State v. Garza
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. ) ) RICARDO GARZA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 07-22-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0355 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-128904-001 DT The Honorable Michael D. Jones, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Maricopa County Legal Advocate by Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Ricardo Garza challenges his felony convictions for two counts of armed robbery, two counts of theft of means of transportation, and one count of possession or use of dangerous drugs. for a He argues that the trial court erred when his request mistrial was denied. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND 1 K.P. 2 ¶2 approximately was 5:00 walking p.m., to when his he car noticed on a May 4, Hispanic 2007, at man and Hispanic woman parked in a black [m]id-90 s Mercedes outside of the building where he worked. He retrieved his white 2000 Nissan Altima, and as he waited for his co-worker to close and lock the parking area gate, he was approached by the Hispanic man, later identified as Defendant. The man held a big knife with a long blade that ha[d] jagged edges, and said, I want your car. K.P. got out of his car, and Defendant got in, backed up to the Mercedes, and yelled at the Hispanic female to get out of the Mercedes. Defendant drove off. and found a wallet Once the female got into the Altima, Phoenix Police later searched the Mercedes with check stubs in Defendant s name, a photograph of Defendant, a manila envelope containing several letters addressed to Defendant, broken glass, and blood. 1 We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against Defendant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 We use the initials of any victims throughout this decision to protect their privacy. See State v. Maldonado, 206 Ariz. 339, 341 n.1, ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003). 2 ¶3 Later that evening, some two and one-half miles from where K.P. s Altima had been taken, J.S. Mercedes in a Dairy Queen parking lot. as Defendant, [v]ery approached large attempted to knife, get his J.S. and wallet behind him, off of in his 2004 A man, later identified from told was while Move. the holding Move. passenger a J.S. seat, but Defendant pushed his hand off of the wallet and again said, Move. Move. A witness testified that she saw the incident and noticed a white Nissan Altima about two feet behind the Mercedes. A Hispanic female with blood on her face was in the passenger seat of the Altima. After J.S. got out of his car, Defendant got in and drove off. The female in the Altima moved to the driver s seat and also drove off. ¶4 Phoenix Police broadcasted a description 2004 Mercedes shortly after the incident. a.m. the next morning, an fitting the description. officer on of J.S. s At approximately 3:00 patrol spotted a car After he confirmed that the vehicle had been stolen, the officer requested an air unit and back-up. Defendant led the pursuing officers on a high-speed chase from Phoenix to Casa Grande, but eventually stopped at a gas station and was taken into custody. ¶5 Defendant was transported back to Phoenix. After Defendant was released to a police detective, the transporting officer searched the back of the patrol car and found a small 3 bag of what was methamphetamine. later During identified an as 540 interrogation, milligrams Defendant of admitted that he dropped the bag of methamphetamine in the patrol car. ¶6 Defendant was charged with two counts of armed robbery, class two dangerous felonies; two counts of theft of means of transportation, class three felonies; and one count of possession or use of dangerous drugs, a class four felony. ¶7 At trial, Defendant testified that he knew K.P., and that a mutual friend of theirs named Raul had hired him to pick up directed some by property Raul to for meet K.P. K.P. He and testified switch that cars, he that was K.P. supplied the knife to him for his protection, and that after obtaining K.P. s Altima, Raul directed him to go to a house near 16th Street and Indian School. According to Defendant, after arriving at the house, he was directed by Raul to take a black car that was parked on the street with keys inside. Defendant said that he then began driving around the streets waiting for Raul to call, and when he realized police were after him, he got very scared because [he] didn t know if there was like stolen property in the car or illegal stuff. ¶8 The prosecutor sought to impeach Defendant s story by demonstrating police. that Defendant had not told his story to the During cross-examination, Defendant testified that he 4 had not read the police report, and the following exchange occurred: Prosecutor: You have had somebody read [the police report] to you; haven t you? Defendant: No. Prosecutor: says? Defendant: So no one told you what the police report