State v. Arnold
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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: 12/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. FRANK JOHN ARNOLD, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0515 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-133258-001 DT The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Arizona 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 Stephen R. Collins, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Frank John Arnold (defendant) conviction and the sentence imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal, numerous issues raised by defendant. but setting forth This court also granted defendant an opportunity to file a supplemental brief, which he has done.1 See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). 1 After defendant filed a supplemental brief, he also filed a document entitled Appellant s Opening Brief raising ten issues that are identical to the issues listed by defendant s appellant counsel in the Anders brief. In resolving defendant s appeal, we have considered the issues raised by defendant in the latter filing. 2 ¶4 Defendant was charged by indictment with one count of conspiracy to commit murder, a class one felony, in violation of Arizona Revised Statutes (A.R.S.) sections 13-1003(A) and The following evidence was presented at trial. In -1105(A)(1) (2010). ¶5 late 2007, Angelica Rodriguez met defendant while working as a translator for Foreclosure Consulting Solutions. After completing two transactions together, defendant and Rodriguez developed a personal relationship. ¶6 As their relationship progressed, defendant frequently complained to Rodriguez about his wife. He was separated from his wife and in the middle of a divorce. When defendant told Rodriguez that his wife was sexually abusing [their] children, she responded that somebody should kill the bitch. From that point forward, defendant became focused on killing his wife and all of his conversations with Rodriguez centered on finding a way to murder her without [defendant] getting caught. ¶7 Rodriguez quickly determined defendant s interest in killing his wife provided her with a financial opportunity. She agreed to help him with the intent to play him along and take money from him. Defendant gave Rodriguez approximately $1000 and told her he would give her an additional $3000 if she killed his wife. Rodriguez initially agreed to kill defendant s wife, because she plann[ed] to string him along and take as much 3 money from him as [she] could, but she later became scared and told defendant that she would find someone else to do it for him. Rodriguez s primary motivation for helping defendant with his plans to murder his wife was to obtain money to support her drug addiction. ¶8 Although Rodriguez became scared and feared defendant might harm her, she chose not to go to the police because she is not lawfully in the country and feared she might be deported. In May 2008, however, Rodriguez was detained by police when she was found in an abandoned house after getting high. Initially, Rodriguez offered to become a confidential informant and provide the police information about drug dealers. Soon thereafter, Rodriguez informed the detective she was primarily working with that defendant planned to have his wife killed. Rodriguez then met with other police officers and they arranged to have Rodriguez call defendant to set up a meeting between defendant and a hit man with the nickname of Phat Tony who was, in actuality, Detective Salvadore Sanfillipo. ¶9 In the recorded telephone call, defendant expressed his dismay that Rodriguez was taking so long to arrange the murder and he asked whether the hit man she had found would be willing to kill his mother-in-law as well. Defendant also asked for reassurance that Rodriguez was not going to talk to the police. Later that day, defendant stopped by Rodriguez s home 4 and told her he wanted to meet the hit man. He also asked Rodriguez to celebrate with him that they had finally found someone to kill his wife. ¶10 At approximately 5:00 p.m. on May 28, 2008, defendant met Detective Sanfillipo at a restaurant parking lot. During their recorded meeting, Detective Sanfillipo provided defendant numerous outs to allow him to walk away from the situation. Nonetheless, defendant explicitly stated that he wanted his wife killed. Defendant agreed to pay the detective $1500 upfront and an additional $3000 after his wife was killed. When Detective Sanfillipo asked how defendant wanted his wife killed, defendant suggested that she could die in a car accident, . . . overdose, or . . . shoot herself in the head. Defendant also stated that Detective Sanfillipo ought to kill his wife s mother as well. The following evening, defendant met with Detective Sanfillipo again and provided him with his wife s address and photograph and $1500. envelope As soon as defendant handed Detective Sanfillipo the of money, other police officers placed him under arrest. ¶11 Defendant was charged by indictment with one count of conspiracy to commit murder. At defendant s first trial, Rodriguez testified, contrary to a court order, that defendant was a sex offender and had prior felony convictions. court declared a mistrial because 5 of Rodriguez s The trial testimony. Defendant s second trial was also aborted due a shortage of jury panelists. ¶12 Defendant s third trial commenced on March 15, 2010. After a four-day trial, the jury found defendant guilty. The trial court sentenced defendant to life with the possibility of parole after 25 calendar years. ¶13 As Rodriguez s his first testimony issue at on his appeal, first defendant trial. As challenges previously mentioned, the trial court declared a mistrial after Rodriguez testified outside the parameters defendant received a new trial. the State intentionally of the court s order and To the extent defendant claims elicited Rodriguez s statements, see Pool v. Superior Court, 139 Ariz. 98, 104-05, 677 P.2d 261, 26768 (1984) (recognizing that the double jeopardy doctrine may prevent the State from pursuing a second trial after the court declares a mistrial based on prosecutorial misconduct), the record reflects that the prosecutor averred, and the trial court expressly found, that the State did not intentionally elicit the statements. she took the Rather, the prosecutor met with Rodriguez before stand, outlined the trial court s order, and admonished her not to mention anything barred by the court. Therefore, we need not address this issue further. ¶14 Defendant next contends that testified falsely to the grand jury. 6 Detective Sanfillipo A defendant alleging prosecutorial misconduct in a grand jury proceeding generally must seek relief from an adverse trial court ruling through special action appeal. rather than waiting to raise such issues on State v. Snelling, 225 Ariz. 182, 185, 236 P.3d 409, 412 (2010). The one exception to this rule is when a defendant has had to stand trial on an indictment that the government knew was based partially on perjured, material testimony. 