State v. Lee
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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.
TODD MAURICE LEE,
Appellant.
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1 CA-CR 09-0790
DIVISION ONE
FILED: 09/15/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
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(Not for Publication –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 2008-030208-001-DT
The Honorable George H. Foster, Jr., Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Barbara A. Bailey, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
by
Stephen R. Collins, Deputy Public Defender
Attorneys for Appellant
Phoenix
B R O W N, Judge
¶1
Todd Maurice Lee appeals his convictions and sentences
for one count of first-degree murder, one count of assisting a
criminal
street
weapons,
one
gang,
count
of
two
counts
discharge
of
of
misconduct
a
firearm
involving
at
a
residential structure, and two counts of aggravated assault.
argues
the
trial
court
abused
its
discretion
in
denying
nonHe
his
Batson 1 challenge, the prosecutor improperly vouched for nontestifying witnesses in her opening statement, and the State’s
gang expert improperly vouched during his testimony that Lee
committed the murder.
For the following reasons, we affirm.
BACKGROUND
¶2
The
favorable
following.
to
evidence
at
upholding
trial,
the
viewed
in
convictions,
the
light
most
demonstrated
the
On December 31, 2007, Lee approached a car that was
being driven by Mikesha in the area of 21st and Hidalgo avenues
in Phoenix.
Trevone, Mikesha’s brother, sat in the back seat,
and her cousin, Raymond, sat in the front passenger seat.
Lee
was a documented member of the Lindo Park Crips criminal street
gang.
Trevone and Raymond were documented members of the Vista
Bloods,
a
engaged
in
rival
a
criminal
gang
war
at
street
the
gang.
time,
animosity between Lee and Trevone.
and
The
two
there
gangs
was
were
personal
Words were exchanged, and as
the victims drove away, Mikesha saw, in the rearview mirror, Lee
1
Batson v. Kentucky, 476 U.S. 79, 89 (1986)
2
pull out a gun and start shooting at them.
Mikesha called 9-1-1
as she drove to a nearby medical clinic for help for Raymond,
who had been shot. He did not survive.
Trevone’s girlfriend,
Kimesha, testified that she ran to the scene of the shooting
after hearing the shots and saw Lee running, and no one else in
the vicinity.
¶3
At the time of the shooting, Lee was on probation for
a prior felony conviction and was a prohibited possessor. When
he was arrested a week later, Lee told police, “I didn’t think
you guys would get here that fast.”
¶4
Lee
testified
at
trial
that
contrary
to
Mikesha’s
testimony he did not shoot at the vehicle, but ran from it when
he
thought
weapon.
he
saw
someone
in
the
back
seat
reaching
for
a
He testified that as he ran, he saw Trevone standing
outside the car, heard gun shots, and felt bullets “flying past
my head.”
Two of Lee’s cousins testified that they were with
Lee when he approached the victims’ car and they ran after Lee
when they saw him start to run; then they heard gun shots as
well.
None of them called 9-1-1 after the shooting.
¶5
The jury found Lee guilty of first-degree murder of
Raymond,
two
counts
of
aggravated
assault
of
Mikesha
and
Trevone, two counts of misconduct involving weapons, and one
count
each
of
discharge
of
a
a
non-residential
structure and assisting a criminal street gang.
The jury found
3
firearm
at
as
aggravating
circumstances
that
the
offenses
involved
the
infliction or threatened infliction of physical injury and were
committed
with
the
intent
to
promote,
criminal conduct by a criminal street gang.
further,
or
assist
Following the trial
court’s imposition of a life sentence on the murder conviction
and lesser terms on the other counts, Lee filed a timely notice
of appeal.
DISCUSSION
I.
¶6
Batson Challenge
Lee argues that the trial court erred in denying his
Batson challenge because the prosecutor’s initial reasons for
striking Juror No. 70, the only African-American on the panel—
that she was not invested in the community because she was not
married, had no children, and was very young—were so general
that they could be used as a “pretext for striking every young
African-American from jury panels in all trials.”
He argues
that Juror No. 70’s responses to voir dire failed to support the
prosecutor’s other reasons for striking this juror: that she was
uneducated, and she could not remember any details of a trial on
which she had served as a juror only two years before.
He
argues that it “blinks reality to deny” that the prosecutor
excluded the only African-American from the jury for any reason
other than race.
4
¶7
We
review
a
trial
court’s
decision
regarding
the
prosecutor’s motives for a peremptory strike for clear error.
