State v. Fisher

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. TERRA LYNN FISHER, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 11/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0416 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-148708-001 DT The Honorable Lisa Ann Vandenberg, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Angela Corinne Kebric, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Judge ¶1 Terra Lynn Fisher appeals her conviction and resulting sentence imposed after a jury found her guilty of possession of a dangerous drug (methamphetamine). For the following reasons, we affirm. BACKGROUND ¶2 Officer Around 8:00 p.m. on July 15, 2008, Scottsdale Police Mark Ashton arrested after a traffic stop. Fisher on an unrelated warrant While handcuffed in the back seat of the police car, Fisher asked Officer Ashton to retrieve her phone and call a friend to look after her children. While looking through Fisher s purse to find her cell phone, Officer Ashton discovered a plastic baggie of a crystal-like substance, which was later revealed to be methamphetamine. Fisher the baggie methamphetamine According to substance was and and asked whether Officer methamphetamine was in her purse. whether she knew she Ashton, The officer showed was Fisher and it knew in admitted knowing the her it was purse. knowing the methamphetamine Fisher, on the other hand, maintains she told Officer Ashton she did not know what the substance was and did not know it was in her purse. ¶3 The State charged Fisher with one count of possession of a dangerous drug (methamphetamine) in violation of Arizona Revised Statutes ( A.R.S. ) class four felony. section 13-3407(A)(1) (2009), 1 a At trial, the jury returned a unanimous 1 Absent material revisions after the date of an alleged offense, we cite a statute s current version. 2 guilty verdict. to one year On April 29, 2010, the court sentenced Fisher of statutory fine. supervised probation and imposed a $1000 This timely appeal followed. DISCUSSION ¶4 error Fisher because argues (1) the the trial court court did committed not sua fundamental sponte hold a voluntariness hearing concerning the statements Fisher made to Officer Ashton after her arrest, and (2) the court failed to sua sponte stop the prosecutor from engaging in alleged misconduct and failed to give a curative instruction to the jury. Because Fisher did not raise these arguments to the trial court, she has waived them absent fundamental error. State Ariz. 323, 327, 819 P.2d 909, 913 (1991). v. Schaff, 169 To gain relief, Fisher must prove error occurred, the error was fundamental, and she was prejudiced by the error. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 23-24, 26, 115 P.3d 601, 608 (2005). considered fundamental if it reaches the foundation Error is of the defendant s case or removes an essential right to the defense. State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982) (citation omitted). With these principles in mind, we consider Fisher s arguments. 3 A. ¶5 Voluntariness hearing Although a defendant may object to admissibility of a confession and has a right to a fair hearing to resolve any issue raised as to voluntariness, the defendant must first object; [t]he trial court is not required to [s]ua sponte enter upon an examination evidence. to determine the voluntary nature of State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977); State v. Sutton, 115 Ariz. 417, 420, 565 P.2d 1278, 1281 (1977) (holding no voluntariness hearing required without motion to suppress, admissibility by hearing defendant, request, even when or objection prosecutor to indicated possible issue as to voluntariness); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974) (to same effect); cf. State v. Stevenson, (concluding 101 Ariz. hearing 254, 256, 418 P.2d required when defendant, 591, at 593 (1966) least by implication, raised question as to voluntariness and jury was instructed on voluntariness). ¶6 Fisher never requested a voluntariness hearing before trial and never objected to the admissibility of her statements during trial. She argues, nevertheless, the court was required to conduct a hearing because the totality of the circumstances surrounding Fisher s confession suggested it was involuntarily made. See A.R.S. § 13-3988(A) (2010) ( Before [a] confession is received in evidence, the trial judge shall . . . determine any 4 issue as to voluntariness. (emphasis added)); State v. Strayhand, 184 Ariz. 571, 582 n.3, 911 P.2d 577, 588 n.3 (App. 1995) ( If the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession. (quoting Blackburn v. Alabama, 361 U.S. 199, 210 (1960))). Specifically, Fisher points to (1) evidence that at the time she made her statements to Officer Ashton, she was handcuffed and isolated in the patrol car, and she was concerned about leaving her children alone, and (2) a lack of evidence that an officer advised her of her Miranda 2 rights before Officer Ashton asked her about the baggie. ¶7 We do not agree these circumstances suggested Fisher involuntarily between made Officer her statements. Ashton and Nothing Fisher or the in the exchange circumstances of Fisher s custody suggested police coerced her statements, as is necessary to Connelly, 479 police deem U.S. activity is a statement 157, a 167 involuntary. (1986) necessary See (stating predicate to Colorado that a v. coercive finding of involuntariness); State v. Boggs, 218 Ariz. 325, 335-36, ¶ 44, 185 P.3d 111, 121-22 (2008) ( To find a confession involuntary, we must find both coercive police behavior and a causal relation between 2 the coercive behavior and the Miranda v. Arizona, 384 U.S. 436 (1966). 