STATE v. WHITE
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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 DIVISION ONE FILED: 09/04/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) TRAIVON KARLTON WHITE, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0516 DEPARTMENT B (AUGUST) MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-102115-002 The Honorable Barbara L. Spencer, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Suzanne M. Nicholls, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 and Defendant Traivon Karlton White appeals his conviction sentence contends that for misconduct his conviction involving and weapons. sentence should Defendant be vacated because of prosecutorial misconduct. We conclude that there was no prosecutorial misconduct, and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 Defendant was indicted for misconduct involving weapons, and the matter proceeded to a jury trial. ¶3 At trial, Defendant prohibited possessor. stipulated that he was a The state presented evidence that on the date of the offense, two Phoenix police officers found Defendant and another man sleeping in a stolen car, with Defendant in the front passenger seat and his companion in the driver s seat. Because it was dark outside, the officers illuminated the stolen car s interior lights, and using their spotlights. patrol car s Officer headlights, Francis overhead Perreira then approached the front passenger s side window while his partner approached the driver s side window. The officers woke the sleeping men and commanded them to put their hands on top of their heads. Perreira saw Through Defendant the passenger s remove a side holstered window, handgun Officer from his waistband and place it in the glove box before complying with the officers orders. A search of Defendant s person revealed a .38 caliber round in his pants pocket, and a search of the stolen car revealed a second .38 caliber round in the backseat and a loaded .38 caliber revolver and holster in the glove box. 2 Officer Perreira testified that he was positive Defendant had transferred the handgun from his waistband to the glove box. ¶4 Defendant did not present any evidence. In closing argument, the prosecutor argued that Officer Perreira had no motive to lie about what he saw. Defense counsel then argued that there are a million different reasons why people can be dishonest and a million different reasons a person can be mistaken. Counsel argued that Officer Perreira could have lied for any of the million reasons, such as wanting to increase his stats or simply picking on somebody because of a bad day. Counsel warned that the jury members could not know whether Officer Perreira was the most corrupt officer there is out there and would not want to find out later that they relied entirely on the testimony of an officer who was found to have acted dishonestly in many cases. ¶5 In rebuttal, the prosecutor began by stating: [I]n order for you to find the defendant not guilty you have to believe that Officer Perreira is a bald faced liar, there s no way around it. burden shifting overruled the Defense counsel objected on the grounds of and objection misstat[ing] without the comment, law. The and prosecutor the continued: There s no middle ground here. It s not a question of whether Officer Perreira thought the gun was black or silver, it s not some inconsequential 3 court detail, he told you flat out what he saw that night. He told you flat out that he saw the defendant pull the gun from his waistband and put it in the glove box. . . . The defense spent a lot of time talking about credibility and it s for that reason. You have to decide that Officer Perreira is a bald faced liar in order to find the defendant not guilty. Defense counsel again objected, citing improper argument, and the court again overruled the objection without comment. The prosecutor then stated: You have to believe that [Officer Perreira] s willing to put his entire career on the line to lie about someone that he doesn t even know. Now, you were told in jury selection that it s not proper to give an officer s testimony more weight than another person s testimony simply because he s an officer, but you are not told to check your common sense at the door. We all bring our experiences to jury service. You know how to evaluate someone s testimony and to know whether or not they re lying based on what it is they re saying, the circumstances that they re describing, their body language and other surrounding facts, like what I said about putting his career on the line. ¶6 argument, At the the conclusion court gave of the the jury prosecutor s its final rebuttal instructions, including an instruction to use the tests for accuracy and truthfulness importance in that people everyday use life to in determining evaluate matters testimony, and of an instruction to consider the testimony of a police officer just as you would the testimony of any other witness because [t]he testimony of a law enforcement officer is not entitled to any 4 greater or lesser importance or believability merely because of the fact that the witness is a law enforcement officer. The jury was also instructed that lawyers opening statements and closing arguments are not evidence. instruction about police With the exception of the officers testimony, these final instructions repeated portions of the preliminary instructions given at the start of trial. ¶7 While the jury was deliberating, requested an additional jury instruction. the prosecutor inaccurately stated the defense counsel Counsel argued that law in the rebuttal argument because the issue was not necessarily whether Officer Perreira was a liar, but whether his testimony was reliable. Counsel contended that by overruling the defense objections to those statements without comment, the court implicitly approved the statements, needed. explaining lawyers and therefore a corrective instruction was The court declined to give an additional instruction, that the arguments jury are had not already evidence been instructed that and commenting that probably a more appropriate objection might have been vouching, but that wasn t the objection that was made. ¶8 The jury found Defendant guilty, and the court entered judgment on the jury s verdict and imposed a nine-year prison sentence. Defendant timely appeals. 