State v. Murray, 184 Ariz. 9, 24, 906 P.2d 542, 557 (1995).
“We
give great deference to the trial court’s ruling, based, as it
is, largely upon an assessment of the prosecutor’s credibility.”
State v. Cañez, 202 Ariz. 133, 147, ¶ 28, 42 P.3d 564, 578
(2002).
¶8
The
Amendment
Equal
prevents
Protection
the
Clause
prosecution
jurors based solely upon race.
Batson
challenge
challenging
the
proceeds
strikes
three
make
discrimination;
(2)
the
striking
neutral
for
the
strike;
reason
Fourteenth
striking
from
the
prospective
Batson, 476 U.S. at 89.
in
must
of
a
steps:
prima
party
and
‘(1)
facie
must
(3)
the
if
a
party
showing
provide
a
“A
of
race-
race-neutral
explanation is provided, the trial court must determine whether
the
challenger
has
carried
racial discrimination.’”
its
burden
of
proving
purposeful
State v. Roque, 213 Ariz. 193, 203,
¶ 13, 141 P.3d 368, 378 (2006) (citations omitted).
For the
purposes of step two, the State’s burden is satisfied by a
facially valid explanation, which need not be “persuasive, or
even plausible.”
State v. Newell, 212 Ariz. 389, 401, ¶ 54, 132
P.3d 833, 845 (2006).
However, during the third step, the
persuasiveness
justification
of
the
becomes
relevant
and
“implausible or fantastic justifications may (and probably will)
5
be found to be pretext[ual].”
Id. (citation omitted).
It is
during this step that the trial court evaluates the credibility
of the state's proffered explanation, considering factors such
as “the prosecutor’s demeanor . . .
how reasonable, or how
improbable, the explanations are . . . and . . . whether the
proffered rationale has some basis in accepted trial strategy.”
Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 339 (2003).
¶9
Lee is African-American.
The State exercised one of
its peremptory strikes on Juror No. 70, and Lee challenged the
strike on Batson grounds, noting that Juror No. 70 was the only
African-American juror remaining on the panel after the trial
court had completed the process of excusing jurors for cause.
The court found that the defendant had made a “proper basis for
a Batson challenge” and asked the prosecutor to articulate the
reasons for the strike.
¶10
The prosecutor responded that Juror No. 70 did not fit
the “demographic” the State wanted in its jurors, which included
persons who were married, had children, were educated, and “who
otherwise had a stake in the community, an investment in the
community; things that they wanted to uphold and protect and
cherish, being children and spouses.”
The prosecutor explained:
[Juror No. 70] doesn’t fall into any of those
categories. By her answers, she demonstrated
to us that she’s not educated, and I’ll give
you a direct quote.
When asked on her
demographics on the back of her jury card,
6
she said, and I quote,
husband, end quote.
I
ain’t
got
no
She has no children. [W]hen answering about
her jury service –- which she’s very young[,]
[t]hat was just also not one of our target
jurors, was her age; and you’ll see our other
strikes had to do with some age – she said,
she couldn’t remember what she served on.
That was very troubling to us. If you’ll
recall, the other jurors who had said they
had prior jury service . . . could articulate
what it was about, what they served on the
jury for; and we find it very troubling, from
the State’s point of view, that someone of
her age who, by necessity, had to have served
on a jury fairly recently could not recall
anything about it except, and I quote, not
guilty, from the State’s point of view, we
obviously don’t like the words, not guilty,
and if that’s the only thing that young woman
can remember about her time as a juror, it
gives us great pause as to: one, did she take
that jury service very seriously of that
voting not guilty.
Now, she did say, or I think you elicited
from her that it was civil and not criminal.
We’re still troubled by that, and I think I
have
articulated
several
non-[race]
and
[race] neutral reasons for our strike, and I
ask that you uphold our strike.
Asked to respond, Lee argued that Juror No. 70 had performed her
civic duty by serving as a juror, had relatives in the Phoenix
Police Department, and was similarly situated to other jurors
who
were
unmarried
and
single
mothers,
and
accordingly
he
believed the strike was racially motivated.
¶11
The
trial
court
disagreed
with
the
prosecutor’s
conclusion that Juror No. 70 had no education based on her
7
statement, “I ain’t got no husband.”
The court concluded that
the statement “doesn’t mean she doesn’t have education; it’s
just that she doesn’t have very good grammar.”
The court also
disagreed with the prosecutor’s conclusion that young, unmarried
females with no children were “not invested in society,” in the
absence of any admissions by the prospective jurors that they
“didn’t like their home, their job, their investment in life.”
