State v. Calvillo

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. JOSE GUADALUPE CALVILLO, Appellant. 1 CA-CR 09-0761 DEPARTMENT D DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2006-158425-001 DT The Honorable Rosa Mroz, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and W. Scott Simon, Assistant Attorney General Attorneys for Appellee Phoenix Bruce F. Peterson, Legal Advocate By Consuelo M. Ohanesian Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Jose Guadalupe Calvillo ( Defendant ) appeals from his convictions and sentences for two counts of first degree murder. He argues the trial court abused its discretion in admitting hearsay evidence, and he contends his case should dismissed because of prosecutorial misconduct. have been For the reasons that follow, we affirm. BACKGROUND ¶2 We must view the facts in the light most favorable to sustaining the Defendant. verdicts and resolve all inferences against State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). ¶3 In the early morning of September 9, 2006, D. and J. met and talked with an acquaintance and others at a gas station parking lot. The discussion turned heated, and the acquaintance shot and killed D. and J. The shooter then approached J.P. -- D. s brother and J. s cousin who had arrived at the station with the victims and others -- and attempted to shoot him, too, but the gun did not fire. 1 ¶4 at Numerous people witnessed the incident and testified trial. grounds, Over the Defendant s trial court pre-trial permitted objection J.P. to on hearsay testify that, immediately after the failed attempt to shoot J.P., he overheard an unidentified person say Let s go, Scrappy, let s go. 1 Based on the attempt to shoot Defendant with aggravated assault. guilty of this charge. 2 F___ J.P., the State charged The jury found him not them. (the Scrappy Comment ). 2 Based on evidence presented at an evidentiary hearing, the court determined the Scrappy Comment qualified as an excited utterance and therefore was admissible hearsay pursuant to Arizona Rule of Evidence 803(2). Also finding the Scrappy Comment was not testimonial under Crawford v. Washington, 541 U.S. 36 (2004), the trial court similarly rejected Defendant s argument that admission of the statement would violate his Sixth Amendment right to confrontation. ¶5 During the State s closing arguments, Defendant objected to statements made by the prosecutor in reference to certain witnesses prosecutor witness about testimony Defendant s testimony. and statements demeanor Defendant during argued made trial the by the during a prosecutor s statements amounted to misconduct, and he moved for a mistrial. Although the court agreed that some of the statements were improper, it took curative measures and also concluded that the prosecutor did not intentionally make improper statements. Accordingly, the court denied the mistrial motion. ¶6 We discuss additional details in the context of our 2 J.P. further stated, And that s when Scrappy just ran to the car. J.P. testified that he had met Defendant in 2003, and Defendant s nickname was Scrappy. J.P. also testified that he saw Scrappy pull a gun from his waistband and fire at the victims a number of times. J.P. identified the Defendant at trial as the shooter. 3 analysis infra. ¶7 The jury returned guilty verdicts on two counts of first Defendant to consecutive life sentences, and Defendant timely appealed. We have degree murder. jurisdiction Arizona pursuant Constitution, sections The and 12-120.21(A)(1) court to sentenced Article Arizona 6, Section Revised (2003), Statutes 13-4031 (2010) 9 of the ( A.R.S. ) and 13- 4033(A)(1) (2010). DISCUSSION I. ¶8 Hearsay and Confrontation Clause Defendant first argues the trial court abused its discretion in admitting the Scrappy Comment under the excited utterance exception to the hearsay rule. claims admission rights. The of State the statement counters Similarly, Defendant violated that the his Scrappy confrontation Comment was admissible because it is not hearsay or testimonial. ¶9 We review a trial court s ruling on the admissibility of evidence over a hearsay objection for an abuse of discretion. State v. Fischer, 219 Ariz. 408, 416, ¶ 24, 199 P.3d 663, 672 (App. 2008). We review de novo based on the Confrontation Clause. challenges to admissibility State v. King, 213 Ariz. 632, 636, ¶ 15, 146 P.3d 1274, 1278 (App. 2006). ¶10 Hearsay is a statement[] . . . offered in evidence to prove the truth of the matter asserted[,] and generally is not 4 admissible as evidence. Ariz. R. Evid. 801(c), 802. The excited utterance exception to the rule against admission of hearsay statements requires proof of three elements: (1) a startling event, (2) a statement made soon after the event to ensure the declarant has no time to fabricate, and (3) a statement which relates to the startling event. State v. Bass, 198 Ariz. 571, 577, ¶ 20, 12 P.3d 796, 802 (2000); see also State v. Whitney, 