State v. Kemp ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
WILLIAM EUGENE KEMP, JR., Appellant.
No. 1 CA-CR 21-0190
FILED 3-28-2023
Appeal from the Superior Court in Maricopa County
No. CR 2018-005818-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice M. Jones
Counsel for Appellee
Bain & Lauritano PLC, Glendale
By Amy E. Bain
Counsel for Appellant
William Eugene Kemp, Jr., Buckeye
Appellant
STATE v. KEMP
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 William Eugene Kemp, Jr., appeals his convictions and
sentences for money laundering in the second degree, assisting a criminal
street gang, possession of a dangerous drug for sale in an amount over the
statutory threshold (methamphetamine), possession or use of narcotic
drugs (heroin), and possession of drug paraphernalia. His previous defense
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of
the record, she found no meritorious grounds for reversal. Kemp has filed
a supplemental brief. Our obligation is to review the entire record for
reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing
the evidence in the light most favorable to sustaining the conviction and
resolving all reasonable inferences against Kemp, State v. Guerra, 161 Ariz.
289, 293 (1989).
¶2 After reviewing the record, we requested Penson1 briefing on
three issues: (1) “[w]hether the exclusion of testimony about police officers’
out-of-court statements regarding the alleged verbal agreement was
reversible error”; (2) “[w]hether the trial court’s failure to instruct the jury
on a justification defense pursuant to A.R.S. § 13-402 was fundamental
error”; and (3) “[w]hether the State met its burden, if any, to prove that
Kemp’s conduct was not justified pursuant to A.R.S. § 13-402.” For the
following reasons, we affirm.
BACKGROUND
¶3 One evening in March 2018, while patrolling a residential
street in Phoenix, Detectives Molina and Reed watched as a pickup truck
made a wide right turn, nearly causing an accident, and then accelerated to
about 60 miles per hour. The detectives pulled the truck over, finding Kemp
behind the wheel. Kemp told the detectives he was “a validated STG
member”—meaning a member of a prison gang designated as a Security
1 Penson v. Ohio, 488 U.S. 75 (1988).
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Threat Group by the Arizona Department of Corrections—and indicated
there might be a pocketknife somewhere in the truck cab. Detective Molina
removed Kemp from the truck and, while patting him down for weapons,
obtained Kemp’s permission to empty his pockets. In Kemp’s pockets,
Molina found $110 in cash and a digital scale with a white crystalline
residue on it.
¶4 Detective Molina placed Kemp in handcuffs, walked him
away from the truck, and continued to search and question him. When
asked if there was anything illegal in the truck, Kemp admitted there was
“about a[n] ounce” of “dope” in a headphones case near the truck’s center
console. Molina read Kemp his Miranda2 rights, and then continued
questioning him. Meanwhile, Detective Reed searched the truck, finding
what was determined to be approximately 27.4 grams of methamphetamine
and 4.48 grams of heroin in four small plastic bags inside the headphones
case.
¶5 Kemp told Detective Molina that he was associated with the
Aryan Brotherhood, that he was known as “Savage” by the Brotherhood,
and that he was selling methamphetamine to pay off a $4,500 debt to the
Brotherhood. Kemp explained he had been selling drugs “all [his] life” and
had bought three ounces of methamphetamine a couple days ago, having
sold one ounce and given another to a member of the Brotherhood to pay
off $200 of his debt. The State charged Kemp with money laundering in the
second degree, a class 3 felony; assisting a criminal street gang, a class 3
felony; possession of dangerous drug for sale in an amount over the
statutory threshold (methamphetamine), a class 2 felony; possession or use
of narcotic drugs (heroin), a class 4 felony; and possession of drug
paraphernalia, a class 6 felony. See A.R.S. §§ 13-2317, -2321, -3407, -3408,
-3415.3
¶6 At trial, the State introduced footage from Detective Molina’s
body camera (bodycam) and testimony including that of Detectives Molina
and Reed as well as a forensic scientist. A criminal investigator with the
Arizona Department of Corrections testified about the structure and
criminal operations of the Aryan Brotherhood. Kemp testified as well,
admitting that he had possessed the scale and the drugs and that he had
intended to sell the methamphetamine. However, Kemp claimed he had
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Absent material changes after the relevant dates, we cite a statute’s
current version.