The court, however, found that the State had met its burden of
showing that there was a race-neutral reason for the strike,
reasoning:
In this case, this particular juror seems to
indicate that they’ve [sic] been in this
community for a period of time. Their [sic]
last jury service was two years ago.
The
notion that a person can serve on a jury only
two years ago and not know anything and not
be able to articulate anything about the case
would support a rational – any reasonable
person
to
question
that
person’s
true
interest in this process.
While this court may disagree that a person
[who] is not married and [has] no children –
to say that person’s not invested in the
community assumes too much, and the court
does not believe that those are valid
reasons, but the reason offered that the
person in question appeared not to be vested
– not so much in the community, but in this
process is a legitimate reason for striking
that person from a jury.
The court further notes that the jury –
jurors that have – the other jurors that
have removed, all of them are not, as we say
in this community, Anglo or White.
There
are a number of persons who identified
8
themselves on the biographical information
as Hispanic or Latino; . . . therefore,
given the totality of the circumstances, the
Court cannot say that there was not a [race]
neutral reason for striking Juror No. 70.
The Batson challenge is denied.
¶12
The court found that the State satisfied the second
step of the Batson challenge by offering a facially race-neutral
explanation
for
the
strike,
that
is,
that
the
prospective
juror’s inability to articulate anything about her service on a
jury two years prior suggested she would not be invested in the
judicial process if she were chosen for this jury.
The court
additionally found that the prosecutor’s concern about whether
this
juror
would
take
seriously
her
service
on
a
jury
was
reasonable and concluded that it was not simply a pretext for
racial discrimination.
¶13
We
cannot
say
that
the
discretion in making these findings.
trial
court
abused
its
See Cañez, 202 Ariz. at
147, ¶ 28, 42 P.3d at 578 (“We give great deference to the trial
court’s ruling, based, as it is, largely upon an assessment of
the prosecutor’s credibility.”).
Asked if anyone had served on
a jury in the past, Juror No. 70 responded, “Yes, and it was a
civil, and it was not guilty. It was, like, a --.”
After
clarifying that it was not a criminal case, but a civil case, in
Arizona, the court asked her, “Do you remember what . . . it was
all about?
Was it a car accident?”
9
Juror No. 70 responded, “I
can’t really remember. It was a long time ago, Sorry.
just know, it was. . .”
All I
The court then asked, “Okay. Anything
about that experience that you think might interfere with your
ability to be fair and impartial?”
Juror No. 70 responded,
“No.”
¶14
We are not persuaded by Lee’s argument that Juror No.
70 was prevented from explaining what the prior case was about
because the trial court interrupted her twice.
from
the
record
explanation,
or
whether
simply
the
resumed
juror had stopped speaking.
this
juror
from
court
explaining
We cannot tell
interrupted
asking
this
questions
juror’s
because
the
Had the court in fact prevented
what
the
prior
case
was
about,
however, we would anticipate that defense counsel or the trial
court would have said so during the discussion on the Batson
challenge.
Neither mentioned it.
record
Lee’s
by
argument
that
Nor are we convinced on this
the
prosecutor’s
failure
to
question this juror further on her prior jury service shows that
her inability to recall what the case was about was simply a
pretext for striking her because she was African-American.
The
prosecutor’s reasoning was not only that she did not remember
what the case was about, but that she was so young that her
service could not have occurred that long ago, a circumstance
that the trial court also found concerning.
We also reject
Lee’s argument that the prosecutor repeatedly mischaracterized
10
Juror No. 70’s service on a jury in a civil case by referring to
the verdict as “not guilty.”
The State explained that although
the trial for which this person served as a juror was described
by her as a civil trial, “not guilty” nevertheless was a phrase
the State did not like to hear.
¶15
Lee asserts, however, that regardless of the above
analysis,
the
prosecutor’s
conclusion
that
Juror
No.
70
was
uneducated based on her statement, “I ain’t got no husband,” and
that she had no investment in the community based on her lack of
marriage and children, were pretextual and therefore grounds for
reversal.
See State v. Lucas, 199 Ariz. 366, 369, ¶¶ 11, 13, 18
P.3d 160, 163 (App. 2001) (even if one of the State’s claimed
reasons is valid under Batson, reversal is required if the State
considers any discriminatory factor in making the strike).
