STATE v. GARZA

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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. ) ) PEDRO RAMON GARZA, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 6/11/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0775 DEPARTMENT D MEMORANDUM DECISION (Not for Publication -Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2010-152396-001 DT The Honorable Lisa M. Roberts, Commissioner AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Andrew Reilly, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix Phoenix T H O M P S O N, Presiding Judge ¶1 Pedro convictions endangerment, Ramon and a Garza sentences class 6 (defendant) for one dangerous appeals count felony, of one from his reckless count of disorderly conduct, a class 6 dangerous felony, and misconduct involving weapons, a class 4 dangerous felony. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 On the evening of September 26, 2010, defendant fired a gun from inside his apartment. A neighbor called police after hearing a loud noise and finding a bullet hole in his apartment ceiling and a damaged neighbors were evacuated. exit his apartment, piece of furniture. The The police instructed defendant to but he did not do so. Awhile later, defendant fired five or six more gunshots inside the apartment. ¶3 apartment. Shortly thereafter, defendant emerged from his He appeared to be confused and angry and he yelled and threw some cardboard and a suitcase off of the balcony. The SWAT team entered the apartment while defendant was still on the balcony and arrested him. Police found a loaded handgun and ammunition, shell casings, and approximately twenty bullet holes in the apartment. ¶4 The state charged defendant with one count of reckless endangerment, a class 6 dangerous felony, one count of disorderly conduct, a class 6 dangerous felony, and misconduct involving weapons, a class 4 dangerous felony. The trial court held a competency hearing and found defendant competent to stand 2 trial. After a jury trial, defendant was convicted as charged. ¶5 The trial court sentenced defendant to mitigated sentences of two years in prison on each of the first two counts and a mitigated sentence of five years in prison on the third count, to be served concurrently. The court gave defendant credit for 257 days of presentence incarceration. timely appealed. Section 9 of the Defendant We have jurisdiction pursuant to Article 6, Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010). DISCUSSION ¶6 committed The sole issue on appeal is whether the prosecutor prosecutorial misconduct when he asked a police detective during direct examination whether defendant appeared to be sober. Defendant argues that the prosecutor s question denied him a fair trial because questions about his sobriety had been precluded by the trial court s ruling on his motion in limine. Because defendant did not raise the issue of prosecutorial misconduct below, we review for fundamental error. See State v. Rutledge, 205 Ariz. 7, 13, ¶ 30, 66 P.3d 50, 56 (2003) (citations omitted). ¶7 Prior to trial, defendant filed a motion in limine. In his motion, defendant stated that purported marijuana, trace 3 amounts of a substance believed to be methamphetamine and purported performance enhancing drugs had allegedly been found during the search precluding the photographs or purported of state his from testimony illicit apartment. drugs, He introducing regarding drug the requested in its order case-in-chief alleged paraphernalia an discovery and of performance enhancing drugs allegedly found in his apartment. The state agreed that it would not offer such evidence in its case-inchief, but reserved its right to impeach the defendant with the evidence if he took the stand. ¶8 The state called Detective Douglas Hunt to the stand. Detective Hunt was called out to the scene the night of the shooting. He helped secure and search defendant s apartment. He did not see the defendant, however, until he returned to the police station. After Detective Hunt identified defendant in the courtroom, the prosecutor asked him how defendant was acting the night of the appeared fidgety. appeared sober. shooting. Hunt responded that defendant Then the prosecutor asked whether defendant Defense counsel objected to the question on evidentiary grounds: MR. LOCKHART: Here s my concern, he s trying to do something that he can t do because of the motion without using the words to do it without the proper foundation to do that. Now if he wants to ask if he s antsy or something but anything that would 4 suggest that he s somehow on some type of substance that they have no proof of I have no objection to that. . . . [Prosecutor]: A person, a witness, can make a lay opinion on whether or not someone is intoxicated or not. I instructed my Detective not to mention anything about methamphetamine or marijuana but he can make the he can make the observation whether or not the guy appeared intoxicated. MR. LOCKHART: as to that. Here s the problem foundation THE COURT: [W]hen you say intoxicated are you referring to alcohol intoxication or some other kind? [Prosecutor]: Just general intoxication . . . I m not going to go into what [Detective Hunt] believed [defendant] was on . . . but the jury has now heard the Defendant s demeanor and state of mind and he can make a lay opinion whether he was sober or intoxicated and there won t be any evidence of what intoxicating substance [it was]. Mr. Lockhart: Yes, I don t have any problem [with] him saying did he smell alcohol, something along those lines but anything other than that Judge I think you re going to tip the scale into speculation into the jurors mind to what else it could be. THE COURT: Again, the concern I have is that I don t know if we re talking about alcohol intoxication or drug intoxication. So, was there an odor of alcohol on him? [Prosecutor]: I don t think so. They appeared to think he was on a drug but I mean I won t go into that. But his state of 5 mind, how he was acting, the rationality of it is relevant. THE COURT: Well I agree you can ask about if he was fidgeting and what, how he was behaving physically but I m not going to allow you to go into observations that imply that he was under the influence when there s no proof that he was. Okay. (Bench conference ends). [Prosecutor]: Describe his body movements. [Detective Hunt]: Fidgety. My best recollection, you know, like this a lot of this. I believe that was prior to my interview with him. Thus, Detective Hunt was ultimately not permitted to opine whether or not he thought defendant was sober, but instead only allowed to describe defendant s physical demeanor. ¶9 merely Prosecutorial the result of misconduct legal is error, conduct that negligence, is mistake, not or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial. Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). Here, there is no evidence that the prosecutor intentionally tried to introduce the evidence of illegal drugs found in defendant s apartment excluded by the trial court pursuant to the motion in limine. The prosecutor s unanswered question about defendant s sobriety did not amount to 6 prosecutorial misconduct, let alone fundamental error depriving defendant of a fair trial. ¶10 For the foregoing reasons, we affirm defendant s convictions and sentences. /s/ __________________________________ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ ___________________________________ DONN KESSLER, Judge /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge 7

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