159 Ariz. 476, 482, 768 P.2d 638, 644 (1989). The court considers circumstances admissible Barnes, to determine under 124 the the Ariz. totality whether excited 586, a of hearsay utterance 589-90, 606 the statement s statement exception. P.2d 802, State 805-06 is v. (1980). Among the elements usually considered are the time between the event and the challenged statement, the emotional and physical condition of the declarant, and the type of offense. State v. Anaya, 165 Ariz. 535, 539, 799 P.2d 876, 880 (App. 1990). ¶11 Here, the court heard J.P. s testimony at the evidentiary hearing that the declarant had seen everything . . . [that] was going on[,] and he made the statement while looking at Defendant. J.P. also testified that the declarant made the Scrappy Comment immediately after the shooter attempted to shoot J.P. Finally, J.P. described the declarant s voice as loud . . . [and] like in shock . . . [,] and the declarant appeared tripped out when he made the comment, a reaction that J.P. 5 apparently demonstrated for the court. We conclude that the trial court did not abuse its discretion in determining that the statement was admissible as an excited utterance. ¶12 into Additionally, evidence did confrontation. The the admission not violate Confrontation of the Scrappy Defendant s Clause states, Comment right to [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI. In Crawford, the United States Supreme Court held testimonial evidence from a declarant who does not appear at trial may only be admitted when the declarant is unavailable and there has been a prior opportunity for the defendant to crossexamine the declarant. Crawford v. Washington, 541 U.S. at 68 (2004); see also King, 213 Ariz. at 637, ¶ 17, 146 P.3d at 1279. ¶13 dependent Whether or not an excited utterance is testimonial is on the statement was made. circumstances existing at the time the State v. Parks, 211 Ariz. 19, 27, ¶ 40, 116 P.3d 631, 639 (App. 2005). An excited utterance may not be subject to Crawford if the declarant had no reason to expect the statement would be used for prosecutorial purposes, or the statement was not made in response to police questioning or to prove or establish a fact. State v. Aguilar, 210 Ariz. 51, 53, ¶ 11, 107 P.3d 377, 379 (App. 2005); see also Parks, 211 Ariz. at 27-28, ¶ 40, 116 P.3d at 639-40. 6 Here, we conclude that the Scrappy Comment was not testimonial because the statement was not intended to be used in a prosecutorial manner. Instead, it appears declarant intended to encourage Scrappy to leave the scene. Therefore, the statement was properly admitted over the Confrontation Clause objection. II. Prosecutorial Misconduct ¶14 his Defendant contends the trial court should have granted mistrial prosecutor motion made the because, during following closing improper arguments, statements the that cumulatively amounted to prosecutorial misconduct. ¶15 When referring to the testimony of an eye witness, the prosecutor stated: Now, if you remember [C.], he wasn t remembering a whole lot, . . . we had to go through this transcript to try to help him with his memory. Now, I don t know if you caught this, I certainly did, but the defendant was looking at him and giving him, like, a mad dog stare while he testified. So perhaps that was why [C.] was forgetting things. After that, after one of you all wanted us to move the podium, I started asking questions from counsel table, so that you could see him if you wanted to see him, and it wasn t shortly after that, if you were watching during the trial, that he stopped doing that. Let me suggest to you why he stopped. Perhaps his attorneys had a conversation with him about ¶16 Defense counsel immediately requested a side bar and moved for a mistrial. The court denied the motion, but, finding 7 the comments improper, ordered them stricken and admonished the jury as follows: Okay, ladies and gentlemen, I would like you to disregard what [the prosecutor] had just stated as to what he observed and what he thinks happened. That is not in evidence before you. You are to consider only the evidence of the facts introduced into evidence, and so I want you to disregard that. You cannot consider it for any purpose. . . . [T]he State s comment about what he thinks or speculated as to what the defendant s lawyers may or may not have done is also stricken, as well, and you are not to consider that, either. Again, there is no evidence that the defendant s attorneys did anything wrong or did anything regarding that issue, so I do not want you to consider that for any purpose. ¶17 Defendant also objected to the prosecutor s reference to testimony other than J.P. s that identified Defendant as the shooter, when those witnesses only testified as to the shooter s physical description Defendant. but could not affirmatively identify The court agreed that the statements were not based on the evidence, and it reminded the jury of the instruction that the lawyers comments are not evidence. ordered the prosecutor to correct the The court further mistake, subsequently did: [T]he identified [J.P.] So know, and everybody only person who specifically the defendant as the shooter is if I say anything other than - I you ve heard the evidence, that else identified the shooter. 