State v. Wonderlin

THE STATE OF ARIZONA, Appellee, v. TONY CHARLES WONDERLIN, Appellant.

No. 2 CA-CR 2012-0422

ARIZONA COURT OF APPEALS DIVISION TWO

Filed: January 30, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Cochise County

No. CR201100398

The Honorable James L. Conlogue, Judge

AFFIRMED IN PART;

REVERSED AND REMANDED IN PART

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Jonathan Bass, Assistant Attorney General, Tucson

Counsel for Appellee

Law Office of John R. Gustafson, Tempe

By John R. Gustafson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

HOWARD, Chief Judge:

¶1 After a jury trial, appellant Tony Wonderlin was convicted of one count of continuous sexual abuse of a child and sixteen counts of sexual exploitation of a minor. On appeal, he argues he was denied a fair trial because the prosecutor interviewed a witness alone and failed to disclose exculpatory evidence. He further argues that the statutes under which he was convicted are unconstitutionally vague and overbroad, that the jury received erroneous instructions, that insufficient evidence supported his convictions, and that the prosecutor committed misconduct in his rebuttal closing argument. For the following reasons, we vacate the trial court's rulings on the undisclosed victim statements and remand for a limited hearing to determine if the statements were material, and if so, if their nondisclosure was harmless beyond a reasonable doubt.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). Beginning in January 2011, B., at the time ten years old, began visiting Wonderlin and his girlfriend at their home, and sometimes spent the night with them. Over the course of several months, Wonderlin engaged in either oral sex or vaginal sexual intercourse with B. at least twenty-four times. Wonderlin and his girlfriend also took numerous pictures of B. naked in various positions.

¶3 In April 2011, B. and her mother reported the abuse to the police. The police obtained a search warrant for Wonderlin's residence and found sex toys, one of which appeared in the pictures, and six cellular telephones. Forensic analysis revealed that the storage card in Wonderlin's telephone contained at least seventeen images of B., although the pictures had been deleted.

¶4 Wonderlin was charged with and convicted of one count of continuous sexual abuse of a child and sixteen counts of sexual exploitation of a minor. He was sentenced to consecutive, presumptive sentences on all counts, totaling 292 years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

Victim Interview

¶5 Wonderlin first argues the prosecutor made himself a witness in the case by interviewing B. alone and the trial court therefore erred in denying his motions for disclosure of the victim's statements and to depose the prosecutor. He argues B.'s statements during the interview may have been exculpatory and also could have been used to impeach B.'s credibility. We review a court's rulings on discovery issues for an abuse of discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6, 161 P.3d 596, 600 (App. 2007). If the court committed any error, we determine whether the error was harmless beyond a reasonable doubt. State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009).

¶6 Pursuant to Brady v. Maryland, prosecutors have a duty to disclose any exculpatory information that is "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). Because impeachment evidence, if available and used effectively, "may make the difference between conviction and acquittal," it too falls within the Brady requirement. United States v. Bagley, 473 U.S. 667, 676 (1985). The disclosure obligation persists even though "[t]here is no general federal constitutional right to discovery in a criminal case," State v. Tucker, 157 Ariz. 433, 438, 759 P.2d 579, 584 (1988), and even when Arizona statutory and constitutional protections might otherwiseprohibit disclosure, State v. O'Neil, 172 Ariz. 180, 182, 836 P.2d 393, 395 (App. 1991).

¶7 "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. Likewise, impeachment evidence is material and must be disclosed if "the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995). Despite the erroneous nondisclosure of evidence, however, constitutional error occurs "only if there is a reasonable probability that, had the [impeachment] evidence been disclosed, the result of the proceeding would have been different." Tucker, 157 Ariz. at 438, 759 P.2d at 584. Additionally, the nondisclosure of impeachment evidence does not require a new trial if the evidence "merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." Payne, 63 F.3d at 1210. If, however, a trial court fails to review the requested information pursuant to timely request by the defense, the case must be remanded to the trial court with instructions to review the evidence. Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987); United States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004).

