State v. Meriwether

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH A. MERIWETHER, Appellant.

No. 1 CA-CR 22-0168
FILED 2-14-2023

Appeal from the Superior Court in Yuma County
No. S1400CR202100467
The Honorable Brandon S. Kinsey, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
 STATE v. MERIWETHER
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Joseph A. Meriwether appeals his conviction and sentence for
promoting prison contraband. For the following reasons, we affirm.

BACKGROUND

¶2 Meriwether, an inmate in the Arizona Department of
Corrections (“DOC”), received a prison-authorized knee brace. Over three
months later, a corrections officer saw Meriwether tapping on his cell
window with two sharpened metal objects. Meriwether appeared agitated
and told the officer, “If you don’t get me a supervisor, then you or
somebody is going to get this.”

¶3 The officer called for assistance, and backup officers initiated
a strip search of Meriwether. During that search, Meriwether refused to
remove his knee brace. He eventually agreed, but instead of removing the
entire knee brace, he detached two metal components or “stays” from the
brace and placed them on the floor. The “stays” had been sharpened to
points and matched the description of the objects Meriwether used to tap
on his cell window. Multiple officers identified the objects as “shanks” or
makeshift weapons, which constitute prison contraband.

¶4 Meriwether denied possessing any weapons, claiming he
tapped on his cell window with “a black piece of paper or magazine.”
Officers searched his cell, but did not locate either a black piece of paper or
a magazine.

¶5 Meriwether had the knee brace for several months before the
incident, and an investigator later confirmed that prison policy prohibited
inmates from receiving used medical equipment. As observed by officers
and depicted in photographs of the knee brace, the sharpened portion of
the “stays” protruded from its neoprene sleeve and would have been
apparent to anyone wearing the brace.

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¶6 The State charged Meriwether with one count of promoting
prison contraband, a class two felony, and two counts of aggravated
assault, class three and five felonies. During a three-day jury trial, the
superior court denied Meriwether’s motion for judgment of acquittal under
Arizona Rule of Criminal Procedure (“Rule”) 20 on the promoting prison
contraband offense but granted the motion on the remaining offenses. The
jury returned a guilty verdict on the promoting prison contraband offense.
Meriwether admitted to two aggravating factors, and the court sentenced
him to the presumptive term of five years’ imprisonment. Meriwether
timely appealed.

DISCUSSION

I. Juror Rehabilitation

¶7 On appeal, Meriwether argues the superior court improperly
rehabilitated a prospective juror. Specifically, he claims recent amendments
to Rules 18.4 and 18.5 eliminating peremptory challenges prevented him
from curing the court’s alleged overreach, and the comment to the amended
Rule 18.5 cautions courts from using leading questions during voir dire. We
will not disturb the court’s ruling on the scope of voir dire absent an abuse
of discretion. State v. Melendez, 121 Ariz. 1, 3 (1978). We review
interpretations of court rules de novo. State v. Fitzgerald, 232 Ariz. 208, 210,
¶ 10 (2013).

¶8 Under Rule 18.5(f), the superior court “must conduct a
thorough oral examination of the prospective jurors and control the voir
dire examination.” Ariz. R. Crim. P. 18.5(f). And, as required by Rule
18.4(b), the court must excuse a juror for cause “if there is a reasonable
ground to believe that the juror . . . cannot render a fair and impartial
verdict.” Ariz. R. Crim. P. 18.4(b); see also Ariz. Const. art. II, § 24
(establishing a criminal defendant’s right to an impartial jury). The court
must elicit information from prospective jurors to determine whether there
are grounds to challenge the juror for cause. See State v. Rose, 121 Ariz. 131,
139–40 (1978). In doing so, the court may “rehabilitate a challenged juror
through follow-up questions to assure the court that [s]he can sit as a fair
and impartial juror.” State v. Martinez, 196 Ariz. 451, 459, ¶ 28 (2000). The
court’s questions may target whether the juror can set aside personal beliefs
and weigh the evidence as instructed by the court and required by law. See
id.

¶9 As of January 1, 2022, the Arizona Supreme Court amended
Rules 18.4 and 18.5 to eliminate the use of peremptory challenges by the

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parties during voir dire. Ariz. S. Ct. Order No. R-21-0020 (Aug. 30, 2021).
The comment to amended Rule 18.5(f) advises the superior court to “use
open-ended questions that elicit prospective jurors’ views narratively,”
adding that the court “should refrain from attempting to rehabilitate
prospective jurors by asking leading, conclusory questions that encourage
prospective jurors to affirm that they can set aside their opinions and
neutrally apply the law.” Ariz. R. Crim. P. 18.5(f), cmt. to 2022 amendment.
The recent amendments and comment in no way prohibit courts from
rehabilitating jurors by explaining the law and asking open-ended
questions regarding their ability to remain fair and impartial.