No. Prosecutor: In a year and a half no one discussed with you what s in the police report? Before Defendant answered the question, defense counsel requested a sidebar, and after the jury was excused, moved for a mistrial. Counsel argued that the prosecutor had implicitly comment[ed] on defendant s and defense counsel s communication and conversation. was only trying The prosecutor disagreed and argued that he to determine whether Defendant had general knowledge of what the police report stated. ¶9 The court stated that the State was entitled to question [Defendant] about whether [he was] aware of certain things within the police department reports, but that the court was not going to allow any similar further questioning. court concluded that the stage that [the issue was] The caught ha[d] prevented any prejudicial error to the defendant . . . particularly because the very last question was not answered. 5 The court denied the request for a mistrial, but instructed the prosecutor not to question Defendant further about the subject. ¶10 On rebuttal, the interrogating officers. and had never met State called K.P. and one of the K.P. testified that he did not know, either Defendant or Raul, did not give Defendant a knife, and did not give Defendant permission to take his car. He testified that there was no deal to switch cars, and that after his car was taken, he quickly called 911. The officer testified that during his interrogation, Defendant never mentioned Raul, knowing K.P., or picking up the 2004 Mercedes or any other property for K.P. He also testified that Defendant admitted that he approached K.P. with a knife, told him to get out of the car, and admitted that the methamphetamine found in the patrol car was his. ¶11 that Defendant Defendant had was two convicted prior as felony charged. After convictions, finding the court sentenced him to consecutive twenty-year prison terms for the two counts of armed robbery. The court also sentenced him to fifteen-year terms for each count of theft of means, and a tenyear term for possession or use of dangerous drugs, each to run concurrently with the armed-robbery terms. ¶12 Defendant appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A) (2010). 6 DISCUSSION ¶13 Defendant contends that denying his motion for a mistrial. abuse of discretion, and the trial court erred in We review the ruling for an recognize that the trial court s discretion is broad . . . because [it] is in the best position to determine whether [] outcome of the trial. evidence will actually affect the State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000) (citation omitted). ¶14 granted Defendant because the argues that prosecutor attorney-client privilege. a mistrial improperly should infringed have upon been the He argues that the questions posed were remarkably similar to an exchange found improper in State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979). 3 ¶15 In Holsinger, a prosecutor asked a defendant whether she had discussed the case that the State had against [her] with her attorney. Id. at 22, 601 P.2d at 1058. After an objection by her counsel, the defendant was asked whether she 3 Defendant also relies on two Maryland cases, Blanks v. State, 959 A.2d 1180 (Md. 2008), and Haley v. State, 919 A.2d 1200 (Md. 2007). Neither of these cases, however, presented the attorneyclient privilege issue in the context of an appellate review of a denied request for a mistrial. See Blanks, 959 A.2d at 118485, 1187-89; Haley, 919 A.2d at 1209-14. Additionally, unlike the prudent response of the trial court in this case, the trial court in both Maryland cases, over defense counsels objections, repeatedly permitted improper questioning that infringed on the attorney-client privilege. See Blanks, 959 A.2d at 1184-85; Haley, 919 A.2d at 1209-11. Therefore, we reject Defendant s argument that Blanks and Haley cannot be distinguished from this case. 7 wanted to invoke the attorney-client privilege. Id. On appeal, our supreme court found that the question placed the defendant on the horns of a dilemma because the effect if not the intent of the question was to force the defendant either to waive the attorney-client privilege, possibly resulting in damaging testimony, or to invoke the privilege before the jury and risk leading something. the jury to believe that Id. at 23, 601 P.2d at 1059. she was hiding The court held that the question was prejudicial and constituted error. Id. After finding several other instances of improper questioning by the prosecutor, the court reversed the conviction and remanded the case for a new trial. ¶16 Defendant prosecutor asked a Id. at 21-24, 601 P.2d at 1057-60. argues that, line questions of like in that Holsinger, required the [him] to either waive his attorney client privilege or look like he was either trying testimony. to hide something or providing incredulous The State argues, however, that unlike Holsinger, the prosecutor s