Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. CR200801685 Honorable Boyd T. Johnson, Judge
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz and Alan L. Amann Attorneys for Appellee
Harriette P. Levitt Attorney for Appellant.
PHILIP G. ESPINOSA, Judge.
¶1 After a jury trial, Stephen Thomas was found guilty of resisting arrest and sentenced to 3.75 years' imprisonment. On appeal, he argues the trial court erred by admitting evidence of a subsequent arrest and giving the jury a related flight instruction, precluding certain testimony as hearsay, and refusing to give the jury a Willits instruction.For the following reasons, we affirm.
Factual Background and Procedural History
¶2 We view the facts in a light most favorable to upholding the defendant's conviction. State v. Mitchell, 204 Ariz. 216, ¶ 3, 62 P.3d 616, 617 (App. 2003). On September 7, 2008, Pinal County Sheriff's Deputy Richerson was driving in his patrol car when he noticed a small, white sports-utility vehicle (SUV) approaching him in his lane of traffic. The SUV turned into a gas station, and the deputy followed, pulling up behind it and activating his emergency lights. The deputy approached the SUV and spoke with the driver, identified as Thomas, and his girlfriend Sherry S. The deputy took Thomas's driver's license and discovered an outstanding warrant for him.
¶3Another deputy, Lopez, arrived, and both he and Richerson approached Thomas and told him he was being arrested on the warrant. Thomas got out of the car and said the warrant was "no good, " the deputies were not going to handcuff him, and he was not going to jail. Richerson reached out to take hold of Thomas's arm, but he pulled away and backed up between the SUV and the open driver's door, balled his fists, and took a defensive fighting stance, again insisting he was not going to jail.
¶4Richerson drew his Taser, and both deputies repeatedly commanded Thomas to turn around and put his hands behind his back, but Thomas did not comply. Richerson then activated the weapon and struck Thomas with a five-second Taser cycle. Thomas fell to the ground, yelled that he would "kick their fing asses, " and attempted to get up. He continued to ignore the deputies' commands to stay down and put his hands behind his back, and Richerson commenced another five-second Taser cycle. Because Lopez still was unable to handcuff Thomas after the second cycle, Richerson applied a third cycle that continued until Lopez could control one of Thomas's arms. Lopez was then able to handcuff Thomas.
¶5 After taking Thomas into custody, the deputies learned that the outstanding warrant was non-extraditable and consequently, they had initially lacked the authority to arrest him. Thomas was nevertheless charged with resisting arrest, and he subsequently pleaded guilty to the charge in 2009. He failed to appear for sentencing, however, and a bench warrant was issued for his arrest.
¶6 In September 2011, nearly three years after Thomas's original arrest, Cochise County Sheriffs Deputy McMahan stopped him near Huachuca City after observing that the pickup truck he was driving had a cracked windshield. When McMahan asked for his license, Thomas stated he did not have it with him and said his name was "David Lacy Thomas." McMahan noticed a company identification card hanging from the rearview mirror that bore the name "Clark Thomas" and a picture of Thomas. The deputy ran a check on both names. When he returned to the truck, he saw that the identification card had been removed. McMahan asked Thomas what had happened to the card, and Thomas, after first denying its existence, admitted he had misrepresented his identity because there was a warrant for his arrest and he produced his driver license. Thomas was cooperative and did not resist when McMahan placed him under arrest.
¶7 At a subsequent hearing on the Pinal County charges, Thomas initially requested that the trial court accept his 2009 plea agreement and place him on unsupervised probation. After the court explained it could disregard the stipulated sentence and instead impose any lawful sentence because Thomas had failed to appear for sentencing, it granted Thomas's request to reject the agreement and allow the matter to proceed to trial.
¶8 At trial, the court precluded as hearsay Sherry's testimony that Richerson had told another deputy, shortly after arresting Thomas in 2008, that the arrest was not "righteous." The court admitted evidence of Thomas's 2011 attempt to conceal his identity and instructed the jury on the limited use of such evidence. The court also declined to give the jury a Willits instruction based on the deputies' failure to obtain video surveillance recordings of the incident that were alleged to have been made at the gas station. The jury found Thomas guilty of resisting arrest, and the court ...