A veteran of the U.S. Army sentenced to nearly 16 years in prison for receiving about $7,000 in fraudulent travel reimbursements to the Veterans Affairs Medical Center in Phoenix has lost his appeal, but the decision by the Arizona Court of Appeals sparked a rare dissent among the judges, which issued 65 unanimous rulings from Oct. 1 through Oct. 23.
Lemuel Harold Palmer was found guilty by a jury in July 2018 of theft and fraudulent schemes for claiming $6,829 in trip mileage payments for medical appointments at the VA Medical Center between January 2013 through September 2014. He was sentenced to state prison terms of 15.75 years and 11.25 years, to be served at the same time.
Palmer, 35, insisted on representing himself at trial even though he faced a significant prison term if convicted. The trial judge had ruled jurors were not to be told about Palmer’s prior arrests and convictions except to impeach Palmer if he testified, which he did not.
However, the jury still heard about Palmer’s criminal history as the result of a VA criminal investigator’s testimony.
The testimony came after Palmer asked the investigator what an FBI record is. The witness answered that “the FBI maintains all information, called NCIC, National Criminal Information Center…Anyone’s criminal information is stored there.”
But rather than stopping there, the investigator began to recite highlights Palmer’s criminal history, including offenses as a juvenile and from his time in the Army. The investigator also mentioned Palmer had committed crimes in Arizona and was on probation (for a 2014 aggravated assault conviction) when his mileage reimbursement requests came under suspicion.
Palmer’s objection was denied by the judge, who allowed the testimony to stand as a “direct response” to the question. He also objected to the investigator answering a juror question by testifying that “Palmer was a fugitive, no longer reporting to probation, and a warrant was issued for his arrest.”
At the time, Palmer did not request a mistrial nor ask the trial judge to provide a jury instruction about the subject. The judge, however, instructed the prosecutor to not make further reference to Palmer’s “certainly prejudicial” criminal history.
After Palmer was convicted he argued for a new trial due to the VA investigator’s testimony. The prosecutor countered that Palmer “had invited” the error with his questioning, and the judge agreed.
“It’s what we call opening the door and you asked him a question and he answered it,” the judge noted. The Maricopa County Public Defender then filed an appeal on Palmer’s behalf in August 2018. It then took more than two years for the appellate court to issue its ruling.
Judge Jennifer Perkins authored the Oct. 1 decision with Presiding Judge David Weinzweig joining. The decision noted the appellate court reviewed the facts of Palmer’s case “in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against Palmer.”
The appellate decision points out Palmer may have been self-represented but he “had ample warning that broad or open questions might lead him into dangerous territory” during the cross-examination.
“Although Palmer did not intend to elicit the prejudicial testimony, the Investigator’s answer was responsive to Palmer’s broad question,” the decision states. “The superior court did not abuse its discretion by denying Palmer’s request for a new trial.”
But Judge James Morse Jr. took issue with the decision and authored a dissent which focused on whether the investigator’s testimony went beyond a simple response to Palmer’s question about what an FBI record is.
“Our disagreement is over whether the Investigator’s answer was specifically responsive to Palmer’s question,” Morse wrote in his dissent. “Neither the latter part of the Investigator’s answer nor the answer to the juror question was ‘clearly responsive to the question asked’ by Palmer.”
Morse’s dissent noted Palmer’s question to the investigator may have been somewhat open ended, but it “did not invite or require reference to Palmer’s out-of-state convictions, military convictions, local convictions, and Palmer’s status as a fugitive and probationer.”
He also pointed to the fact the evidence against Palmer was not overwhelming and that the trial judge admitted to the prejudicial nature of the investigator’s testimony, yet failed to give a curative jury instruction, which “left the jury free to consider the testimony of Palmer’s criminal history and status as a fugitive and probationer.”
The 2-1 appellate decision becomes effective Nov. 1 unless either party files a petition for review to the Arizona Supreme Court.
As a result of Palmer’s theft and fraud convictions his probation was revoked in the 2014 case. He was resentenced to 2.5 years in prison to be served once his fraud and theft sentences are finished.