State v. Eddy ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
AVION TESEAN EDDY, Appellant.
No. 1 CA-CR 20-0140
1 CA-CR 20-0219
(Consolidated)
FILED 6-29-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-159722-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
STATE v. EDDY
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.
M O R S E, Judge:
¶1 Avion Tesean Eddy appeals his convictions and sentences for
aggravated assault and disorderly conduct. For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On December 9, 2018, Eddy pointed a handgun at D.Z. and
made threatening statements.1 When officers arrived, Eddy entered the
backyard of a residence and discarded the handgun and a backpack. After
Eddy's arrest, officers located the handgun and backpack. The backpack
contained marijuana and items consistent with drug sales.
¶3 The State charged Eddy with one count each of aggravated
assault, a class 3 dangerous felony (Count 1), possession of marijuana for
sale, a class 4 felony (Count 2), misconduct involving weapons, a class 4
felony (Count 3), criminal trespass in the first degree, a class 1 misdemeanor
(Count 4), and disorderly conduct, a class 6 dangerous felony (Count 5).
The State dismissed Count 3 short of trial.
¶4 In the first trial, the jury convicted Eddy of possession of
marijuana for sale, Count 2, and criminal trespass, Count 4. The jury found
Eddy committed Count 2 for pecuniary gain and both counts while on
felony release. The jury, however, could not reach a verdict as to Counts 1
and 5. The State elected to retry those counts in a second trial.
¶5 In the second trial, D.Z. testified that he saw Eddy smoking
marijuana on the steps outside of his apartment. D.Z. testified that Eddy
was wearing a "puffy" jacket, carrying a backpack, and sitting near a bicycle.
D.Z. saw that Eddy had baggies and paper packaging next to him. D.Z.
asked Eddy to leave, but he refused and stated he did not "abide by the
1 We use initials to protect the victim's privacy. See Ariz. R. Sup. Ct.
111(i); State v. Maldonado, 206 Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
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STATE v. EDDY
Decision of the Court
laws." Eddy pulled out a handgun, pointed it at D.Z., and called himself a
"gangster." When D.Z. did not back down, Eddy grabbed his belongings
and left the apartment complex.
¶6 D.Z.'s wife, J.B., testified that she looked out the apartment
window and saw Eddy pointing a handgun at D.Z. J.B. testified that Eddy
had a "puffy" jacket-like vest, gray hat, dark clothing, backpack,
headphones, and blonde-tipped dreadlocks. J.B. testified that Eddy's
handgun was small and dark, and he was standing near a bicycle and what
looked like cigar packaging. J.B. testified that she contacted 911 and
provided a description of Eddy. Though J.B. could not recall a specific time
frame, she testified that officers responded within minutes of her 911 call
and she was speaking with dispatch when Eddy left on his bicycle. Shortly
after, J.B. performed an on-scene identification of Eddy. J.B. added that she
recognized his vest, hat, and dreadlocks.
¶7 The first responding officer testified that dispatch informed
her of a "subject with a gun." She testified the 911 caller, J.B., reported that
the perpetrator was a black male with a "puffy" vest, dark clothing, gray
hat, backpack, headphones, and blonde-tipped dreadlocks. J.B. reported
the perpetrator was smoking marijuana and riding a black bicycle. Though
the 911 call was not admitted into evidence, the officer used a dispatch
report to refresh her recollection as to the details of J.B.'s description. When
the officer responded to the scene, she saw a person later identified as Eddy
"matching that exact same description." She drove beside Eddy and asked
him to stop. Eddy refused, yelling he "didn't do anything wrong." Eddy
eventually dropped his bicycle and entered the backyard of a residence.
After Eddy entered a second backyard, officers arrested him and located
the backpack and handgun. The officer obtained video surveillance of
Eddy entering the first backyard and confirmed that he matched the
description provided by J.B. in the 911 call.
¶8 A second officer testified that dispatch informed him of a
perpetrator pointing a gun at the 911 caller's husband. He testified that the
caller provided a detailed description of the perpetrator, including an
approximate age and build. The officer responded to the scene and arrested
Eddy, who matched the description in the 911 call. The officer searched
Eddy's backpack and located identification cards, cigar packaging, and
marijuana. The officer also seized Eddy's cellular phones and articles of
clothing. Eddy agreed to speak with the officer but denied any involvement
in the offenses.
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STATE v. EDDY
Decision of the Court
¶9 While testifying, both D.Z. and J.B. identified Eddy as the
perpetrator and confirmed seized items, including the handgun, were
consistent with items they saw on the day of the offenses. Forensic experts
testified that an analysis of Eddy's cellular phones and DNA testing of the
handgun further linked him to the offenses.
¶10 In closing argument, the prosecutor argued J.B. testified based
on her memory of Eddy's physical appearance, identified him after the
offenses and at trial, and provided a detailed and accurate description in
her 911 call. The prosecutor argued Eddy would have addressed
inconsistencies in the 911 call, if they existed, during cross-examination.
Eddy objected, contending that the jury had not heard the 911 call and any
testimony related to the call was admitted solely to establish the officers'
state of mind. The State argued multiple witnesses provided details of the
911 call and the testimony fell within the "present sense impression"
exception to the rule against hearsay. The superior court overruled the
objection. At no point prior to closing argument did Eddy object to
testimony related to the 911 call, take issue with the State's characterization
of the 911 call, or request the testimony be admitted for a limited purpose.
The superior court instructed the jury not to consider remarks in closing
argument as evidence.
¶11 The jury found Eddy guilty as charged in Counts 1 and 5. The
jury did not find that Eddy committed the counts while on felony release.
