State v. Elia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DWIGHT WILLIAM ELIA, Appellant.

No. 1 CA-CR 21-0249
FILED 5-17-2022

Appeal from the Superior Court in Yavapai County
No. P1300CR202000541
The Honorable John David Napper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Celeste Kinney
Counsel for Appellee

Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant

STATE v. ELIA
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.

W I L L I A M S, Judge:

¶1 Dwight William Elia appeals his convictions and sentences for
attempted first degree murder, aggravated assault, disorderly conduct, and
misdemeanor criminal damage. Elia contends the trial court should have
severed his trial from that of a codefendant. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State jointly tried Elia and codefendant Bruce Moore, as
principals and accomplices, on charges of attempted first degree murder,
three counts of aggravated assault, two counts of disorderly conduct, and one
count each of discharging a firearm at a structure and criminal damage. The
State presented evidence that Elia and Moore went to D.S. and W.S.’s home
to find T.U. after having adverse encounters with T.U. earlier that day.
Witnesses testified that Elia pointed a gun at D.S., Moore pointed a gun at
W.S., and both Elia and Moore fired shots at T.U. while D.S. and W.S.’s two
children stood nearby. Elia and Moore were caught a few days later, after
separately going into hiding. Moore admitted to law enforcement he “lost
control” and fired his weapon at T.U. Moore also told police he did not want
Elia to approach T.U. with him, and he said nothing to suggest that Elia was
carrying or fired a weapon during the incident. Moore did not testify at trial.
Elia testified in his defense that he was present with Moore but did not carry,
point, or shoot a gun at anyone and did not realize Moore had a gun until
after shots were fired.

¶3 The trial court directed a verdict for both defendants on the
count of discharging a firearm at a structure, and it removed the criminal
damage count from the jury’s consideration after determining the evidence
was insufficient to establish a felony classification. The jury found both
defendants guilty of the remaining charges, and the trial court subsequently
found the defendants guilty of misdemeanor criminal damage. The court
sentenced Elia to concurrent and consecutive prison terms totaling 49 years
in the aggregate.

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STATE v. ELIA
Decision of the Court

¶4 Elia appealed. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

DISCUSSION

¶5 Elia argues the trial court erred by not severing his trial from
Moore’s. To preserve an appellate claim for severance, a defendant must
“timely file and renew a proper motion for severance.” Ariz. R. Crim. P.
13.4(c). If a ground for severance is known before trial, the defendant must
file a pretrial motion to sever and renew a denied motion during trial. Id.
“If a ground for severance previously unknown to a defendant arises during
trial, the defendant must move for severance before or after the close of
evidence.” Id. Although there was some discussion of severance during the
trial in this case, Elia appears to concede he did not adequately preserve a
claim—which means he must establish that the trial court’s failure to order
severance was an error both fundamental and prejudicial.1 See State v. Crain, 250 Ariz. 387, 393, ¶ 16 (App. 2021). He does not meet that burden.

¶6 Two or more defendants may be jointly tried “if each defendant
is charged with each alleged offense, or if the alleged offenses are part of an
alleged common conspiracy, scheme, or plan, or are otherwise so closely
connected that it would be difficult to separate proof of one from proof of the
others.” Ariz. R. Crim. P. 13.3(b). The trials of Elia and Moore were
permissibly joined in the first instance because both defendants were charged
with the same crimes. Although “joint trials are the rule rather than the
exception,” State v. Murray, 184 Ariz. 9, 25 (1995), a court must order a

1 Before trial, Moore moved to preclude the admission of Elia’s
statements under Bruton v. United States, 391 U.S. 123 (1968), which held that
admitting a statement of a nontestifying codefendant that inculpates the
defendant in a joint trial violates the defendant’s rights under the
Confrontation Clause. Elia supported the motion but offered no separate
argument. The trial court denied the motion. Although an incriminating
statement under Bruton may provide grounds for severed trials, see id. at
131-32, neither Moore nor Elia moved for severance based on Bruton or
otherwise before trial. Moore renewed his Bruton motion and requested
severed trials after the parties previewed their theories of the case in opening
statements. The trial court denied Moore’s requests, and Elia turned down
the court’s offer to make a record. Moore again asked for severance, with Elia
joining the request, after the court ruled it would permit evidence on whether
T.U. identified Moore or Elia as a shooter to police. The court declined to
order severance, and neither defendant raised the issue again.

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STATE v. ELIA
Decision of the Court

severance “if necessary to promote a fair determination of any defendant’s
guilt or innocence of any offense,” Arizona Rule of Criminal Procedure
13.4(a), including where “the court detects the presence or absence of unusual
features of the crime or case that might prejudice the defendant,” State v.
Cruz, 137 Ariz. 541, 543 (1983).

¶7 Codefendants may have a right to separate trials if “evidence
admitted against one defendant is facially incriminating to the other
defendant”; “evidence admitted against one defendant has a harmful
‘rub-off effect’ on the other defendant”; “there is a significant disparity in the
amount of evidence introduced against each of the two defendants”;
“co-defendants present defenses that are so antagonistic that they are
mutually exclusive”; or “the conduct of one defendant’s defense harms the
other defendant.” State v. Grannis, 183 Ariz. 52, 58 (1995) (citations omitted),
disapproved of on other grounds by State v. King, 225 Ariz. 87, 90, ¶ 12 (2010). Elia
contends his trial should have been severed because he and Moore presented
antagonistic defenses.2 He also asserts that evidence offered against Moore
was facially incriminating to him, had a harmful rub-off effect on him, and
was significantly greater in amount than the evidence against him.

