State v. Gudino

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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: 08/12/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) GONZALO HERNANDEZ GUDINO, ) ) Appellant. ) ) __________________________________) 1 CA-CR 09-0307 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-123131-001 DT The Honorable John R. Hannah, Jr., Judge REVERSED AND REMANDED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Phoenix Law Office of T. Anthony Guajardo by T. Anthony Guarjardo Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant Gonzalo convictions and sentences. Hernandez Gudino challenges his Specifically, he contends that he should get a new trial because of prosecutorial misconduct. We agree. FACTUAL AND PROCEDURAL BACKGROUND ¶2 After having a little too much to drink at an April 2008 wedding reception, the victim, P.A., 1 was going to call a taxi cab. home. The bride offered to have a family member take her She accepted, and got into Defendant s truck. ¶3 Instead of driving to the victim s house, Defendant stopped at his brother s house. The victim testified she tried to run away, but Defendant caught her and pulled her into the backyard. There, she explained, he sexually assaulted her; both vaginally and anally. ¶4 After the sexual assaults, belongings, and his shirt, and ran. P.A. grabbed her Because no one responded at the house across the street, she ran to a different house, was allowed to enter and the homeowner called 911. ¶5 Once the police arrived, P.A. pointed out the house where she had been raped. a back bedroom. her assailant. The police found Defendant asleep in P.A. subsequently identified the Defendant as Defendant was arrested and charged with: two counts of sexual abuse (Counts 1 and 3); kidnapping (Count 2); 1 We use the initials of the victim throughout this decision to protect her privacy. See State v. Maldonado, 206 Ariz. 339, 341 n.1, ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 three counts of sexual assault (Counts 4, 5, and 6); resisting arrest (Count 7) and aggravated assault (Count 8). ¶6 At trial, Defendant argued that P.A. had consented to the sex in return for cocaine. 2 The jury rejected the defense and found Defendant guilty of one count of sexual abuse (Count 1); kidnapping (Count 2); and three counts of sexual assault (Counts 4, 5 and 6). (Count 3) and The jury acquitted him of sexual abuse resisting arrest (Count 7). 3 Defendant was subsequently sentenced to prison and probation. ¶7 to Defendant appealed, and we have jurisdiction pursuant Article Arizona 6, Revised Section 9, Statutes of the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 and -4033 (2010). DISCUSSION ¶8 We are asked to decide whether the remarks made during the State s closing rebuttal argument constitute prosecutorial misconduct which warrants a new trial. 4 2 Specifically, Defendant P.A. s urine was tested the day after the wedding and the drug screen was positive for cocaine. 3 The trial court had dismissed the aggravated assault charge (Count 8) after the State rested. 4 Defendant also claims, within the subsection Statement of Facts, that an English Test which occurred when he was testifying in front of the jury was improper. Because Defendant fails to provide argument as to why the questioning was improper, we do not address it. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) (stating that an issue was waived when it was not clearly raised and argued in the appellate brief). It is also 3 contends the prosecutor argued outside the record of evidence when she argued that Defendant manufactured his defense of sex in return for cocaine after reading or having the police report read to him. 5 ¶9 to Mindful that a prosecutor has an obligation not only prosecute with diligence but to avoid improper methods designed to obtain a conviction, we closely review claims of prosecutorial misconduct. See State v. Minnitt, 203 Ariz. 431, 440, ¶ 41, 55 P.3d 774, 783 (2002). To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the misconduct so infected the trial with unfairness that resulting conviction amounts to a denial of due process. the See State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial. Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191 (internal quotation marks unclear whether Defendant wanted to argue that there was insufficient evidence to support the convictions. Defendant s opening brief has a heading entitled Reasonable Doubt Existed, and lists several facts without further argument. The next heading is entitled Issue, but only refers to prosecutorial misconduct. Because Defendant failed to clearly raise the insufficiency of the evidence argument, we do not address it. See id. 5 Defendant also argues the prosecutor made statements that were personal attacks on defense counsel. Because we reverse on other grounds, we will not address them. 4 omitted) (quoting State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992)). In fact, our supreme court has stated that to determine whether the misconduct permeates the whole trial, the court has to recognize the cumulative effect of the misconduct. Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191. ¶10 Here, the Defendant s defense was that he consensual sex with the victim in return for cocaine. had During the State s rebuttal closing argument, the prosecutor stated, [t]his defendant had the police report read to him. is where he found the urinalysis. . . . defense. She also stated, agreement for sex for cocaine. And that He found a convenient [t]hey never, ever had an He had the police report read to him, and that s where that came from, and [s]aying that she squatted in defendant the read defendant s the police backyard report . to . . pee? it s Because a the manufactured explanation. ¶11 Defendant argument. did not, however, object to the State s Consequently, we look to see whether the argument constitutes fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). To show fundamental error when, as argued closing here, argument, prosecutorial the we prosecutor first misconduct, engaged review occurred. in whether State misconduct error, v. during that Edmisten, is 220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App. 2009) (holding 5 that when the defendant is alleging prosecutorial misconduct [t]o show fundamental error, the defendant must first prove error that is, here, that misconduct actually occurred ). ¶12 The State s argument introduced error into the trial because there was no evidence to support the argument. 6 See State v. Roscoe, 184 Ariz. 484, 497, 910 P.2d 635, 648 (1996) (holding that it is improper matters not in evidence ). into evidence. During for the State to refer[] to The police report was not admitted cross-examination, Defendant testified that he could not read English well and no one had read the police report to him. He was then asked whether anyone had translated the police report for him. the basis that the question The defense objected on violated the attorney-client privilege, and the objection was sustained. ¶13 Consequently, there was no basis for the argument that Defendant created his defense from reading the police report or 6 The State argues that its statements were supported by the reasonable inference that Defendant had access to discovery of the lab report prior to trial. The forensic scientist testified that her analysis for the drug screen was reported on the police report. Because there was no evidence introduced at trial that Defendant read or had the police report read to him, the argument is not supported by any inference. We agree with the State that the prosecutor misspoke when she claimed Defendant read from the police report about the victim urinating in Defendant s yard. The contested language about the victim urinating actually originated from the sexual assault examination report, which was admitted into evidence. Because, however, the prosecutor used the argument to bolster the theory that Defendant concocted his defense from the police report, it is still relevant to the prosecutorial misconduct analysis. 6 having anyone translate it for him. ordinarily given wide latitude Although advocates are in closing argument, their comments must still be based on facts the jury is entitled to find from the evidence and not on extraneous matters that were not or could not be received in evidence. State v. Leon, 190 Ariz. 159, 162, 945 P.2d 1290, 1293 (1997) (quoting State v. Dumaine, 162 Ariz. 392, 402, 783 P.2d 1184, 1194 (1984)); see also State v. Roscoe, 184 Ariz. at 497, 910 P.2d at 648. ¶14 Moreover, in arguing that Defendant had the police report read to him, the State was counsel read the report to Defendant. insinuating that defense The State must not make prejudicial insinuations without being prepared to prove them. State v. (1994). to Cornell, 179 Ariz. 314, 331, 878 P.2d 1352, 1369 In fact, we have found that it is improper for counsel insinuate that defense counsel fabricated a defense or coached a defendant, in the absence of evidence to support such an inference. See Hughes, 193 Ariz. at 86, ¶¶ 59-61, 969 P.2d at 1198 (holding that it is improper to imply an expert witness or defense counsel fabricated an insanity defense); see also Cornell, 179 Ariz. at 330-31, 878 P.2d at 1368-69 (holding that it was improper to imply during cross-examination that defense counsel coached Accordingly, the the defendant argument was misconduct. 