broad questions about whether anyone had read or discussed the police report with Defendant did not have the same effect as the pointed question did in Holsinger. ¶17 We questioning infringing agree with employed by on the the Defendant s trial court prosecutor had attorney-client that the the broad potential privilege. of Even though the inquiries were not specifically focused on whether 8 defense counsel had read or discussed the police report with him, they could have infringed on the privilege because defense counsel was ostensibly included within the group of anyone who may have read or discussed the police report with Defendant. If counsel was the only person who had read and/or discussed the police choice report of perjuring with Defendant, waiving himself the to Defendant privilege protect the and was faced impeaching privileged with the himself, information, or invoking the privilege and risking that the jury might believe he had something to hide. ¶18 Here, Defendant testified that no one had read the police report to him. sidebar before discussed the His lawyer intervened and requested a Defendant report responded with him. to The whether court anyone had instructed the prosecutor to avoid asking questions that could infringe on the attorney-client privilege. ¶19 Even though the questions could have infringed on the attorney-client privilege, the trial court did not abuse its discretion in denying the request for a mistrial. In State v. Adamson, 136 Ariz. 250, 262-63, 665 P.2d 972, 984-85 (1983), our supreme court reviewed the denial of a request for a mistrial in the context of infringement of the attorney-client privilege. There, the defendant was charged in a bombing murder. 253, 665 P.2d at 975. Id. at During cross-examination of an attorney 9 who spoke with the defendant on the night of the bombing, the prosecutor asked the attorney whether he had any conversation with [defendant] concerning the bombing. at 984. Id. at 262, 665 P.2d Although the trial court sustained objections to both questions, the defense moved for a mistrial because the questions were designed to probe into areas that were not of legitimate inquiry and were asked for the purpose of forcing [the] defendant to invoke the attorney-client privilege. Id. at 263-64, 665 P.2d at 984-85. ¶20 The Supreme Court held that the question between the defendant and the attorney about the bombing went to the substance of [the attorney s] telephone conversation with the defendant and therefore was attorney-client privilege. court distinguished within of the Id. at 263, 665 P.2d at 985. The Holsinger, and the stated protection that [Holsinger s] conviction was reversed due to several instances of improper questioning . . . by the prosecutor of which forcing the defendant to invoke the attorney-client privilege was only one. Id. Because only one improper question was asked in Adamson, and no answer was given, the court found no abuse of discretion in denying the motion for a mistrial. that the asking trial of court [the] one necessarily unanswered 10 Id. weighed The court stated the question effect on the of the entire proceeding, and that the court could very well have felt . . . that the effect was little or none. ¶21 Id. Here, like in Adamson, the trial court weighed the effect of the prosecutor s questions on the entire proceedings and could very well have felt, as we do, that there was little, if any, prejudicial effect. 4 Defense counsel timely intervened and the court prudently addressed the situation outside of the presence of the jury. to the nature question. of the The jury, as a result, was never alerted objection or the ramifications of the The trial court was in the best position to assess the impact of the questions and it was not error to find that their influence was minimal. See State v. Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989) (citing State v. Hallman, 137 Ariz. 31, 37, 668 P.2d 874, 880 (1983)). 4 During closing argument, the prosecutor argued that Defendant had changed his story for trial. He stated, Then [Defendant] completely changes what he says here. He has an explanation for everything. Every single point that s brought up he had an explanation for. But he s never prepared. He had no idea about preparation in this case. Defendant argues that the prosecutor s statements about trial preparation were in reference to the improper questions asked by the prosecutor, and served to increase the prejudice to him. We disagree. During cross-examination, Defendant also testified that he had not prepared for his testimony. Based on Defendant s testimony, the prosecutor s comments were not improper, nor do they amount to fundamental error. 11 CONCLUSION ¶22 Based on the foregoing, we affirm Defendant s convictions. /s/ ____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ________________________________ PATRICIA K. NORRIS, Judge 12
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.
