State v. Freeney

207 P.3d 688, 220 Ariz. 435

• Court: Court of Appeals of Arizona
• Decided: June 1, 2009
• Docket: 1 CA-CR 07-0448
• Status: Published

Opinions

OPINION

WINTHROP, Presiding Judge.

¶ 1 Mark Allen Freeney (“Appellant”) appeals from his conviction and sentence for aggravated assault. He contends that his conviction should be vacated because the trial court violated his Sixth Anendment right to notice in allowing the State to amend the indictment before jury voir- dire on the first day of trial, changing the theory of the underlying assault from “[ijntentionally placing another person in reasonable apprehension of imminent physical injury” to “Lijntentionally, knowingly or recklessly causing any physical injury to another person.” For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY¹

¶ 2 On November 6, 2006, a grand jury issued an indictment, charging Appellant with aggravated assault, a class three dangerous felony and domestic violence offense, in violation of Aizona Revised Statutes (“A.R.S.”) sections 13-1203 (2001) and 13-1204 (Supp.2008²)³ The allegation of dan-gei’ousness in the indictment stated as follows:

The State of Aizona further alleges that the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a METAL BAR or PIPE, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [the victim], in violation of A.R.S. § 13-604(P).

(Emphasis added.)⁴

¶ 3 On Max’ch 9, 2007, at the Pinal Trial Management Conference, the parties prepared a joint pretrial statement, in which the State listed as a witness the emergency room physician who had treated the victim. The joint pretrial statement also provided a brief statement of the case as follows:

The state alleges that on October 24, 2006 the defendant hit the victim [ ] several times in the head and body with a metal bar while threatening to kill her. The victim received a head injury from the beating and was transported to the hospital. At the time of the assault the victim and defendant had been residing together for approximately one year.

The Defendant denies these allegations. (Emphasis added.)

¶ 4 On Thursday, March 15, 2007, the first day of trial, before jury selection, the State moved to amend the indictment to change the theory of the underlying assault from A.R.S. § 13-1203(A)(2) — intentionally placing another person in reasonable apprehension of imminent physical injury — to A.R.S. § 13-1203(A)(1) — intentionally, knowingly, or recklessly causing any physical injury to another person.⁵ Defense counsel objected based on the timing of the motion, but admitted he had been aware the victim was injured because the reports he had received referenced the injuries. The prosecutor noted without objection that defense counsel had received notice not only through the police reports, but also through the victim’s medical records and photographs of her injuries. Based on defense counsel’s acknowledgement that he knew about the injuries and the police reports referencing the injuries, the tidal court concluded that the Sixth Amendment notice requirement had been sufficiently met and allowed the State to amend the indictment. The court further determined that Appellant was not prejudiced by the amendment.

¶ 5 Opening statements and witness testimony commenced on Monday, March 19, 2007. The following evidence was presented: On the evening of October 24, 2006, Angel G. and her son were in the laundry room of their mobile home complex. Angel heard a woman outside the laundry room crying and saying, “Please stop.” Angel went to the window and observed Appellant hit the victim, his girlfriend, with a large metal bar or pipe. Angel then heard the victim scream, “Please. You know, I’m sorry.” Angel observed blood gushing from the victim’s head, and she also heard Appellant say that he was going to kill the victim. Angel told her son to run to her house and retrieve her cell phone and a wet rag. After he returned, she called the police from inside the laundry room.

¶ 6 Angel also observed another man standing outside with Appellant and the victim, and Appellant told the man to not allow the victim to escape through the courtyard gate. Appellant proceeded to strike the victim several more times with the metal bar. The victim and Appellant eventually entered their home, and then came back outside. Angel called the victim over to the laundry room window and asked her if everything was “okay.” The victim responded affirmatively, and Angel gave the victim the rag to wipe some of the blood from her head.

¶ 7 Appellant continued to “fight” with the victim for a moment, but then he and the other man left the property. Angel told the victim to sit down and wait until the police arrived. After the police arrived, Angel showed them the pipe that Appellant had used, as well as a box cutter that Appellant had briefly wielded to threaten the victim, while saying that “he was going to slice her up” and kill her.

¶ 8 Angel testified that she knew and recognized both Appellant and the victim because they rented a home together at the complex, and Angel was a friend of the victim’s and had known Appellant for a long time. Angel also testified that she never observed the victim strike Appellant or fight back against him.

