State v. Harrell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LAWRENCE EDWARD HARRELL, JR., Appellant.
No. 1 CA-CR 21-0352
FILED 7-12-2022
Appeal from the Superior Court in Maricopa County
No. CR 2019-123786-001
The Honorable Dewain D. Fox, Judge
The Honorable Michael Mandell, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. HARRELL
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 Lawrence Harrell appeals his conviction and sentence for
manslaughter. He challenges the exclusion of certain evidence concerning
the victim’s reputation and the scope of the State’s redirect examination of
two witnesses. Finding no reversible error, we affirm.
BACKGROUND1
¶2 One evening, Harrell and his pregnant girlfriend, Candida
Tolbert, went out to get some fast food. While walking up to an outdoor
order window, they encountered the victim, whom they knew. Initially,
Harrell and the victim greeted each other and shook hands, but their
meeting quickly turned confrontational, with the victim accosting both
Harrell and Tolbert. The exchange escalated when Harrell swung at the
victim and then pursued him as he dropped his belongings and backed
away. Within seconds of throwing his first punch, Harrell brandished a gun
and fired a single shot that struck the victim in the buttocks and traveled
through his left leg in a downward trajectory, severing several major
arteries.
¶3 After firing the shot, Harrell grabbed the victim’s belongings
and then fled the scene. The victim also attempted to flee but was only able
to limp a short distance before collapsing on a nearby sidewalk.
¶4 Although witnesses called 9-1-1, by the time emergency
responders arrived, the victim was in “grave condition” and lying in a large
pool of blood. Medical personnel rendered first aid, but the victim
succumbed to his gunshot injuries, dying shortly after arriving at a local
hospital.
¶5 Detectives reviewed surveillance videos recorded by the
restaurant’s security cameras. By isolating still images from a surveillance
1 We view the facts in the light most favorable to sustaining the
verdict. See State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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video and distributing the pictures through the Silent Witness program,
detectives identified Harrell and Tolbert. Although multiple surveillance
videos depicted Harrell’s and Tolbert’s initial encounter with the victim,
none captured the shooting because the three had moved out of the security
cameras’ fields of view following Harrell’s initial swing. By the time Harrell
moved back into one camera’s view―18 seconds after later―he had already
shot the victim.
¶6 After interviewing Harrell and Tolbert, the State charged
Harrell with one count of second-degree murder. The State also alleged
aggravating circumstances and that Harrell had historical prior felonies and
committed the offense while on probation.
¶7 At trial, Harrell acknowledged shooting the victim, but
claimed he acted in self-defense and to protect Tolbert and their unborn
child. He explained that the victim, despite the initial handshake greeting,
had threatened to kill him and Tolbert, so he swung at the victim in
anticipation of an attack. According to Harrell, the victim then punched him
to the ground and crouched down over him. While the victim allegedly
pinned him down, Harrell called to Tolbert for help and she moved toward
him, offering the gun. Harrell claimed that as he struggled for the gun, the
victim reached toward his own waistband. Purportedly fearing that the
victim would withdraw a gun, Harrell shot the victim.
¶8 After a 12-day trial, a jury found Harrell guilty of the lesser
offense of manslaughter. The jury also found two aggravating factors―that
the offense involved the use of a deadly weapon and that it caused
emotional or financial harm to the victim’s immediate family. At the
sentencing hearing, the superior court found that Harrell had two prior
felony convictions and sentenced him as a category 3 offender to a term of
20 years’ imprisonment. Harrell timely appealed.
DISCUSSION
I. Exclusion of Reputation Evidence
¶9 Harrell contends he should be granted a new trial because the
superior court precluded evidence that the victim had a reputation for
carrying a firearm. Harrell argues that the exclusion of this reputation
evidence infringed on his ability to present a full defense―that he
reasonably believed the victim posed an imminent threat to his safety.
