State of Arizona v. Robert Leeroy Slover ( 2009 )

FILED BY CLERK
IN THE COURT OF APPEALS FEB -9 2009
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
)
Appellee, ) 2 CA-CR 2007-0379
) DEPARTMENT B
v. )
) OPINION
ROBERT LEEROY SLOVER, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY
Cause No. CR20050508
Honorable Peter J. Cahill, Judge
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
Terry Goddard, Arizona Attorney General
By Kent E. Cattani and Jonathan Bass Tucson
Attorneys for Appellee
Emily Danies Tucson
Attorney for Appellant
E C K E R S T R O M, Presiding Judge.
¶1 Appellant Robert Slover was convicted after a jury trial of negligent homicide,
driving under the influence of an intoxicant (DUI), and driving with a blood alcohol
concentration of .08 or more. The trial court sentenced him to a mitigated, two-year term of
imprisonment for negligent homicide, and, for the other two offenses, suspended the
imposition of sentence, placing him on concurrent terms of five years’ probation. On appeal,
Slover argues the trial court erred in ordering him to pay the victim’s wife’s attorney fees as
restitution to the extent those fees compensated the attorney for assisting the state in his
prosecution. Slover also contends the court erred in denying his request for a jury instruction
on a superseding cause of death, refusing to admit habit evidence that Slover and the victim
drove each other’s vehicles, and denying his motion for mistrial based on a tainted jury pool.
For the following reasons, we affirm Slover’s convictions and sentences but vacate the
portion of the restitution order awarding the victim’s wife attorney fees incurred in assisting
the state in its prosecution of Slover.
¶2 We view the facts in the light most favorable to sustaining the convictions,
resolving conflicts in the evidence and the reasonable inferences arising from the evidence
against the defendant. State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989). At
trial, the evidence showed that Slover had been driving his pickup truck on a rural highway
at night.1 The truck left the roadway and rolled down an embankment, landing on its roof
1
Slover originally told officers who responded to the scene that he had been driving
the vehicle, but later stated to medical personnel that he had been the passenger.
2
and hood over a shallow creek. Officers found the passenger of the truck dead, lying in the
creek with his head submerged in the water. The victim’s blood alcohol concentration was
.231 at the time of his death. Within two hours of the accident, Slover’s blood alcohol
concentration was .165.
¶3 After being treated for his injuries, Slover was arrested and charged with
manslaughter, DUI, and driving with a blood alcohol concentration of .08 or more. The jury
found Slover guilty of negligent homicide and the two other charges. Slover filed a timely
notice of appeal from the judgment and sentence.
RESTITUTION
¶4 Slover argues the trial court erred when it ordered him to pay the victim’s
wife’s attorney fees, incurred in assisting the state in pursuing the case, as part of restitution.2
We review a restitution order for an abuse of the trial court’s discretion. State v. Reynolds,
171 Ariz. 678, 681, 832 P.2d 695, 698 (App. 1992). A trial court abuses its discretion if it
misapplies the law or exercises its discretion based on incorrect legal principles. See State
v. Jackson, 208 Ariz. 56, ¶ 12, 90 P.3d 793, 796 (App. 2004). Slover contends the fees were
“unnecessary consequential damages” because the victim’s wife did not need to hire an
attorney to represent her in the criminal matter.
¶5 Under A.R.S. § 13-603(C), a person convicted of an offense must “make
restitution to the . . . immediate family of the victim if the victim has died, in the full amount
2
The state has taken no position on this issue.
3
of the economic loss as determined by the court.” Economic loss as the result of the
commission of an offense “includes lost interest, lost earnings and other losses that would
not have been incurred but for the offense” but do not include damages for pain and
suffering, punitive damages, or consequential damages. A.R.S. § 13-105(16).3
Consequential damages are such as are not produced without the
concurrence of some other event attributable to the same origin
or cause; such damage, loss, or injury as does not flow directly
and immediately from the action of the party, but only from the
consequences or results of such act. The term may include
damage which is so remote as not to be actionable.