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been approached by Detective Platt and a corrections investigator months
before the traffic stop and that they had given him permission to sell
methamphetamine. On cross-examination, Kemp agreed when asked
whether he was “trying to get at that . . . [police officers] gave [him]
permission to sell drugs,” even though it is their job “to stop drugs and
drug sales[.]” In rebuttal, retired Detective Platt testified that although he
remembered interviewing Kemp about the Aryan Brotherhood after a prior
arrest, Kemp had never been signed up as a confidential informant—in part
because he was still on probation—and had not been authorized to perform
any controlled drug sales.
¶7 After a trial, a jury found Kemp guilty on all counts. The jury
also found that the State had proven three aggravating circumstances and
that Kemp committed the offenses while on probation, with the intent to
assist a criminal street gang. See A.R.S. § 13-701(D)(6), (11), (27); A.R.S. § 13-
708(C); A.R.S. § 13-714. At sentencing, though still represented by counsel,
Kemp submitted a pro per “Motion for Mistrial,” which the court denied.
The superior court sentenced Kemp, as a category three repetitive offender,
to concurrent sentences of 22.75 years in prison with 850 days of pre-
incarceration credit. See A.R.S. § 13-703(C), (J). Kemp timely appealed.
DISCUSSION
¶8 We address the issues raised in the Penson briefing and
Kemp’s supplemental brief in turn. Finding no meritorious reasons for
reversal, we affirm his convictions and sentences.
I. Issues Raised in Penson Order
A. Failure to Give a Justification Instruction Was
Fundamental, But Not Prejudicial Error
¶9 To begin, we consider (1) “[w]hether the trial court’s failure
to instruct the jury on a justification defense pursuant to A.R.S. § 13-402 was
fundamental error”; and (2) “[w]hether the State met its burden, if any, to
prove that Kemp’s conduct was not justified pursuant to A.R.S. § 13-402.”
See State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) (“[A] defendant must
establish both that fundamental error exists and that the error in his case
caused him prejudice.”). We conclude the court’s failure to give a
justification instruction was fundamental error but did not prejudice Kemp.
¶10 Under A.R.S. § 13-402, “conduct which would otherwise
constitute an offense is justifiable” if “[a] reasonable person would believe
such conduct is . . . authorized to assist a peace officer in the performance
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of such officer’s duties.” A.R.S. § 13-402(A), (B)(2) (extending justification
even if officers “exceeded [their] legal authority”). “If evidence of
justification . . . is presented by the defendant, the state must prove beyond
a reasonable doubt that the defendant did not act with justification.” A.R.S.
§ 13-205.
¶11 Because Kemp did not request a justification instruction
before the superior court, we review for fundamental error. See State v.
Fierro, 254 Ariz. 35, 41, ¶ 20 (2022). That is, “the error must be clear,
egregious, and curable only via a new trial.” State v. Gendron, 168 Ariz. 153,
155 (1991). A defendant must show “the error goes to the foundation of the
defendant’s case, takes away a right essential to the defense, or is of such
magnitude that it denied the defendant a fair trial.” State v. Escalante, 245
Ariz. 135, 138, ¶ 1 (2018).
¶12 The “slightest evidence” of justification—“a low standard”—
is enough to warrant an instruction. State v. Wilson, 253 Ariz. 191, 195,
¶¶ 10–11 (2022) (quotation omitted). “We review the court’s decision to
deny a jury instruction for an abuse of discretion, but we review de novo
whether the evidence supported a justification instruction.” Id. at 194–95,
¶ 9. “In determining slightest evidence, we view the facts in the light most
favorable to the party requesting the instruction and do not weigh the
evidence nor resolve evidentiary conflicts.” Id. at 195, ¶ 11.
¶13 Kemp produced “slightest evidence” of justification by
testifying that his actions were “the result of the previous meeting” with
Detective Platt and the corrections investigator and that law enforcement
“gave [him] permission to sell drugs.” And unlike in Gendron, where the
defendant “specifically disclaimed reliance on a justification defense,”
justification was Kemp’s theory of the case. 168 Ariz. at 154. Because Kemp
confessed to the elements of each of his charged offenses, his defense
hinged on the theory that his conduct was justified. See A.R.S. § 13-402.
