State v. Stamm ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    JOHN ALLEN STAMM, Appellant.
    No. 1 CA-CR 17-0789
    FILED 12-4-2018
    Appeal from the Superior Court in Yavapai County
    No. P1300CR201601527
    No. P1300CR201700015
    The Honorable Jeffrey G. Paupore, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Elizabeth B. N. Garcia
    Counsel for Appellee
    C. Kenneth Ray II PLLC, Prescott
    By C. Kenneth Ray II
    Counsel for Appellant
    STATE v. STAMM
    Decision of the Court
    MEMORANDUM DECISION
    Judge Michael J. Brown delivered the decision of the Court, in which
    Presiding Judge James P. Beene and Chief Judge Samuel A. Thumma
    joined.
    B R O W N, Judge:
    ¶1           John Allen Stamm appeals his convictions and sentences for
    assault, disorderly conduct, unlawful discharge of a firearm, and
    harassment. He argues the trial court erred by consolidating his charges for
    trial and admitting recordings of his jail calls in violation of federal law. For
    the following reasons, we affirm.
    BACKGROUND1
    ¶2             In October 2016, Stamm and his wife, D.S., got into an
    argument. As the argument intensified, Stamm chased D.S. around their
    property. When she locked Stamm out of their home, he forced his way
    back in, yelling, “[w]e’re done. . . I’m going to end it now, and I’m going to
    show you how.” Stamm then walked into his office, where he stored his
    guns. D.S. fled, hearing two gunshots after she ran out of the house. When
    police later surrounded the home, Stamm shot himself.
    ¶3            After his release from the hospital, police arrested Stamm.
    Although a court had ordered Stamm to neither go near the location of the
    offense nor contact D.S., Stamm called her work many times while in jail.
    And, even though he was served with an order of protection requiring him
    to stay away from her workplace, just one day later she saw him slowly
    driving in the alleyway behind her workplace.
    ¶4           The State charged Stamm with aggravated assault, unlawful
    discharge of a firearm, and disorderly conduct for the October incident
    (“2016 indictment”). In a subsequent indictment (“2017 indictment”), the
    State charged him with stalking, harassment, aggravated harassment, and
    interfering with a judicial proceeding for his actions following his release
    from the hospital. Stamm filed a motion in limine to preclude the State from
    1      We view the facts in the light most favorable to sustaining the
    verdict. State v. Payne, 
    233 Ariz. 484
    , 509, ¶ 93 (2013).
    2
    STATE v. STAMM
    Decision of the Court
    admitting testimony relating to the 2016 indictment in the separate trial for
    the 2017 indictment. In response, the State argued that evidence relating to
    the 2016 indictment was both intrinsic to the offenses charged in the 2017
    indictment and cross-admissible in both trials under Arizona Rule of
    Evidence 404(b). After a hearing, the trial court concluded the evidence was
    intrinsic because it directly proved the charged offense. Soon after, the State
    moved to consolidate the cases for trial under Arizona Rule of Criminal
    Procedure (“Rule”) 13.3. Granting the motion to consolidate over Stamm’s
    objection, the court reaffirmed its earlier finding that the evidence was
    intrinsic and alternatively found that the evidence would be cross-
    admissible under 404(b).
    ¶5           After consolidation, Stamm filed motions to suppress
    recordings of his jailhouse calls at trial, arguing the recordings should be
    excluded because the State obtained them in violation of federal law. The
    court denied Stamm’s motions.
    ¶6             A jury found Stamm guilty of (1) assault (as a lesser-included
    offense); (2) disorderly conduct; (3) harassment; and (4) unlawful discharge
    of a firearm but acquitted him on the remaining charges. The trial court
    sentenced Stamm to time served for assault and harassment; 1.75 years’
    imprisonment for a disorderly conduct charge; and three years’ probation
    for unlawful discharge of a firearm. This timely appeal followed.
    DISCUSSION
    A.     Joinder of Charges
    ¶7             Stamm first argues the court erred by consolidating the
    offenses charged in the two indictments and denying his motions to sever.
    We review these rulings for an abuse of discretion. State v. Hausner, 
    230 Ariz. 60
    , 74, ¶ 43 (2003) (citation omitted). We proceed in two steps, first
    asking “if the joinder and denial of severance were proper under Rules 13.3
    and 13.4” and, if not, asking “whether the error requires reversal.” State v.
    Garland, 
    191 Ariz. 213
    , 216, ¶ 9 (App. 1998) (citations omitted). A court may
    join offenses if any ground listed in Rule 13.3(a) is satisfied, and need not
    grant severance unless “necessary to promote a fair determination of . . .
    guilt or innocence of any offense.” Ariz. R. Crim. P. 13.4(a); 
    Hausner, 230 Ariz. at 74
    , ¶ 44. “In considering whether the trial court erred . . . we are
    mindful that the trial court exercises considerable discretion in determining
    whether, in light of the evidence then before the court, the defendant has made
    the requisite showing of prejudice.” State v. Van Winkle, 
    186 Ariz. 336
    , 339
    (1996) (emphasis added).
    3
    STATE v. STAMM
    Decision of the Court
    ¶8             Offenses may be joined if they “are based on the same conduct
    or are otherwise connected together in their commission.” Ariz. R. Crim. P.
    13.3(a)(2). Offenses are “otherwise connected” when they arise “out of a
    series of connected acts, and the evidence as to each count, of necessity,
    overlaps” or “where most of the evidence admissible in proof of one offense
    [is] also admissible in proof of the other.” 
    Garland, 191 Ariz. at 217
    , ¶ 14
    (alteration in original) (citation omitted). We agree with the State that this
    ground is satisfied here because much of the evidence relating to the 2016
    indictment would necessarily have overlapped with the crimes charged in
    the 2017 indictment to explain Stamm’s motive and intent, as well as D.S.’s
    state of mind. In short, these two indictments arise “out of a series of
    connected acts, provable by much of the same evidence,” permitting
    joinder. See State v. Prince, 
    204 Ariz. 156
    , 160, ¶ 17 (citation omitted).
    ¶9             Although the offenses were eligible for joinder under Rule
    13.3(a)(2), we must next determine if the trial court erred in proceeding with
    consolidation, which turns on whether severance was necessary to promote
    a fair determination of Stamm’s guilt or innocence. Ariz. R. Crim. P. 13.4(a).
    A defendant is not prejudiced when introduction of the joined evidence
    would be permitted “for an evidentiary purpose anyway.” State v. Stuard,
    