Before sentencing, Eddy moved for a new trial and argued, in relevant part,
that the State's use of the 911 call in closing argument prevented him from
receiving a fair trial. The prosecutor contended statements in the 911 call
fell within hearsay exceptions, the jury heard the statements, and his
remarks constituted proper argument. The superior court denied the
motion.2
¶12 At sentencing, the superior court found Eddy had at least one
historical prior felony conviction and sentenced him to an aggregate term
of six years' imprisonment. We have jurisdiction over Eddy's timely appeal
under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A)(1), (2).
2 Although the superior court failed to enter a timely ruling on the
motion for new trial, we deem the motion denied by operation of law and
treat any claim arising from the motion as adequately preserved. See State
v. Hill, 174 Ariz. 313, 323 (1993).
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Decision of the Court
DISCUSSION
¶13 Eddy argues the superior court erred in overruling his
objection to the prosecutor's use of the 911 call in closing argument. Eddy
further claims the superior court erred in denying his motion for new trial
based on the same issue. We review the superior court's ruling on the
objection for an abuse of discretion. State v. Payne, 233 Ariz. 484, 513, ¶ 118
(2013). We will not disturb the superior court's denial of the motion for new
trial absent an affirmative showing the court acted arbitrarily and abused
its discretion. State v. Durham, 111 Ariz. 19, 23 (1974).
¶14 Counsel must not "comment upon evidence which has not
previously been offered and placed before the jury," State v. Gonzales, 105
Ariz. 434, 437 (1970), or "bolster a witness's credibility by reference to
matters outside the record," State v. Acuna Valenzuela, 245 Ariz. 197, 217, ¶
75 (2018). Our courts, however, have long afforded counsel wide latitude
in closing argument when commenting on admitted evidence and arguing
reasonable inferences therefrom. See Gonzales, 105 Ariz. at 436-37. In
criminal cases, prosecutors are entitled to criticize defense tactics, argue
their case was not contradicted, and suggest ultimate conclusions. See State
v. Bible, 175 Ariz. 549, 602 (1993); State v. Byrd, 109 Ariz. 10, 11 (1972); State
v. Ramos, 235 Ariz. 230, 238, ¶ 25 (App. 2014). We will not reverse if
"remarks in the prosecutor's closing argument served only to call the
attention of the jurors to matters which they were justified in considering
in determining their verdict." State v. Jones, 109 Ariz. 378, 380 (1973).
¶15 The record does not support Eddy's claim the prosecutor
injected facts not in evidence, nor does it support his contention the
evidence was admitted for a limited purpose. Although the State did not
play the 911 call for the jury, multiple witnesses testified about the
information conveyed during that call. Officers informed the jury of the
description J.B. provided to 911 dispatch, confirmed Eddy matched that
description, and referred to the dispatch report when necessary. J.B.
testified that she contacted 911 and gave dispatch a description of Eddy.
Aside from Eddy's objection in closing argument, he did not object to
testimony regarding the 911 call, nor did he request the 911 call information
be used for a limited purpose. See State v. McGann, 132 Ariz. 296, 299 (1982)
(failing to raise an objection renders evidence admissible for all purposes).
Absent any indication of limited admissibility, the prosecutor's comment
on the testimony constituted proper argument. Thus, the superior court
did not abuse its discretion in overruling the objection or denying the
motion for new trial on the same basis.
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STATE v. EDDY
Decision of the Court
¶16 Eddy's claim that the prosecutor's argument improperly
bolstered J.B.'s credibility similarly fails. The evidence supported an
inference that J.B. provided accurate details in her 911 call. In arguing that
the officer's observations corroborated J.B.'s description to dispatch, and
vice versa, the prosecutor did not refer to facts outside the record or call the
jury's attention to matters outside its consideration. See Acuna Valenzuela,
245 Ariz. at 217, ¶ 75; Jones, 109 Ariz. at 380. Moreover, the prosecutor was
entitled to argue that Eddy's failure to raise issues with the 911 call during
cross-examination further demonstrated its accuracy. See Ramos, 235 Ariz.
at 238, ¶ 25. The prosecutor properly suggested that consistent,
uncontradicted testimony supported the State's theory of the case. See Byrd,
109 Ariz. at 11.
¶17 To the extent Eddy argues admission of the testimony
constituted error, we review only for fundamental, prejudicial error. See
State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018); State v. Marlow, 163 Ariz. 65,
69 (1989) ("Failure to make a timely objection to the introduction of evidence
waives all except fundamental error."). To prevail on a claim of
fundamental error, a defendant must first demonstrate trial error. Escalante,
245 Ariz. at 142, ¶ 21. Here, we agree with the State's assertion that
statements from the 911 call were admissible under the "Present Sense
Impression" exception to the rule against hearsay. See Ariz. R. Evid. 803(1).
Statements fall within the "Present Sense Impression" exception if they
describe "an event or condition, made while or immediately after the
declarant perceived it." Id. Such statements are "deemed reliable because
they are made close in time to the events they describe." State v. Tucker, 205
Ariz. 157, 165, ¶ 42 (2003). J.B. testified that she observed Eddy's conduct
and appearance as she was providing descriptions to 911 dispatch. The
admission of J.B.'s contemporaneous statements to dispatch did not
constitute error, fundamental or otherwise.
¶18 Finally, the superior court mitigated any potential error in
instructing the jury that remarks in closing argument were not evidence.
See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006) (presuming that jurors
follow jury instructions).
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STATE v. EDDY
Decision of the Court
CONCLUSION
¶19 We affirm Eddy's convictions and resulting sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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