Without an instruction, the jury had no way to account for Kemp’s
justification defense and no knowledge of the State’s burden under A.R.S.
§ 13-205. See State v. Carson, 243 Ariz. 463, 467–68, ¶¶ 19–20 (2018)
(discussing burden-shifting in self-defense context). As a result, failure to
give a justification instruction was fundamental error, “tak[ing] away a
right essential to [Kemp’s] defense.” See Escalante, 245 Ariz. at 138, ¶ 1.
¶14 Still, for an error to warrant reversal, Kemp must show
prejudice, which “involves a fact-intensive inquiry.” See Henderson, 210
Ariz. at 568, ¶ 26. Because Kemp presented “evidence of justification,” the
State had to “prove beyond a reasonable doubt that [he] did not act with
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STATE v. KEMP
Decision of the Court
justification.” See A.R.S. § 13-205. Justification is tested objectively, relying
on “the beliefs of a ‘reasonable person’ in the defendant’s circumstances
rather than the defendant’s subjective beliefs.” Carson, 243 Ariz. at 465, ¶ 9.
The inquiry is therefore whether the State proved beyond a reasonable
doubt that no reasonable person in Kemp’s shoes “would believe [his
otherwise criminal] conduct [wa]s . . . authorized to assist a peace officer in
the performance of such officer’s duties.” See A.R.S. § 13-402(B)(2).
¶15 As Detective Platt testified, signing up a confidential
informant is a “very time-consuming” process. “[The police] don’t even
try” to sign up confidential informants who are on probation because it’s
“extremely difficult” and requires proceedings in open court, undermining
the confidential nature of the arrangement. Once onboarded, confidential
informants cannot “set up deals on [their] own.” Platt emphasized that the
police use informants only to buy drugs, not to sell them, and only when
observed by officers. If an informant is caught selling drugs, the police will
“close [hi]m down” and arrest him. More to the point, although Platt
recalled being present for a meeting with Kemp, Platt confirmed they did
not onboard Kemp as a confidential informant, then or at any time
thereafter.
¶16 Platt also noted “there would be no reason” to allow someone
who was not a confidential informant to conduct a drug deal. Given this
testimony, it does not follow that he or the corrections investigator would
have authorized Kemp to acquire and sell drugs with no oversight,
particularly while he was on probation. Kemp himself told Detective
Molina, “they won’t use me until I’m off probation.” Any insinuation that
Detective Platt was working with Kemp nonetheless is negated by Platt’s
testimony that he couldn’t remember “anything . . . of an investigative value
coming from that meeting.” Instead, he recalled helping Kemp call his
mother and then working to get him into rehab.
¶17 The State proved beyond a reasonable doubt that no
reasonable person would have believed that a verified member of the
Aryan Brotherhood was authorized to sell methamphetamine while on
probation. Therefore, Kemp was not prejudiced by the court’s failure to
give a justification instruction.
B. Exclusion of Testimony as Hearsay Was Not Reversible
Error
¶18 Next, we consider “[w]hether the exclusion of testimony
about police officers’ out-of-court statements regarding the alleged verbal
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agreement was reversible error.” See Ariz. R. Evid. 801(c) (defining hearsay
as a statement “the declarant does not make while testifying at the current
trial or hearing” that is “offer[ed] in evidence to prove the truth of the
matter asserted in the statement”). To be admissible, an out-of-court
statement must “fit[] within one of the many exceptions to the rule against
hearsay.” State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003).
¶19 We review evidentiary rulings for an abuse of discretion. State
v. Rodriguez, 186 Ariz. 240, 250 (1996). An abuse of discretion occurs when
“no reasonable judge would have reached the same result under the
circumstances.” State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004). When a
defendant has preserved an issue for appeal, we review for harmless error;
otherwise, we review for fundamental, prejudicial error. Henderson, 210
Ariz. at 567, ¶¶ 18–20.
¶20 The court excluded Kemp’s testimony that he was
“[e]ncouraged” to sell drugs and “was given insurance that [the police]
would intervene with the prosecutor” as hearsay. At trial, Kemp’s counsel
argued Kemp should be able to testify about “his present sense impression
at the time” of the crime, including that “he felt encouraged” to sell drugs.
