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.
)
)
DEREK SAMUEL JERIHA,
)
)
Appellant. )
)
__________________________________)
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
No. 1 CA-CR 10-0447
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-127783-002 DT
The Honorable John R. Hannah Jr., Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Jeffrey L. Sparks, Assistant Attorney
General
Attorneys for Appellee
Phoenix
Coppersmith Schermer & Brockelman P.L.C.
By James J. Belanger and Scott M. Bennett
Attorneys for Appellant
Phoenix
B R O W N, Judge
¶1
two
Derek Samuel Jeriha appeals from his convictions on
counts
Jeriha
of
argues
introduction
made
that
of
improper
argument.
armed
robbery
the
trial
prejudicial
remarks
in
and
two
court
evidence
his
counts
erred
and
opening
by
that
of
kidnapping.
permitting
the
statement
the
prosecutor
and
closing
Because no objection was made to any of these matters
in the trial court, our review is limited to fundamental error.
State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607
(2005).
Finding no fundamental error, we affirm.
BACKGROUND
¶2
trial.
The
State
presented
evidence
of
the
following
at
On the morning of January 13, 2009, Nick was at the
apartment of his girlfriend, Heather.
Also present were two of
Heather’s friends, Michelle and Lee.
After Nick awoke and came
into the living room, Heather informed him that Jeriha had just
stopped by about a cell phone she was selling and that he would
be right back.
Nick and Heather were familiar with Jeriha, as
he was Heather’s ex-boyfriend.
¶3
A short time later, the front door to the apartment
burst open and Jeriha and two other men entered the apartment
with handguns.
masks.
The two men with Jeriha were wearing black ski
Nick recognized Jeriha and also recognized one of the
masked men from his voice and his tattoos as Jeriha’s friend,
Dylan Gormey.
The men beat Nick and then bound him and Heather
2
together on the floor with duct tape.
While one man kept a gun
trained on Nick and Heather, the other two went through the
apartment,
Jeriha
trashing
told
Nick,
it
and
“This
taking
is
what
things.
you
get
Before
for
leaving,
stealing
my
girlfriend.”
¶4
Once the three men left, Lee, who Nick believed was a
friend of Jeriha or Gormey, unbound Nick and Heather.
Michelle
and Lee left shortly thereafter and Nick and Heather began going
through the apartment to determine what was taken.
that
Nick’s
wallet,
keys were missing.
telephone,
9-millimeter
They found
handgun,
and
car
A short time later, Nick also discovered
that the vehicle he had borrowed from his grandmother was gone.
¶5
After
initially
considering
handling
the
himself, Nick called the police to report the robbery.
matter
Because
Heather had a warrant out for her arrest, she left before the
police
responded.
detective
detective
unit,
showed
The
and
robbery
about
Nick
three
report
was
months
after
photographic
photographs of Jeriha and Gormey.
lineups
forwarded
the
to
the
robbery,
that
a
contained
Nick identified Jeriha and
Gormey as two of the men who committed the robbery.
¶6
On April 23, 2009, police executed a search warrant at
the apartment where Gormey resided with his girlfriend.
Jeriha,
Gormey, and Gormey’s girlfriend were present at the apartment
when the search occurred.
In the apartment, police found a
3
wallet containing Nick’s school identification, bank card, and
various other cards with his name, all taken in the robbery.
Also recovered were Heather’s identification and various cards
bearing her name.
Police additionally found, among other items,
a shotgun, a BB gun that looked like a semi-automatic handgun, a
magazine loaded with .45 caliber ammunition, and other loose
handgun ammunition.
¶7
Jeriha and Gormey were each indicted on two counts of
armed
robbery,
a
class
2
dangerous
felony;
one
count
of
aggravated assault, a class 4 felony; two counts of kidnapping,
a class 2 dangerous felony; and one count of theft of a means of
transportation, a class 3 felony.
on
three
counts
of
misconduct
Gormey was further indicted
involving
weapons,
a
class
4
felony.
¶8
Jeriha and Gormey were tried jointly.
At the close of
the State’s case, the trial court entered judgment of acquittal
on the charges of misconduct involving weapons against Gormey.
The jury convicted Jeriha and Gormey on the armed robbery and
kidnapping counts, but acquitted them on the aggravated assault
and theft of means of transportation charges.
sentenced
terms.
Jeriha
to
concurrent
Jeriha timely appealed.