5 defendant s overborne will. ); State v. Poyson, 198 Ariz. 70, 75, ¶ 10, 7 P.3d 79, 84 (2000) (holding that [a]lthough personal circumstances, such as . . . emotional status, may be considered in a voluntariness inquiry, the critical element . . . is whether police conduct constituted overreaching (citation omitted)). Also, although no one testified about Miranda warnings at trial, Officer Ashton testified at the preliminary hearing that he read Fisher the Miranda warnings upon arrest and before any interrogation. are not aware considering of any this circumstances prior suggested were involuntary. request by authority precluding testimony Fisher s when the court assessing statements to Officer We from whether Ashton In these circumstances, absent objection or Fisher, the trial court was not required to sua sponte hold a voluntariness hearing, and there is no error much less fundamental error in the trial court s failure to do so. 3 B. ¶8 Prosecutorial misconduct Fisher prosecutorial also misconduct contends when, the during State engaged cross-examination, in it compelled her to state that Officer Ashton was lying and later commented on this testimony during closing argument. 3 We will Although we need not consider whether Fisher was prejudiced by the lack of a voluntariness hearing, we note that the record does not reveal any prejudice, especially in light of Officer Ashton s testimony at the preliminary hearing that he gave Miranda warnings before any interrogation. 6 reverse for prosecutorial misconduct only if (1) misconduct is indeed present[,] and (2) a reasonable likelihood exists that the misconduct could have affected the jury s verdict, thereby denying defendant a fair trial. State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004). In addition, reversal is only required if misconduct is so pronounced and persistent that it permeates the entire atmosphere of the trial. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 State v. P.3d 1177, 1183-84 (App. 2002) (quoting State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997)). We look to whether the misconduct affected the jury s ability to fairly assess the evidence. Id. (citing State v. Murray, 184 Ariz. 9, 35, 906 P.2d 542, 568 (1995)). ¶9 Fisher Officer Ashton testified about the at trial that, crystalline when substance questioned found in by her purse, she denied knowing what the substance was or even that it was in her purse. That officer s testimony. testimony directly contradicted the During cross-examination of Fisher, the prosecutor asked three times, without objection, whether Officer Ashton was lying. After the defense rested, the State recalled Officer Ashton in rebuttal, who testified that he had no reason to lie about Fisher s statements and that he could lose his job for lying on the stand. In closing, the defense argued that Fisher ha[d] no reason to lie and was telling the truth. 7 In its rebuttal closing argument, the State argued, without objection and with explicit acknowledgment by the State that the jury is the sole judge of witness credibility, that Fisher was calling Officer Ashton a liar and that Fisher indeed had motive to lie. ¶10 Fisher now contends the State s tactic to set [Fisher] up to answer whether the officer was lying amounted to prosecutorial Arizona misconduct opinion requiring testimony by one reversal. witness Although commenting on in the truthfulness of another is generally disfavored, if not outright barred, see Boggs, 218 Ariz. at 335, ¶ 39, 185 P.3d at 121, we have declined to categorically questions in this context. prohibit were they lying State v. Morales, 198 Ariz. 372, 375, ¶ 12-13, 10 P.3d 630, 633 (App. 2000). ¶11 improper, Even assuming the prosecutor s cross-examination was any alleged misconduct was persistent as to require reversal. not so pronounced and Rosas-Hernandez, 202 Ariz. at 218-19, ¶ 23, 42 P.3d at 1183-84 (quoting Lee, 189 Ariz. at 616, 944 P.2d at 1230). questions alone will We have noted that [w]ere they lying rarely amount to fundamental Morales, 198 Ariz. at 376, ¶ 15, 10 P.3d at 634. context, the questions between Officer merely Ashton s highlighted and Fisher s the error. In this differences testimony inconsistencies that the jury could consider and the parties 8 could argue to the jury. See State v. Canion, 199 Ariz. 227, 236-37, ¶ 43, 16 P.3d 788, 797-98 (App. 2000). We fail to discern how the use of the word lying alone is so provocative that it unduly credibility. at 634. affected the jury s assessment of witness Cf. id.; Morales, 198 Ariz. at 376, ¶ 15, 10 P.3d Similarly, the prosecutor s comment in closing that [Fisher] said that the officer was a liar, especially when accompanied by an acknowledgment that the jury is to judge a witness s credibility, is unlikely to have had any significant effect on the jury s determinations. Moreover, the court properly instructed the jurors that they are the sole judges of witness credibility and that testimony from a police officer or from Fisher should be judged in the same manner as any other witness s testimony; instructions. at 1184. we presume jurors followed the court s Rosas-Hernandez, 202 Ariz. at 219, ¶ 25, 42 P.3d In sum, even if, as Fisher argues, the case hinged on the jury s acceptance of one version of events over the other, the prosecutor s purported misconduct did not so pervade the trial that Fisher was deprived of fundamental fairness. Canion, 199 Ariz. at 236-37, ¶¶ 42, 44, 16 P.3d at 797-98. 9 See CONCLUSION ¶12 For the foregoing reasons, we affirm conviction and sentence. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Michael J. Brown, Presiding Judge /s/ Philip Hall, Judge 10 Fisher s

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