¶10 We review evidentiary rulings for a clear and prejudicial
abuse of discretion. State v. Ayala, 178 Ariz. 385, 387 (App. 1994). In
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conducting our review, we defer to the superior court’s assessment of
relevance and unfair prejudice. See State v. Via, 146 Ariz. 108, 122 (1985)
(noting that deference is appropriate because the superior court is best
positioned to balance probative value and prejudice). A court abuses its
discretion when the reasons given for its decision are unsupported by the
record, “clearly untenable, legally incorrect, or amount to a denial of
justice.” State v. Gentry, 247 Ariz. 381, 385, ¶ 14 (App. 2019); State v. Cowles,
207 Ariz. 8, 9, ¶ 3 (App. 2004).
¶11 Before trial, Harrell moved to admit evidence of the victim’s
other acts under Arizona Rules of Evidence (Rule) 404(b). Harrell asserted
that the other-act evidence, and his knowledge thereof, was admissible to
prove he reasonably believed that the victim posed a threat to his life.
Specifically, Harrell sought to introduce evidence that the victim “was an
active” gang member, had “participated in a turf war,” had “mercilessly
beat” two people, had conducted “at least four drive by shootings,” and
“ha[d] been known to carry a gun on his person.”
¶12 At an evidentiary hearing on the motion, Harrell testified that
he (1) learned of the victim’s gang affiliation from friends and social media,
and (2) heard “[t]hrough mutual friends,” family members, and from social
media that the victim had been involved in a turf war between rival gangs
and, as part of that activity, had (a) participated in drive-by shootings, and
(b) beaten multiple people, including a 15-year-old child. Recounting three
occasions that he observed the victim possess a gun, Harrell also testified
that the victim was “just known [] to have a gun.”
¶13 After hearing Harrell’s testimony, the superior court granted
his motion in part, allowing specific-act evidence that the victim carried a
gun in Harrell’s presence admissible. But apart from the acts for which
Harrell had personal knowledge, the court found his testimony “lacking in
credibility and speculative.” Accordingly, the court precluded evidence
that relied on “third party accounts,” i.e., the victim’s purported gang
membership, participation in drive-by shootings, and physical assaults.
Moreover, applying the Rule 403 balancing test, the court found the
probative value of the excluded evidence was substantially outweighed by
the danger of unfair prejudice. See Ariz. R. Evid. 403.
¶14 In a motion to reconsider, Harrell moved to admit evidence
of the victim’s character and specific other acts, including the victim’s
reputation as a “drug dealer who was known to carry a gun,” under Rules
404 and 405―again arguing that the excluded evidence was admissible to
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STATE v. HARRELL
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show that he “justifiably feared for his life and acted reasonably to defend
himself.” The superior court denied the motion.
¶15 Undeterred, Harrell moved in limine to admit evidence of the
victim’s reputation for violence, including, among other things, that he
carried a gun. In support of his motion, Harrell submitted an offer of proof,
stating, in relevant part: “Harrell heard that [the victim] carried a weapon.”
¶16 At the outset of trial, the superior court again conducted a
Rule 403 balancing test and precluded Harrell from testifying that the
victim had a reputation for possessing a gun, specifically noting the poor
“quality of the evidence” supporting the assertion and its minimal
probative value. The court revised the previous ruling in part, however,
allowing Harrell to testify to the victim’s general reputation for violence.
¶17 “The constitutional right to due process guarantees a criminal
defendant a meaningful opportunity to present a complete defense.” State
v. Rhodes, 219 Ariz. 476, 478, ¶ 10 (App. 2008) (internal quotation and
citation omitted). The constitution does not, however, guarantee a
defendant the right to present a defense “in whatever manner and with
whatever evidence [the defendant] chooses.” State v. Carlson, 237 Ariz. 381,
393, ¶ 36 (2015) (internal quotation and citation omitted). In other words, a
defendant’s right to present evidence in support of his defense, though
constitutionally protected, is nonetheless subject to the rules of evidence.
See id.¶18 In general, relevant evidence is admissible unless it is
otherwise precluded by the federal or state constitution, an applicable
statute, or rule. Ariz. R. Evid. 402. Evidence is relevant if “it has any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence.” Ariz. R. Evid.