State v. Morris, 173 Ariz. 14, 17, 839 P.2d 434, 437 (App. 1992), quoting 25 C.J.S. Damages
§ 2, at 617. In sum, a court should order restitution for “damages that flow directly from the
defendant’s criminal conduct, without the intervention of additional causative factors.” State
v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133 (2002).
¶6 Slover emphasizes the victim’s wife was not a party in the criminal case and
had there been a violation of her rights in those proceedings, she “had full access to a crime
victim advocate and the prosecuting attorney.” Thus, he contends, the attorney fees she
incurred to pursue the criminal charges against Slover did not result from Slover’s criminal
conduct but from the fact that the victim’s wife unnecessarily hired an attorney to assist the
prosecutor.
3
At the time Slover committed the offenses, this same provision was found in former
A.R.S. § 13-105(14). See 1995 Ariz. Sess. Laws, ch. 199, § 1.
4
¶7 The record before us suggests Slover has correctly characterized the role played
by the wife’s counsel, Michael Harper, during the criminal proceedings. During the
restitution hearing, Harper presented evidence of expenses he had incurred in connection
with his representation of his client in the criminal proceedings against Slover. Specifically,
he enumerated actions he had taken to have “th[e] case pursued by the County Attorney’s
Office.” He also told the court he had been “quite vocal and quite active” in encouraging the
state to file charges and was “active in trying to locate [Slover] out of state.” He stated he
had worked to assure that evidence was properly preserved. The court characterized
Harper’s actions during the criminal proceedings as “assisting the State, . . . prodding the
officers, and . . . prodding the State as well,” and ordered Slover to pay the victim’s wife
restitution for Harper’s services in the amount of $5,028.4
¶8 In essence, Harper acted in the role of an adjunct prosecutor, “prodding” the
state to pursue the case and apparently assisting it with the prosecution. To that extent, his
fees did not flow directly from the defendant’s criminal conduct but rather arose from either
the state’s inability to prosecute the case independently and competently or the wife’s
mistrust that it would do so. Those factors constituted an additional cause, independent of
Slover’s own criminal conduct, that resulted in the attorney fees at issue. See Wilkinson, 202
4
Slover was also ordered to pay restitution for the attorney fees to settle the victim’s
estate, which he did not contest below or in this appeal. See State v. Spears, 184 Ariz. 277,
292, 908 P.2d 1062, 1077 (1996) (concluding “‘customary and reasonable attorney’s fees
incurred to close the victim’s estate’” constitute economic loss for restitution purposes),
quoting State v. Baltzell, 175 Ariz. 437, 439, 857 P.2d 1291, 1293 (App. 1992).
5
Ariz. 27, ¶ 10, 39 P.3d at 1133 (losses that “would not have occurred without the concurrence
of a second causal event” were consequential damages); State v. Sexton, 176 Ariz. 171, 173,
859 P.2d 794, 796 (App. 1993) (damages resulting from defendant’s conduct and action or
inaction of others too indirect to recover in restitution); State v. Pearce, 156 Ariz. 287, 289,
751 P.2d 603, 605 (App. 1988) (lost profits consequential damages of theft not flowing from
the acts to which defendant pled guilty). Those fees were therefore consequential rather than
direct damages arising from Slover’s crime and not recoverable as restitution under Arizona
statute. See 1995 Ariz. Sess. Laws, ch. 199, § 1 (former version of § 13-105(16)).
¶9 We do not address whether such fees would be proper restitution items under
other factual circumstances, such as when the victim hires an attorney to assert a concrete
right under the Victims’ Bill of Rights. See Ariz. Const. art. II, § 2.1; A.R.S. §§ 13-4403(A),
13-4437(A); see also State v. Guilliams, 208 Ariz. 48, ¶¶ 18-19, 23, 90 P.3d 785, 790-91, 792
(App. 2004) (causation determination case-specific in restitution context). Here, however,
where it is clear the attorney’s representation of the victim in the criminal matter consisted
of tasks that were actually the state’s responsibility, those attorney fees were not incurred as
a direct result of the offenses Slover had committed.