8 which he Okay? So [J.P.] s the only one who identified the defendant as the shooter. So if I misspoke, I apologize. The court also ordered the prosecutor to amend PowerPoint slides by replacing references to defendant with shooter. ¶18 Motions for new trial are disfavored and should be granted with great caution. State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988). Because the trial court is in the best position to determine whether an attorney s remarks require a mistrial, we will not disturb its judgment absent an abuse of discretion. State v. Tucker, 215 Ariz. 298, 319, ¶ 88, 160 P.3d 177, 198 (2007) (citations omitted). wide latitude in presenting closing arguments. Lawyers have State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). will not usually review the exercise of the Thus, [w]e trial court s discretion in such cases unless there is invective so palpably improper that it is clearly injurious. State v. Scott, 24 Ariz. App. 203, 206, 537 P.2d 40, 43 (1975) (quoting State v. Adams, 1 Ariz. App. 153, 155, 400 P.2d 360, 362 (1965)). ¶19 When considering a motion for a mistrial based on prosecutorial misconduct, a trial court should first consider whether the prosecutor s statements called jurors attention to matters the jury was not justified in considering in determining its verdict, and then the court should consider the impact those 9 statements had on the jury. 944 P.2d 1222, prosecutorial 1230 State v. Lee, 189 Ariz. 608, 616, (1997). misconduct, To Defendant prevail must on a demonstrate claim of that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. 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 (citations the entire omitted). We atmosphere look to of the the trial. cumulative effect Id. that incidents of purported misconduct had on the trial. Id. ¶20 While we note that the prosecutor s comments, especially regarding the mad dog stare, were improper, when applying the aforementioned standards to the circumstances here, we discern no abuse of discretion by the trial court in deciding that the statements did not rise to the level of invectiveness necessary to require a mistrial on misconduct grounds. Further, in light of our supreme court s repeated directive that juries are presumed to follow their instructions, see, e.g., State v. Newell, 212 Ariz. 389, 403, ¶¶ 68-69, 132 P.3d 833, 847 (2006), we are satisfied that the trial court s corrective measures sufficiently tempered any improper influence that the statements, independently and collectively, may have had on the 10 jury. P.3d See State v. Roque, 213 Ariz. 193, 230, ¶¶ 164-65, 141 368, 405 misconduct -- (2006) including opinion regarding remarks to an (cumulative effect a psychiatric expert witness test, during prosecutor s injecting improperly of prosecutor s intentional disparaging trial, intentional and failure to properly disclose expert testimony -- did not amount to reversible error); Newell, 212 Ariz. at 403, ¶ 69, 132 P.3d at 847 (improper comment impugning opposing counsel s integrity did not affect sustained, jury s comment verdict was because stricken, objection and jury thereto was was properly instructed); State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987) (holding that to the extent prosecutor s statement in closing argument may have implied that defendant had the burden of proof, the trial court s cautionary instruction to the jury was sufficient to cure any harm); State v. Bowie, 119 Ariz. 336, 340, 580 P.2d 1190, 1194 (1978) ( Any possible prejudice from the opening statement was overcome by the court s cautionary instructions that evidence did not come from the attorneys and that the verdict must be determined only by reference to the evidence . . . . ); Scott, 24 Ariz. App. at 206, 537 P.2d at 43 (trial court s timely corrective measures sufficient to prevent unquestionabl[y] improper comments from 11 influencing jury). Accordingly, we conclude the court acted within its discretion in denying Defendant s mistrial motion. 3 CONCLUSION ¶21 Defendant s convictions and sentences are affirmed. ___/s/__________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/_____________________________ PATRICIA K. NORRIS, Presiding Judge ___/s/_____________________________ PATRICIA A. OROZCO, Judge 3 Defendant also objected to the prosecutor s argument that Defendant had confessed to his roommates. The court found this argument to be a reasonable inference based on the trial evidence. Although Defendant mentions this issue in his brief, he does not challenge the court s conclusion that the argument was proper. 12

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