401(a). Relevant evidence may be excluded, however, if its probative value
“is substantially outweighed” by a danger of unfair prejudice. Ariz. R. Evid.
403.
¶19 Character evidence is generally inadmissible “to prove that a
person acted in conformity therewith,” but “an accused may offer proof of
[a] victim’s reputation for violence when an issue of self-defense is raised.”
State v. Zamora, 140 Ariz. 338, 340 (App. 1984) (citing Ariz. R. Evid. 404(a)(2)
(permitting evidence of a pertinent trait of character of the victim offered
by an accused)); see also State v. Fish, 222 Ariz. 109, 121, ¶ 37 (App. 2009)
(“When offered to prove a defendant reasonably feared for his safety and
used a reasonable degree of force in light of that fear, character evidence is
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STATE v. HARRELL
Decision of the Court
not propensity evidence; rather, it is offered to prove the defendant’s state
of mind and the reasonableness of his actions.”). To establish a justification
defense, a “defendant may offer into evidence specific instances of violence
committed by the victim,” if he “knew of them,” or “reputation or opinion
evidence that the victim ha[d] a violent or aggressive character trait.” State
v. Connor, 215 Ariz. 553, 558-59, ¶ 13 (App. 2007) (internal quotation and
citation omitted); see also Ariz. R. Evid. 405(a) (permitting the introduction
of reputation or opinion evidence concerning a character trait). This type of
evidence is admissible “to show that the defendant was justifiably
apprehensive of the decedent and knew that the decedent had a violent
disposition, and that this may have affected the defendant’s thinking about
the need to respond with deadly physical force.” Connor, 215 Ariz. at 559,
¶ 14 (internal quotation and citation omitted).
¶20 At trial, the superior court permitted Harrell to testify that the
victim had a reputation for violence, that he had seen the victim in
possession of a gun on multiple prior occasions, and that his knowledge of
the victim’s specific acts and character caused him to fear for his life and
the safety of Tolbert and their unborn child. The superior court precluded
Harrell from testifying, however, that other people had told him that the
victim carried a gun.
¶21 On this record, we find no abuse of discretion. The superior
court did not permit Harrell to testify that the victim had a reputation for
carrying a gun because Harrell failed to offer any substantive evidence to
support this assertion. Indeed, the court excluded Harrell’s proffered
testimony concerning the victim’s purported reputation for carrying a gun
as wholly speculative, predicated on “mere rumor,” and lacking any
“indicia of reliability.” While the excluded evidence was arguably relevant
to explain Harrell’s state of mind, the court properly applied Rule 403’s
balancing test and determined the danger of unfair prejudice substantially
outweighed the slight probative value of Harrell’s proffered testimony.
Stated differently, given the paucity of evidence supporting Harrell’s offer
of proof, the superior court acted well within its discretion by limiting the
scope of his reputation testimony. See State v. Zaid, 249 Ariz. 154, 158, ¶ 13
(App. 2020) (considering the strength of evidence supporting reputation
testimony in determining whether the superior court properly excluded the
testimony).
¶22 Moreover, even if the superior court improperly curtailed
Harrell’s reputation testimony, such error was necessarily harmless. See id.
at 160, ¶ 22 (explaining the improper preclusion of a defense witness’s
testimony is harmless when “the witness’s testimony would have been
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STATE v. HARRELL
Decision of the Court
merely cumulative of other evidence in the case”) (internal quotation and
citation omitted). First, consistent with the superior court’s finding, the
mere possession of a gun provides “minimal probative value on the
possessor’s aggressive character.” Zamora, 140 Ariz. at 340. Second, and
more importantly, the superior court permitted Harrell to testify about
multiple occasions when he observed the victim in possession of a gun. Of
the “methods of proving character” permitted by the evidentiary rules,
“evidence of specific instances of conduct is the most convincing.” State v.