185-86, 236 P.3d at 412-13 (quotation omitted). Id. at Defendant alleges that Detective Sanfillipo lied to the jury regarding the nature of their conversations. jury proceedings are not The transcripts of the grand included in the appellate record. Nonetheless, even accepting defendant s recitation of Detective Sanfillipo s grand jury testimony, we find no reversible error. Defendant cites several instances in which Detective Sanfillipo summarized portions of their conversations precise wording of the parties. the recordings of their using the We find the error in these summations, if any, to be immaterial. in without For example, as reflected conversations played at trial, defendant told Detective Sanfillipo that he wanted him to kill his wife and he provided several suggestions as to how Detective Sanfillipo could defendant s recollection Detective achieve Sanfillipo may that of the have result. grand made Even jury some accepting testimony, slight errors that in relaying the chronology of their conversations or the precise 7 words defendant used is irrelevant because the substance of his testimony, namely that defendant asked him to kill his wife, was accurate. ¶15 to Defendant also argues that Rodriguez testified falsely the trial jury. At trial, the prosecutor repeatedly acknowledged that Rodriguez lied to the police and that she had been dishonest during portions of her testimony. In response to questions by defense counsel, Rodriguez also acknowledged that she had lied to the police and during her testimony. Rodriguez stated that she lies, but not always. Indeed, Therefore, Rodriguez s lack of veracity was placed before the jury and it was for the jurors to determine what portion of her testimony, if any, they found credible. 404, 420, 661 P.2d See State v. Jeffers, 135 Ariz. 1105, 1121 (1983) (explaining witness credibility is a matter solely for the fact-finder to resolve). ¶16 Defendant disclose all next pertinent asserts records Rodriguez s prior convictions. and defense counsel pointed prior felony convictions. that the and State failed documents to regarding At trial, both the prosecutor out that Rodriguez has multiple Therefore, even assuming that the State failed to disclose some records pertaining to Rodriguez s prior convictions, convicted of the multiple fact that felonies and she was prison sentence was presented to the jury. 8 had previously currently been serving a ¶17 Defendant contends that the recordings of his conversations with Detective Sanfillipo were altered and should not have been admitted into evidence. Absent an abuse of discretion, we will not disturb a trial court s decision to admit evidence. 1078, 1086 State v. Lopez, 174 Ariz. 131, 139, 847 P.2d (1992). admissibility of The the trial court recordings held and the a hearing undisputed on the evidence reflects that the State did not cut or splice the recordings. Instead, the enhancement only to alteration reduce the to noise the in recordings the was background so an that Detective Sanfillipo and defendant s voices would be clearer. Thus, there was no alteration to the material content of the recordings and the trial court did not abuse its discretion by admitting them into evidence. ¶18 Defendant argues that, during closing argument, the prosecutor suggested to the jurors that they need not find a conspiracy between defendant and Detective Sanfillipo, as charged in the indictment, but instead could find a conspiracy between defendant and Rodriguez. The record reflects that the prosecutor reviewed with extensively that Sanfillipo to kill the evidence defendant his had wife. To the jurors conspired the extent and argued with Detective the prosecutor argued defendant conspired with Rodriguez, he was attempting to refute defendant s claim of entrapment by demonstrating that the 9 idea of defendant killing his wife did not originate with the police, but instead arose between defendant and Rodriguez. ¶19 Defendant also challenges the accuracy of the testimony presented by Detective Ott and Officer Brilhardt. We note or that he has not misleading statements. cited any evidence of inaccurate Again, the credibility of a witness s testimony is a matter for the jury to resolve. See Jeffers, 135 Ariz. at 420, 661 P.2d at 1121. ¶20 Finally, defendant argues ineffective assistance counsel. We will not consider claims of ineffective assistance of counsel on direct appeal regardless of merit. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). therefore decline to address this argument. of We If defendant wishes to pursue a claim for ineffective assistance of counsel, he may file a claim for post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. ¶21 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that 10 defendant committed the offense of conspiracy to commit firstdegree murder. ¶22 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need decision, counsel s representation do no more than in this inform defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's conviction and sentence is affirmed. _/s/_____________________________ PHILIP HALL, Judge CONCURRING: _/s/_________________________________ PATRICK IRVINE, Presiding Judge _/s/_________________________________ JOHN C. GEMMILL, Judge 11
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