State v. Freeny ( 2024 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,
v.
RAYMOND EDWIN FREENY, Petitioner.
No. 1 CA-CR 23-0398 PRPC
FILED 10-10-2024
Petition for Review from the Superior Court in Maricopa County
No. CR2018-001790-001
The Honorable Ronee Korbin Steiner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Raymond Edwin Freeny, San Luis
Petitioner
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Anni Hill Foster and Judge Angela K. Paton joined.
STATE v. FREENY
Decision of the Court
B A I L E Y, Judge:
¶1 Raymond Freeny petitions this court to review the dismissal
of his post-conviction relief (“PCR”) petition filed under Arizona Rule of
Criminal Procedure 32. We have considered the petition for review and,
for the reasons stated, grant review but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 A jury convicted Freeny of aggravated assault based on
evidence he threatened the victim, A.W., with a metal tent stake. Freeny
and A.W. were riding the light rail when A.W. told a security guard that
Freeny was acting erratically and aggressively. Freeny was removed from
the train at the next stop. When Freeny later saw A.W. on the platform of
another light rail stop, he approached A.W., raised the tent stake above his
head, and threatened to gouge out A.W.’s eyes. A.W. boarded an arriving
train and contacted a security guard, who called 911. Surveillance footage
showed Freeny standing outside the train door with a long object in his
right hand. When police apprehended him a short distance away, they
found the tent stake in his backpack. This court affirmed the conviction and
resulting sentence on direct appeal. State v. Freeny, 1 CA-CR 20-0167, 2021
WL 2982093 (Ariz. App. July 15, 2021) (mem. decision).
¶3 Freeny represented himself in trial proceedings. He asked for
a copy of the 911 call, but the recording had been destroyed, in accordance
with standard retention policies, before he was charged. Freeny did receive
a copy of the Computer Aided Dispatch (“CAD”) report associated with the
911 call. The report reflected that the incident was at first labeled an “armed
robbery” by the dispatcher but was changed to an “aggravated assault”
after a police officer interviewed A.W. The report also included notes
relaying a private message from the dispatcher to a police sergeant. The
message concerned secondhand information about a six-foot tall, black
male victim being robbed of his wallet (the “wallet robbery”) by someone
“with a nail.” Information in the notes conveyed that the wallet robbery
occurred close in time to A.W.’s assault.
¶4 Before trial, Freeny expressed an intent to introduce the CAD
report to support his argument that A.W. falsely told the security guard that
Freeny robbed him, and then falsely told police that Freeny assaulted him.
The State disputed that interpretation, contending that the wallet robbery
notes referred to a separate incident because A.W. was a white, five-foot-
ten teenage boy with blond hair—not a black, six-foot male as described in
the notes—and because A.W. never told police his wallet was taken. The
2
STATE v. FREENY
Decision of the Court
State posited that the wallet robbery notes were attached to the CAD report
for A.W.’s 911 call because the incidents occurred close in time and the
weapon used potentially linked the two crimes to the same suspect—
Freeny.
¶5 The trial court told Freeny he would need to comply with the
Rules of Evidence if he sought to admit the CAD report. The court also
advised him, more than once, that if he introduced evidence of the wallet
robbery notes from the CAD report, he risked opening the door to the State
arguing that Freeny might have also committed the wallet robbery.
¶6 Freeny did not ask to admit the written CAD report during
trial. But despite the court’s warning, he elicited evidence of the notes
describing the wallet robbery. The court ruled that Freeny had opened the
door to the State putting the wallet robbery information in context. The
State then elicited testimony explaining that the notes referred to a different
incident than A.W.’s assault and were attached to the CAD report for
A.W.’s 911 call because of a possible link between the two.