See Ariz. R. Evid. 803(1); Tucker, 205 Ariz. at 165, ¶ 42 (“Statements of
present sense impressions are deemed reliable because they are made close
in time to the events they describe.”). Kemp’s counsel conceded that Kemp
could not say “they told [him] . . . they would intervene.”
¶21 Neither statement is a present sense impression. “A present
sense impression is “[a] statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.”
Ariz. R. Evid. 803(1); see, e.g., State v. Rendon, 148 Ariz. 524, 526, 528 (App.
1986) (admitting recording of neighbor’s 9-1-1 call describing burglary “as
it was taking place”); State v. Sucharew, 205 Ariz. 16, 24, ¶¶ 24–26 (App.
2003) (admitting statement, “[t]here goes your Fast and Furious movie,”
made in real-time as eyewitness watched two cars race by and heard a crash
moments later). That is not what happened here. Instead, Kemp
recounted—years after the meeting and his ensuing crimes—the nature of
his purported agreement with the police. Immediacy, which is the crux of
this exception, is absent. See Tucker, 205 Ariz. at 165–66, ¶ 42 (“The more
time that elapses between the event and the statement, the stronger the
possibility that a declarant will attempt, either consciously or
subconsciously, to alter his or her description of the event.”).
¶22 As suggested in our Penson order, the statements might be
better construed as communicating their effect on the listener. See State v.
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Hernandez, 170 Ariz. 301, 306 (App. 1991) (“Words offered to prove the
effect on the hearer are admissible when they are offered to show their effect
on one whose conduct is at issue.”). But we are not to second-guess trial
counsel or inject a new evidentiary theory on appeal. State v. Schaaf, 169
Ariz. 323, 332 (1991); see also State v. Lopez, 217 Ariz. 433, 434, ¶ 4 (App. 2008)
(“[A]n objection on one ground does not preserve the issue on another
ground.”). In any case, the reasonableness of Kemp’s belief he could
lawfully sell drugs hinges on whether there was an agreement to do so. That
is, the excluded testimony is necessarily offered for the truth of the matter
asserted and not merely to show the effect on the listener.4 Cf. Hernandez,
170 Ariz. at 306 (noting that truth of admitted statements was not at issue).
¶23 Even if excluding portions of Kemp’s testimony were error, it
would not be reversible under any standard. See Escalante, 245 Ariz. at 144,
¶¶ 29–31 (comparing review for harmless and fundamental error). The
excluded testimony was cumulative to Kemp’s statements that Detective
Platt and the corrections investigator “gave [him] permission to sell drugs,”
and that his “actions”—the criminal conduct he confessed to on bodycam
footage and again at trial—were the result of his meeting with them.
Kemp’s theory of the case was clear without the excluded testimony. In any
case, though the jury was not given a justification instruction, the State
proved beyond a reasonable doubt that Kemp’s conduct was not justified.
¶24 Therefore, the court did not abuse its discretion, must less
reversibly err, in excluding portions of Kemp’s testimony related to police
officers’ out-of-court statements as hearsay.
II. Kemp’s Supplemental Brief
¶25 Kemp filed a supplemental brief, raising five issues. These
issues are waived as Kemp fails to develop them or provide citation to the
record or legal authority. See State v. Bolton, 182 Ariz. 290, 298 (1995); see also
Ariz. R. Crim. P. 31.10(a)(7). Waiver aside, Kemp’s arguments lack merit.
4 This analysis likewise forecloses any argument that the court erred
by preventing Kemp from answering two questions about what was
“expected” of him under the purported agreement. In any case, Kemp also
failed to make an offer of proof for this testimony, and we therefore cannot
find fundamental error. See Ariz. R. Evid. 103(a)(2); State v. Martinez, 230
Ariz. 208, 219, ¶ 57 (2012) (noting court was “unable to find prejudice”
without offer of proof).
