State v. Stevens

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH E. STEVENS, Appellant.

No. 1 CA-CR 19-0703
FILED 11-10-2020

Appeal from the Superior Court in Yuma County
No. S1400CR201801053
The Honorable Roger A. Nelson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Joshua Tesoriero
Counsel for Appellant
 STATE v. STEVENS
Decision of the Court

MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

P O R T L E Y, Judge:

¶1 Kenneth E. Stevens appeals the superior court’s ruling
precluding the testimony of a trial witness. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On August 25, 2018, Stevens began experiencing mental
distress. His girlfriend took him to the emergency room. Hospital staff
took his vital signs, and Stevens told them that he had used
methamphetamine. He eventually began acting aggressively, yelling at
hospital staff, and throwing things. Hospital security escorted Stevens out
of the hospital and told him they had called the police.

¶3 By the time police arrived, Stevens was in the hospital parking
lot surrounded by hospital security guards. An altercation ensued between
Stevens and numerous police officers, as well as a border patrol agent who
was at the scene. During the struggle, Stevens threw punches at officers
and put one officer in a headlock. He was subdued, but two officers
sustained minor injuries. Throughout the fracas, officers described Stevens
as angry and aggressive. Officers also recalled Stevens made comments
about being on drugs and noted that he smelled of alcohol.

¶4 After his arrest, Stevens was booked into jail. He continued
exhibiting erratic behavior; he was yelling and refusing to allow officers to
remove his restraints, and, as a matter of precaution, placed on suicide
watch. Several days later, his girlfriend came to bail him out, but he refused
to leave with her. Later, Stevens was medicated, and his behavior

1The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
VI, Section 3, of the Arizona Constitution.

2
 STATE v. STEVENS
Decision of the Court

improved. He was transferred to Horizon Health and Wellness, where his
mental health was evaluated, and he was given anti-psychotic medication.
Stevens was subsequently transferred back to jail and later released on bail.

¶5 Stevens was charged with aggravated assault and resisting
arrest. During his jury trial, his defense centered on his poor mental health.
He presented testimony from his girlfriend and sister, both of whom had
observed his strange mental state and behaviors.

¶6 Stevens also wanted to call as a witness Brandi Morgan, a
Horizon Health and Wellness behavioral health nurse practitioner. She had
evaluated Stevens over the phone while he was in the Yuma County
Detention Center. He, however, had failed to serve Morgan with a
subpoena, and, at the time of trial, she was living in South Carolina. Stevens
suggested that Morgan be allowed to testify by telephone, but the State
objected. After resolving some confusion about whether Stevens properly
listed Morgan as a witness, the court determined Morgan could testify by
telephone and allowed the State to interview her before she testified.

¶7 After the phone conversation, the State again objected to
Morgan testifying telephonically. Voicing concerns about the documents
Morgan was referencing during the phone conversation, and the fact she
had only spoken to Stevens by telephone, the State did not believe Stevens
could establish the evidentiary foundation necessary to admit the medical
records from Horizon Health and Wellness. The superior court, after
considering the arguments, stated:

I’m going to preclude this witness. I think that the fact
that she is not here has created a host of issues.

Witnesses normally are not allowed to testify
telephonically in a criminal trial. I was making an exception,
but now I see that I was wrong.

This is the reason I was wrong, because not having the
witness here, not knowing exactly what they are looking at in
the exhibits that they are using to testify from, it just creates
an issue that I think the State’s got a legitimate complaint
about that, and I’m going to change my ruling and exclude
this witness.

And I don’t think you are going to be able to lay the
foundation for that exhibit absent this witness. That’s the
Court’s ruling.

3
 STATE v. STEVENS
Decision of the Court

¶8 At the conclusion of the trial, the jury found Stevens guilty on
all counts. The superior court suspended imposition of his sentence and
placed him on supervised probation. Stevens timely appealed.

DISCUSSION

¶9 We review the superior court’s decision to exclude a witness
for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 277, ¶ 10 (App.
2001). “A defendant has a Sixth Amendment right to compel witnesses to
testify whose testimony is material and favorable to the defense.” State v.
Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002); see Washington v.
Texas, 388 U.S. 14, 18 (1967). The method for compelling attendance at trial
is to serve the witness with a subpoena. A.R.S. § 13-4071(A); Ariz. R. Crim.
P. 34(a).

¶10 Stevens argues the superior court erred by prohibiting him
from calling Morgan as a witness. He, however, failed to serve Morgan
with a subpoena in order to secure her attendance at trial. Instead, and
nearly at the end of trial, he attempted to have her testify by telephone.

¶11 The superior court, in the exercise of its discretion, refused to
allow Morgan to testify telephonically. See Ariz. R. Evid. 611(a) (“The court
should exercise reasonable control over the mode and order of examining
witnesses . . . so as to . . . make those procedures effective for determining
the truth[.]”) (emphasis added). Stevens presents no authority to support
his argument that the court is required to allow a witness, who was not
subpoenaed, to testify telephonically during a criminal jury trial, and we
have found none.

¶12 We have prohibited telephonic testimony when it is offered
against a defendant as a violation of the defendant’s Sixth Amendment
rights. See State v. Moore, 203 Ariz. 515, 518, ¶ 11 (App. 2002). The Sixth
Amendment, however, does not address whether a defendant is entitled to
have a medical witness testify telephonically. Neither do the Arizona
criminal statutes nor criminal rules of procedure. Instead, we look to the
Arizona Rules of Evidence, and find that our supreme court, in
promulgating those rules, leaves the determination of the mode of
testimony to the trial judge’s sound discretion. Ariz. R. Evid. 611(a); see In
re MH2004-001987, 211 Ariz. 255, 258–59, ¶ 15 (App. 2005) (determining
Arizona Rule of Evidence 611(a) “could be construed” to allow telephonic
testimony in a civil mental health proceeding). But cf. In re Maricopa Cnty.
Juv. Action No. JV131701, 183 Ariz. 481, 482–83 (App. 1995) (prohibiting
telephonic testimony in a juvenile delinquency adjudication). Accordingly,

4
 STATE v. STEVENS
Decision of the Court

the superior court did not abuse its discretion by denying Stevens’ request
to have Morgan testify telephonically.

¶13 Stevens also contends the superior court erred because
Morgan’s testimony was relevant and because she was qualified to testify
as a lay witness or expert witness. He argues the court should have held a
hearing to determine whether Morgan was qualified to testify. We
disagree. Other than pointing out that any attempt to elicit “diminished
capacity” opinion evidence would be improper, the State did not challenge
Morgan’s ability to testify to her observations, nor did it suggest those
arguments at trial. Moreover, the court did not preclude Morgan’s
testimony based on lack of relevancy, nor did it determine she was
unqualified to provide observational testimony. Rather, the court’s ruling
was only based on the potential confusion that might arise if she was
allowed to testify by telephone.

CONCLUSION

¶14 The superior court did not abuse its discretion by precluding
Morgan from testifying telephonically, and we affirm Stevens’ convictions
and supervised probation as punishment.

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

5