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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID MICHAEL BUSTAMANTE, Appellant.
No. 1 CA-CR 14-0509
FILED 3-17-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-418744-001 SE
The Honorable John R. Ditsworth, Judge
The Honorable Colleen L. French, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. BUSTAMANTE
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 David Michael Bustamante (“Appellant”) appeals his
convictions and sentences for resisting arrest by passive resistance,
possession or use of dangerous drugs, and possession or use of marijuana.
He argues the trial court erred in precluding him from attempting to
impeach testifying detectives with a pending civil lawsuit in an unrelated
case. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In the afternoon of April 27, 2013, three police detectives and
a Department of Corrections investigator conducted a traffic stop of
Appellant’s moped. The investigator attempted to pat Appellant down for
weapons, but Appellant broke away and ran down an alley, with the
officers in pursuit. Appellant ignored police commands to stop, and as he
ran, he reached into his pocket and tossed a baggie containing usable
quantities of marijuana and methamphetamine into a back yard. Appellant
was eventually caught, attempted to break free, and was forcibly wrestled
to the ground, handcuffed, and arrested.2
1 We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
2 At the scene, Appellant acknowledged he “may have resisted”
arrest, but he denied possessing “any dope.” He later claimed one of the
arresting officers (Detective Ekren) had used excessive or improper force
during the incident. During the investigation of Appellant’s claim,
Appellant admitted he “threw something when the police were chasing
after him, and . . . they found what he had thrown.” At the conclusion of
the investigation, the police department’s chain of command determined
that the detective’s use of force fell within departmental policy.
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STATE v. BUSTAMANTE
Decision of the Court
¶3 The State charged Appellant by indictment with Count I,
resisting arrest, a class six felony; Count II, possession or use of dangerous
drugs, a class four felony; and Count III, possession or use of marijuana, a
class six felony. Appellant chose not to attend his trial, and at the trial’s
conclusion, the jury found him guilty as charged of Counts II and III; as to
Count I, the jury found him guilty of the lesser-included offense of resisting
arrest by passive resistance, a misdemeanor. After finding Appellant had
seven prior felony convictions, the court sentenced him to concurrent terms,
with the longest being ten years’ incarceration in the Arizona Department
of Corrections.
¶4 We have jurisdiction over Appellant’s timely appeal pursuant
to the Arizona Constitution, Article 6, Section 9, and Arizona Revised
Statutes sections 12–120.21(A)(1) (2003), 13–4031 (2010), and 13–4033(A)
(2010).
ANALYSIS
¶5 Appellant argues the trial court erred in precluding him from
impeaching the arresting detectives with a pending civil lawsuit in federal
court in a completely unrelated case. The court precluded evidence about
the pending lawsuit after determining it was “irrelevant.” We find no error.
¶6 In general, we review a trial court’s evidentiary rulings for an
abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899,
912 (2006); State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 (App. 1994).
We review de novo, however, evidentiary rulings that implicate the
Confrontation Clause. Ellison, 213 Ariz. at 129, ¶ 42, 140 P.3d at 912; State
v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App. 2003). We will
not reverse a conviction for evidentiary error unless a reasonable
probability exists that the verdict would have been different had the ruling
been otherwise. See State v. Van Adams, 194 Ariz. 408, 416, ¶ 23, 984 P.2d 16,
24 (1999); State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297 (1996).
¶7 A defendant has the right under the Confrontation Clause to
cross-examine witnesses about their bias, motive, prejudice, and issues that
directly bear on credibility. See generally Davis v. Alaska, 415 U.S. 308, 315–
18 (1974); State v. Gertz, 186 Ariz. 38, 42, 918 P.2d 1056, 1060 (App. 1995).
