State v. Gonzalez

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ) JACK ELLIOT GONZALEZ, ) ) Appellant. ) ) DIVISION ONE FILED: 03/16/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0643 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2007-167483-001 SE The Honorable Connie Contes, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals and Capital Litigation Section and Julie A. Done, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant T H O M P S O N, Judge Phoenix ¶1 Jack Elliot Gonzalez (defendant) appeals his conviction and sentence for child abuse, a class five felony and domestic violence offense. For the reasons that follow, we find no error and affirm. ¶2 The evidence at trial showed that defendant spanked his ten-year-old daughter (the victim) with a belt because she lost her house key. The victim told her teacher and her school s assistant principal about the spanking. school policy, the principal Protective Services (CPS). called the Pursuant to police and Child Photographs were taken of bruises on the side of the victim s buttocks and police interviewed defendant and the victim. At trial, defendant admitted that he spanked the victim with a belt because she lost her house key, but denied that the spanking left the bruises on the side of the victim s buttocks. The investigating officer testified that when asked what caused the bruises on the victim, the defendant told him that he spanked her with a belt up to eight times. The evidence also showed that CPS conducted a separate investigation, but did not remove the victim from defendant s home. The abuse, which offense. jury At was found defendant also classified sentencing, the probation for eighteen months. ¶3 guilty as judge a of reckless domestic placed child violence defendant on Defendant timely appealed. On appeal, defendant claims that he was denied the 2 right to due process and a fair trial because the prosecutor engaged in misconduct when he allegedly 1) referred to the consequences of the charged offense; 2) argued facts not in evidence; and misconduct 3) is engaged not in merely vouching. the result Prosecutorial of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with significant resulting danger of mistrial. indifference to a State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108 09, 677 P.2d 261, 271 72 (1984)). In determining whether a prosecutor's remarks were improper, we consider whether the remarks called matters to the attention of jurors that they would not be justified in considering and, under the circumstances, the probability that the jurors were influenced by the remarks. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). To require reversal, the misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial. State v. Newell, 212 Ariz. 389, 402, ¶ 61, 132 P.3d 833, 846 (2006) (quoting State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997)). ¶4 Because defendant did not object to the prosecutor s 3 statements at trial, we review for fundamental error. See State v. Speer, 221 Ariz. 449, 458, ¶ 42, 212 P.3d 787, 796 (2009) (citation omitted). Prosecutorial misconduct constitutes fundamental error only when it is so egregious as to deprive Hernandez, 1991). the 170 defendant Ariz. Defendant fundamental error of 301, bears a 307, the occurred fair 823 burden and that trial. P.2d of it 1309, State 1315 demonstrating caused v. (App. that defendant prejudice. See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). We have reviewed the entirety of the record cited by defendant in support of his claims of prosecutorial misconduct, and we find none. ¶5 Nonetheless, to the extent that defendant has cited to the record in support of these allegations, we will address each of them. Opening Statement ¶6 Defendant first argues that the prosecutor engaged in misconduct in his opening statement because referred the Defendant to the contends consequences that the of prosecutor he improperly charged referred offense. to the consequences of the charged offense when he referred to other cases of child abuse as the most serious offenses and top charges, and when he stated that the child abuse at issue here was a lower or lesser offense. 4 We find nothing improper in the prosecutor s references to varying levels of child abuse. At the opening of trial, the judge read the jurors the following charge: [i]n this case, the State has alleged that Jack Elliot Gonzalez . . . under circumstances other than those likely to produce death or serious physical injury, recklessly caused injury or in abuse [the violation victim] of to suffer Arizona physical law." The prosecutor s characterizations of the charge, in context, did not refer to consequences of the charge, but rather provided a framework of the state s claim to the jury. Moreover, the judge told the jury that they were not to consider penalties of the charge and instructed, "[y]ou must decide whether the defendant is guilty or not guilty by determining what the facts in the case are and applying these jury instructions. You must not consider the possible punishment when deciding on guilt. jurors Punishment is left to the judge." followed the judge's instructions. We presume the See State v. McCurdy, 216 Ariz. 567, 574, ¶ 17, 169 P.3d 931, 938 (App. 2007). Accordingly, even if the remarks were improper, defendant has not shown that the jurors were influenced by them so that he was prejudiced. Closing Argument ¶7 Defendant argues that the prosecutor engaged in misconduct in his rebuttal closing argument when he stated 5 that CPS is a civil agency and that [t]hey handle their matters. They are separate. Therefore, CPS is not going to arrest somebody because they do not have the arresting powers. That is a division. They do their job. They re separate. While there was no information introduced at trial as to the extent of CPS s powers, the record shows that the prosecutor made the foregoing statement in response to remarks defense counsel made in his closing statement that CPS is [t]he most entrusted government agency who protects our children s welfare and defense counsel s question to the jury, that if CPS didn t have a problem . . . [w]hy should you find abuse? Comments by the prosecutor on rebuttal are not improper where they are fairly in response to areas opened by the defense. Hernandez, 170 Ariz. (citations omitted). at 307-308, 823 P.2d at 1315-16 Neither defense counsel s arguments nor the prosecutor s arguments were based on evidence produced at trial. The prosecutor s description of CPS constituted a fair response to defense counsel s remarks. Accordingly, the prosecutor s remarks regarding CPS were not improper. ¶8 Defendant next argues that the prosecutor engaged in misconduct in his rebuttal to the closing statement by vouching for CPS when he told the jury that CPS did not have arresting powers. Two types of improper prosecutorial vouching exist: when the prosecutor "plac[es] the prestige of 6 the government "suggests behind that P.3d 706, discussed witness" additional guilty verdict." 199 a and unrevealed when the evidence prosecutor supports a State v. Palmer, 219 Ariz. 451, 453, ¶ 6, 708 above, (App. the 2008) (citation prosecutor s omitted). remarks As regarding CPS properly rebutted remarks made in defense counsel s closing statement regarding CPS. The prosecutor s remark about CPS s lack of arresting power neither placed the prestige of the government behind a witness nor suggested evidence supported a guilty verdict. that unrevealed Accordingly, we conclude that the prosecutor s comment regarding CPS s arresting powers did not amount to vouching. ¶9 Lastly, defendant contends that the prosecutor engaged in misconduct by commenting on facts not in evidence, when in his rebuttal to the closing statement, he remarked that the victim s bruise was getting smaller over time. Since a prosecutor may not comment on facts not introduced into evidence, it was arguably improper for the comment on the change in the size of the bruise. prosecutor to See State v. Zaragoza, 135 Ariz. 63, 68, 659 P.2d 22, 27 (1983) (citation omitted). It may be a matter of common sense that a bruise will fade with time. Cf. State v. Hughes, 193 Ariz. 72, 85, ¶ 7 59, 969 P.2d 1184, 1197 (1998) ( Counsel can reasonable inferences from the evidence. ). argue all In any event, this isolated statement was not so egregious as to result in a denial of due process. trial and before Moreover, both at the beginning of the jury deliberations, the trial court instructed the jury that the attorneys' statements were not evidence. We instructions. at 938. presume that the jurors followed these See McCurdy, 216 Ariz. at 574, ¶ 17, 169 P.3d Accordingly, defendant has not shown that fundamental error resulted from the prosecutor s statement. ¶10 For the foregoing reasons, we affirm defendant s conviction and sentence. /s/ _________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ___________________________________ PATRICK IRVINE, Judge 8

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