State v. Jeriha
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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. ) ) DEREK SAMUEL JERIHA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 06/21/2011 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 10-0447 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-127783-002 DT The Honorable John R. Hannah Jr., Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix Coppersmith Schermer & Brockelman P.L.C. By James J. Belanger and Scott M. Bennett Attorneys for Appellant Phoenix B R O W N, Judge ¶1 two Derek Samuel Jeriha appeals from his convictions on counts Jeriha of argues introduction made that of improper argument. armed robbery the trial prejudicial remarks in and two court evidence his counts erred and opening by that of kidnapping. permitting the statement the prosecutor and closing Because no objection was made to any of these matters in the trial court, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Finding no fundamental error, we affirm. BACKGROUND ¶2 trial. The State presented evidence of the following at On the morning of January 13, 2009, Nick was at the apartment of his girlfriend, Heather. Also present were two of Heather s friends, Michelle and Lee. After Nick awoke and came into the living room, Heather informed him that Jeriha had just stopped by about a cell phone she was selling and that he would be right back. Nick and Heather were familiar with Jeriha, as he was Heather s ex-boyfriend. ¶3 A short time later, the front door to the apartment burst open and Jeriha and two other men entered the apartment with handguns. masks. The two men with Jeriha were wearing black ski Nick recognized Jeriha and also recognized one of the masked men from his voice and his tattoos as Jeriha s friend, Dylan Gormey. The men beat Nick and then bound him and Heather 2 together on the floor with duct tape. While one man kept a gun trained on Nick and Heather, the other two went through the apartment, Jeriha trashing told Nick, it and This taking is what things. you get Before for leaving, stealing my girlfriend. ¶4 Once the three men left, Lee, who Nick believed was a friend of Jeriha or Gormey, unbound Nick and Heather. Michelle and Lee left shortly thereafter and Nick and Heather began going through the apartment to determine what was taken. that Nick s wallet, keys were missing. telephone, 9-millimeter They found handgun, and car A short time later, Nick also discovered that the vehicle he had borrowed from his grandmother was gone. ¶5 After initially considering handling the himself, Nick called the police to report the robbery. matter Because Heather had a warrant out for her arrest, she left before the police responded. detective detective unit, showed The and robbery about Nick three report was months after photographic photographs of Jeriha and Gormey. lineups forwarded the to the robbery, that a contained Nick identified Jeriha and Gormey as two of the men who committed the robbery. ¶6 On April 23, 2009, police executed a search warrant at the apartment where Gormey resided with his girlfriend. Jeriha, Gormey, and Gormey s girlfriend were present at the apartment when the search occurred. In the apartment, police found a 3 wallet containing Nick s school identification, bank card, and various other cards with his name, all taken in the robbery. Also recovered were Heather s identification and various cards bearing her name. Police additionally found, among other items, a shotgun, a BB gun that looked like a semi-automatic handgun, a magazine loaded with .45 caliber ammunition, and other loose handgun ammunition. ¶7 Jeriha and Gormey were each indicted on two counts of armed robbery, a class 2 dangerous felony; one count of aggravated assault, a class 4 felony; two counts of kidnapping, a class 2 dangerous felony; and one count of theft of a means of transportation, a class 3 felony. on three counts of misconduct Gormey was further indicted involving weapons, a class 4 felony. ¶8 Jeriha and Gormey were tried jointly. At the close of the State s case, the trial court entered judgment of acquittal on the charges of misconduct involving weapons against Gormey. The jury convicted Jeriha and Gormey on the armed robbery and kidnapping counts, but acquitted them on the aggravated assault and theft of means of transportation charges. sentenced terms. Jeriha to concurrent Jeriha timely appealed. 4 presumptive The trial court 10.5-year prison DISCUSSION ¶9 Jeriha contends the improper prejudicial evidence. trial court erred in admitting Because Jeriha did not object to the evidence in question, he has forfeited appellate review of his claims absent fundamental error. standard of review, Jeriha bears Id. the Under this limited burden of establishing error, that the error was fundamental, and that the error caused him prejudice. Id. at 568, ¶ 22, 115 P.3d at 608. Error is fundamental only when it reaches the foundation of a defendant s case, takes from him a right essential to his defense, and is error of such dimension that he could not have possibly received a fair trial. ¶10 Id. at 567, ¶ 19, 115 P.3d at 607. All three categories of evidence Jeriha challenges on appeal relate solely to co-defendant Gormey. The first category of evidence is described by Jeriha as an arsenal of deadly weapons found at the apartment of [Gormey s] girlfriend. The second category consists of evidence of sexually provocative posters on the walls of the girlfriend s apartment. category probation is by evidence residing that at Gormey in violation of girlfriend s his was The third his apartment without informing his probation officer. ¶11 Even if we were to conclude that the trial court erred in admitting the challenged evidence, which we do not decide, the admission of this evidence simply does not rise to the level 5 of fundamental error. Fundamental error occurs only in rare cases and usually, if not always, involves the loss of federal constitutional rights. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977)). ¶12 To qualify as fundamental error . . . the error must be clear, egregious and curable only via new trial. at 155, 812 P.2d at 628. Id. Here, the alleged errors are common and involve the admission of essentially irrelevant evidence, which could have been easily remedied if objections had been made. ¶13 Contrary to Jeriha s contention, any error in the admission of these three categories of evidence would not have impacted the fairness of his trial. Jeriha concedes that the shotgun and the ammunition found at the girlfriend s apartment were properly charges. admissible on misconduct involving weapons The majority of the balance of the weapons evidence on which Jeriha based his first claim of error are various types of medieval and collectible weapons, which were on display in the apartment. Jeriha s argument inflamed a possessing by person substantial logical support. the apartment were not that such a jury a would collection likely be lacks any Similarly, the posters found in overly provocative and similar items could likely be found in apartments around the country where men 6 reside. It is therefore improbable that a jury would be offended by such materials to the point that it would affect the outcome of the case. ¶14 The evidence that Gormey was in violation of his probation does present some possibility of prejudice to Gormey. Again, however, any prejudice would be relatively minor as the violation was technical in nature: the failure to notify his probation officer of the change in his residence. Thus, even if there was error in the admission of this evidence, there is no basis to conclude that this error was so egregious and of such a dimension as to make a fair trial impossible for Jeriha. ¶15 Moreover, none of the claimed errors in the admission of evidence can be considered as going to the foundation of Jeriha s case or taking from him a right essential to defense. The defense presented by Jeriha at trial was that Nick held a grudge against him and was lying about the robbery. his The three categories of evidence alleged to have been improperly admitted have no relation to this defense. Nor do they pertain to the credibility of either Nick or Jeriha. Accordingly, we conclude his that Jeriha has failed to meet burden of establishing the existence of fundamental error with respect to the admission of the three categories of evidence challenged on appeal. 7 ¶16 In addition, Jeriha has failed to meet his burden of proving he was prejudiced by the alleged errors. There was no suggestion at trial that Jeriha had any direct connection to the weapons or posters in the girlfriend s apartment or any role in Gormey s violation of probation. Jeriha s argument that any prejudice these from the admission of three categories of evidence would spill over from Gormey because they were charged as accomplices and tried together is insufficient because it is purely speculative. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006) (finding that prejudice for purposes of fundamental error review cannot be based solely on speculation). Further, to the extent that any possibility of spillover exist, did it was mitigated by the trial court s instruction that each defendant was entitled to have the jury determine guilt based on the defendant s own conduct and from the evidence instruction, evidence guilty. applicable to that the jury is against each defendant defendant. presumed to have separately With such considered in finding an the both State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995). ¶17 Jeriha also argues that error occurred in both the prosecutor s opening statement and closing argument. As with the claims of error in regards to the admission of evidence, Jeriha did not raise either of these issues below. 8 Thus, our review is again limited to fundamental error. Ariz. at 567, ¶ 19, 115 P.3d at 606. ¶18 Jeriha evidence in Henderson, 210 asserts the the opening prosecutor statement. misstated In the State s particular, Jeriha complains that the prosecutor informed the jury that during the robbery, Gormey lifted his ski mask and told Heather that she was getting what evidence of this prosecutor s she deserved. presented statement at Noting trial, prejudiced that Jeriha him by there argues was that exaggerating no the the State s case and presenting a sinister image of Gormey. ¶19 We find no reversible error. Although no evidence was presented at trial consistent with the prosecutor s statement, this does not render the statement prejudicial error. court instructed the jury, before opening The trial statements, that [w]hat the lawyers said or will say [in opening statements] is not evidence and that [y]ou are to determine the facts only from the testimony of witnesses and from the exhibits received in evidence. The trial court repeated these instructions prior to the jury commencing deliberations. Accordingly, Jeriha is unable to meet his burden of proving any prejudice from the prosecutor s opening statement. 336, 339-40, 580 P.2d See State v. Bowie, 119 Ariz. 1190, 1193-94 (1978) ( Any possible prejudice from the opening statement was overcome by the court s cautionary instructions that evidence 9 did not come from the attorneys and that the verdict must be determined only by reference to the evidence[.] ). ¶20 Jeriha also argues that the prosecutor committed error during closing argument by suggesting that the defendants had the burden of proving their innocence with the following remarks: First of all, he has people coming into his home, right, Dylan and Derek who he s able to identify. If he s made this up, does he know whether or not they re going to have people who can come and say, you know what, Dylan and Derek, they were with me at that time. We saw them DJ-ing. We ve got 300 people who were at a party seeing him DJ as he does into the early mornings. According to Jeriha, these remarks shifted the burden of proof by faulting witnesses. the defendants for failing to produce alibi When viewed in context, however, these remarks are readily understood as merely part of an argument addressing the victim s credibility. ¶21 told As a prelude to the remarks at issue, the prosecutor the jury that he was going to talk about just how incredibly stupid [the victim] would have to be to make up a story like this. Immediately after the remarks in question, the prosecutor continued along the same line: Would it be incredibly stupid for him to pick victims where he doesn t know if they re going to be able to produce a receipt that says, you know, I was at a Denny s restaurant or any other kind of 10 restaurant? stupid. That would be incredibly It would be incredibly stupid of him to pick victims when he doesn t know if they re going to be able to produce, say, a cell phone record that shows that they were making a call on the other side of town or on the other side of the state where you might be able to look at their cell phone record and say, yep, this person was making a call around 8 o clock in the morning, all the way across town, they couldn t have been up on Cave Creek and Bell Road. That would be just an incredibly stupid thing to make up if you were going to make up this story. In short, the prosecutor was not telling the jurors that the defendants were obligated to establish an alibi, but rather merely explaining to the jury why it would not make sense for Nick to fabricate a story about being robbed by defendants when it might be easily disproven. argument. 345, 360 There is nothing improper in this See State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d (2000) (noting prosecutors have presenting their arguments to the jury ). wide latitude in Thus, there was no error, let alone fundamental error, in the prosecutor s closing argument. 11 CONCLUSION ¶22 Based on the foregoing, we affirm Jeriha s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ____________________________________ DONN KESSLER, Judge 12
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