¶ 9 Officers Yoder and Galus of the Phoenix Police Department responded to Angel’s emergency call. Officer Yoder testified that, upon arriving at the scene, he spoke to the victim, who was bleeding profusely from the side of her head and had blood running down onto her neck. The victim seemed “distraught,” “shaken up,” and “hysterical,” and she initially behaved as though she was “in a daze.” Although she was at first uncooperative, she eventually told Officer Yoder that she had been at home with Appellant and some friends, having a party. She and Appellant began to argue, and Appellant grabbed a metal pipe and struck her approximately ten times — approximately four blows struck her head and six struck her body. The victim stated that Appellant left the area before the police arrived, but she provided a physical description of him and the weapon that he used. Officer Yoder recovered a metal pipe on the property.

¶ 10 Officer Galus testified that he noticed the victim had a “substantial” head injury and was bleeding. He also heard the victim state that Appellant had struck her with a metal pipe or bar approximately ten times and that Appellant left the scene before officers arrived. Additionally, the victim told Officer Galus that Appellant had brandished a box cutter, held it to her throat, and stated that he was going to kill her.

¶ 11 Officer Yoder summoned the Phoenix Fire Department, whose members administered first aid and then transported the victim to the hospital. In the emergency room, the victim told the treating physician that she had been involved in a fight and been hit on the head, face, left wrist, and left side with a metal bar or pipe. The victim was crying and bleeding, and the physician observed that she had a large laceration on the back of her scalp approximately four inches long and very deep, penetrating all the way down to her skull. The physician also noted that the victim was in pain and had bruising and swelling on her left wrist and face, including over her eye.

¶ 12 The physician determined that the injuries to the victim’s head and body were highly suggestive of blunt force trauma and consistent with being hit with a metal bar. The large cut on the victim’s scalp required approximately one dozen staples to close the wound.

¶ 13 Two days later, on October 26, 2006, Officers Yoder and Galus spoke with Appellant. Appellant admitted that he lived with the victim; he had been at their home on October 24, 2006; and he and the victim had an “argument.” Appellant also told Officer Yoder that he was not worried about the case going to trial, because he knew that the victim would not testify against him. Officer Yoder believed throughout the interview that Appellant maintained an attitude demonstrating that he was not at all concerned.

¶ 14 At trial, the victim testified, but, after stating that the two were still involved in a relationship, she recanted her previous statements against Appellant. She claimed that, on the evening of October 24, she and Appellant were at home “[gjetting high” on crack cocaine, but Appellant left, and “someone else” came in and attacked her.⁶ She stated that she could not remember speaking to the police or being injured, although she remembered passing out in the emergency room.

¶ 15 The jury found Appellant guilty of aggravated assault and found that the offense was a dangerous offense and a domestic violence offense. The trial court found Appellant in automatic violation of his probation on another case.

¶ 16 At sentencing, the trial court determined that Appellant had at least two historical prior felony convictions and sentenced him to a presumptive term of 11.25 years’ imprisonment in the Arizona Department of Corrections (“ADOC”). The court also credited him for 201 days of pre-sentence incarceration. For Appellant’s probation violation, the court sentenced him to one year’s imprisonment in ADOC, to run consecutive to his sentence in the instant case, and credited him for 304 days of pre-sentence incarceration.

¶ 17 We have jurisdiction over Appellant’s timely appeal. See Ariz. Const, art. 6, § 9; AR.S. §§ 12 — 120.21(A)(1) (2003), 13-4031 (2001), -4033(A) (2001).

ANALYSIS

¶ 18 Appellant contends that the trial court violated his Sixth Amendment right to notice by permitting the State to amend the indictment before jury voir dire on the first day of trial. Relying on State v. Sanders, 205 Ariz. 208, 68 P.3d 434 (App.2003), he argues that amending the indictment changed the nature of the offense with which he was charged, and prejudice must therefore be presumed.

¶ 19 We review for an abuse of discretion the trial court’s decision to grant a motion to amend the indictment. See State v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App.2000) (citation omitted); State v. Delgado, 174 Ariz. 252, 254, 848 P.2d 337, 339 (App.1993). However, we review de novo issues of constitutional interpretation. Massey v. Bayless, 187 Ariz. 72, 73, 927 P.2d 338, 339 (1996).