Lehman, 126 Ariz. 388, 391 (App. 1980) (internal quotation omitted). Given
his testimony that he knew the victim’s reputation for violence and had
actual knowledge of the victim’s prior possession of a gun, Harrell had the
opportunity to present his full defense to the jury and argue that he feared
for his life when he shot the victim. In fact, the prosecutor acknowledged
during his closing argument that Harrell contended that the victim’s
reputation for carrying a gun led him to fear for his life. See State v. Romero,
240 Ariz. 503, 510, ¶ 15 (App. 2016) (“Whether an error is harmless may also
be considered in the context of a party’s ability to present the substance of
his claim or defense.”). Therefore, the superior court did not err, much less
commit reversible error, by excluding Harrell’s testimony that the victim
had a reputation for carrying a gun.
II. Scope of State’s Redirect Examination
¶23 Harrell also argues he should be granted a new trial because
the superior court, over defense counsel’s objections, permitted the
prosecutor to question two witnesses on redirect examination concerning
matters outside the scope of cross-examination. Implicit to this argument,
Harrell contends that the court’s rulings deprived him of his right to fully
confront adverse witnesses.
¶24 We review a superior court’s evidentiary rulings and
restrictions on witness examination for an abuse of discretion. State v.
Romero, 248 Ariz. 601, 606, ¶ 22 (App. 2020). While no rule expressly limits
the scope of redirect examination, see Ariz. R. Evid. 611 (governing how a
court “should exercise reasonable control over the mode and order of
examining witnesses and presenting evidence”), as a general practice,
courts restrict questioning on redirect examination to the subject matter of
cross-examination. See State v. Hicks, 133 Ariz. 64, 68-69 (1982); see also State
v. Walden, 183 Ariz. 595, 611 (1995) (concluding evidence introduced on
redirect examination of victim was within the scope of cross-examination,
given the defendant’s cross-examination attack on purported
inconsistencies in the victim’s direct testimony), rejected on other grounds by
State v. Ives, 187 Ariz. 102, 106 (1996); State v. Henry, 176 Ariz. 569, 581 (1993)
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(holding a defendant was not entitled to recross-examination when redirect
examination raised “nothing new”).
¶25 In the event a prosecutor elicits new evidence on redirect,
however, defense counsel may request the opportunity to recross-examine
a witness. State v. Jones, 110 Ariz. 546, 550-51 (1974), overruled on other
grounds by State v. Conn, 137 Ariz. 148, 151 (1983). Although the right to
confront and question adverse witnesses is of “fundamental importance,”
a defendant is entitled to recross-examination only for the limited purpose
of “clarify[ing] any new or confusing matters brought out during redirect.”
Id.A. Tolbert’s Trial Testimony
¶26 On direct examination, Tolbert testified that Harrell, alone,
possessed a gun on the night of the shooting. When questioned about a
recorded conversation that she had with Harrell on the second day of trial,
in which she stated, “[s]upposedly I’m the one that gave you the gun,” Tolbert
reiterated that she “never had possession of a gun ever.”
¶27 On cross-examination, defense counsel asked Tolbert
whether she “ever stole a gun” from a named third party. Rather than
answering directly, Tolbert responded by repeatedly stating that defense
counsel’s question had “nothing to do with” the underlying events. In a
lengthy and argumentative exchange, defense counsel then confronted
Tolbert with a statement she made to Harrell during another recorded phone
call. When pressed, Tolbert admitted that she did state she had stolen a gun
during that conversation, but she maintained that defense counsel had
taken the statement out of context.
¶28 On redirect, the prosecutor told Tolbert that he wanted to ask
her “some follow-up questions” to provide her “an opportunity to explain”
her stolen gun statement to Harrell. In response to the prosecutor’s
questions, Tolbert again asserted that her statement to Harrell about
stealing a gun was “unrelated” and “ha[d] nothing to do with this [case].”
At that point, the prosecutor referred Tolbert to her direct examination
testimony and the recorded, mid-trial conversation she had with Harrell.