7 on how to improper fake and epilepsy). amounts to ¶15 We next determine whether this error is fundamental error. State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005); see also Edmisten, 220 Ariz. at 524, ¶ 23, 207 P.3d at 777. Error is considered to be fundamental when it goes to the foundation of the case, takes from a defendant a right essential to the defense, or is of such magnitude that it cannot be said it is possible for the defendant to have had a fair trial. ¶16 Cornell, 179 Ariz. at 329, 878 P.2d at 1367. Here, the remarks were made to attempt to convince the jury to disregard any evidence to support Defendant s defense that there might have been an agreement or understanding to have sex in exchange for cocaine. Instead of addressing the evidence and Defendant s closing argument professionally and asking the jury to reject the defense for any number of reasons, including the fact that even if there was an agreement, the victim was always free to change her mind and say No, the State did what it was alleging Defendant did concoct a theory without any factual support. ¶17 The lynchpin of the prosecutor s rebuttal closing argument was the theory that the defense was created from the police report. the victim s The idea was first suggested by the State during redirect examination. The prosecutor asked, without any objection, if the victim could explain the basis for Defendant s sex-for-cocaine defense. 8 The victim freely answered, I think he read the police report and now the story has come out. That s direction. . . . ¶18 what I believe. He had to change It just, it s a fabricated story. The prosecutor then emphasized the speculation in her rebuttal argument when she stated, let s call a spade a spade. The prosecutor used the speculative fabrication testimony to obfuscate the fact that the victim tested positive for cocaine and other improper evidence that statements primary defense. supported were Defendant s intended to defense. undermine The Defendant s Hughes, 193 Ariz. at 86, ¶¶ 60-61, 969 P.2d at 1198 (holding that where there was evidence to support the defendant s defense of mental illness and no evidence to support a fabrication defendant s of the defense). defense, the Because misconduct the undermined misconduct went to the the foundation of the consent defense it denied Defendant the right to a fair trial, and the improper statements were fundamental error. See State v. Lockhart, 947 P.2d 461, 465 (Kan. Ct. App. 1997) (holding that because the defendant s credibility was an issue in the trial defendant and his the counsel prosecutor s liars comments denied the calling the defendant his constitutional right to a fair trial). ¶19 to Once fundamental error is demonstrated, Defendant has prove that the fundamental error caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. 9 [T]he showing required to establish prejudice . . . differs from case to case. Id. (citing State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993)). A conviction will be reversed based on improper closing argument comments when there is a reasonable likelihood that the misconduct could have affected the jury s verdict. (emphasis Edmisten, 220 Ariz. at 524, ¶ 23, 207 P.3d at 777 added) (internal quotation marks omitted) (quoting State v. Newell, 212 Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006)). ¶20 Generally, we presume that jurors follow closing jury instructions that they have to determine the facts and that what the lawyers said is not evidence; thus, the instructions usually remedy any prejudice. See generally Newell, 212 Ariz. at 403, ¶¶ 69-70, 132 P.3d at 847 (holding that the jury instructions negated the prosecutor s improper comments that impugned the integrity of defense counsel); State v. Anderson, 210 Ariz. 327, 341-42, ¶¶ 49-50, 111 P.3d 369, 383-84 (2005) (holding that the jury instructions cured the prosecutor s misstatement of the law). ¶21 However, the rebuttal argument in this case is similar to an argument that our supreme court found so improper as to require a new trial. 1293. See Leon, 190 Ariz. at 162, 945 P.2d at In Leon, during closing argument, the State implied that the police report contained other charges or crimes. 10 Id. at 161, 945 P.2d at 1292. Our supreme court found the statements referred to matters not in evidence and included statements the trial court had previously excluded. 1293. Id. at 162, 945 P.2d at In responding to the argument that the jury instruction alleviated the prejudice reference to police [u]nfortunately, we [c]oncerning reports, cannot be the the reasonably prosecutor s court certain stated, that instruction was sufficient to eliminate any damage. this Id. at 163, 945 P.2d at 1294. ¶22 Here, we agree with Leon that the general jury instructions were not enough to overcome the prejudice. Our analysis is also supported by cases from other jurisdictions. In State v. Lockhart, the Kansas court of appeals had to decide whether the prosecutor s argument that the defendant and defense counsel lied reversible denied error. the 947 defendant P.2d at a fair 464-65. trial, The and court, was after recounting the argument, found that the statements can only be deemed an appeal to passion and prejudice. Id. at 465. The court continued and stated that [w]e are not convinced that the statements made by the prosecutor would have little weight in the minds of the jury in trying to decide whether [the defendant] was guilty of possession of cocaine with the intent to sell the same. [He] denied possessing the cocaine as well as having any intent to sell any cocaine. 