State v. Ward

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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. ROBERT ANTHONY WARD, Appellant. DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0738 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-112160-001 DT The Honorable Sally S. Duncan, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant Robert Ward appeals his sentences. following reasons, we affirm. For the FACTS AND PROCEDURAL BACKGROUND ¶2 A jury found Defendant guilty of taking the identity of another and forgery, both class four felonies. A hearing on aggravating factors was held and the jury found Defendant had committed the offense[s] . . . while on probation, parole, work furlough, community supervision, and/or any other release or escape from confinement for a conviction of a felony offense, specifically Maricopa County CR95000233 and CR9500921. presumptive term concurrently. pursuant to of Court matter numbers The court sentenced Defendant to the ten years Defendant Arizona Superior on each appealed, Revised and Statutes count, we to have ( A.R.S. ) be served jurisdiction sections 12- 120.21(A)(1) (2003), 13-4031 (2001), and -4033(A) (Supp. 2008). DISCUSSION ¶3 Defendant committed the argues offense that while the he jury s was finding an that absconder he from supervision, an aggravating factor, was in error because the prosecutor explained the prison documents admitted into evidence without being sworn or subjected to cross-examination. Defendant rights. contends the prosecutor violated his constitutional Although we review constitutional issues de novo, State v. McCann, 200 Ariz. 27, 28, ¶ 5, 21 P.3d 845, 846 (2001), Defendant did not object to the process or the prosecutor s closing arguments, and therefore we review for fundamental error 2 only, see State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). ¶4 To prevail under the fundamental error standard of review, Defendant must establish: (1) an error; (2) that the error was fundamental; prejudice. and (3) that the error resulted in State v. Smith, 219 Ariz. 132, 136, ¶ 21, 194 P.3d 399, 403 (2008) (citing Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607). ¶5 During the aggravation phase of the trial, the State offered into evidence certified copies of Defendant s conviction history and his arrest warrant. Defendant objected, and argued that, even though the documents were certified, the State needed a witness to present them to the court. admitted into evidence. 1 The documents were The prosecutor then stated, I m simply going to publish to the jury with the Court s permission and explain what the records are. ¶6 Defendant argues that the jury was not told that the presentation was argument and that the prosecutor s explanation was testimony from an unsworn witness that was not subject to cross-examination. Specifically, he argues the jurors were not told because [t]he argument had not followed witnesses and the other formalities that jurors observed during 1 See Ariz. R. Evid. 902(2). 3 the guilt-innocence. We disagree that the trial court erred during the aggravation phase. ¶7 The court, informed counsel beginning with at that the the respect onset of the instructions to what [the aggravation would be phase, read aggravation at the proceeding instructions are] so that they know and then save the part about the last page instruction. of the instructions . . . [as] my closing The court then confirmed with counsel that the process was acceptable. ¶8 When instructed, the jury was told to rely on the final jury instructions given earlier to determine the verdict and the instructions read during the aggravation phase. The final jury instructions on the merits informed the jury that [w]hat the lawyers said or say is not evidence but it may help you to understand the law and the evidence. Similarly, the aggravation proceeding instructions stated that, [t]he lawyer will again talk to you about the law and the evidence. What they say is not evidence, but it may help you to understand the law and evidence. The jurors had received written copies of the final jury instructions on the merits, and were provided with the written aggravation hearing instructions. jurors follow the instructions. 437, 439, 924 P.2d 441, 443 (1996). 4 We presume State v. LeBlanc, 186 Ariz. ¶9 Although the trial court did not specifically tell the jury that the prosecutor was about to give closing argument, the prosecutor discussed more than the two exhibits that had been published. The information that counsel then prosecutor related spoke and, also to talked the aggravation afterward, aggravation phase instruction. about the relevant phase. court gave trial Defense the final Accordingly, there is nothing to suggest the jury misunderstood the instructions and believed the prosecutor s explanation was testimony, thus there was no error. ¶10 the Defendant also argues that the first statement from prosecutor after the exhibits were published when the prosecutor asked the court s permission to explain what the records are was impermissible vouching. ¶11 where We disagree. There are two forms of prosecutorial vouching: (1) the prosecutor places the prestige of the government behind its witness; and (2) where the prosecutor suggests that information not presented to the jury supports the witness s testimony. State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1924, 1932-33 (1994) (quoting State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989)). Neither is implicated in this case. ¶12 Although explanation argument of that Defendant challenges the significance was not made of below, 5 on the at appeal prison the the State s records, time of an the explanation, the presentation of evidence had been completed and closing arguments had begun. 2 Counsel can comment on properly admitted the evidence and urge jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions. State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993). Counsel is given wide latitude in closing arguments, State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990) (citing State v. Zaragoza, 135 Ariz. 63, 68, 659 P.2d 22, 27 (1983)), and it is not improper to help jurors understand the evidence. the All of the closing remarks are directly supported by record or can be reasonably inferred therefrom. Accordingly, we find no error, much less fundamental error. CONCLUSION ¶13 Based on the foregoing, we affirm Defendant s sentences. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ LAWRENCE F. WINTHROP, Judge /s/ ______________________________ MARGARET H. DOWNIE, Judge 2 Defendant has not challenged the admission of the documents. 6

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