However, the Confrontation Clause does not prevent a trial judge from
imposing any limits on inquiry into the potential bias of a prosecution
witness; to the contrary, trial judges retain wide latitude to impose
reasonable limits on such cross-examination based on concerns about
harassment, prejudice, confusion of the issues, the witness’s safety, or
3
STATE v. BUSTAMANTE
Decision of the Court
interrogation that is repetitive or only marginally relevant. Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). To determine whether a defendant was
denied the opportunity to present evidence relevant to issues in the case or
a witness’s credibility, we review cross-examination restrictions on a case-
by-case basis. State v. Cañez, 202 Ariz. 133, 153, ¶ 62, 42 P.3d 564, 584 (2002);
see also State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997) (“A
defendant’s fundamental right to confront and cross-examine adverse
witnesses is ‘limited to the presentation of matters admissible under
ordinary evidentiary rules, including relevance.’” (quoting State v. Dickens,
187 Ariz. 1, 14, 926 P.2d 468, 481 (1996))).
¶8 After a thorough review of the record, we conclude the trial
court did not err in precluding evidence of the pending civil lawsuit against
Detectives Ekren, Ulibarri, and Dobson because the lawsuit did not bear on
the credibility of any witness and was irrelevant to the issues at trial. See
Ariz. R. Evid. 401. As the trial court recognized, the pending lawsuit was
simply an allegation against the detectives by some other person the
detectives had arrested at an earlier time. The allegation was not evidence,
and there had been no adjudication that the detectives had committed any
misconduct.
¶9 Further, the cases relied upon by Appellant, including Gertz,
are distinguishable because the pending civil lawsuit did not involve
Appellant or his arrest by the detectives.3 The lawsuit was not originated
by the detectives, was not against Appellant, and did not arise from the
same transaction that was the subject of the prosecution. See Gertz, 186 Ariz.
at 42, 918 P.2d at 1060. Instead, the lawsuit involved the detectives’ prior
arrest of another person based upon an outstanding warrant.
¶10 Appellant speculates that evidence of the pending lawsuit
could have shown the detectives had motivation to fabricate against him
because of ulterior concerns they had regarding the lawsuit; however,
Appellant’s attempted impeachment would not have demonstrated any
bias from the detectives against him, because the pending civil lawsuit had
no bearing on, or relationship to, Appellant or his arrest. See People v. Ayers,
556 N.Y.S.2d 659, 659 (N.Y. App. Div. 1990) (holding that a trial court “did
3 In Gertz, this court held that “evidence of a civil action by a
complaining witness against the defendant, arising from the same transaction that
is the subject of the prosecution, has ‘a direct bearing on the credibility of the
witness to show bias and prejudice, as well as the witness’ relationship to
the case.’” 186 Ariz. at 42, 918 P.2d at 1060 (emphasis added) (quoting State
v. Burris, 131 Ariz. 563, 567, 643 P.2d 8, 12 (App. 1982)).
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STATE v. BUSTAMANTE
Decision of the Court
not improvidently exercise its broad discretion to limit cross-examination
by precluding the defendant from questioning the detective with regard to
[a] wholly unrelated pending civil lawsuit” filed by a defense witness
because the lawsuit “would not suggest the existence of any hostile feelings
toward the defendant or provide a motive for the detective to fabricate”
about the homicide with which the defendant was charged (internal citation
omitted)). On this record, the trial court did not abuse its broad discretion
in precluding Appellant from impeaching the detectives with an irrelevant
pending civil lawsuit, previously filed against them by a different
defendant resulting from a different arrest. See Riggs, 189 Ariz. at 333, 942
P.2d at 1165.4
CONCLUSION
¶11 Appellant’s convictions and sentences are affirmed.
:ama
4 Moreover, any possible error was, on this record, harmless “because
it did not contribute to or affect the verdict.” State v. Almaguer, 232 Ariz.
190, 198, ¶ 25, 303 P.3d 84, 92 (App. 2013) (citing Gertz, 186 Ariz. at 42, 918
P.2d at 1060; Van Arsdall, 475 U.S. at 682). Appellant “was faced with
strong, if not overwhelming, evidence of guilt,” id. at ¶ 26, the other
witnesses testified “consistently about the incident,” id., and the jury had
substantial information from which to judge Detective Ekren’s credibility.
See generally Burris, 131 Ariz. at 567, 643 P.2d at 12 (finding no reversible
error in the court’s decision to preclude impeachment of a witness with a
civil lawsuit where “[t]he motive and interest of [the witness] in the
criminal prosecution [was] quite clear without the rejected testimony”).
5