¶ 20 The Sixth Amendment to the United States Constitution regulates the charging of a criminal offense, requiring that “[ijn all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” “The purpose of an indictment or information is to give notice of the offense charged so that the accused may prepare a defense.” State v. Schwartz, 188 Ariz. 313, 319, 935 P.2d 891, 897 (App.1996) (citation omitted). Rule 13.2(a) of the Arizona Rules of Criminal Procedure describes the requirements of an indictment: “The indictment or information shall be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged.” “LTJhe indictment need only contain a notice of the charges — not the prosecution’s theory under which it wall proceed at trial.” Schwartz, 188 Ariz. at 320, 935 P.2d at 898 (citation omitted).

¶ 21 Arizona courts are generally quite liberal in allowing amendments, provided that the amendment does not lead to a charge of a different crime. State v. Williams, 108 Ariz. 382, 387, 499 P.2d 97, 102 (1972) (citing State v. Suarez, 106 Ariz. 62, 470 P.2d 675 (1970)). Arizona Rule of Criminal Procedure 13.5(b) governs the amendment of an indictment:

The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate’s order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging-document shall be deemed amended to conform to the evidence adduced at any court proceeding.

¶ 22 Generally, “a technical or formal defect in a charging document may be remedied whenever such defect is presented.” State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980) (citations omitted). Further, “[a] defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way.” Id. (citations omitted) (holding that a defendant was not prejudiced by amendment of the indictment during trial to change the alleged offense dates because he had notice of the discrepancies well before trial).

¶ 23 In Sanders, the defendant was originally charged with aggravated assault — by knowingly touching a police officer with the intent to injure, insult, or provoke him, under A.R.S. § 13 — 1203(A)(3) and former § 13-1204(A)(5) and (B). 205 Ariz. at 212, ¶ 5, 68 P.3d at 438. At the preliminary hearing before the indictment issued, the State arguably produced no evidence that the police officer had apprehended any imminent physical injury from the defendant. Id. at 211, ¶ 4, 68 P.3d at 437.⁷ At trial, during direct examination, the prosecutor did not ask the officer whether he had feared that the defen-riant might physically harm him. Sanders, 205 Ariz. at 212, ¶ 7, 68 P.3d at 438. The defendant did not conduct cross-examination regarding whether the officer reasonably apprehended any physical injury from the defendant. Id. at ¶ 8, 68 P.3d 434. After the State rested, the prosecutor moved to amend the indictment for aggravated assault from one involving a knowing touching of another, proscribed by A.R.S. § 13 — 1203(A)(3), to one intentionally placing another in reasonable apprehension of imminent physical injury, a violation of A.R.S. § 13-1203(A)(2). Id. at ¶ 9, 68 P.3d 434. Although the defendant objected, the trial court granted the State’s motion. Id. at ¶ 10, 68 P.3d 434.

¶ 24 After the defense presented its case, defense counsel renewed her objection to the amendment, noting that she was “having a difficult time coming up with -what my closing is going to be, let alone jury instructions, because now we have changed the charge.” Id. at 213, ¶ 12, 68 P.3d at 439. The trial court again overruled defense counsel’s objections, and the defendant was convicted. Id. at ¶¶ 14-15, 68 P.3d 434.

¶ 25 On appeal, the specific issue facing this court was whether “the tidal court violate[d] the Sixth Amendment’s notice requirement when it permitted the state to amend the assault charge after the close of the state’s case-in-chief.” Id. at ¶ 15, 68 P.3d 434. The majority of the court concluded that the amendment allowed by the trial court changed the “nature” of the offense, because the “reasonable apprehension” charge was the traditional type of assault, while the “knowing touching” constituted the traditional common law crime of battery. Id. at 216-17, ¶ 33, 68 P.3d at 442-43; accord In re Jeremiah T., 212 Ariz. 30, 34, ¶ 12, 126 P.3d 177, 181 (App.2006). Further, because the nature of the offense had changed, the majority concluded that prejudice was conclusively presumed. Sanders, 205 Ariz. at 214, ¶ 20, 68 P.3d at 440; accord Jeremiah T., 212 Ariz. at 34, ¶ 13, 126 P.3d at 181. The court reasoned that “when a trial commences with one charge and that charge is thereafter amended to change the nature of the offense, the record of that trial is useless as a tool to determine whether a defendant was prejudiced by the amendment.” Sanders, 205 Ariz. at 215, ¶ 22, 68 P.3d at 441. The court further explained, “To hold that the state must tell a defendant in advance under which of the two [offenses] he is being prosecuted, and to preclude the state from changing its mind in the middle of trial and thereby presumptively prejudicing the defendant, is a requirement of the Sixth Amendment that does not disappear by changing statutory nomenclature.” Id. at 218, ¶ 44, 68 P.3d at 444. The majority also noted that “the one constant upon which the [defense] lawyer ought to be able to rely is that once the jury is seated, the charge will not change unless her client consents.” Id. at 221, ¶ 61, 68 P.3d at 447.