    176 Ariz. 589
    , 597 (1993) (quoting Morris K. Udall et al., Arizona Practice—
    Law of Evidence § 84, at 184 n.14 (3d ed. 1991)). Here, the court’s
    simultaneous finding that the evidence would be admissible under 404(b)
    plainly demonstrates that, in light of the evidence then before it, Stamm
    failed to make the requisite showing of prejudice. See Van 
    Winkle, 186 Ariz. at 339
    . Stamm has neither challenged the court’s 404(b) finding in this
    appeal nor otherwise provided us with a compelling reason to disturb the
    court’s exercise of discretion. Accordingly, Stamm has not shown the court
    erred in joining the charges or in denying his request to sever.2
    B.     Admission of Recorded Calls
    ¶10           While Stamm was in jail, the facilities—according to standard
    procedure—recorded his outgoing telephone calls. Stamm argues the
    recording of these calls violated Title 18 of the United States Code (“U.S.C.”)
    section 2511, which criminalizes, inter alia, the unlawful interception of oral
    communications. 18 U.S.C. § 2511(1)(b), (4)(a). He contends the recordings
    should have been suppressed according to the exclusionary rule codified at
    2      Because we must affirm the trial court’s ruling if legally correct for
    any reason, State v. Boteo-Flores, 
    230 Ariz. 551
    , 553, ¶ 7 (App. 2012), we do
    not address Stamm’s additional argument that the evidence was not
    intrinsic under State v. Ferrero, 
    229 Ariz. 239
    (2012).
    4
    STATE v. STAMM
    Decision of the Court
    18 U.S.C. § 2515. Applying our de novo review, 
    Payne, 233 Ariz. at 505
    ,
    ¶ 68, we conclude that 18 U.S.C. § 2515 does not apply here because it
    protects only “oral communication[s] uttered by a person exhibiting an
    expectation that such communication is not subject to interception under
    circumstances justifying such expectation,” 18 U.S.C. § 2510(2), and Stamm
    had no justifiable expectation that his communications would not be
    intercepted. Before being able to use the jail telephone system, the record
    shows that inmates “understand and agree the telephone calls are subject
    to monitoring and recording and may be intercepted or divulged.”
    Additionally, any inmate making a call receives a notification that the call
    would be subject to “monitoring and/or recording.” Thus, 18 U.S.C. § 2515
    does not require suppression of Stamm’s recorded calls.
    CONCLUSION
    ¶11          Stamm’s convictions and sentences are affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CR 17-0789

Filed Date: 12/4/2018

Precedential Status: Non-Precedential

Modified Date: 12/4/2018