SUPERSEDING CAUSE INSTRUCTION
¶10 Slover argues the trial court erred when it denied his request for a jury
instruction on superseding cause, asserting it was supported by reasonable evidence in the
record. We review for an abuse of discretion a trial court’s denial of a requested jury
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instruction. State v. Cox, 217 Ariz. 353, ¶ 15, 174 P.3d 265, 268 (2007). At trial, Slover
requested a superseding cause instruction, arguing there was evidence that “the accident in
this case didn’t produce fatal injuries or injuries that by themselves would cause the death
of [the victim].” Specifically, Slover contends there was no definitive evidence the crash
rendered the victim unconscious, and therefore the victim could have crawled out of the truck
and gotten in the water by himself and then been unable to remove himself due to his
intoxication.
¶11 An intervening event must be unforeseeable and abnormal or extraordinary to
qualify as a superseding cause that can excuse a defendant from liability for a criminal act.
State v. Bass, 198 Ariz. 571, ¶¶ 12-13, 12 P.3d 796, 801 (2000) (recognizing criminal
standard for superseding cause same as civil); see also Rossell v. Volkswagen of Am., 147
Ariz. 160, 168, 709 P.2d 517, 525 (1985) (defendant not liable only when intervening cause
considered superseding cause). However, “[a]n intervening force is not a superseding cause
if the original actor’s negligence creates the very risk of harm that causes the injury.” Young
v. Envtl. Air Prods., Inc., 136 Ariz. 206, 212, 665 P.2d 88, 94 (App. 1982), modified on other
grounds and aff’d, 136 Ariz. 158, 665 P.2d 40 (1983). Nor can an intervening cause be
considered a superseding cause when the defendant’s conduct “increases the foreseeable risk
of a particular harm occurring through . . . a second actor.” Ontiveros v. Borak, 136 Ariz.
500, 506, 667 P.2d 200, 206 (1983).
7
¶12 The trial court refused to give the instruction, finding “it’s certainly foreseeable
that you go down a relatively steep and long hill . . . that there would be a canyon there, and
. . . that there would be water there.” The court found it was irrelevant whether the victim
had gotten out of the truck on his own or been ejected, that Slover’s actions had placed the
victim “in a situation where reasonably he could not have extracted himself,” which
precluded the superseding cause instruction.
¶13 Both the state’s medical examiner, who performed the victim’s autopsy, and
the defense’s expert witness, the Chief Medical Examiner for Yavapai County, agreed that
the cause of the victim’s death was asphyxiation caused by “drowning and blunt injuries of
the head.” The medical examiner who performed the autopsy determined the cause of
drowning was a loss of consciousness due to a head injury. The Chief Medical Examiner
testified that, although the findings suggested a possible loss of consciousness, he disagreed
with the conclusion in the autopsy report that the victim had definitely been unconscious
when he suffocated. He opined it was possible for someone to be conscious but intoxicated
enough to drown and concluded the victim’s blood alcohol concentration was high enough
that it could have prevented him from taking his head out of the water.
¶14 Even assuming the latter testimony was sufficient to establish a potential
intervening cause for the victim’s death, it could not constitute a superseding cause to relieve
Slover of liability. Slover’s conduct of driving while intoxicated was the very reason the
victim had ended up near or in a creek, intoxicated, with head injuries, and, at the very least,
8
increased the foreseeable risk that the victim would die in the accident. See Rourk v. State,
170 Ariz. 6, 12, 821 P.2d 273, 279 (App. 1991) (finding accident caused by intoxicated
driver part of foreseeable chain of events even though exact details of driver’s conduct not
foreseeable); see also State v. Vandever, 211 Ariz. 206, ¶ 8, 119 P.3d 473, 475 (App. 2005)
(other driver exceeding speed limit not superseding cause of collision when defendant’s
illegal conduct created foreseeable risk of collision). Slover was therefore not entitled to an
instruction on superseding cause, and the court did not abuse its discretion in so finding.