¶7 Freeny did not raise any claims relating to the CAD report on
direct appeal. After the mandate was issued, he timely filed a PCR notice,
but his appointed attorney found no colorable PCR claim to raise. Freeny
filed a petition pro se in which he contended that the trial court’s rulings
relating to the CAD report violated his constitutional rights and Arizona
Rule of Evidence (“Rule”) 404(b). The PCR court summarily dismissed
Freeny’s petition, reasoning that his claims were precluded or otherwise
not colorable. Ariz. R. Crim. P. 32.2(a), 32.11(a). We grant review of his
petition for review. Ariz. Rev. Stat. (A.R.S.) § 13-4239(G); Ariz. R. Crim. P.
32.16(k).
DISCUSSION
¶8 This court reviews the PCR court’s decision for an abuse of
discretion and must uphold that decision if it is “legally correct for any
reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).
¶9 Freeny’s arguments are not easy to unpack. At bottom, he
appears to contend that the trial court violated his constitutional rights to
due process, equal protection, and freedom from double jeopardy, along
with Rule 404(b), by not admitting the written CAD report into evidence
and by ruling that he opened the door to evidence he may have committed
a separate crime.
3
STATE v. FREENY
Decision of the Court
¶10 We discern no abuse of discretion in the PCR court’s denial of
relief. Freeny’s claims are precluded because they raise constitutional
issues he could have asserted on direct appeal. Ariz. R. Crim. P. 32.2(a)(3).
To the extent that the alleged Rule 404(b) violation does not present a
constitutional issue, Freeny fails to show an alternative basis for PCR relief.
See Ariz. R. Crim. P. 32.1 (enumerating the grounds for PCR relief); Canion
v. Cole, 210 Ariz. 598, 600, ¶ 12 (2005) (requiring the PCR petitioner to raise
“grounds that bring him within the provisions of [Rule 32]”) (quoting State
v. Carriger, 143 Ariz. 142, 146 (1984)).
¶11 Even if Freeny’s claims are not precluded, he does not
establish a colorable basis for relief. A PCR claim “is subject to summary
dismissal ‘[i]f the alleged facts would not have probably changed the
verdict or sentence.’” State v. Bigger, 251 Ariz. 402, 407, ¶ 9 (2021) (quoting
State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016)). Freeny fails to raise claims
that probably affected his conviction.
¶12 Freeny contends the written CAD report was admissible
under Rule 901(b)(10) because it included the authenticating language
prescribed in A.R.S. § 13-3989.01. But even if the report had been admitted,
it was unlikely to have changed the outcome. For although the report was
not admitted per se, Freeny elicited the contents that he believed were
relevant to his defense: the 911 call was initially labeled an “armed
robbery”; there was a discussion between the dispatcher and an officer
about an armed robbery; and the call’s label was later changed to
“aggravated assault.” When Freeny relied on that evidence to suggest that
A.W. initially accused him of armed robbery, the trial court appropriately
ruled that he had opened the door to the State providing an alternative
explanation. Thus, even had the CAD report been admitted, once Freeny
presented his interpretation of the armed robbery notes, the State could
offer evidence that the robbery was a separate offense Freeny might have
committed. See Pool v. Superior Court, 139 Ariz. 98, 103 (1984) (stating
general rule that “where evidence adduced or comments made by one party
make otherwise irrelevant evidence highly relevant,” such party opens the
door to the other party “responding with comments or evidence on the
same subject”); State v. Mincey, 130 Ariz. 389, 404–05 (1981) (holding that
the defendant opened the door to other-act evidence by placing such
evidence at issue). Because Freeny opened the door to the evidence that he
may have committed another crime, its admission was not error. See State
v. Lindsey, 149 Ariz. 472, 477 (1986) (explaining that when a party opens the
door to improper evidence, “[a]ny error with respect to the admission of
such . . . evidence will generally be considered as having been waived”);
Elia v. Pifer, 194 Ariz. 74, 79, ¶ 18 (App. 1998) (“[A] party will not be allowed
4
STATE v. FREENY
Decision of the Court
to complain of the introduction of irrelevant evidence where he has asserted
a position that makes such evidence relevant.”).
CONCLUSION
¶13 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AGFV
5