some
evidence that was irrelevant or beyond Jefferson’s personal knowledge,
Baker has not shown he was prejudiced. The text messages were already
in evidence and the risk that these alleged errors posed is speculative. No
reversible error occurred.
B. Reopening of Baker’s Testimony
¶27 Baker also argues the superior court abused its discretion by
denying his request to reopen his own testimony. A trial court has broad
discretion over reopening evidence. State v. Walton, 159 Ariz. 571, 582
(1989), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
Further, the court “has discretion to determine whether the probative value
of evidence is outweighed by the danger of unfair prejudice or confusion of
the issues.” State v. Smith, 250 Ariz. 69, 89, ¶ 76 (2020).
¶28 After defense counsel said he had no further questions for
Baker, the court proceeded to ask questions posed by the jury. Among
other things, the jury asked Baker why he did not contact the police after he
was first threatened by J.J. Baker responded that he was afraid J.J. would
find out and retaliate by shooting either his girlfriend or one of his kids.
Defense counsel then stated he had no further questions and the jury was
dismissed. The following trial day, held after a weekend break, defense
counsel requested to recall Baker to testify. Counsel told the court that the
purpose of this testimony would be to explain why Baker had not disclosed
the threats underlying his duress defense until the 2019 trial. In the
proposed testimony, Baker would explain that in 2015 he discovered J.J. had
prior felony convictions, and because that made J.J. a prohibited firearm
possessor, Baker was no longer fearful of J.J. The court denied the request,
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finding that the proposed testimony was probably not relevant, and even if
it was marginally relevant, it would be more prejudicial than probative and
therefore barred under Rule 403.
¶29 Baker argues the court erred in finding unfair prejudice. He
contends the testimony was relevant because it would have shown why he
did not disclose the threats underlying his duress defense until trial. Baker
also contends that whatever prejudice may have resulted from revealing
J.J.’s status as a prohibited possessor was minimal, and argues “[t]he danger
that the jury may improperly consider the evidence or apply it in an
improper manner does not in itself provide a reason for exclusion.”
Readenour v. Marion Power Shovel, 149 Ariz. 442, 449 (1986).
¶30 Baker had already testified that the reason he did not come
forward about the alleged threats from J.J. was because he was afraid J.J.
would retaliate with a firearm, so Baker’s proposed testimony would have
had minimal probative value. Additionally, the proffered testimony does
little to explain why Baker did not report the alleged threats between 2015,
when he allegedly discovered J.J.’s felony status, and the 2019 trial. And as
explained by the superior court, the persuasive value of this additional
detail was suspect because “the mere fact that somebody is on probation
doesn’t necessarily mean that they don’t possess guns.”
¶31 Even if the court erred, it did not affect the verdict. State v.
Anthony, 218 Ariz. 439, 446, ¶ 39 (2008). Error is harmless when, beyond a
reasonable doubt, the error did not contribute to the verdict. Id. The State
bears the burden of showing the error was harmless. Id. Baker testified
extensively regarding his duress defense. He also explained, in response to
a jury question, that he did not come forward because he was afraid J.J.
would retaliate with a firearm. And before closing arguments, Baker
requested that the State not mention that the duress defense was recently
disclosed. The State agreed and did not mention the recency of the
disclosure during closing. Thus, Baker was not harmed when the court
denied him an additional opportunity to further explain the recent
disclosure of his duress defense.
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CONCLUSION
¶32 We affirm Baker’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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