State v. Shedd

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

LARRY SHEDD, Appellant.

No. 1 CA-CR 18-0757
FILED 10-8-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-108484-001
The Honorable Warren J. Granville, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Andrew C. Marcy
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Larry Shedd appeals his conviction of aggravated robbery
and the resulting sentence. He argues the superior court violated his
confrontation right when it precluded him from presenting evidence of the
victim's motive to lie. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Hearing a knock, the victim opened the front door to his
apartment and encountered a man who punched him in the face and
ordered him to lie face-down on the couch.1 Accompanied by Shedd, the
man then entered the apartment and gathered up some of the victim's
possessions, including his cell phone and stereo equipment. Eventually,
noticing it was "real quiet," the victim rose, grabbed a sword from his
bedroom and went outside to "try to stop" the intruders.

¶3 Holding his sword, the victim approached Shedd and the
other man outside the apartment and repeatedly warned them to stay
where they were. Ignoring the victim's warnings, Shedd approached the
victim, who struck Shedd with the sword several times until Shedd fell to
the ground, injured. At that point, the other man drove off. Police found
Shedd's jacket outside the victim's apartment; inside the jacket was the
victim's cell phone. They also found the victim's stereo equipment sitting
outside his apartment.

¶4 The State charged Shedd with one count of aggravated
robbery, a Class 3 felony, in violation of Arizona Revised Statutes ("A.R.S.")

1 We state the facts from the evidence at trial in the light most
favorable to sustaining the jury's verdict and resolve all inferences against
Shedd. See State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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section 13-1903 (2019).2 Before trial, the State moved to preclude
photographs of the injuries Shedd sustained when the victim struck him
with the sword, along with expert medical testimony Shedd intended to
offer about those injuries. The State also moved to preclude Shedd from
questioning the victim and other witnesses at trial about any criminal
liability the victim might face from using the sword in the incident. The
court granted the State's motions in large part, although it ruled Shedd
could cross-examine the victim about the victim's account of his use of the
sword on Shedd.

¶5 Then, just before trial, the State granted the victim "use
immunity," which would bar the State from using the victim's testimony in
Shedd's trial against the victim in another matter. After the State disclosed
the immunity grant, the court ruled that Shedd could cross-examine the
victim about it and also ruled that it would admit in evidence one
photograph showing Shedd receiving medical treatment from a sword
wound outside the victim's apartment.

¶6 The jury convicted Shedd, and the court sentenced him as a
category-three repetitive offender to nine years in prison, a term less than
the minimum under A.R.S. § 13-703(J) (2019). Shedd timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019), 13-4031 (2019) and
-4033(A)(1) (2019).

DISCUSSION

¶7 Shedd argues the superior court violated his confrontation
right when it barred him from presenting evidence of the injuries the victim
inflicted on him and of the victim's potential criminal liability for those
injures. Shedd contends the evidence would have showed the victim was
biased and had a motive to lie about the incident.

¶8 The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to confront adverse witnesses. See
Pointer v. Texas, 380 U.S. 400, 403 (1965) (guarantee applies in state
proceedings). The superior court may, however, limit a defendant's right
of confrontation to evidence and testimony "which is relevant and not
unduly prejudicial." State v. Oliver, 158 Ariz. 22, 30-32 (1988); see also State
v. Riggs, 189 Ariz. 327, 331 (1997).

2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.

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¶9 On appeal, Shedd challenges three categories of evidence the
superior court precluded. He first argues the court erred by barring him
from calling an expert witness to opine that one of the initial blows he
suffered from the victim's sword nearly severed his patellar tendon, making
it all but impossible for him to continue advancing toward the victim as the
victim asserted he had done. The court, however, allowed Shedd to cross-
examine the victim with evidence that his blow to Shedd's knee severed a
tendon. The jury, thus, knew even without the expert testimony that the
victim had severely impaired Shedd's ability to walk.

¶10 Second, Shedd challenges the court's ruling precluding all but
one of the photographs he sought to offer of his injuries. On appeal, he
argues the photographs would have shown his injuries were severe,
thereby undermining the victim's testimony that his sword was not sharp.
By Shedd's own explanation, the photographs were offered solely to
impeach the victim on a collateral issue. The court did not err by excluding
them on that basis and for the additional reason that they would tend to
inflame the jury and that their minimal probative value therefore was
substantially outweighed by a danger of unfair prejudice. See State v. Hill, 174 Ariz. 313, 325 (1993) (extrinsic evidence may not be offered to impeach
witness on collateral issue); Ariz. R. Evid. 608(b) (same); Ariz. R. Evid. 403
(evidence may be excluded if its probative value is substantially
outweighed by possible prejudice).

¶11 Third, Shedd argues the court erred by precluding him from
offering evidence that the victim was subject to criminal liability for
possessing the sword (the victim was a prohibited possessor) and using the
sword against Shedd. Shedd argues such evidence would have allowed the
jury to conclude the victim was motivated to lie when he described the
incident.

¶12 The jury, however, heard the victim acknowledge during his
testimony that he committed a felony by possessing the sword. Even if, as
Shedd argues, the court erred by precluding him from cross-examining the
victim about possible criminal liability for using the sword, we will not
reverse his conviction if the error was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

¶13 When determining whether such an error is harmless, we
consider factors including

the importance of the witness' testimony in the prosecution's
case, whether the testimony was cumulative, the presence or

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absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution's case.

Id.

¶14 Here, the victim's account of the robbery was not cumulative;
to the contrary, his testimony was critical to the prosecution's case. As
noted, however, the jury heard other evidence that undercut the victim's
account of his altercation with Shedd and heard the victim acknowledge
that he committed a felony by possessing the sword. Most significantly, it
also heard overwhelming evidence of Shedd's guilt. The jury saw
photographs showing that the blow from the man at the door had bloodied
the victim's chin and heard that police found the victim's cell phone in
Shedd's jacket and the victim's stereo equipment sitting on the ground
outside his apartment. This evidence corroborates the victim's testimony
that after the other man punched him, the man and Shedd entered the
victim's apartment and took some of his possessions. That evidence, along
with the victim's testimony, formed the factual basis for Shedd's conviction
of aggravated robbery. See A.R.S. §§ 13-1902 (2019), -1903 (aggravated
robbery is the intentional use or threat of force when taking another's
property and an accomplice is present). In sum, we conclude that after a
careful review of the record, even if the court erred by precluding the
evidence Shedd sought to have admitted, "the error was harmless beyond
a reasonable doubt." Van Arsdall, 475 U.S. at 684.

CONCLUSION

¶15 For the reasons stated above, we affirm Shedd's conviction
and resulting sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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