5 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033. STANDARD OF REVIEW ¶9 Defendant contends that his conviction and sentence should be vacated prosecutorial because misconduct the prosecutor during the engaged rebuttal in argument. Defendant did not raise a claim of prosecutorial misconduct in the superior court, and his objections on other grounds did not preserve the issue. State v. Lopez, 217 Ariz. 433, 434, ¶ 4, 175 (App. P.3d 682, 683 fundamental error. 2008). We therefore review for State v. Speer, 221 Ariz. 449, 458, ¶ 42, 212 P.3d 787, 796 (2009). DISCUSSION ¶10 Defendant contends that the prosecutor engaged in misconduct by stating that the jury would have to find that Officer Perreira was a bald faced liar in order to find Defendant not guilty, and by stating that Officer Perreira would risk his career by lying. ¶11 merely Prosecutorial misconduct means misconduct that is not the result 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 indifference to a significant resulting danger of mistrial 6 or reversal. 108, 677 P.2d Pool v. Superior Court (State), 139 Ariz. 98, 261, 271 (1984) (footnote omitted). If prosecutorial misconduct exists, it will warrant reversal only where it denied the defendant a fair trial. Ariz. 215, 222, 495 P.2d 445, 452 (1972). State v. Moore, 108 That is, reversal is warranted only where the misconduct, viewed cumulatively, so infected the trial with unfairness as to make the resulting conviction a denial of due process and was so pronounced and persistent trial. that it permeate[d] the entire atmosphere of the State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (citations omitted). On fundamental error review, we examine, under the circumstances, whether the jurors were probably influenced and whether the [improper] probably denied Defendant a fair trial. statement[s] State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993). ¶12 We conclude that the prosecutor s statements violated no restriction on proper closing argument and did not constitute misconduct. I. Therefore, Defendant was not denied a fair trial. THE PROSECUTOR S STATEMENTS DID NOT CONSTITUTE MISCONDUCT. A. The Bald Faced Misconduct. ¶13 Liar Statements Did Not Constitute We first consider the prosecutor s statements that the jury would have to find that Officer Perreira was a bald faced liar in order to find Defendant 7 not guilty. Defendant characterizes those statements as misleading misstatements of the law and impermissible vouching. ¶14 We agree that the statements did not present a complete summary of all conceivable bases on which the jury could reject Officer Perreira s testimony and find Defendant not guilty -- the jury could reach that conclusion either by finding that Officer Perreira lied or by finding that he was mistaken. But the statements must be viewed in the context of Defendant s arguments. 983 State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, (App. rebuttal 1983). to [P]rosecutorial comments acceptable. made comments initially by which the are fair defense are State v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). Here, Officer Perreira testified that he was positive about what he saw, and Defendant s closing argument made clear Perreira that was dishonest. response issue theory possibly of defense mistaken, but was not he that that was Officer possibly The prosecutor s statements in rebuttal were a fair to as his Defendant s Defendant arguments, framed it. directed In these statements did to the deciding circumstances, the statements were not misleading. ¶15 Further, the impermissible vouching. may occur where the not constitute Vouching is a form of misconduct that prosecutor government behind its witness. places the prestige of the State v. Vincent, 159 Ariz. 418, 8 423, 768 P.2d 150, 155 (1989). Defendant argues that by using the phrase bald faced liar, the prosecutor impl[ied] that it would be unthinkable for the jury to label an officer of the law, a representative of the state, as a liar. prosecutor chose a colorful phrase. place the prestige of the To be sure, the But it did not clearly government behind the witness. Moreover, immediately after invoking the phrase, the prosecutor foreclosed any possible impermissible implication by reminding the jury that it s not proper to give an officer s testimony more weight simply because he s an officer. B. The Statements About Officer Constitute Misconduct. ¶16 We next consider the Perreira s Career prosecutor s Did statements Officer Perreira would risk his career by lying. Not that Defendant characterizes those statements as improper argument of facts not in evidence and an appeal to the sympathy of the jury. ¶17 Prosecutors may not suggest that evidence not presented to the jury supports a witness s testimony -- that is a different form of vouching. P.2d at 155 (1989). presenting their Vincent, 159 Ariz. at 423, 768 But [p]rosecutors have wide latitude in arguments to the jury reasonable inferences from the evidence. Ariz. 324, omitted). 336, ¶ 51, 160 P.3d 203, and may argue all State v. Morris, 215 215 (2007) (citation Prosecutors may also remind jurors of facts that are 9 common knowledge. P.3d 345, concerning 361 State v. Jones, 197 Ariz. 290, 306, ¶ 41, 4 (2000). whether The Officer were he found to be lying. state Perreira presented would face no evidence repercussions But Officer Perreira testified that he was employed by a police department, and the fact that his career would be adversely affected if he were found to have fabricated facts was a reasonable inference and common knowledge. II. DEFENDANT WAS NOT DENIED A FAIR TRIAL. ¶18 None misconduct. of the prosecutor s statements constituted Further, we presume that the jurors followed the instructions to not consider lawyers arguments as evidence and to assess all witnesses testimony based on the same criteria. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). ¶19 Whether prosecutor s viewed statements did separately not trial. 10 or deprive cumulatively, Defendant of a the fair CONCLUSION ¶20 For the foregoing reasons, we affirm Defendant s conviction and sentence. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JON W. THOMPSON, Presiding Judge /s/ ____________________________________ ANN A. SCOTT TIMMER, Judge 11
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