HABIT EVIDENCE
¶15 Slover argues the trial court erred in sustaining the state’s objection to his
proposed habit evidence. We review a trial court’s ruling on the admissibility of evidence
for an abuse of discretion. State v. Spreitz, 190 Ariz. 129, 146, 945 P.2d 1260, 1277 (1997).
Slover maintained at trial that he had not been driving and did not cause the victim’s death.
In support of the argument, Slover attempted to admit evidence he and the victim sometimes
drove each other’s vehicles. At an evidentiary hearing on the fourth day of trial, Slover
attempted to provide foundation for habit evidence through the testimony of a gas station
attendant who knew Slover and the victim. She testified that, over the four-year period she
had worked there, when the men came into the store together, Slover frequently was driving
when they arrived while the victim was the driver when they left. She also testified both men
drove black trucks and she could not tell the trucks apart.
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¶16 Rule 406, Ariz. R. Evid., provides:
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
Habit evidence, as opposed to character evidence, is generally admissible. Spreitz, 190 Ariz.
at 146, 945 P.2d at 1277. The rule contemplates conduct that is “semi-automatic and
regular.” State v. Munguia, 137 Ariz. 69, 72, 668 P.2d 912, 915 (App. 1983); accord State
v. Serna, 163 Ariz. 260, 266, 787 P.2d 1056, 1062 (1990). “Habit describes one’s regular
response to a repeated specific situation, while character refers to a generalized description
of one’s disposition.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 4, 730 P.2d 178,
181 (App. 1985), approved as supplemented, 152 Ariz. 9, 730 P.2d 186 (1986).
“[E]stablishing habit requires more than a sparse selection of isolated episodes.”
Gasiorowski v. Hose, 182 Ariz. 376, 380, 897 P.2d 678, 682 (App. 1994).
¶17 Here, the trial court exhaustively explained its reasons for sustaining the
objection. It found the attendant’s testimony had not established that the conduct at
issue—the victim driving Slover’s truck—was “semi-automatic or refle[x]ive,” or
sufficiently specific, regular or numerous to qualify as habit evidence. In summing up its
reasons, the court stated, “The evidence is not specific or frequent enough to qualify as habit.
Instead, it was to show merely a tendency at one location, the [gas s]tation, under particular
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circumstances which don’t apply and are not present here, that one would drive to and the
other would drive away.”
¶18 We agree with that reasoning and hold that the trial court did not abuse its
discretion when it concluded the evidence was not admissible as evidence of habit under
Rule 406. See Serna, 163 Ariz. at 265-66, 787 P.2d at 1061-62 (testimony it was common
knowledge among inmates that cooperation with prison administration resulted in immunity
and favorable treatment did not show routine practice under Rule 406); Munguia, 137 Ariz.
at 71-72, 668 P.2d at 914-15 (evidence assault victim “often bummed drinks” not admissible
under Rule 406 because not “semi-automatic and regular”).
MOTION FOR MISTRIAL
¶19 Slover argues the trial court erred when it denied his motion for a mistrial after
a juror was removed for cause on the fourth day of trial. We review a trial court’s denial of
a motion for mistrial for a clear abuse of discretion. State v. Williams, 209 Ariz. 228, ¶ 47,
99 P.3d 43, 54 (App. 2004). “The trial judge is in the best position to determine whether a
particular incident calls for a mistrial because the trial judge is aware of the atmosphere of
the trial, the circumstances surrounding the incident, the manner in which any objectionable
statement was made, and the possible effect on the jury and the trial.” Id.
¶20 At the close of the third day of trial, the prosecutor informed the trial court she
had just learned her daughter had been spending time with the daughter of one of the jurors.