11 Id. The court found that [the defendant s] credibility was an issue in this trial. The prosecutor s statements would likely have great weight in the minds of the jury in this case. reasonable doubt that the We cannot conclude beyond a prosecutor s comments, calling the defendant and his counsel liars, had no effect upon the jury s verdict. Id. The court subsequently ordered a new trial because the State s flagrant argument denied defendant a fair trial. Id. ¶23 Similarly, assault trial, the in a Connecticut Connecticut kidnapping Court of and Appeals and sexual Supreme Court found that the prosecution s conduct and argument went too far and reversed the defendant s convictions. See State v. Beaulieu, 848 A.2d 500 (Conn. App. Ct. 2004), overruled on other grounds by 876 A.2d 1155 (Conn. 2005). the police credible. officer 848 testified A.2d at that 510. he In State v. Beaulieu, thought During the was argument, closing victim the prosecutor improperly bolstered the credibility of the victim by assuring the jury that she was there to tell the truth. Id. ¶24 The credibility Connecticut between testify, was thin. the Id. at 512. involved the the Court victim central issue and of Appeals defendant, because the noted that who did not State s case was The court reasoned that because the conduct victim s credibility, 12 the pro se defendant s failure to object and the general instruction did not remove the deleterious effect of [the prosecutor s] thumb on the scale of credibility. Id. at 513. Because the appellate court found that there was other evidence to corroborate the kidnapping, but not the sexual assault, the court reversed only assault conviction and remanded it for a new trial. the sexual Id. at 512- 14. ¶25 The defendant, but not the State, then appealed to the Connecticut Supreme Court. 876 A.2d at 1158. As a result, the court examined whether there was a significant difference in the facts warrant and a different appellate court conviction, assault circumstances the charge, the the result. should court of Id. have found state kidnapping also that would In concluding reversed [j]ust not conviction as have the with that to the kidnapping the prevailed sexual on the kidnapping charge if the jury did not believe the victim; her credibility was still the critical issue in the state s case. Id. at 1161. ¶26 Here, like Lockhart and Beaulieu, the critical issue for the jury was credibility. The ultimate issue for the jury was whether to believe the victim or Defendant because there were no witnesses to the assault and the forensic evidence did not disprove consensual sex. victim? Did Defendant sexually assault the Or, did the parties engage in consensual sex-for-drugs? 13 Because the State improperly depicted Defendant as having concocted a defense from the police report without any evidence that he had read the report, and that argument was ringing in the ears of the jurors as they began to deliberate, we find there is a reasonable likelihood that the misconduct could have affected the jury s verdict. 207 P.3d at 777 (internal Edmisten, 220 Ariz. at 524, ¶ 23, quotation marks omitted) (quoting Newell, 212 Ariz. at 403, ¶ 67, 132 P.3d at 847). ¶27 Moreover, because a prosecutor has to seek justice and refrain from using improper methods to obtain a conviction, see Minnitt, 203 Ariz. at 440, ¶ 41, 55 P.3d at 783, we will follow supreme court guidance and reverse a conviction because of prosecutorial misconduct if the cumulative effect of the alleged acts of misconduct shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant. State v. Dann, 220 Ariz. 351, 373, ¶ 125, 207 P.3d 604, 626 (2009) (quoting State v. Roque, 213 Ariz. 193, 228, ¶ 155, 141 P.3d 368, 403 (2006)). ¶28 Although the prosecutor may not have intended to unprofessionally prejudice Defendant, her rebuttal argument was improper and reflected protections of Defendant. established that he was indifference to the due process Based on the record, Defendant has prejudiced 14 by the prosecutor s statements. Therefore, the prosecutorial misconduct warrants reversal of Defendant s convictions and we remand the matter for a new trial. CONCLUSION ¶29 Based on the foregoing, we reverse Defendant s convictions and remand the case for a new trial. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ PATRICIA K. NORRIS, Judge 15

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