But
we have repeatedly found that marital status, age, work history,
and
education
are
striking jurors.
appropriate
and
race-neutral
reasons
for
State v. Sanderson, 182 Ariz. 534, 540, 898
P.2d 483, 489 (App. 1995) (noting that “[p]rospective jurors’
age, marital status and lack of employment have been identified
as
non-discriminatory
reasons
supporting
the
exercise
of
peremptory strikes”); State v. Rodarte, 173 Ariz. 331, 334-35,
842 P.2d 1344, 1347-48 (App. 1992) (finding no Batson violation
in strike based on work history and marital status).
although
the
trial
court
disagreed
11
with
the
Moreover,
prosecutor’s
conclusion that this prospective juror was uneducated based on
her statement, “I ain’t got no husband,” or that she had no
investment in the community based on her lack of marriage and
children, the court did not suggest that these reasons were
simply a pretext for discrimination, or that they were not raceneutral.
See Newell, 212 Ariz. at 401, 132 P.3d at 845 (the
trial court is in a better position to determine whether the
defendant
has
established
purposeful
discrimination,
because
this inquiry is fact-intensive and turns on credibility).
assume
the
trial
court
was
aware
of
Lucas
and,
if
it
We
had
concluded the other reasons offered by the prosecutor for the
peremptory strike of Juror No. 70 were pretextual, it would have
granted Lee’s Batson challenge.
We therefore find unpersuasive
Lee’s argument that these reasons were race-based and tainted
the entire process, requiring reversal.
¶16
Nor do we find the facts in this case similar to those
in Miller-El v. Dretke (Miller-El II), 545 U.S. 231 (2005), on
which Lee also relies.
In Miller-El II, the United States
Supreme
the
Court
violation
held
based
that
on
defendant
extensive
had
evidence,
shown
a
including
Batson
the
prosecutor’s peremptory strike of ten of eleven black members
remaining on the venire panel after others were excused for
cause or by agreement; a side-by-side comparison that revealed
the prosecutor had mischaracterized black jurors’ responses in
12
voir dire, questioned black and nonblack jurors differently, and
failed to strike nonblack jurors with identical responses; the
State repeatedly “shuffled” the jury with the apparent purpose
of repositioning black jurors to a higher juror number; and a
policy and past history by the office of systematic exclusion of
blacks from juries. Id. at 240-66.
Lee has failed to show the
same systematic discrimination and side-by-side comparison that
prompted the Supreme Court to find Batson error in Miller-El II.
On this record, we find no Batson error.
II.
¶17
Vouching Regarding Absent Witnesses
Lee argues it was reversible error “for the prosecutor
to vouch to the jury that there were witnesses who did not
testify, who could have testified in support of the prosecutor’s
version of the facts.”
Specifically, he argues that it was
improper vouching for the prosecutor to suggest during opening
statement, and the State’s gang expert to testify at trial, that
members of the rival gangs involved in the charged offenses
“will not testify in trials” because of the code of silence, and
it was not uncommon for witnesses of gang crimes to fail to come
forward,
become
uncooperative,
or
recant,
for
fear
of
retaliation.
¶18
opening
The background on this issue is as follows.
statement,
the
prosecutor
noted
that
during
During
trial,
“you’re going to hear a lot of gang testimony and you’ll hear
13
quite a bit of evidence regarding gang culture.”
She noted that
“Gangs gain their control power status by creating fear,” and
“it’s uncommon for gang members to cooperate with the police.”
She elaborated:
You’ll hear even if they’re victimized, it’s
uncommon for them to call and seek the help
of the police.
You’ll hear it’s uncommon
for them to rely on the justice system
because instead of the justice system, they
rely on revenge.
. . .
Gang members don’t [rely] on the justice
system they rely on revenge. They rely on
retaliation. Take matters into their own
hands and street justice mentality.
But
you’ll hear during the course of the trial
that it goes beyond that; beyond just taking
things into their own hands. Gang members
also don’t want to be labeled as snitches.
Being labeled as a snitch among gang members
makes you a target and ultimately it can get
you killed.
As a result, there is a
perceived
code
of
silence
among
gang
members.
Now other than gang members themsel[ves],
you’ll also hear testimony that in gang
related cases it’s uncommon . . . for
witnesses to come forward, especially when
crimes occur in the gang territory and
you’ll hear that often times witnesses don’t
come forward because they fear retaliation.
You’ll hear often times when a witness does
come forward and give information to the
police, that later on the police may not be
able to find them again because later
they’ll become uncooperative.
You’ll hear that sometimes witnesses who do
come forward initially will later recant or
14
change their story.