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¶26 First, Kemp argues the court erred by excluding unspecified
evidence. Our above analysis forecloses this argument as much as it refers
to the portions of his testimony excluded as hearsay. Alternatively, Kemp
may be pointing to the “records” he identified in his “Motion for Mistrial,”
that would allegedly “contradict” Detective Platt’s testimony. When a juror
asked whether he had any “evidence . . . of ongoing contact with police,”
such as “phone records, dates of contacts, text messages, etc.[,]” Kemp
indicated he did, but failed to offer those records at trial, thereby waiving
any objection. See State v. Dixon, 226 Ariz. 545, 554, ¶ 44 (2011); accord State
v. Robertson, 249 Ariz. 256, 260, ¶ 15 (2020) (“The invited error doctrine
prevents a party from injecting error into the record and then profiting from
it on appeal.” (quotation omitted)).
¶27 Second, Kemp contends his counsel did not “help[] him to
navigate [the] legal process.” Ineffective assistance of counsel cannot be
raised on direct appeal, however; it must be raised in a separate post-
conviction proceeding. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20
(2007) (citing Ariz. R. Crim. P. 32). Third, Kemp argues the superior court
improperly excluded surrebuttal testimony, but Kemp did not try to call
any witnesses in surrebuttal. See Ariz. R. Evid. 103(a)(2); Dixon, 226 Ariz. at
554, ¶ 44 (finding waiver where defendant did not make an offer of proof
or mark exhibit for identification).
¶28 Fourth, Kemp argues the court erred by applying a sentence
enhancement duplicitous of one of the charges (presumably the A.R.S. § 13-
2321 offense and A.R.S. § 13-714 sentence enhancement). See A.R.S. § 13-
2321 (defining criminal offense of “assisting a criminal street gang”); A.R.S.
§ 13-714 (enhancing sentence for “[o]ffenses committed with intent to
promote, further or assist a criminal street gang”). Not so. “[A] sentence
enhancement does not offend double jeopardy.” State v. Harm, 236 Ariz.
402, 408, ¶ 23 (App. 2015). Moreover, A.R.S. § 13-2321 and § 13-714 do not
have identical elements and are therefore not duplicitous. See id. at 406–08,
¶¶ 16–20 (“[Section 13-2321] implies some participation by the gang, while
[A.R.S. § 13-714] addresses only the intent of the actor.”).
¶29 Last, Kemp argues the court erred by admitting altered
bodycam footage. Portions of the bodycam footage were muted to eliminate
prejudicial information. At trial, Kemp agreed that the portions shown were
accurate depictions of the events that occurred, but he took issue with the
fact that the footage did not show the conclusion of his conversation with
Detectives Molina and Reed. The tape cut out before they put him in the
squad car for transport. In essence, Kemp appears to argue the bodycam
footage was incomplete and the court erred by failing to require the State
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STATE v. KEMP
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to introduce additional footage. See Ariz. R. Evid. 106 (“If a party introduces
all or part of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part--or any other writing or
recorded statement--that in fairness ought to be considered at the same
time.”) Kemp did not object to the incomplete footage, nor did he seek to
admit footage of the entire encounter under the rule of optional
completeness. See Ariz. R. Evid. 106. In sum, Kemp’s arguments do not
establish trial error.
III. Review of the Record
¶30 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Kemp was present
5
and represented by counsel at all critical stages of the proceedings against
him. The evidence presented supports the convictions, and the sentences
imposed fall within the range permitted by law. As far as the record reveals,
these proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure and Kemp’s constitutional and statutory rights.
CONCLUSION
¶31 For the reasons above, we affirm Kemp’s convictions and
sentences, except that we modify Kemp’s pre-incarceration credit from 850
days to 851 days.
¶32 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, her obligations are
fulfilled once she informs Kemp of the outcome of this appeal and his future
5 During voir dire, Juror No. 5 (Prospective Juror No. 9) stated that she
could not evaluate law enforcement witnesses on equal footing with other
witnesses. Although a defendant is entitled to a fair and impartial jury, State
v. Eddington, 228 Ariz. 361, 363, ¶ 6 (2011), Kemp waived the issue by failing
to challenge the juror. See State v. Rubio, 219 Ariz. 177, 180, ¶ 8 (App. 2008);
see also State v. Bravo, 131 Ariz. 168, 170 (App. 1981).
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options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Kemp has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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