State v. Alvarez

Annotate this Case

Download PDF

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. PABLO RUIZ ALVAREZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0105 DIVISION ONE FILED: 07-29-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-006420-001 DT The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Louise Stark, Deputy Public Defender Attorney for Appellant Phoenix P O R T L E Y, Judge ¶1 738 This is an appeal under Anders v. California, 386 U.S. (1967) (1969). and State v. Leon, 104 Ariz. 297, 451 P.2d 878 Counsel for Defendant Pablo Ruiz Alvarez has advised us that, after searching the entire record, she has been unable to discover any arguable questions of law, and has filed a brief requesting us to conduct an Anders review of the record. Defendant was given an opportunity to file a supplemental brief and has not filed one. FACTS 1 ¶2 Police officers responded to a disturbance at a bar involving a gun on September 20, 2007. and found a bag of cocaine in his They searched Defendant pocket. Defendant was subsequently charged with possession of narcotic drugs, a class four felony. ¶3 On without the first prejudice unavailable. day because dismiss trial a trial, key the witness case for was the dismissed State was The State re-filed the charges on April 25, 2008, under a new cause number. to of the rights case were Defendant subsequently filed a motion with violated prejudice, and 1 that arguing the that State his speedy violated its We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 discovery obligations. Following oral argument, the motion was denied. ¶4 The matter proceeded to trial, and Defendant testified during trial. The jury found Defendant guilty as charged, and he was subsequently sentenced to one year of probation. We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) Arizona (2003), Revised Statutes 13-4031, and - 4033(A)(1) (2010). DISCUSSION ¶5 We have read and considered counsel s searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. supplemental brief, counsel See Leon, 104 listed three issues that she We address each issue. Defendant first argues that the trial court erred when it denied his motion to dismiss the case with prejudice. contends and While Defendant did not file a believed her client wanted to raise. ¶6 brief that his motion should have been granted for He two reasons the State was inexcusably unprepared for trial; and the State sought to circumvent the provisions of Arizona Rule of Criminal Procedure 8 by filing its motion to dismiss without prejudice. 3 ¶7 We do not have jurisdiction to address the issue. Although Defendant filed the motion in the current case, he was required to challenge the State s motion to dismiss when it was filed or seek review by special action. See State v. Paris- Sheldon, 214 Ariz. 500, 508-09, ¶ 24, 154 P.3d 1046, 1054-55 (App. 2007). ¶8 In dismiss the motion to Paris-Sheldon, case with dismiss the prejudice without defendant and filed argued prejudice filed a motion to that the State s in the earlier proceeding was done solely to avoid the provisions of Rule 8. Id. at 507, ¶ 21, 154 P.3d at 1053 (internal quotations and citations omitted). We held that filing a motion to dismiss in the second case was not the correct method by which to challenge the grant of the state s motion to dismiss without prejudice in the first case. Id. at 508-09, ¶ 24, 154 P.3d at 1054-55; see also State v. Alvarez, 210 Ariz. 24, 30, ¶ 23, 107 P.3d 350, 356 (App. 2005), vacated in part on other grounds by 213 Ariz. 467, 143 P.3d 668 Paris-Sheldon, (App. we 2006). lack Consequently, jurisdiction to in accordance address the with dismissal without prejudice. ¶9 it Defendant next argues that the trial court erred when denied misconduct. his request for a mistrial based on prosecutorial During closing argument, the prosecutor stated that 4 no one has produced evidence that [Defendant] has never been in trouble before. was made. Defendant did not object after the statement Instead, he unsuccessfully moved for a mistrial while the jury was deliberating. ¶10 We review a trial court s failure to grant a mistrial for an abuse of discretion. ¶ 43, 74 P.3d 231, 244 State v. Dann, 205 Ariz. 557, 570, (2003). The trial judge has broad discretion in ruling on a motion for a mistrial because he or she is in the best position to determine whether the evidence will actually affect the outcome of the trial. 