¶10 Here, prospective jurors completed written questionnaires
before the trial began. In response to that questionnaire, Juror 67 stated that
evidence related to the reason for Meriwether’s imprisonment could help
explain why he committed the offenses. During individual voir dire, Juror
67 avowed that she would not speculate about why Meriwether was
imprisoned, she understood the State’s burden of proof, and she could base
her decision solely on the evidence. She noted, however, that the
information might help understand Meriwether’s character and assist her
in determining guilt. Juror 67 added that Meriwether’s failure to present
any evidence might “affect [her] a little bit.” When Juror 67 expressed these
concerns, the superior court briefly explained the State’s burden of proof,
the presumption of innocence, and a defendant’s right not to present
evidence. Following this explanation of the law, Juror 67 confirmed that she
understood these principles and could follow the law.

¶11 Meriwether moved to strike Juror 67 for cause, arguing her
responses suggested that she could not hold the State to its burden. He also
argued that the superior court’s rehabilitation of Juror 67 ran afoul of Rule
18.5(f), claiming the juror may have felt pressured by the court’s leading
questions. The State argued the court explained the law, and the juror
demonstrated that she could follow that law. The court denied
Meriwether’s motion but allowed the parties to conduct additional
questioning. In both individual and group voir dire, Juror 67 avowed that
she would not “prejudge” Meriwether and would instead apply the law as
instructed. The court passed the jury panel for cause, including Juror 67.

¶12 On this record, we find no abuse of discretion. The superior
court’s rehabilitation of Juror 67 comported with the text of amended Rules
18.4 and 18.5, as well as the guidance provided in the comment to Rule
18.4(f). The court had the duty to determine whether Juror 67 could be fair
and impartial. In doing so, the court provided an explanation of the law and
confirmed that the juror could follow the law as instructed. The court’s

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questions did not, as Meriwether contends, pressure the juror into feigning
impartiality. Without encouraging Juror 67 to affirm her ability to remain
impartial, the court clarified the law and asked open-ended questions to
determine whether she understood those legal principles and whether she
could apply those principles when deciding this case. The court’s follow-
up questions in voir dire in no way constituted overreach. See Martinez, 196
Ariz. at 459, ¶ 28.

¶13 Although the superior court heeded the cautionary language
in the comment to Rule 18.4(f), we note that the comment does not create a
mandate, and nothing in the rule itself restricts the court from asking
follow-up questions during voir dire. See Ariz. R. Crim. P. 18.4(f); see also
State v. Aguilar, 209 Ariz. 40, 48, ¶ 26 (2004) (“Although a comment may
clarify a rule’s ambiguous language, a comment cannot otherwise alter the
clear text of a rule.”). In addition, Meriwether’s assertion that the recent
amendments to Rules 18.4 and 18.5 require us to rewrite decades of legal
precedent also fails. The elimination of peremptory challenges did not
impact the substantive nature of the court’s role during voir dire. See Ariz.
R. Crim. P. 18.4(b), 18.5(f). Even so, such a question would not be for this
court to decide. See State v. Eichorn, 143 Ariz. 609, 613 (App. 1984) (“Whether
prior decisions of the Arizona Supreme Court are to be disaffirmed is a
question for that court.”); Kilberg v. State, 14 Ariz. App. 421, 422 (1971) (“It
is for the Supreme Court of this State to change the rule if change there
should be.”).

II. Prison Database Records

¶14 Meriwether next argues the superior court abused its
discretion by admitting prison database records under the business records
exception to the rule against hearsay. Whether business records are
sufficiently reliable to satisfy the hearsay exception is left to the court’s
sound discretion. Larsen v. Decker, 196 Ariz. 239, 243, ¶ 19 (App. 2000).

¶15 An out-of-court statement offered for its truth is subject to the
rule against hearsay. Ariz. R. Evid. 801(c), 802. However, under the business
records exception, “records of a regularly conducted activity” are excepted
from the rule against hearsay and admissible at trial if they are (1) made at
or near the time by someone with knowledge; (2) kept in the course of a
regularly conducted activity; (3) made as a regular practice; (4) a qualified
witness testifies to these criteria; and (5) the opponent does not show the
records lack indicia of trustworthiness. Ariz. R. Evid. 803(6). To lay
sufficient foundation under this exception, the testifying witness need not
have personal knowledge of the creation of the records. State v. Parker, 231

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Ariz. 391, 401–02, ¶ 33 (2013). Evidence may be admitted under the business
records exception if the witness is subjected to meaningful
cross-examination “concerning the methods of preparation, the
qualifications of the preparer, and other relevant matters.” Transamerica Ins.
Co. v. Trout, 145 Ariz. 355, 360–61 (App. 1985).

¶16 During trial, the State informed the superior court of its intent
to elicit testimony from the investigator regarding the date Meriwether
received his knee brace. Meriwether objected, arguing the evidence
constituted irrelevant hearsay and would draw the jury’s attention to the
length of his term of imprisonment. The court disagreed, noting the
evidence would be relevant to demonstrate knowledge. The court,
however, stated that it would determine whether the evidence constituted
hearsay as testimony unfolded. The investigator testified that he reviewed
prison database records to confirm that Meriwether received an authorized
knee brace. He testified that the DOC maintains the prison database, which
contains information about all inmates and tracks when an inmate has been
approved for the use of any medical equipment.