¶ 26 Ultimately, the majority held “that an amendment proposed mid-trial that changes the nature of the original charge deprives an accused of the type of notice and opportunity to prepare a defense contemplated by the Sixth Amendment and is therefore not permitted by Rule 13.5(b),” Arizona Rules of Criminal Procedure. Id. at 211, ¶ 1, 68 P.3d at 437. Thus, under Sanders, a defendant is presumptively prejudiced when the State amends an indictment mid-trial to alter the nature of the charged offense. Id. at 218, ¶ 44, 68 P.3d at 444.

¶ 27 We conclude that Sanders does not control our analysis because, in this case, the amendment to the indictment occurred before jury selection rather than mid-trial, and Appellant has not shown actual prejudice resulting from the amendment. “A fair trial, as the United States Supreme Court has observed, is ‘one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.”’ Id. at 214, ¶ 17, 68 P.3d at 440 (quoting Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (emphasis added to original).

¶28 Both Sanders and this case involve the amendment of an aggravated assault charge. However, unlike Sanders, in this case the State moved to amend Appellant’s indictment before jury voir dire on the first scheduled day of trial. Accordingly, whether the nature of the offense changed (as the majority in Sanders held) or not (as the dissent in Sanders concluded), the amendment here occurred before the jury was impaneled and any evidence was presented, and therefore the concerns voiced by the majority in Sanders about the inability of defense counsel to present a competent defense, given a possible change in strategy mid-trial after witnesses had already been cross-examined, are substantially mitigated. Further, the ultimate crime charged is the same. See Williams, 108 Ariz. at 387, 499 P.2d at 102. Consequently, we decline to impose the prejudice-per-se rule of Sanders, and instead conclude that Appellant must show that he suffered actual prejudice from the amendment.

¶ 29 Although Appellant implies that the amendment may have required defense counsel to “re-prepare” at the last possible moment based on the new charge, the record does not support his implication. Appellant’s attorney objected to the timing of the motion, but he did not seek a continuance or otherwise indicate that the amendment affected his strategy or preparation for trial, and he candidly admitted having notice from police reports of the victim’s injuries, which formed the basis of the amended charge. Additionally, the prosecutor noted without objection that defense counsel had also received copies of the medical reports and photos of the victim’s injuries. Further, Appellant had notice that the State had alleged dangerousness in the indictment and amended indictment based in part on “the intentional or knowing infliction of serious physical injury upon [the victim].” Thus, Appellant knew that his defense would likely need to somehow address the allegation that he had inflicted physical injury on the victim.⁸ Appellant’s defense at trial did just that, because he relied on a global, or “all or nothing,” defense; he defended on the basis that he simply did not commit assault in any form, and he relied on the victim’s testimony that someone else had attacked her. See, e.g., State v. Ramsey, 211 Ariz. 529, 533, ¶ 7, 124 P.3d 756, 760 (App.2005) (stating that the defendant had not specifically articulated how his defense was impaired or prejudiced by the amended indictment when his defense was that he did not commit the alleged acts).⁹

¶ 30 Based on the foregoing, the record supports finding that Appellant’s constitutional rights, including his Sixth Amendment right to notice, were not violated, and he has not shown that his defense was prejudiced or hindered in any way by a lack of notice. See generally Johnson, 198 Ariz. at 248, ¶ 8, 8 P.3d at 1162 (stating that the appellant bears the burden of proving actual prejudice from an amendment); Delgado, 174 Ariz. at 255, 848 P.2d at 340.