¶8 Here, the prosecutor interviewed the victim the day before trial began. As a result of that interview, the prosecutor moved to dismiss three counts against Wonderlin on the first day of trial. But he did not reveal specifically what statements B. had made that caused him to move for dismissal of the counts. The prosecutor described the interview as lasting at most fifteen minutes and consisting of simply discussing "the Indictment, count by count" with B., after which he concluded "three counts should be dismissed." The prosecutor also stated he had not recorded the interview or taken any notes. The trial court granted the prosecutor's motion to dismiss the three counts and denied Wonderlin's request for disclosure of the victim's statements.

¶9 Because the prosecutor failed to state with greater specificity what B. said, we are unable to determine whether the statements were exculpatory as to the remaining counts, or whetherthey may have offered critical impeachment evidence. Based on the prosecutor's dismissal of three charges after his interview with B., it is possible that the prosecutor's testimony about what B. said during their isolated interview "might result in exonerating the defendant." See State v. Jessen, 134 Ariz. 458, 462, 657 P.2d 871, 875 (1982); see also Bagley, 473 U.S. at 676. The court thus abused its discretion in denying Wonderlin's motions to disclose B.'s statements and to depose the prosecutor. See Jessen, 134 Ariz. at 462, 657 P.2d at 875.

¶10 We therefore remand the case to the trial court to conduct a hearing to review the prosecutor's conversation with B. See Ritchie, 480 U.S. at 58; Alvarez, 358 F.3d at 1209; cf. State v. Peterson, 228 Ariz. 405, ¶ 19, 267 P.3d 1197, 1203 (App. 2011). If the court determines B. made material statements that could have affected the outcome of the trial, it must order a new trial. See Ritchie, 480 U.S. at 58; Alvarez, 358 F.3d at 1209. If, on the other hand, the court determines that B.'s statements were not material to the remaining counts against Wonderlin, or if the nondisclosure was harmless beyond a reasonable doubt, Wonderlin's convictions will stand, and he may again seek appellate relief based on that denial. See Ritchie, 480 U.S. at 58; Peterson, 228 Ariz. 405, ¶ 19, 267 P.3d at 1203 (remand for limited proceedings, rather than vacating sentence, appropriate where limited hearing "most efficiently resolves the issues at hand and preserves [defendant's] right to seek relief from the court's ruling on remand").

¶11 We note that the errors we find here are an unnecessary by product of the prosecutor's decision to interview the victim alone. As the American Bar Association (ABA) and courts around the country have long observed, "a prosecutor is in a difficult situation if he must seek leave to withdraw and substitute other counsel so that he might take the stand to relate what . . . [a] witness . . . said to him." American Bar Association, Criminal Justice Prosecution Function and Defense Function Standards § 3-3.1(g) & cmt. (3d ed. 1993) (hereinafter "ABA Standards"); see also ER 3.7, Ariz. R. Prof'l Conduct, Ariz. R. Sup. Ct. 42. Although few cases deal with the situation in which a victim has offered exculpatory evidence during a private interview, the same complications may arise aswhen the prosecutor wishes to offer testimony to impeach the defendant.

¶12 The better practice is to conduct victim interviews in the presence of a third party to avoid the foreseeable complications that arose here. As the ABA explained,

[a]fter written statements are secured by investigators, it is proper under our system, and indeed wise, for the prosecutor to interview such witnesses personally, not only to verify the investigator's report but to become familiar with the personality of the witness in order to anticipate how the witness will react on the stand. Here again, the prosecutor should take the precaution of having an investigator or other third person present.

ABA Standards, supra, § 3-3.1 cmt.; see also State v. Williams, 136 Ariz. 52, 57, 664 P.2d 202, 207 (1983); State v. Alfano, 701 A.2d 1296, 1300-01 (N.J. Super. Ct. App. Div. 19...