Before trial began on the fourth day, Slover moved to strike the juror for cause. The court
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questioned the juror, and then Slover’s counsel asked if she had alerted any of the other
jurors about her daughter’s relationship with the prosecutor’s daughter. The juror responded
that, as she had been writing a question for the court on that very topic, the other jurors asked
her about its content and she responded only that “it had to do with a play date of our
daughters.” The defense moved for a mistrial on the ground the juror had shared the
information. The court denied the motion but excused the juror.
¶21 The trial court then informed the remaining members of the panel that the juror
had been excused, and stated, “You should not draw any conclusions whatsoever from that.
You should not hold it against either party, and actually you should not give it any further
thought once we are finished here talking about it.” The court then asked the jury if anyone
had heard what the excused juror had said when she was writing the question. One of the
remaining jurors stated he had, but assured the court that nothing he had heard would cause
him “to be partial in this case.” Another juror stated she “d[id]n’t really remember what she
said, what it was totally about.” The court finally asked, “Anybody, do you think because
of the fact that [the juror] was excused because of what she may have told you, what you may
remember, if you can, . . . would that cause you to be partial in this case to one side or the
other?” The court received no response to this question, and stated, “Don’t draw any
conclusions from all of that, it’s no big deal, okay?” Trial then proceeded.
¶22 Slover now contends the “inference of a relationship between a juror and the
prosecutor . . . so contaminated the panel that they could not fairly listen to the evidence and
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give it the impartial deliberation [to] which [Slover] was entitled.” But a mistrial is “the most
dramatic remedy for a trial error” and should only be granted when “justice will be thwarted
otherwise.” State v. Roque, 213 Ariz. 193, ¶ 131, 141 P.3d 368, 399 (2006). “Trial courts
have considerable discretion to determine whether juror misconduct requires a mistrial or
other corrective action, and the trial court’s decision will not be overturned absent a clear
abuse of that discretion.” State v. Apodaca, 166 Ariz. 274, 276-77, 801 P.2d 1177, 1179-80
(App. 1990).
¶23 First, nothing in the record suggests the excused juror informed the panel that
her daughter had spent time with the prosecutor’s daughter. Rather, the juror testified she
had told the other jurors more vaguely that her daughter had played with the daughter of one
of the attorneys. Thus, any members of the jury who had heard that statement could not have
formed a bias against either party.
¶24 Second, even assuming the excused juror had specifically referred to the
prosecutor’s daughter, the only other juror who remembered hearing it assured the court he
could be impartial. See State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984) (jury
panel not tainted by one panel member blurting out “‘the entire defense was a lot of
baloney’” when not clear any jurors heard remark, jurors interviewed separately about
insanity defense, and juror who made statement excused); State v. Montano, 136 Ariz. 605,
606-07, 667 P.2d 1320, 1321-22 (1983) (interests of justice did not dictate excusing entire
jury panel after one juror made potentially prejudicial remark, was excused, and court
13
questioned remaining jurors about impartiality). And the trial court instructed the entire jury
to not draw any conclusions from anything they had heard. We presume the jurors followed
the court’s instructions. See State v. McCurdy, 216 Ariz. 567, ¶ 17, 169 P.3d 931, 938 (App.
2007). We find no abuse of discretion in the court’s decision not to grant a mistrial.
¶25 Accordingly, Slover’s convictions and sentences are affirmed but the trial
court’s order of restitution is vacated and the case is remanded for a new restitution
determination consistent with this decision.5
____________________________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
5
During the restitution hearing, the victim’s counsel testified that he “may have
allocated, at least in this case, a little bit of money toward the victims’ representation that
should have been allocated towards the probate fees.” Because the trial court ordered both
the probate and victim representation fees as restitution, it was not necessary for it to
determine at that time which items may have been wrongly allocated. But our decision now
requires the court to make that determination. We therefore remand the case rather than
simply vacating the portion of the order awarding victim representation fees in the amount
of $5,028.
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