¶ 31 Finally, Appellant notes that, in seeking amendment of the indictment, the State failed to comply with the time requirements set forth in Rule 16.1(b) of the Arizona Rules of Criminal Procedure. Rule 16.1(b) provides in pertinent part as follows: “All motions shall be made no later than 20 days prior to trial, or at such other time as the court may direct.” Rule 16.1(c) further provides that an untimely motion “shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not have been known, and the party raises it promptly upon learning of it.” Appellant’s brief itself provides the basis for the State’s amendment request, because it makes clear that the victim had suddenly chosen either to not testify or to recant her statements — and her ultimate testimony at trial bears this out. Further, the record indicates that the State first became aware of the victim’s change of heart immediately before trial and discussed it in a telephonic conference with defense counsel at approximately 12:00 p.m. on the day of trial. The record also shows that the State moved to amend the indictment at the first possible opportunity that afternoon before trial.

¶ 32 We find no abuse of the trial court’s discretion in granting the State’s motion to amend the indictment before jury voir dire on the first scheduled day of trial. See Delgado, 174 Ariz. at 254, 848 P.2d at 339 (“The trial court has considerable discretion in resolving motions to amend an indictment.”). At most, the trial court's grant of the State’s motion without further inquiry in this case was a technical violation of Rule 16. 1(b) and (c), and upon the whole case, it appears that substantial justice was done; accordingly, we do not reverse. See Ariz. Const. art. 6, § 27; State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978).¹⁰

CONCLUSION

¶33 Appellant’s conviction and sentence are affirmed.

CONCURRING: ANN A. SCOTT TIMMER, Chief Judge.

1 . We view the facts in the light most favorable to sustaining the verdict, and we resolve all reasonable inferences against Appellant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).

2 . We cite the current version of the statute because no revisions material to our analysis have since occurred.

3 . Specifically, the indictment charged that Appellant,

on or about the 24th day of October, 2006, using a METAL BAR or PIPE, a deadly weapon or dangerous instrument, intentionally placed [the victim] in reasonable apprehension of imminent physical injury, in violation of A.R.S. §§ 13-1203, 13-1204, 13-3601, 13-701, 13-702, 13-702.01, and 13-801.

4 . The State later filed an Allegador! of Aggravating Circumstances Other Than Prior Convictions, also alleging that the offense involved the infliction or threatened infliction of serious physical injury. On December 5, 2006, the State electronically filed an amendment to the allegation of dangerousness, alleging that Appellant’s offense

as charged in the Indictment is a dangerous felony offense that involves the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument, to-wit: Metal bar or pipe, and/or involves the intentional or knowing infliction of serious physical injury upon [the victim].

(Emphasis added.)

5 . The apparent reason for the amendment was that the victim, in custody herself on a drug-related charge, had recanted her earlier statements about Appellant’s involvement. Accordingly, she was probably not going to provide testimony sufficient to prove "apprehension of imminent physical injury." However, the fact of the victim’s injuries — and Appellant's responsibility for same — could be proven without calling the victim to testify.

6 . Appellant did not testify, but at sentencing, he made statements implying that the "someone else” was the victim's drug dealer looking for payment.

7 . The dissent disagreed with this characterization of the record, noting that the officer testified at the preliminary hearing that Sanders' " ‘belligerent and cursing’ behavior ‘from the initial contact ... led me to believe that I was in a potential situation of being injured.' ” Sanders, 205 Ariz. at 228, ¶ 92, 68 P.3d at 454 (Hall, J. dissenting).

8 . Also, as we have recognized, the joint pretrial statement included the following allegation: "The victim received a head injury from the beating and was transported to the hospital.” Further, the State listed the emergency room physician as a witness in the pretrial statement.

9 . Moreover, it is somewhat incongruous that Appellant specifically acknowledged before trial that he was well aware of the nature and extent of the victim’s injuries, but now claims on appeal that his attorney was not adequately prepared to address a charge based upon those injuries. See generally State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989) ("Defendant cannot take his chances on a favorable verdict, reserving the 'hole card’ of a later appeal on an evidentiary matter that was curable at trial, and then seek appellate reversal from an unfavorable verdict.”), overruling on other grounds recognized in State v. Rojers, 216 Ariz. 555, 560, 1124, 169 P.3d 651, 656 (App.2007).

10 . Without citation to authority. Appellant argues in the conclusion to his opening brief that "[flurther prosecution of Appellant under either theory of aggravated assault should be barred by double jeopardy principles.” Because we affirm, we need not address this argument.