Now all of this gang
culture is important in this case because it
lays the groundwork for a lot of what you’re
going to see and what you’re going to hear
during the course of this trial.
¶19
The
State’s
gang
expert
subsequently
testified
at
length about the gang culture and a gang member’s violent way of
life. He testified that a gang member would support the gang “by
selling drugs, committing [felonies], [and] intimidating others
so they don’t inform the police of their activities.”
He stated
that gang members maintain a code of silence, and, instead of
reporting crimes to police, “[t]hey take care of matters in
their own hands.”
He explained that gangs retaliate against
community members who are not gang members when they “snitch,”
as part of a program of intimidation and violence, and it is not
uncommon for witnesses to gang crimes to recant.
¶20
Lee
did
not
object
at
trial
to
any
statement
the
prosecutor made in opening, or to the gang expert’s testimony on
witnesses’ traditional reluctance to report gang-related crimes
to police.
We accordingly review this issue for fundamental
error only.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19,
115
P.3d
601,
607
(2005).
Lee
thus
bears
the
burden
of
establishing that the trial court erred, that the error was
fundamental, and that the error caused him prejudice.
568, ¶ 22, 115 P.3d at 608.
Id. at
Fundamental error is error going to
the foundation of the case, error that takes from the defendant
15
a right essential to his defense, and error of such magnitude
that the defendant could not have received a fair trial.
Id. at
¶ 24.
¶21
There are “two forms of impermissible prosecutorial
vouching: (1) where the prosecutor places the prestige of the
government behind its witness; [and] (2) where the prosecutor
suggests that information not presented to the jury supports the
witness’s testimony.”
State v. King, 180 Ariz. 268, 276-77, 883
P.2d 1024, 1032-33 (1994) (citation omitted).
It is the latter
form of vouching about which Lee complains.
¶22
However,
we
find
no
error,
much
less
fundamental
error.
We construe the prosecutor’s arguments as placing in
context
the
evidence
at
trial,
including
the
gang
expert’s
testimony on the violent and intimidating nature of criminal
street gangs; the flight after the shooting of Trevone and his
subsequent
failure
to
cooperate
with
police;
the
uneven
cooperation of Mikesha, and the fear that prompted her to leave
town
after
the
shooting;
and
the
numerous
threatening
phone
calls made to Kimesha, one by a person whose voice she believed
was Lee’s, causing her to move out of state.
These statements
also provided some context to the failure of a defense witness
to call 9-1-1 after the shooting because he did not want to get
involved, and the inconsistencies in another defense witness’s
versions of events, as well as her reluctance to testify at
16
trial
because
of
threats.
The
gang’s
culture
of
fear
and
intimidation was relevant to place these witnesses’ testimony in
context, and to prove the gang-related nature of two of the
offenses:
assisting
a
criminal
street
gang
and
misconduct
involving weapons based on discharging a weapon at an occupied
structure to assist a criminal street gang.
¶23
We therefore cannot agree with Lee that either the
prosecutor’s opening statement or the gang expert’s testimony
was meant to, or did, clearly convey to the jury that the State
had witnesses who would corroborate its version of events, but
that they were too intimidated to testify.
We accordingly find
no error.
III. Expert Testimony
¶24
Lee next argues that “it was reversible error for the
prosecution’s ‘gang expert’ to vouch to the jury that [Lee]
committed the murder and the murder enhanced [his] gang status.”
Specifically, he points to the following exchange between the
State and the gang expert:
[State]: Would shooting at a car occupied by
Vista Bloods enhance the defendant’s status
within the Lindo Park Crips?
[Witness]: It did.
[State]: Would it also enhance the status of
the Lindo Park Crips as a whole?
[Witness] It did.
17
[State]:
And,
similarly,
besides
just
shooting
at
the
car,
would
actually
murdering
R.S.
enhance
the
defendant’s
status in the Lindo Park Crips?
[Witness]: It did.
[State]: Does it also enhance the gang and
their
power
and
respect
within
the
community?
[Witness]: Yes, it did.
Defense counsel did not object at the time, and instead elicited
testimony from this expert on cross-examination that if a member
of the Vista Bloods had come into the area controlled by the
Lindo Park Crips and shot at them, his gang status would have
been enhanced as well.
the
gang
expert’s
Because Lee did not object at trial to
testimony,
we
review
this
issue
for
fundamental error only.
¶25
Expert testimony is admissible if it “will assist the
trier of fact to understand the evidence or to determine a fact
in issue.”
See Ariz. R. Evid. 702.