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, State v. Jones, 359 (2000). A declaration of a mistrial, . . . is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted. Dann, 205 Ariz. at 570, ¶ 43, 74 P.3d at 244 (quoting State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983)). ¶11 Here, the trial court did not abuse its discretion in denying the motion for a mistrial. Although the statement was erroneous, it was not relevant to any material element. The only issue in the case was whether Defendant knowingly possessed cocaine, and there was ample evidence for the jury to have found Defendant guilty as charged. Moreover, 5 the court properly instructed the jury that the lawyers comments are not evidence. We presume the jury followed that instruction. 215 Ariz. 298, 319, ¶ 89, 160 P.3d State v. Tucker, 177, 198 (2007). Consequently, the trial court did not abuse its discretion when it denied the motion for a mistrial. 2 ¶12 Defendant next argues that the trial court erred in answering a juror question. During deliberations, a juror sent out a written request asking the court why the police officers originally detained and searched Defendant at the bar. The court responded by stating that [t]he parties stipulated that [Defendant] was lawfully detained and searched. You must accept that stipulation. ¶13 Defendant correctly maintains that the court erred by instructing the jurors that they must accept the stipulation. See State v. Allen, 223 Ariz. 125, 127, ¶ 11, 220 P.3d 245, 247 (2009) (holding stipulations). court s response. that jurors Defendant did not, to however, or reject object to the See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). failed accept Accordingly, Defendant must show fundamental error and prejudice. has may demonstrate We conclude that Defendant fundamental 2 error or prejudice. We note, however, that both ethical rules and case law oblige a prosecutor to see that defendants get a fair trial. State v. Cornell, 179 Ariz. 314, 331, 878 P.2d 1352, 1369 (1994); Ariz. R. Sup. Ct. 42, ER 3.8. 6 Although the court s response to the juror question was inaccurate, the question and answer were legally unrelated to the sole issue in the possessed cocaine. case whether Defendant knowingly Consequently, Defendant is not entitled to relief. ¶14 Finally, at trial Defendant testified that he did not understand he had the right to remain silent because he could not hear the officer who was reading him his Miranda 3 rights. He explained, however, that he nevertheless told the officer that he understood his Miranda rights because the officer became angry and insulted him. ¶15 The defendant has the burden of raising any issue of voluntariness. P.2d 973, See State v. Alvarado, 121 Ariz. 485, 487, 591 975 (1979). A court need not hold a sua sponte voluntariness hearing unless the evidence is such as to alert the court that the voluntariness of statements is at issue. State v. Fassler, 103 Ariz. 511, 513, 446 P.2d 454, 456 (1968). Here, Defendant never requested a voluntariness hearing, and the record fails coercive, to which show is that a statements involuntary. his necessary predicate was to in any way finding the State v. Smith, 193 Ariz. 452, 457, ¶ 14, 974 P.2d 431, 436 (1999). 3 interrogation In fact, Defendant admitted that Miranda v. Arizona, 384 U.S. 436 (1966). 7 a Spanish-speaking Spanish twice and officer that read the Miranda warning for himself. him Miranda allowed officer his him rights in read the to Consequently, we conclude that the trial court properly handled any statement Defendant made to the police. ¶16 Having searched error, we find none. 881. the the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at All of the proceedings were conducted in compliance with Arizona Rules of Criminal Procedure. The record, as presented, reveals that Defendant was represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. CONCLUSION ¶17 After obligation to this decision represent has Defendant been in filed, this appeal counsel s has ended. Counsel need do no more than inform Defendant of the status of the appeal review and reveals Defendant s an issue future options, appropriate for unless submission Arizona Supreme Court by petition for review. Shattuck, 140 Ariz. 582, 585, 684 P.2d 154, counsel s to the See State v. 157 (1984). Defendant can, if he desires, file a motion for reconsideration or petition for review pursuant to the Arizona Rules of Criminal Procedure. 8 ¶18 Accordingly, we affirm Defendant s conviction and sentence. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ DANIEL A. BARKER, Judge 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.