State v. Palmer

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RICHIE W. PALMER, ) ) Appellant.) ) ______________________________) 1 CA-CR 07-0385 Department D O P I N I O N FILED 12-09-08 Appeal from the Superior Court of Maricopa County Cause No. CR2006-007648-001 DT The Honorable Raymond P. Lee, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent Cattani, Chief Counsel Criminal Appeals Section and Melissa A. Parham, Assistant Attorney General Attorneys for Appellee Park Law Office, PLC by James Sun Park Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 Richie convictions and alternatively, W. Palmer sentences asserts on that (defendant) counts he 1 appeals through should be 5 his and, granted presentence sentence incarceration following his credit on first-degree his natural murder life conviction. Finding no error, we affirm. ¶2 Defendant victim B.M. and three accomplices beat to death The victim came to Phoenix with approximately $24,000 intending to purchase marijuana and transport it back to Chicago. Defendant was B.M. s Phoenix contact. Defendant picked B.M. up from the airport and took him to defendant s former apartment, where defendant and his accomplices beat B.M. to death, stole his money and buried the body. Defendant, over the next few weeks, twice moved B.M. s body, first to a storage locker and later to a fresh grave in a graveyard. ¶3 Defendant was charged with first degree murder (count 1), a class 1 dangerous felony, conspiracy to commit first-degree murder (count 2), a class 1 dangerous felony, robbery (count 3), a class 4 dangerous felony, conspiracy to commit robbery (count 4), a class 4 dangerous felony, theft (count 5), a class 2 dangerous felony, and aggravated criminal damage (count 6), a class 6 felony. convicted by a jury on all six counts. sentenced defendant to: first-degree possibility murder of The trial court natural life in prison on the conviction; release Defendant was after 2 life imprisonment twenty-five years on with the conspiracy to imprisonment commit on the murder robbery conviction; and six years to commit conspiracy robbery convictions; three and one-half years imprisonment for the theft conviction; and one year imprisonment on the aggravated criminal damage conviction. The court determined that the sentences for counts 2 through 5 were to run concurrent to the natural life sentence. was given 708 days presentence Defendant incarceration credit on counts 2 through 5. ¶4 On appeal, defendant asserts: (1) he was denied a fundamentally fair trial because the prosecutor committed misconduct by vouching for one of the witnesses, A.L., who was one of defendant s accomplices; and (2) the trial court erred in failing to give him presentence incarceration credit on his natural life in prison sentence. ¶5 the Defendant asserts he was denied a fair trial when prosecutor improperly vouched for A.L., who had entered into a cooperation agreement with the state as part of his plea agreement. The prosecutor had A.L. read his agreement, in pertinent part, during direct examination and referred prosecutor to it asked again whether during A.L. 3 closing understood argument. that his The plea agreement could be withdrawn if he failed to testify truthfully and argued to the jury that the plea provided motivation for A.L. to testify truthfully or his plea gets hitched. Defendant did not object to the prosecutor s questioning A.L. about the agreement nor did during the prosecutor s closing argument. he object The jury was given an instruction that the attorneys closing arguments were not evidence. ¶6 There are two types of prosecutorial vouching. One involves placing the prestige of the government behind a witness and the other suggests that additional unrevealed evidence supports a guilty verdict; both are improper. State v. Salcido, 140 Ariz. 342, 344, 681 P.2d 925, 927 (App. 1984). Both prosecutors and defense counsel given wide latitude in arguments to the jury. are State v. Taylor, 112 Ariz. 68, 84, 537 P.2d 938, 954 (1975). Here, defendant asserts that the prosecutor engaged in improper vouching. Our disagreed. See State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 supreme (1983). court, In in McCall, a similar the court scenario, held that testimony regarding a plea agreement is relevant to the credibility of the prosecution s witness and that such testimony does not amount to improper vouching but simply demonstrates that the witness had no motivation to testify 4 falsely. Id. at 158-59, 677 P.2d 931-32 (citing United States v. Ricco, 549 F.2d 264 (2d Cir. 1977), cert. denied, 431 U.S. 905 (1977). For these reasons, we need not discuss whether defendant waived his objection or whether any waiver was harmless given the jury instruction and the weight of the evidence. ¶7 Defendant next asserts that the trial court erred when it failed to give him presentence incarceration credit for the natural life sentence imposed on the first-degree murder conviction. A defendant who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis. Ariz. Rev. Stat. (A.R.S.) § 13-703(A) (2004). In a case involving statutory credits against a sentence, this court previously found that it is impossible to deduct time from an indeterminate demoninate a person s life. Escalanti v. Dep t of Corrections, 174 Ariz. 526, 528, 851 P.2d 151, 154 (App. 1993) ( when the legislature specifically provided that credits are to be deducted from the maximum sentence imposed, it abolished such credits for a maximum term of life in prison ). incarceration credit cannot be Likewise, presentence applied to defendant s benefit when he will never be released from prison. we find no error. 5 Thus, ¶8 For the above stated reasons, defendant s convictions and sentences are affirmed. _______________________________ JON W. THOMPSON, Judge CONCURRING: ___________________________________ DIANE M. JOHNSEN, Presiding Judge ___________________________________ ANN A. SCOTT TIMMER, Judge 6

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