¶8 None of Elia’s arguments withstand scrutiny. Antagonistic
defenses only warrant severance “if the jury, in order to believe the core of
the evidence offered on behalf of one defendant, must disbelieve the core of
the evidence offered on behalf of the co-defendant.” Cruz, 137 Ariz. at 545.
Here, the core of Moore’s defense was that he was guilty of disorderly
conduct but lacked the criminal intent required to establish the other charges.
The core of Elia’s defense was that he was an innocent bystander who did not
know Moore had a gun until after the fact and who did not, himself, brandish
or use a weapon. Moore and Elia’s defenses were consistent, not mutually
exclusive. Because the jury could have believed both, the defenses were not
antagonistic enough to warrant severance. Cf. State v. Kinkade, 140 Ariz. 91,
94 (1984) (requiring separate trials where both defendants admitted to being
present at the crime, but each accused the other of committing it).

¶9 Elia’s other asserted bases for severance are unsupported by the
record. A codefendant’s statement is “facially incriminating” so as to warrant
severance only if it “expressly” implicates the defendant. See Richardson
v. Marsh, 481 U.S. 200, 208 (1987) (quoting Bruton, 391 U.S. at 124 n.1).

2 Elia also suggests his trial counsel provided ineffective assistance by
failing to move for severance based on antagonistic defenses. Such a claim
may only be raised in a proceeding for post-conviction relief, and we
therefore do not address it. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).

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STATE v. ELIA
Decision of the Court

A statement that is “not incriminating on its face” but only becomes so “when
linked with evidence introduced later at trial” is not “facially incriminating”
for severance purposes. See id. Here, none of Moore’s admitted statements
expressly incriminated Elia. Indeed, Elia wanted Moore’s statements to law
enforcement to be admitted, and Elia relied on those statements to bolster his
defense. Moore’s admission to carrying and firing a weapon was not
expressly inculpatory of Elia but only became so when linked to other
evidence showing Elia’s conduct as an accomplice.

¶10 Nor has Elia established that the amount or type of evidence
offered against Moore unfairly influenced the jury’s consideration of his own
guilt. Even if Moore’s confession made for a stronger case against him than
against Elia, “there was also substantial evidence of [Elia’s] guilt.” See State v.
Runningeagle, 176 Ariz. 59, 68 (1993). Multiple witnesses described seeing Elia
pointing and shooting a gun, and Elia’s conduct after the incident—hiding
from police and asking others to help him flee the state—showed
consciousness of guilt. Furthermore, because the State alleged accomplice
liability, much of the evidence against Moore would have been admissible in
a separate trial against Elia. See id.; State v. Via, 146 Ariz. 108, 115 (1985)
(finding no prejudice from court’s refusal to sever charges where evidence as
to one set of charges would have been admissible at separate trial on other
charges).

¶11 Elia also fails to show that evidence offered against Moore
risked making an “unfavorable impression” that might “spill-over” or
“rub-off” onto the jury’s view of Elia. See State v. Lawson, 144 Ariz. 547, 555
(1985). Elia points to no specific inflammatory or otherwise unflattering
evidence offered against Moore that might have tainted jurors’ view of Elia
by association. Cf. State v. Van Winkle, 186 Ariz. 336, 340 (1996) (severance
warranted where prosecutor invited jurors to hold defendant responsible for
“reprehensible actions of [codefendant], coupled with highly charged
testimony about [codefendant’s] actions from [a victim],” that were irrelevant
to the charges against defendant). “[T]he mere introduction of evidence
concerning one defendant’s conduct that does not involve the other
defendant generally does not constitute sufficient grounds for severance.” Id.
at 339. And in fact, some of the evidence admitted against Moore cast him in
a sympathetic light—showing him to be an elderly man with health problems
who spoke well of the victims, regretted his conduct, and had hoped police
would kill him when they found him.

¶12 Even assuming the existence of significant disparate or rub-off
evidence, severance is only warranted on those grounds if the jury is unable
to “compartmentalize” and separately apply “the evidence that is relevant to

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STATE v. ELIA
Decision of the Court

each defendant.” Grannis, 183 Ariz. at 59 (internal quotation marks and
citations omitted). “Because a severance in the middle of a trial is a severe
remedy, it should be resorted to only if prejudice flowing from a joint trial is
beyond the curative powers of a cautionary instruction.” Lawson, 144 Ariz. at
555. Here, jurors were instructed to consider the charges and evidence against
each defendant separately, and the record discloses no reason to doubt jurors’
compliance with those instructions. See Murray, 184 Ariz. at 25 (“With such
an instruction, the jury is presumed to have considered the evidence against
each defendant separately in finding both guilty.”). “The issues confronting
the jury were relatively simple, and the disparity in the weight of evidence
against the defendants was not great enough to deny [Elia] a fair trial.” See
Runningeagle, 176 Ariz. at 68.

CONCLUSION

¶13 We affirm Elia’s convictions and resulting sentences.

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