4
presumptive
The trial court
10.5-year
prison
DISCUSSION
¶9
Jeriha
contends
the
improper prejudicial evidence.
trial
court
erred
in
admitting
Because Jeriha did not object to
the evidence in question, he has forfeited appellate review of
his claims absent fundamental error.
standard
of
review,
Jeriha
bears
Id.
the
Under this limited
burden
of
establishing
error, that the error was fundamental, and that the error caused
him prejudice.
Id. at 568, ¶ 22, 115 P.3d at 608.
Error is
fundamental only when it reaches the foundation of a defendant’s
case, takes from him a right essential to his defense, and is
error of such dimension that he could not have possibly received
a fair trial.
¶10
Id. at 567, ¶ 19, 115 P.3d at 607.
All three categories of evidence Jeriha challenges on
appeal relate solely to co-defendant Gormey.
The first category
of evidence is described by Jeriha as an “arsenal of deadly
weapons found at the apartment of [Gormey’s] girlfriend.”
The
second category consists of evidence of “sexually provocative
posters” on the walls of the girlfriend’s apartment.
category
probation
is
by
evidence
residing
that
at
Gormey
in
violation
of
girlfriend’s
his
was
The third
his
apartment
without
informing his probation officer.
¶11
Even if we were to conclude that the trial court erred
in admitting the challenged evidence, which we do not decide,
the admission of this evidence simply does not rise to the level
5
of fundamental error.
Fundamental error occurs only in rare
cases and “usually, if not always, involves the loss of federal
constitutional rights.”
State v. Gendron, 168 Ariz. 153, 155,
812 P.2d 626, 628 (1991) (quoting State v. Smith, 114 Ariz. 415,
420, 561 P.2d 739, 744 (1977)).
¶12
“To qualify as ‘fundamental error’ . . . the error
must be clear, egregious and curable only via new trial.”
at 155, 812 P.2d at 628.
Id.
Here, the alleged errors are common
and involve the admission of essentially irrelevant evidence,
which could have been easily remedied if objections had been
made.
¶13
Contrary
to
Jeriha’s
contention,
any
error
in
the
admission of these three categories of evidence would not have
impacted the fairness of his trial.
Jeriha concedes that the
shotgun and the ammunition found at the girlfriend’s apartment
were
properly
charges.
admissible
on
misconduct
involving
weapons
The majority of the balance of the weapons evidence on
which Jeriha based his first claim of error are various types of
medieval and collectible weapons, which were on display in the
apartment.
Jeriha’s
argument
inflamed
a
possessing
by
person
substantial logical support.
the
apartment
were
not
that
such
a
jury
a
would
collection
likely
be
lacks
any
Similarly, the posters found in
overly
provocative
and
similar
items
could likely be found in apartments around the country where men
6
reside.
It
is
therefore
improbable
that
a
jury
would
be
offended by such materials to the point that it would affect the
outcome of the case.
¶14
The
evidence
that
Gormey
was
in
violation
of
his
probation does present some possibility of prejudice to Gormey.
Again, however, any prejudice would be relatively minor as the
violation was technical in nature: the failure to notify his
probation officer of the change in his residence.
Thus, even if
there was error in the admission of this evidence, there is no
basis to conclude that this error was so egregious and of such a
dimension as to make a fair trial impossible for Jeriha.
¶15
Moreover, none of the claimed errors in the admission
of evidence can be considered as going to the foundation of
Jeriha’s
case
or
taking
from
him
a
right
essential
to
defense.
The defense presented by Jeriha at trial was that Nick
held a grudge against him and was lying about the robbery.
his
The
three categories of evidence alleged to have been improperly
admitted have no relation to this defense.
Nor do they pertain
to the credibility of either Nick or Jeriha.
Accordingly, we
conclude
his
that
Jeriha
has
failed
to
meet
burden
of
establishing the existence of fundamental error with respect to
the admission of the three categories of evidence challenged on
appeal.
7
¶16
In addition, Jeriha has failed to meet his burden of
proving he was prejudiced by the alleged errors.
There was no
suggestion at trial that Jeriha had any direct connection to the
weapons or posters in the girlfriend’s apartment or any role in
Gormey’s violation of probation.
Jeriha’s argument that any
prejudice
these
from
the
admission
of
three
categories
of
evidence would spill over from Gormey because they were charged
as accomplices and tried together is insufficient because it is
purely speculative.
See State v. Munninger, 213 Ariz. 393, 397,
¶ 14, 142 P.3d 701, 705 (App. 2006) (finding that prejudice for
purposes of fundamental error review cannot be based solely on
speculation).