An expert may rely on
evidence not admissible at trial in reaching his opinion.
R. Evid. 703; cf. State v. Smith,
Ariz.
215 Ariz. 221, 228-29, ¶¶ 21-
26, 159 P.3d 531, 538-39 (2007) (holding that medical examiner’s
discussion of prior examiner’s findings and opinions was not
hearsay nor in violation of defendant’s confrontation rights).
Moreover,
an
expert’s
opinion
is
not
inadmissible
merely
“because it embraces an ultimate issue to be decided by the
18
trier of fact,” but may be admitted if it assists the jury in
understanding
the
evidence.
Ariz.
R.
Evid.
704;
State
v.
Fornof, 218 Ariz. 74, 79-80, ¶ 21, 179 P.3d 954, 959-60 (App.
2008).
¶26
Here, the State did not offer the detective as a fact
witness who had investigated the homicide, but rather as an
expert
witness.
He
testified
he
had
expertise
in
criminal
street gangs and his role in this case was to show that the
shooting was gang-motivated.
This evidence was, at a minimum,
relevant and assisted the jury in its determination of whether
Lee committed the crime of assisting the interests of a street
gang.
See Fornof, 218 Ariz. at 79-80, ¶ 21, 179 P.3d at 959-60.
¶27
Moreover, the trial court adequately clarified that
the detective offered this testimony as an expert witness, not
as a fact witness.
asking
if
reputation
the
was
After receiving a follow-up jury question
expert’s
based
on
opinion
regarding
“documented”
fact,
Lee’s
or
was
enhanced
just
“a
professional opinion/judgment,” the trial court recognized that
this question “illustrate[d] the problem with jurors expecting
the experts to tell them what happened in a case and making a
factual
determination
for
them.”
The
trial
court
therefore
asked the detective whether he was offering the testimony as an
opinion based on his gang expertise.
The detective confirmed
that his testimony was based on his gang expertise as well as
19
his
knowledge
obtained
in
this
investigation,
other
investigations, and information from a variety of other sources.
The trial court was in the best position to ascertain whether
the detective’s testimony that the murder “did” enhance Lee’s
status in the gang, in response to the prosecutor’s hypothetical
questions on whether it “would” enhance his status, would have
had an improper impact on the jury.
See State v. Jones, 197
Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000).
We therefore find
no error.
¶28
On this record, in the absence of any objection at
trial, we are not persuaded that admission of the gang expert’s
opinion that the murder enhanced Lee’s status in the gang, an
opinion relevant to the issue of whether the shooting assisted a
criminal street gang, was error of such magnitude that Lee could
not have received a fair trial.
See Henderson, 210 Ariz. at
568, ¶ 24, 115 P.3d at 608.
¶29
Furthermore, Lee has failed to persuade us that the
jury could have acquitted him absent the expert’s testimony, as
required to reverse on fundamental error review.
569, ¶ 27, 115 P.3d at 609.
See id. at
The prosecutor did not mention in
closing the detective’s testimony that the murder “did” enhance
Lee’s status in the gang.
Rather, she argued that the offense
of assisting a criminal street gang had been proven in pertinent
part by the detective’s testimony that “this homicide would, in
20
fact, benefit the Lindo Park Crips.” (emphasis added.)
She
further argued that the offense of misconduct involving weapons
based on firing a gun at a structure to assist a criminal street
gang had been established in pertinent part by the detective’s
testimony that “shooting at a rival gang member’s car, whether
he kills someone or not, certainly benefits the Lindo Park Crips
and enhances their status as a violent gang.”
To convince the
jury that Lee was in fact the shooter, however, the prosecutor
instead
relied
on
the
testimony
of
eyewitnesses
Mikesha
and
Kimesha, the forensic evidence, and the implausibility of Lee’s
version
of
events.
On
this
record,
it
would
be
sheer
speculation to suggest that the jury could have acquitted Lee
had it not been for this expert testimony, an insufficient basis
for
the
review.
necessary
prejudice
to
reverse
on
fundamental
error
See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142
P.3d 701, 705 (App. 2006).
We accordingly find the trial court
did not fundamentally err by failing to sua sponte strike this
testimony.
21
CONCLUSION
¶30
For the foregoing reasons, we affirm Lee’s convictions
and sentences.
/s/_
________________________________
MICHAEL J. BROWN, Judge
CONCURRING:
/s/
____________________________________
PATRICIA A. OROZCO, Presiding Judge
/s/
____________________________________
DONN KESSLER, Judge
22
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