¶17 At a bench conference, Meriwether maintained his objection,
arguing the State had not shown that information from the prison database
fell within the business records exception. Agreeing with Meriwether, the
superior court allowed the State to lay additional foundation outside the
jury’s presence. The investigator confirmed that (1) he had access to prison
database records and printed out information from that database “all the
time”; (2) he printed out information about Meriwether’s knee brace as part
of his standard investigation process; (3) prison database records are made
and kept as a regular practice for the DOC; (4) only authorized personnel,
including medical and legal personnel, can update or edit prison database
records; (5) the prison database follows a security protocol and requires
special authorization; and (6) that, although he did not have personal
knowledge, he believed the records were updated as soon as a relevant
“event” occurred.

¶18 Based on this testimony, the superior court found that
information from the prison database fell within the business records
exception. The court admitted the evidence only to allow the investigator
to establish the length of time Meriwether possessed the knee brace. The
court did not allow the printout to be admitted into evidence as an exhibit
for the jury’s use during deliberations. The investigator then testified that
Meriwether received the knee brace in December 2019. He used a printout
of the prison database records to refresh his recollection of the date during
his testimony. In cross-examination and closing remarks, Meriwether

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criticized the investigator’s lack of personal knowledge regarding the
prison database records, his failure to conduct any follow-up with medical
personnel to confirm the date the brace was issued, and the general
“careless laissez-faire” nature of the investigation.

¶19 The investigator’s testimony as outlined above satisfied the
foundation requirements of the business records exception. See Ariz. R.
Evid. 803(6). On this record, the superior court had a reasonable basis for
admitting the evidence under the hearsay exception. At its core, the
business records exception is based on the belief that “businesses normally
require authentic, truthful statements to function.” State v. Griffith, 247 Ariz.
361, 364, ¶ 10 (App. 2019). Here, the prison relies on the accuracy of prison
database records to keep track of inmates, monitor the use of medical
equipment, and provide reliable data for investigators. The records were
sufficiently reliable, and the court acted within its discretion in allowing
limited use of the evidence at trial.

¶20 Even if the evidence was improperly admitted under the
business exception to the hearsay rules, the error would be harmless. State
v. Hoskins, 199 Ariz. 127, 142–43 (2000) (“We will not reverse a conviction
based on the erroneous admission of evidence without a ‘reasonable
probability’ that the verdict would have been different had the evidence not
been admitted.” (citation omitted)). Here, the limited evidence admitted
through this record simply established when Meriwether was issued his
knee brace. Neither the printout of the database information, nor any
additional information contained therein, was offered or entered into
evidence for the jury’s use in deliberations. The date Meriwether received a
knee brace had little bearing on the issues before the jury as it was
undisputed that he was in fact issued the brace some time prior to the
incident. The overwhelming evidence supports the jury’s verdict and any
error in the admission of testimony regarding the date the knee brace was
issued is harmless.

III. Jury Instruction on the Exception Clause

¶21 Meriwether contends that the superior court erred by failing
to sua sponte instruct the jury on the exception clause contained in the
promoting prison contraband statute, A.R.S. § 13-2505. He claims the
exception clause constitutes an element of a promoting prison contraband
offense and must be proven to the jury. Under A.R.S. § 13-2505(A)(3), a
person commits promoting prison contraband by “knowingly making,
obtaining or possessing contraband while being confined in a correctional
facility.” As an exception to this provision, the statute provides that A.R.S.

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§ 13-2505 “does not apply to . . . [a] prisoner who possesses or carries any
tool, instrument or implement used by him at the direction or with the
permission of prison officials.” A.R.S. § 13-2505(D)(1). Because Meriwether
neither requested nor objected to the omission of the instruction at trial, we
review only for fundamental, prejudicial error. See State v. Escalante, 245
Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).

¶22 An exception to a criminal statute is not an element of the
offense that the State must prove. State v. Kelly, 210 Ariz. 460, 463, ¶ 11 (App.
2005). Because the State is not required to negate a statutory exception, the
superior court did not err in failing to instruct the jury on the exception
clause listed in A.R.S. § 13-2505(D)(1). See State v. Jung, 19 Ariz. App. 257,
262 (1973). Moreover, Meriwether did not notice the exception clause as a
defense, did not request an exception clause instruction, and objected to
prison database records confirming his authorized use of a knee brace. His
defense focused heavily on the alleged “carelessness” of the investigation
and the credibility of the State’s witnesses. To the extent the exception
clause can be asserted as a defense, Meriwether did not raise the defense at
trial, and the court was not obligated to give the jury instruction sua sponte.
See State v. Simpson, 217 Ariz. 326, 330, ¶ 23 (App. 2007).

¶23 Finally, in the alternative, Meriwether argues that the
superior court should have granted his Rule 20 motion based on the
exception clause. See Ariz. R. Crim. P. 20(a)(1). In evaluating the court’s
denial of a Rule 20 motion, we test the evidence “against the statutorily
required elements of the offense.” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App.
2005). The exception clause does not constitute an element of an offense
under A.R.S. § 13-2505(A)(3), and the court was not required to consider the
clause in making its Rule 20 determination.

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CONCLUSION

¶24 For the foregoing reasons, we affirm Meriwether’s conviction
and resulting sentence.

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

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