Defense counsel objected to the prosecutor’s line of questioning,
contending that it veered “[o]utside the scope of cross.” The superior court
overruled the objection, and the prosecutor continued, asking questions
(with limited success given Tolbert’s lack of cooperation and overall
reluctance to testify) concerning the chronology of events―whether
Tolbert’s statement to Harrell that she had stolen a gun predated Harrell’s
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trial claim that she had furnished him with a gun on the night of the
shooting.
¶29 Having carefully reviewed the record, we conclude that the
prosecutor’s questions on redirect examination did not exceed the scope of
questioning on direct and cross-examination. Although the prosecutor did
not question Tolbert on direct examination regarding the relative timing of
her conversations with Harrell, he clearly asked her about the timing and
content of the second conversation (which included the statement about
Tolbert supposedly giving Harrell a gun). Likewise, defense counsel did not
question Tolbert about the relative timing of her recorded conversations with
Harrell, but he clearly cross-examined her regarding the content of the first
conversation (which included the statement about Tolbert stealing a gun).
Because the prosecutor’s questions on redirect examination were simply
responsive to defense counsel’s questioning―albeit the prosecutor
juxtaposed the two recorded conversations when previously each had been
addressed separately―and Tolbert, on redirect examination, merely
reiterated what she had said during direct and cross-examination, Harrell
had a full opportunity to confront Tolbert and question her testimony.
Accordingly, the superior court acted within its discretion by overruling
Harrell’s objection.
B. Lead Detective’s Trial Testimony
¶30 Neither the prosecutor on direct examination nor the defense
attorney on cross-examination questioned the lead detective about Harrell’s
appearance during his police interrogation or whether investigators took
photographs of him at that time. On redirect, however, the prosecutor
asked the lead detective whether law enforcement officers photographed
Harrell on the day of his interview, approximately three weeks after the
shooting. Defense counsel objected to the question, asserting it exceeded
the scope of cross-examination. After the superior court overruled the
objection, the prosecutor asked the detective whether he observed any
injuries on Harrell during the interrogation, and the detective testified that
he saw none.
¶31 When the prosecutor finished his redirect examination
moments later, defense counsel informed the superior court that he had
follow-up questions for the detective that could be handled either through
recross-examination or by recalling the detective to testify during the
defense’s case-in-chief. The court denied defense counsel’s request for
recross-examination and invited defense counsel to simply recall the
detective to the stand.
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¶32 As part of the defense’s case-in-chief, defense counsel recalled
the detective to testify. At the outset, defense counsel told the detective that
he wanted “to clear up some things” from the detective’s prior testimony.
But on direct examination, defense counsel did not ask the detective any
injury-related questions. On cross-examination, however, the prosecutor
asked the detective whether Harrell reported any injuries during his
interview, and the detective testified that Harrell did not. The prosecutor
also presented the detective with photographs taken of Harrell on the day
of his interview and again asked the detective whether any injuries
appeared visible that day. The detective again confirmed that he saw no
signs of injury to Harrell on the day of the interview, either in person or in
the photographs. On redirect examination, defense counsel directed the
detective to examine one of the photographs and asked whether it reflected
a “dark mark” over Harrell’s left eyebrow. The detective responded,
“[t]here’s a discoloration.” In a follow-up question, defense counsel asked
the detective whether the discoloration may have been a “healing cut[],”
and the detective answered, “I don’t know.”
¶33 On this record, we find no reversible error. While the injury-
related questions posed to the detective on redirect during the State’s case-
in-chief arguably exceeded the scope of both direct and cross-examination,
defense counsel had ample opportunity to question the detective, during
the defense’s case-in-chief, about Harrell’s injury status at the time of the
police interview. Indeed, immediately after the prosecutor concluded
redirect examination of the detective during the State’s case-in-chief,
defense counsel told the superior court that any arguable infringement on
Harrell’s right to confront the detective could be remedied either through
recross-examination or by recalling the detective to testify. Because Harrell
had a full opportunity to challenge the detective’s injury-related testimony
when defense counsel recalled the detective to testify, the superior court’s
rulings on the scope of witness examination did not deprive Harrell of his
constitutional right to present a full defense and confront all adverse
witnesses against him.
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CONCLUSION
¶34 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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