Further, to the extent that any possibility of
spillover
exist,
did
it
was
mitigated
by
the
trial
court’s
instruction that each defendant was entitled to have the jury
determine guilt based on the defendant’s own conduct and from
the
evidence
instruction,
evidence
guilty.”
applicable
to
that
the
jury
is
against
each
defendant
defendant.
presumed
to
have
separately
“With
such
considered
in
finding
an
the
both
State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558
(1995).
¶17
Jeriha also argues that error occurred in both the
prosecutor’s opening statement and closing argument.
As with
the claims of error in regards to the admission of evidence,
Jeriha did not raise either of these issues below.
8
Thus, our
review is again limited to fundamental error.
Ariz. at
567, ¶ 19, 115 P.3d at 606.
¶18
Jeriha
evidence
in
Henderson, 210
asserts
the
the
opening
prosecutor
statement.
misstated
In
the
State’s
particular,
Jeriha
complains that the prosecutor informed the jury that during the
robbery, Gormey lifted his ski mask and told Heather that she
was
getting
what
evidence of
this
prosecutor’s
she
deserved.
presented
statement
at
Noting
trial,
prejudiced
that
Jeriha
him
by
there
argues
was
that
exaggerating
no
the
the
State’s case and presenting a sinister image of Gormey.
¶19
We find no reversible error.
Although no evidence was
presented at trial consistent with the prosecutor’s statement,
this does not render the statement prejudicial error.
court
instructed
the
jury,
before
opening
The trial
statements,
that
“[w]hat the lawyers said or will say [in opening statements] is
not evidence” and that “[y]ou are to determine the facts only
from the testimony of witnesses and from the exhibits received
in evidence.”
The trial court repeated these instructions prior
to the jury commencing deliberations.
Accordingly, Jeriha is
unable to meet his burden of proving any prejudice from the
prosecutor’s opening statement.
336,
339-40,
580
P.2d
See State v. Bowie, 119 Ariz.
1190,
1193-94
(1978)
(“Any
possible
prejudice from the opening statement was overcome by the court’s
cautionary
instructions
that
evidence
9
did
not
come
from
the
attorneys
and
that
the
verdict
must
be
determined
only
by
reference to the evidence[.]”).
¶20
Jeriha also argues that the prosecutor committed error
during closing argument by suggesting that the defendants had
the
burden
of
proving
their
innocence
with
the
following
remarks:
First of all, he has people coming into his
home, right, Dylan and Derek who he’s able
to identify. If he’s made this up, does he
know whether or not they’re going to have
people who can come and say, you know what,
Dylan and Derek, they were with me at that
time.
We saw them DJ-ing.
We’ve got 300
people who were at a party seeing him DJ as
he does into the early mornings.
According to Jeriha, these remarks shifted the burden of proof
by
faulting
witnesses.
the
defendants
for
failing
to
produce
alibi
When viewed in context, however, these remarks are
readily understood as merely part of an argument addressing the
victim’s credibility.
¶21
told
As a prelude to the remarks at issue, the prosecutor
the
jury
that
he
was
going
to
“talk
about
just
how
incredibly stupid [the victim] would have to be to make up a
story like this.”
Immediately after the remarks in question,
the prosecutor continued along the same line:
Would it be incredibly stupid for him to
pick victims where he doesn’t know if
they’re going to be able to produce a
receipt that says, you know, I was at a
Denny’s restaurant or any other kind of
10
restaurant?
stupid.
That
would
be
incredibly
It would be incredibly stupid of him to pick
victims when he doesn’t know if they’re
going to be able to produce, say, a cell
phone record that shows that they were
making a call on the other side of town or
on the other side of the state where you
might be able to look at their cell phone
record and say, yep, this person was making
a call around 8 o’clock in the morning, all
the way across town, they couldn’t have been
up on Cave Creek and Bell Road. That would
be just an incredibly stupid thing to make
up if you were going to make up this story.
In short, the prosecutor was not telling the jurors that the
defendants
were
obligated
to
establish
an
alibi,
but
rather
merely explaining to the jury why it would not make sense for
Nick to fabricate a story about being robbed by defendants when
it might be easily disproven.
argument.
345,
360
There is nothing improper in this
See State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d
(2000)
(noting
“prosecutors
have
presenting their arguments to the jury”).
wide
latitude
in
Thus, there was no
error, let alone fundamental error, in the prosecutor’s closing
argument.
11
CONCLUSION
¶22
Based on the foregoing, we affirm Jeriha’s convictions
and sentences.
/s/
_________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
____________________________________
PATRICIA A. OROZCO, Presiding Judge
/s/
____________________________________
DONN KESSLER, Judge
12
